Binkowski v. State6/24/1999
ed, 513 U.S. 970, 115 S. Ct. 440, 130 L. Ed. 2d 351 (1994).
In Broadrick, supra, the United States Supreme Court stated that "particularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, Judged in relation to the statute's plainly legitimate sweep." 413 U.S. at 615, 93 S. Ct. at 2918, 37 L. Ed. 2d at 842. "In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds." Taxpayers for Vincent, supra, 466 U.S. at 801, 104 S. Ct. at 2126, 80 L. Ed. 2d at 784; accord New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 66 (1980).
Facial invalidation "is, manifestly, strong medicine" that "has been employed by the Court sparingly and only as a last resort." It is, in fact, "an exception to our traditional rules of practice." Broadrick, supra, 413 U.S. at 613, 615, 93 S. Ct. at 2916-17, 37 L. Ed. 2d at 841-42; see also FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S. Ct. 596, 603, 107 L. Ed. 2d 603, 616-17 (1990) (noting that "facial challenges to legislation are generally disfavored"). Hence, " o prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech." National Endowment for the Arts v. Finley, ___ U.S. ___, 118 S. Ct. 2168, 2175, 141 L. Ed. 2d 500, 511 (1998).And, as the behavior at issue "moves from 'pure speech' towards conduct ... even if expressive," the exception attenuates. Ibid. Consequently, as the Broadrick Court recognized:
"Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe." [Id. at 615, 93 S. Ct. at 2917-18, 37 L. Ed. 2d at 842.]
Thus, as a form of facial challenge, the overbreadth doctrine stands for the proposition that ordinarily courts will not examine the constitutionality of a statute in the abstract without reference to specific conduct. State v. Colon, 186 N.J. Super. 355, 358 (App. Div. 1982). This salutary rule "rests on the principle that legislative acts are presumptively valid and will not be overturned on the basis of hypothetical cases not actually before the court." State v. Saunders, 75 N.J. 200, 208-09 (1977).
Plaintiffs contend that " he hunter harassment statute clearly implicates a substantial amount of constitutionally protected conduct." Plaintiffs claim they have demonstrated a substantial risk that their speech will be suppressed if the statute is not declared facially unconstitutional. They maintain the statute "focuses on one particular form of disfavored speech-the anti-hunting message" and consequently, it has a "chilling effect" on the right to freely communicate the message to a hunter while he is hunting.
However, plaintiffs do not demonstrate how the statute has a "deterrent effect on legitimate expression [that] is real and substantial." See New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, supra, 82 N.J. at 66 (quoting Young v. American Mini Theaters, Inc., 427 U.S. 50, 60, 96 S. Ct. 2440, 2447, 49 L. Ed. 2d 310, 320 (1976) (ellipses omitted)); accord Broadrick, supra, 413 U.S. at 615, 93 S. Ct. at 2917, 37 L. Ed. 2d at 842. Instead, plaintiffs leave it to us to speculate as to the circumstances under which the statute might in
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