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State in Interest of H.D.

March 5, 1982

STATE OF NEW JERSEY IN THE INTEREST OF H.D., A JUVENILE


Leahy, J.s.c. (temporarily assigned).

Leahy

H.D. was adjudicated delinquent after a hearing for directing the words "you God-damned jerkoff," "fucking jerkoff" and "I'm going to kick the shit out of you" to a police officer while in custody in the North Plainfield Police Station. The incident followed continuous boisterous behavior and verbal harassment of the officer for several hours late in the evening of August 27, 1981. The language was addressed repeatedly to the officer in a loud voice as he was booking the juvenile on another offense.

When H.D. appeared to enter a plea counsel for the juvenile moved to dismiss the complaint for failure to make out a violation of N.J.S.A. 2C:33-2(b) as charged. The motion was

renewed at trial. H.D. was adjudicated delinquent and counsel then moved for a judgment of acquittal.

Counsel urges that this conduct will not support an adjudication of delinquency because if done by an adult it would not be a violation of N.J.S.A. 2C:33-2(b), which states

The essence of this argument is that this statute is unconstitutional since it may punish as a criminal act spoken words arguably protected by the First Amendment.

At the time of the hearing this court found that, under the circumstances, the words used by the juvenile did not constitute "fighting words" likely to cause an immediate breach of the peace or move the hearers to present violence. A police officer would not be expected to so react, especially in police headquarters. Thus, the only issue is whether the prohibition of unreasonably loud and offensively coarse or abusive language uttered with intent to offend a hearer's sensibilities violates the First Amendment's guarantee of freedom of expression. The issue is one of first impression after judicial and legislative reaction to the controversy surrounding the predecessor to this statute, N.J.S.A. 2A:170-29(1).*fn1

Counsel urges that the application of N.J.S.A. 2C:33-2(b) in the present case is governed by State v. Rosenfeld , 62 N.J. 594 (1973). Rosenfeld , after remand from the United States Supreme Court, 408 U.S. 901, 92 S. Ct. 2479, 33 L. Ed. 2d 321 (1972), for consideration in light of Cohen v. California , 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971), held that the predecessor

statute was limited to prohibiting utterance of "fighting words" only. The Rosenfeld Court expressly rejected an alternative formulation advanced in State v. Profaci , 56 N.J. 346 (1970), that the statute also prohibited language uttered to offend the sensibilities of the hearer. Recognizing the continued effect of Rosenfeld , we nonetheless reject this contention as applicable to the revised statutory language.

N.J.S.A. 2C:33-2(b) was enacted by the Legislature after Rosenfeld struck Profaci 's second alternative from the interpretation of the predecessor statute. Rosenfeld had expressly recognized that the decisions whether to further pursue regulation of offensive language and the appropriate method of doing so were policy decisions solely the province of the Legislature within the framework mandated by decisions of the United States Supreme Court, and stated,

No clearer indicator of a legislative intention to do so can be had; N.J.S.A. 2C:33-2(a) embodies the Rosenfeld "fighting words" test while subpart (b) proscribes offensive language much more ...


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