No Cursing Near Kids

November 16, 2014 permalink

In New Jersey cursing in front of a child is child abuse. The state supreme court is considering the constitutionality of the law applied to foster dad John Tate.

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NJ Anti-Cursing Statute Under Free-Speech Attack

Michael Booth, New Jersey Law Journal, November 11, 2014

Lawyers representing a Morris County man and the American Civil Liberties Union are asking the New Jersey Supreme Court to upend a 70-year-old statute that allows for a finding of neglect if an adult habitually uses foul language in front of a minor.

The lawyers told the court Nov. 10 that the statute, N.J.S.A. 9:6-3, is unconstitutional as it runs afoul of the First Amendment. The statute says a non-parent can be found guilty of a fourth-degree crime and be subject to a finding of neglect if he or she habitually uses “profane, indecent or obscene language” around a minor in that adult’s care so as to debauch the child’s morals.

Defendant John Tate has long finished his sentence after pleading guilty to that crime more than five years ago, but he is now seeking permission to withdraw the plea.

“It’s hard to imagine that the use of a swear word could equal a felony,” said Tate’s attorney, Jersey City, N.J., solo Michael Pastacaldi. “It leads to an absurd result.”

The statute, he said, has to be declared unconstitutional.

Pastacaldi posited the hypothetical situation in which a father and son are at a hockey game. The father lets the expletives fly at a series of bad calls and he suddenly finds himself facing criminal charges.

That is not what the Legislature could have intended, Pastacaldi said, adding that life, and the use of language, has changed markedly since that statute was enacted.

“There is the right of a father to be frustrated in front of his child,” Pastacaldi said.

Justice Barry Albin noted that Tate did not specify what language he used when he pleaded guilty to the crime.

“I agree,” Pastacaldi said. “That’s why this court should not accept that plea.”

The judge who took the plea, Albin said, should have asked Tate to be more specific.

“That’s correct,” Pastacaldi said.

The ACLU’s attorney, C.J. Griffin, told the court that it should declare the statute unconstitutional as it is written.

“Curse words cannot be criminalized,” Griffin, of Pashman Stein in Hackensack, N.J., said.

Under questioning from Albin, Griffin conceded that there is no constitutional protection for obscene speech, but added that obscene is difficult to define.

Many parents, she said, curse at the television in front of their children or use off-color language when telling a joke. Under this statute, Griffin said, “that could lead to an 18-month prison term.” That’s the maximum penalty for a fourth-degree crime.

Chief Justice Stuart Rabner asked if the frequency of the use of bad language mattered, and Griffin replied that it did not.

“Is this a matter of public importance?” Rabner asked.

“Yes it is,” Griffin said, “because of the sentencing threat.”

Albin said a ruling in Tate’s favor would mean that the court would be saying that it was OK to use off-color language at home.

“You can’t let an unconstitutional statute stand,” Griffin said.

Assistant Morris County Prosecutor John McNamara Jr. acknowledged that the use of off-color language is more prevalent and accepted today than when the statute was enacted.

Former New York Yankee Bucky Dent “has a middle name in our house,” he noted. The light-hitting Dent hit a three-run home run to lead the Yankees to a 5-4 win over the Boston Red Sox in the 1978 American League East tie-breaker game. Since then, he is commonly called Bucky F---ing Dent by Red Sox fans.

Nevertheless, McNamara pointed out that Tate was facing far more serious charges when he agreed to plead guilty to violating this statute.

“There were sufficient factual assertions that satisfied the judge,” he said. “Was it less than perfect? Should there have been a litany of terms? Perhaps. But there is still no basis to set it aside.”

Tate admitted to using language that could debauch the morals of a child, McNamara said. “He did admit to cursing.”

Tate originally was indicted in October 2003 on charges of first-degree sexual assault on a minor, second-degree endangering the welfare of a child and third-degree sexual contact with a child. If convicted, he could have been sentenced to up to 20 years in prison. Prosecutors alleged that he engaged in sexual acts with a 13-year-old boy between September and November 1999, when the youth was his foster son.

On June 4, 2009, prosecutors gave him a one-day offer to plead guilty to the statute now being challenged. He agreed to plead guilty and did so. Superior Court Judge Thomas Manahan sentenced Tate to 1,231 days in prison, which Tate had already served after he was originally indicted and was unable to post bail.

Tate attempted to withdraw his plea before being sentenced, Manahan rejected the motion and said Tate voluntarily had agreed to plead guilty. In March 2013, Appellate Division Judges Margaret Hayden and Joseph Lisa said they saw no reason to overturn Manahan’s ruling, and the Supreme Court then agreed to hear his appeal.

Contact the reporter at mbooth@alm.com.

Source: New Jersey Law Journal