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Elder Law

Calling Mom Senile, Old and the B-Word Doesn’t Justify Restraining Order, Appeals Court Says

Posted May 19, 2011 7:18 AM CDT
By Debra Cassens Weiss

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A New Jersey appeals court has overturned a restraining order against a defendant who stole from his 88-year-old mother and called her a “senile old bitch.”

A trial judge had found the mother’s complaints about her 56-year-old son to be credible, and that the son was underestimating his mother. The woman had testified her son had stolen her car keys, cell phone, bank book, money and some jewelry. The son’s behavior, the trial judge said, amounted to harassment justifying a restraining order.

The Appellate Division of the Superior Court of New Jersey disagreed in an opinion issued last month. Under the First Amendment, speech cannot be punished under the harassment statute unless it is intended to harass the listener, the court said.

The defendant’s “senile old bitch” comment appeared to be based on his mistaken appraisal of his mother, rather than an intent to harass, the court concluded. The defendant did not appear at the hearing on the restraining order and evidence of intent was lacking, according to the opinion.

The court also found that the thefts were not an act of harassment under the statute.

Hat tip to the Volokh Conspiracy.

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