Legal experts scoffed at that charge and two others in May after the arrest of Edward Forchion, also known as NJ Weedman, for berating Officer Herb Flowers on a sidewalk outside his business, NJ Weedman's Joint.
Footage of Forchion calling Flowers a pedophile was recorded and posted to Facebook and YouTube by another man, but Forchion commented on the video and admits "rubbing it in" and actively promoting it, particularly after his arrest three days after the interaction.
The Weedman says the confrontation began when, frustrated by dwindling customers because of alleged persecution, he held a sign on the sidewalk reading "We-R-Open F--k the Police."
In the video that's at the center of the case, Forchion calls Flowers a pedophile, asks "did you use a rubber on that little girl" and dares the officer to sue him for defamation.
It's unclear why prosecutors chose to ignore broad criticism and pursue an indictment, which was handed down without a celebratory press release on Sept. 16.
Casey DeBlasio, a spokeswoman for the Mercer County Prosecutor's Office, provided a copy of the indictment, which was first reported by The Trentonian on Thursday, but says the office is not allowed to comment on grand jury deliberations.
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Two other charges relating to Forchion's verbal confrontation with Flowers remain pending, DeBlasio says, and essentially travel with the cyber-harassment charge.
One of the other pending charges is for disorderly conduct for using "offensive language towards and against law enforcement officers in public and social media forum." Forchion says he only used the word "f--k," public utterance of which is protected by a 1985 state court precedent. The third charge is for possession of a small amount of marijuana found during the arrest, which could be tossed if the other charges are found unconstitutional.
"This is just going to make me a very rich man. I actually should thank the prosecutor, Mr. [Angelo] Onofri, for being an imbecile," Forchion tells U.S. News.
Forchion filed a civil lawsuit in August against Trenton police, alleging his civil rights are being violated.
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"I don't think it will go to trial, I think a judge will throw it out. But if it does go to trial they will never get 12 people to agree," Forchion says. "They will laugh just like I did. ... The law was created to protect kids on the internet, not 280-pound police officers."
Forchion believes local authorities are giving him a hard time because he advocates for the legalization of marijuana. But he says his case could have broad ramifications.
"Right now there is a lot of public animosity toward police officers that has nothing to do with me. This charge could be used against anyone sitting at home on the internet identifying a police officer and complaining about them," he says. "People laugh because it's Weedman, but it could happen to anyone if the police department and prosecutors decide they don't like them. We know how laws are incremental, and I think that's what the prosecutor is trying to do. ... This is the prosecutor's attempt to expand the cyberbulling law to protect public officials from scrutiny on the internet."
Forchion's attorney, Edward Heyburn, says he will sometime before Thanksgiving ask a judge to dismiss the charges.
"If this is cyberbullying, then anything that's said about Gov. Chris Christie that he finds offensive and is posted to YouTube or run in the mainstream news is cyberbulling, and anything said about Hillary Clinton or Donald Trump in New Jersey if they felt that was offensive, then that would be cyberbullying," Heyburn says. "It's a dangerous slippery slope they have embarked on."
Edward Forchion poses outside his restaurant in Trenton, N.J.
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Heyburn says he will offer a four-part attack on the cyberbullying charge. First, he will argue the law does not apply to statements about public figures. Second, he says, Forchion didn't even record or post online the statement, as he says the law requires be done by the person with an intent to harass. Third, he will argue that Forchion's alleged offense doesn't meet the elements required by the statute – as it was not "lewd, indecent, or obscene" as required by the law. And fourth, he says, he will argue truthful claims regarding adults should be given some protection – if such a carve-out does not exist, wanted criminal suspects could claim cyber harassment, he says.
UCLA law professor Eugene Volokh says a March decision from a New Jersey appellate court gives further weight to Forchion's defense. In that case, judges found a state law against harassment did not apply to "unprofessional, puerile, and inappropriate" comments posted in fliers by a jail employee who penned vulgar comment bubbles on a colleague's wedding photo.
Volokh says the ruling means the law protects a bitter ex-girlfriend's right to post online without criminal consequences that she broke up with her boyfriend because she believed he was a pedophile – though she still could face a defamation lawsuit.
Volokh says that alleging someone is guilty of a sex crime is not "lewd, indecent or obscene" as required by the cyber-harasssment law anyhow, and that in states like New Jersey without criminal libel laws, someone such as Officer Flowers would have to file a civil defamation lawsuit if they want to punish what they assert are false allegations.
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Forchion, who faces other criminal charges related to a long-running battle with local officials over his restaurant and a next-door cannabis "temple," says he believes what he says about the officer is accurate and that he would welcome a defamation lawsuit.
"I will say," Volokh says, "if [prosecutors] were looking for a test case, this seems to be the hardest test case for them to win precisely because it's criticism of a public official – if they win, then they set a precedent saying all sorts of criticisms of public officials are constitutionally unprotected."