Posting Videos Trying to Get Prosecutor Fired = Illegal “Cyber-Harassment”

From J.V. v. C.H., decided June 18 by New Jersey appellate judges Lisa Rose and Patrick DeAlmeida; Carl and Jane are the court’s pseudonyms for the parties, which I’ll also use for convenience:

Defendant C.H. (Carl) appeals from a … final protective order (FPO) issued against him and in favor of plaintiff J.V. (Jane) pursuant to the Victim’s Assistance and Survivor Protection Act (VASPA)….

The parties first encountered each other in February 2023, when Jane, an assistant prosecutor, was assigned to a criminal case charging F.E., Carl’s former girlfriend, with third-degree burglary and third-degree theft charges allegedly committed against Carl….

Charges against F.E. for theft were later reduced and charges for violating a final restraining order were dropped, and Carl was upset:

Carl contacted Jane and her supervisors “indicating he was highly offended by the meeting,” “unhappy with how the meeting went,” and dissatisfied with the manner in which the prosecution was handled…. Jane explained Carl sent emails “multiple times a day” and their tone “became more angry and more accusatory in nature.” In particular, Jane testified she received “seventy-six emails in seventy-eight days, some of which were sent on multiple occasions on the same day.”

In his emails, Carl said “he had no faith in [Jane’s] prosecution of the case,” claimed she was lying to him, and stated, “you think you’re getting over, but soon you will see,” which Jane perceived as a threat against her. Carl also called “[t]wo to three times a day” and thrice appeared at her office without an appointment….

Carl then posted videos on his YouTube channel, “Rescuing Our Communities,” that

made general claims of racism against “these prosecutorial and law enforcement systems” and specific disparaging remarks against Jane. For example, in the first video, Carl referred to Jane as a “fat racist prosecutor chick rival to [him] for over a year”; “dumb-ass chick” who was “fucking pathetic”; and “the worst excuse for a prosecutor I’m going after (inaudible).”

In the videos, Carl said, among other things,

Do this to an innocent man (inaudible) and any group of people that would help him, you don’t deserve any type of political position. You should pray that I don’t get to check on you because anybody who was involved in this, you have made an enemy out of me. You should have left me alone. You should not have violated my rights. You should not have gone after my daughter. If you are involved in this, you can look in my eyes and you will know what I am saying to be true. You and I will have a day….

This prosecutor lied. This by definition is prosecutorial misconduct. If I can prove that I sent her these text messages that a defense attorney cross-examined me to incompleteness and she purposely withheld them, she has a problem. They’re mad at me. I don’t give a fuck, people. I’m going to get this lady’s job. She should not have done this….

So, … over the last couple of days I have cited misconduct by the prosecutor who is allegedly charging [F.E.] in the events that she committed against me. For anyone who has watched that video and watched the evidence I put up, you see definitively that that prosecutor lied.

I have audio of her admitting to it. I have emails. People this lady is done…..

This woman has lied through her teeth and now she’s afraid because I have proof that could cost her her job. But people I’m not going to stop. I’m going to file more litigation. I’m going to file the grievances.

The appellate court added that Carl had indeed “filed grievances with state and federal authorities” and had unsuccessfully “asked [Jane’s] office to replace her with another prosecutor” fourteen times.

The trial court issued a protective order under VASPA, which allows protective order requests to be filed by (among others) people who allege they were victims of “cyber-harassment,” defined to include

conduct that occurs, while making one or more communications in an online capacity … with the purpose to harass another … threatening to inflict injury or physical harm to any person or the property of any person ….

The order, among other things, required defendant to “delete all posts on his YouTube site that refer to Plaintiff” and barred him from “posting, false, derogatory, harassing statements in any form or in any online forum or platform that refer to Plaintiff … by name.” (Note that there was no finding by the court that defendant’s allegations about Plaintiff were indeed false or libelous.) And the appellate court upheld the order:

[The trial] court first addressed Carl’s claim that his statements in the YouTube videos were protected speech under the First Amendment…. Notably, the court … found “[Carl]’s videos [we]re designed to attack [Jane’s] property right … her job.”

The court thus found … Carl’s videos “serve[d] no legitimate purpose,” but rather “sought to impugn [Jane]’s character, integrity[,] and professionalism not simply out of spite, but specifically to bring about the end of her employment.” The court thus concluded, “Because [Carl]’s videotapes regarding [Jane] served no legitimate purpose, were made and disseminated with the purpose to harass [Jane] and designed to threaten her job, [Carl could] not avail himself of the cloak that is First Amendment protection.” …

[T]he court noted for more than one hundred years, our courts have repeatedly recognized “a calling, business or profession chosen and followed[,] is property.” Pursuant to its detailed analysis, the court therefore concluded Jane proved the predicate act of cyber-harassment under VASPA….

[T]he [trial] court cited Jane’s testimony and found, after viewing the first video, “[Jane] felt harassed and had safety concerns.” Further, in its credibility findings, the court noted “[Jane] conveyed a sense of anxiety.” The record supports Jane’s ongoing fear of Carl at the time of her testimony….

The crux of Carl’s argument … is the court erroneously determined Jane possessed a property right in her employment because she was a public “at-will” employee…. [W]e have recently reiterated [that] “[a] calling, business or profession, chosen and followed, is property.” …

And though Carl argued that “the trial court’s decision violates [his] First Amendment rights by restricting lawful speech on a matter of public concern,” the court concluded this “contention[] lack[s] sufficient merit to warrant further discussion in a written opinion.”

That seems incorrect to me, for reasons I laid out in Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases). But in any event, the decision struck me as worth passing along. For information on Carl’s unsuccessful lawsuits against Jane and others, see this decision (which defendant has appealed to the Third Circuit).