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Binkowski v. State6/24/1999
dge also determined that the statute was not unconstitutional on the grounds of vagueness or overbreadth. He further concluded that the statute did not violate the Equal Protection Clause or interfere with the free exercise of plaintiff Binkowski's religion.
On appeal, as below, plaintiffs acknowledge that they have not challenged the statute "as applied." Indeed, none of the plaintiffs have engaged in any conduct proscribed by the statute, nor have they been charged with its violation. Their argument is that, on its face, the statute is an unconstitutional restriction on speech because it has only one purpose in mind: to regulate viewpoint. Plaintiffs maintain that those who convey the anti-hunting message will be subject to punishment, while proponents of hunting will not. They therefore contend the statute is an impermissible content-based regulation of speech and "expressive conduct" in violation of the First Amendment and New Jersey's constitution.
Defendants counter that the statute on its face regulates intentionally harassing conduct, irrespective of viewpoint, not speech; but that even if the statute does incidentally burden plaintiffs' speech, the regulation should not be invalidated on a facial challenge. See United States v. O'Brien, 391 U.S. 367, 375, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672, 679 (1968).
I.
We begin our analysis by observing that "whenever a challenge is raised to the constitutionality of a statute, there is a strong presumption that the statute is constitutional." State v. Muhammad, 145 N.J. 23, 41 (1996). The party "challenging the constitutionality of a statute bears the burden of establishing its unconstitutionality." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998). Indeed, in analyzing the constitutionality of a statute " ne of the basic guidelines ... is 'the presumption that the legislature acted with existing constitutional law in mind and intended the act to function in a constitutional manner.'" NYT Cable TV v. Homestead at Mansfield, Inc., 111 N.J. 21, 26 (1988) (quoting State v. Profaci, 56 N.J. 346, 349 (1970)).
II.
The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend I. This provision applies to the states under the Due Process Clause of the Fourteenth Amendment. E.g., Schneider v. New Jersey, 308 U.S. 147, 160, 60 S. Ct. 146, 150, 84 L. Ed. 155, 164 (1939). Article I, paragraph 6 of the New Jersey Constitution states:
"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press."
The New Jersey Supreme Court "ordinarily interpret our State Constitution's free speech clause to be no more restrictive than the federal free speech clause...." Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264 (1998) (citation omitted). Accordingly, we "rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution." Ibid. (quoting Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998)).
Where, as here, claimants challenge the validity of a statute under the First Amendment, " here are two quite different ways in which a statute ... may be considered invalid 'on its face'-either because it is unconstitutional in every conceivable application, or because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally 'overbroad.'" Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S. Ct. 2118, 2124, 80 L. Ed. 2d
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