COUNSEL? ALECIA WOODARD: GOOD MORNING. MICHAEL L. ZUCKERMAN:
DANIEL S. ROCKOFF: ALEXANDER SHALOM: BRUCE S. ROSEN:
BRUCE ROSEN, PASHMAN STEIN ON BEHALF OF THE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF
NEW JERSEY. CHIEF JUSTICE RABNER: WELCOME, COUNSEL. MS. WOODARD, PLEASE GO
AHEAD. ALECIA WOODARD: GOOD MORNING, CHIEF JUSTICE AND ASSOCIATE JUSTICES.
MAY I RESERVE A FEW MINUTES FOR REBUTTAL? CHIEF JUSTICE RABNER: YES.
ALECIA WOODARD: THANK YOU, YOUR HONOR. THE STATE HAS BROUGHT THIS ISSUE BEFORE THE COURT
TO ADDRESS TWO RULINGS BY THE APPELLATE DIVISION THAT THE STATE SUBMITS SHOULD BE REVERSE
D. FIRST, THE DEFENDANT IN THIS CASE WAS CHARGED WITH THE RECKLESS DISREGARD PORTION OF
N.J.S.A. FOR TELLING A POLICE OFFICER TO WORRY ABOUT A HEAD SHOT. THE APPELLATE DIVISION
FOUND THAT THIS PRONG OF SUBSECTION A UN-CONSTITUTIONALLY ENCOMPASSES SPEECH AND
EXPRESSION THAT DOES NOT CONSTITUTE A TRUE THREAT. AND SO FIND APPELLATE DIVISION
FOUND THAT THE DEFENDANT'S STATEMENT COULD NOT QUALIFY AS A TRUE THREAT DUE TO A FINDING
OF RECKLESSNESS. THIS HOLDING CANNOT STAND. THE UNITED STATES SUPREME COURT IN (CASE
CITED) HAS SET FORTH A CLEAR RULE AND THAT IS FOR THE STATE TO ESTABLISH THAT A TRUE THREAT
IS UN-PROTECTED BY THE FIRST AMENDMENT. THE STATE MUST SHOW THAT THE DEFENDANT HAD A
SUBJECTIVE UNDERSTANDING OF THE THREATENING NATURE OF HIS STATEMENT. BASED ON A FINDING
OF AT LEAST RECKLESSNESS AND BECAUSE SUBSECTION A OF THE TERRORISTIC THREAT STATUTE REQUIRES
A SHOWING OF AT LEAST RECKLESSNESS, IT WITH STANDS FIRST AMENDMENT SCRUTINY.
THE STATE ACKNOWLEDGES THAT THE DEFENDANT IS ASKING FOR A HIGHER STANDARD THEREBY PARTING
COMPANY WITH THE (CASE CITED) DECISION. HOWEVER, THERE ARE NO BASIS TO DO SO HERE. THE
STATE SUBMITS THAT THIS COURT SHOULD ADOPT THE ANIMAL LISS IN (CASE CITED) AND SHOULD
NOT GRANT MORE PROTECTION TO TRUE THREATS UNDER THE STATE CONSTITUTION THAN THE UNITED
STATES HAS GRANTED SUCH THREATS UNDER THE FIRST AMENDMENT. AS TO THE SECOND
POINT, NO SPECIFIC UNANIMITY CHARGE WAS ACQUIRED IN THIS CASE. AS A PART OF PARKER ANALYSIS,
IT IS CLEAR THAT THE FACTS IN THIS CASE WAS NOT COMPLEX. THE CASE WAS PRETTY SIMPLE.
IT INVOLVED THE DEFENDANT TELLING A SINGLE VICTIM TO WORRY ABOUT A HEAD SHOT.
WHAT'S MORE IN THIS CASE IS THAT THE FACTS WERE NOT CONTRADICTORY NOR WERE THEY MARGINALLY
RE-LATED TO ONE ANOTHER. IN THESE -- THE FACTS -- THERE WERE -- SORRY. THE
FACTS IN THIS CASE, AS I WAS SAYING, WAS NOT COMPLEX AND THERE WERE THREE THEORIES BUT
THEY WERE ALL BASED ON THE SAME FACTS AND BASED ON THE SAME EVIDENCE. THEREFORE, THERE WAS
NO ERROR LET ALONE PLAIN ERROR COMMITTED BY THE TRIAL COURT IN THIS CASE. THE STATE
WELCOMES THE COURT'S QUESTIONS. CHIEF JUSTICE RABNER: GO AHEAD WITH YOUR
CONSTITUTIONAL ARGUMENT. ALECIA WOODARD: OKAY, YOUR HONOR. YOUR
HONOR, THE STATE'S ARGUMENT IN REGARDS TO (CASE CITED), IT SETS FORTH A BALANCING TEST.
IT ALLOWS MORE PROTECTION TO FREE SPEECH BUT IT ALSO ALLOWS PROTECTION TO INDIVIDUALS
AND SOCIETY TO ALLOW THEM NOT TO BE IN FEAR DUE TO THESE TRUE THREATS. AND (CASE CITED)
HAS ESTABLISHED THAT RECKLESSNESS IS A GOOD THRESHOLD IN ESTABLISHING THAT TRUE THREATS
CAN BE SHOWN BASED ON A FINDING THAT A SPEAKER HAD CONSCIOUSLY DISREGARDED A SUBSTANTIAL
AND UN-JUSTIFIABLE RISK. YOUR HONOR's, THE STATE'S POSITION IS THAT THIS SHOULD BE
ADOPTED HERE IN THE STATE OF NEW JERSEY. AGAIN, IT ALLOWS BREATHING ROOM FOR THOSE
INDIVIDUALS WHO MAY HAVE BEEN UN-AWARE THAT THEIR STATEMENTS CONSTITUTED A THREAT. AND
IT ALLOWS FOR THE PROSECUTION TO PROSECUTE INDIVIDUALS WHO ARE MORALLY CULPABLE.
CHIEF JUSTICE RABNER: HOW DO YOU RESPOND TO THE DEFENSE ARGUMENT THAT A RECKLESSNESS
STANDARD CAN CHILL PROTECTED SPEECH? ALECIA WOODARD: WELL, YOUR HONOR, IN
THIS INSTANCE, A RECKLESSNESS STANDARD WOULDN'T NECESSARILY CHILL PROTECTED SPEECH. WHEN
WE THINK OF THE RECKLESSNESS STANDARD AND EVEN (CASE CITED) STATED THIS, THIS IS A SITUATION
WHERE BOTH SIDES, THEY'RE NOT GOING TO GET WHAT THEY WANT HERE. HOWEVER, IT'S ENOUGH
TO ALLOW THOSE SPEAKERS WHO, LET'S SAY THEY ARE DOING -- HAVING JUST A HEAT OF THE MOMENT
SITUATION. IT'S ALLOWING THOSE SPEAKERS TO NOT BE PROSECUTED OR SANCTIONED FOR SOMETHING
THAT OTHERWISE IS CONSIDERED A TRUE THREAT. JUSTICE WAINER APTER: COULD HE HAVE
BEEN PROSECUTED UNDER THE RECKLESSNESS PROVISION? ALECIA WOODARD: YOUR HONOR,
IN IN REGARD TO THAT CASE, HE WOULD HAVE HAD TO HAVE BEEN AWARE THAT THIS STATEMENT WOULD
HAVE BEEN SEEN AS A THREAT. JUSTICE WAINER APTER: NOT IN SUBJECTIVELY BEING
SEEN AS A THREAT BY THE TARGET. ALECIA WOODARD: UNDER THIS ANALYSIS, HE'S
SUPPOSED TO UNDERSTAND IF WHAT HE SAID -- A SUBJECTIVE ANALYSIS, YES. BUT WHAT HE SAID
WAS SOMETHING HE COULD BE PERCEIVED AS A THREAT AND HE SAID IT ANYWAY. SO IN TERMS OF
WATSON, IT WOULDN'T NECESSARILY BE A THREAT SINCE THE POLICE OFFICER OBJECTIVE STANDARD
HE COULD ALWAYS ARGUE IN COURT HE WASN'T CONSCIOUSLY DISREGARDING A SUBSTANTIAL AND
UN-JUSTIFIABLE RISK. JUSTICE WAINER APTER: IT'S A SUBJECTIVE STANDARD FOR
THE SPEAKER OR THE LISTENER OR BOTH? ALECIA WOODARD: THE SPEAKER. UNDER
THE COUNTER MAN ANALYSIS. JUSTICE WAINER APTER: SO YOU THINK IN THAT CASE
THE PERSON WHO SPOKE THOSE WORDS COULD HAVE BEEN JUDGED BY A JURY TO HAVE WEN ACTING IN
RECKLESS DISREGARD, THAT THE STATEMENT COULD HAVE BEEN TAKEN AS A THREAT BY THE PRESIDENT?
ALECIA WOODARD: YES, YOUR HONOR. IF I'M UNDERSTANDING YOUR QUESTION CORRECTLY,
YOUR HONOR, YES, IF IT WAS DONE SO -- IF HE TOOK A SUBSTANTIAL AND JUSTIFIABLE RISK.
JUSTICE WAINER APTER: SO WATSON IS A CASE WHERE THE U.S. SUPREME COURT SAID
THAT TO PROSECUTE THAT PERSON WOULD BE TO VIOLATE THE FIRST AMENDMENT BUT YOU'RE NOW SAYING
BY PROSECUTING THE PERSON IN WATSON WOULD NOT VIOLATE THE FIRST AMENDMENT.
ALECIA WOODARD: I'M SORRY, YOUR HONOR. JUSTICE WAINER APTER: TO PROSECUTE
HIM FOR THE STATEMENT WAS A VIOLATION OF THE FIRST AMENDMENT. IT SEEMS LIKE YOU'RE NOW
DISAGREEING WITH THAT. ALECIA WOODARD: YOUR HONOR, I'M NOT DISAGREEING WITH
THE CASE. I THINK IT'S MY UNDERSTANDING THAT IF HE'S MAKING THIS COMMENT, IF HE IS MAKING
THIS COMMENT AND SUBJECTIVELY HE -- FOR EXAMPLE, IF HE KNEW OR IF HE HAD SOME AWARENESS
THAT THIS WAS OF A THREATENING NATURE AND HE SAID IT ANYWAY, THEN THAT WOULD BE A RECKLESS
STATEMENT. OR ON THE OTHER HAND, HE COULD HAVE SAID IT AGAIN AS A KIND OF FLEETING MOMENT
OF ANGER IN THAT CASE TOWARDS THE PRESIDENT. CHIEF JUSTICE RABNER: OTHER
QUESTIONS ON THE CONSTITUTIONAL ISSUE? ANYONE? JUSTICE NORIEGA:
JUSTICE NORIEGA: WHAT'S THE HARM IN REPAIRING A STANDARD WOULD THERE ACTUALLY BE SOME
INTENT TO CAUSE INTIMIDATION ON THE PART OF THE SPEAKER. WHAT'S THE HARM TO THE STATE.
ALECIA WOODARD: OH, IN REQUIRING SOME SUBJECTIVE. WELL, YOUR HONOR, IT'S MY
UNDERSTANDING THAT IT WOULD BE A HIGH THIN FOR THE STATE TO ESTABLISH THIS DEFENDANT DID
HAVE SOME SUBJECTIVE INTENT IN MAKING THIS CERTAIN STATEMENT. BUT IT'S THE STATE'S
POSITION THAT IT WOULD BE IN A WAY FAR EASIER TO ESTABLISH A RECKLESS STANDARD THAN TO
ESTABLISH WHETHER HE KNEW FOR PARTICULAR CERTAINTY WHEN MAKING THAT STATEMENT. BUT
AGAIN IT'S REALLY A BALANCING TEST. AGAIN, BOTH SIDES ARE NOT GOING TO GET NECESSARILY
EVERYTHING THEY WANT, BUT IT SURE WILL ALLOW THE STATE TO PROSECUTE MORE PEOPLE WHO DO MAKE
THOSE TYPE OF THREATENING STATEMENTS. JUSTICE NORIEGA: JUSTICE NORIEGA:
BUT WITHOUT DETERMINING THE LEVEL OF INTIMIDATION OR THE INTENT TO INTIMIDATE, ISN'T THERE
AN ATTEMPT TO SACRIFICE THOSE OTHER TYPES OF SPEECH THAT WE NEED TO BALANCE OUT?
ALECIA WOODARD: IF I'M UNDERSTANDING YOUR QUESTION CORRECTLY, THERE WOULD BE SOME TYPE
OF SACRIFICE. IF WE'RE TALKING ABOUT AGAIN PROSECUTING THESE INDIVIDUALS WHO ARE SAYING
CERTAIN THINGS THAT MAY NOT BE THREATS OR NOT. BUT THERE WOULD BE A LOT MORE -- THERE WOULD
BE A LOT MORE OF CULPABLE DEFENDANTS BEING CHARGED WITH THIS. IT'S NOT -- AGAIN, IT'S NOT
NECESSARILY ALLOWING PEOPLE TO GET AWAY WITH SAYING CERTAIN THINGS. BUT IT WILL ALLOW THE
STATE AGAIN TO GET THOSE WHO TRULY AND AGAIN SUBJECTIVELY WANTED TO MAKE THAT THREAT KNOWN
AND -- OR SAID THAT THREAT AND WANTED TO SAY IT ANYWAY. JUSTICE PATTERSON:
DEFENDANTS ARE CULPABLE ONLY -- IF THEY VIOLATE A STATUTE OR ARE CONVICTED OF VIOLATING
A STATUTE AND IF THE STATUTE IS CONSTITUTIONAL. SO I'M NOT SURE AN ARGUMENT THAT SAYS
MORE CULPABLE DEFENDANTS WOULD BE IN -- WOULD BE PROSECUTED IS A REASON TO MAKE THE STATUTE
CONSISTENT WITH COUNTER MAN. ALECIA WOODARD: YOUR HONOR, IT ALSO BALANCES
MORE FREE SPEECH. IT ALLOWS PEOPLE -- AGAIN, IT PROTECTS -- IT PROTECTS MORE SPEECH AS
WELL IN THIS CASE. AGAIN, IT ALLOWS -- CHIEF JUSTICE RABNER: A RECKLESSNESS
STANDARD PROTECTS MORE SPEECH? ALECIA WOODARD: PER COUNTER MAN, YOUR HONOR.
BECAUSE, AGAIN, IT ALLOWS THIS BALANCING TEST WHERE PEOPLE WHO ARE JUST MAKING A STATEMENT
THAT -- AGAIN, THAT THEY'RE UN-AWARE. JUSTICE PATTERSON: BUT COUNTER MAN ALLOWS
A BROADER CATEGORY OF SPEECH TO BE THE SUBJECT OF PROSECUTION. ALECIA WOODARD:
YES. JUSTICE PATTERSON: AND THE ISSUE WE HAVE, THE KEY ISSUE WE HAVE HERE
IS THE NEW JERSEY CONSTITUTIONAL ASPECT OF THIS. SO IT SEEMS LIKE IF YOU ARE PROSECUTING
PEOPLE FOR A BROADER CATEGORY OF SPEECH, YOU ARE PROVIDING LESS PROTECTION FOR FREE SPEECH.
ALECIA WOODARD: YOUR HONOR, THE STATE UNDERSTANDS WHAT YOU'RE SAYING, BUT
THE STATE RESPECTFULLY DISAGREES. IN THIS SCENARIO, SPEECH COULD BE MORE PROTECTED
UNDER THIS STANDARD. IT ALLOWS I GUESS A PERSON MORE FREEDOM FOR INDIVIDUALS TO -- OR
MORE PROTECTION TO THOSE INDIVIDUALS WHO ARE NOT MAKING THREATENING STATEMENTS. SO THE
STATE BELIEVES IT WOULD AVOID PREVENTING A CHILLING EFFECT AS TO THOSE SPEAKERS WHO ARE
NOT MAKING SUCH THREATENING COMMENTS. JUSTICE PATTERSON: BROADER PROTECTION FOR
PEOPLE WHO ARE VICTIMS OF THE STATEMENT. IS THAT WHAT YOU'RE ARGUING? THAT THE RECKLESSNESS
STANDARD BY ALLOWING THE PROSECUTION OF BROADER CATEGORY OF SPEECH OF POTENTIAL THREATS IS
PROTECTING MORE VICTIMS? IS THAT THE ARGUMENT? ALECIA WOODARD: NO, YOUR HONOR.
IT'S PROTECTING -- I BELIEVE IT'S PROTECTING THOSE SPEAKERS WHO ARE NOT MAKING CERTAIN
STATEMENTS THAT WOULD BE CONSIDERED THREATS BUT ALSO THOSE WHO MAY BE HARMED BY TRUE THREATS
IN THIS SCENARIO. JUSTICE PIERRE-LOUIS: CAN YOU EXPLAIN YOUR ARGUMENT
THAT ARTICLE ONE AND PARAGRAPH SIX OF THE NEW JERSEY CONSTITUTION ARE IDENTICAL AND
THEREFORE WE SHOULD NOT FIND THERE ARE BROADER PROTECTIONS UNDER OUR STATE CONSTITUTION.
ISN'T THERE ADDITIONAL LANGUAGE IN OUR CONSTITUTION WITH REGARD TO SPEECH THAT ARE
NOT FOUND IN THE U.S. CONSTITUTION? ALECIA WOODARD: YES, YOUR HONOR, THERE IS.
BUT HISTORICALLY WITH, YOUR HONOR, THIS COURT IT HAS COMPLIED WITH CERTAIN OF THE HOLDINGS
OF THE UNITED STATES SUPREME COURT. YOUR HONOR, AND THE STATE BELIEVES THAT WHILE OUR
STATUTE IS BROADER, HISTORICALLY THIS COURT HAS FOLLOWED IN THE STEPS OF THE UNITED STATES
SUPREME COURT IN CERTAIN ISSUES. SO THE STATE'S POSITION IS THAT THIS COURT SHOULD ADOPT
THE PROTECTIONS THAT THE UNITED STATES SUPREME COURT PROVIDED UNDER THE FIRST AMENDMENT.
JUSTICE PIERRE-LOUIS: IN YOUR SUPPLEMENTAL BRIEF, YOU CITED TO THE JUSTICE
HANDLER's CONCURRENCE IN (CASE CITED) AND NOTED THE CRITERIA THAT CAN BE USED IN INVOKING
OUR STATE CONSTITUTION AND NOTED THAT CRITERIA HAS BEEN CITED OFTEN. BUT IN THAT
CONCURRENCE ITSELF, JUSTICE HANDLER NOTED THAT THE UNIQUE LANGUAGE OF NEW JERSEY's CONSTITUTION
IS ONE INDICATION THAT IT WAS MEANT TO PROVIDE A BROADER SCOPE OF PROTECTION THAN THE
FIRST AMENDMENT. IS YOUR ARGUMENT UNDERMINED BY THE STATEMENTS IN HUNT AND STATE V. SCHMIDT?
ALECIA WOODARD: YOUR HONOR, IN REGARDS TO THE ADDITIONAL BRIEFING IN THIS
MATTER DONE BY MR. BORE, YES, THAT WAS ALSO CONSIDERED, THE HUNT FACTORS. BUT IT WAS
ARGUED THAT IN THIS SCENARIO NOT ALL THE HUNT FACTORS ARE SATISFIED. THERE'S NO POLICY
REASONS THAT WERE ADDRESSED BY COUNSEL THAT WOULD ESTABLISH THAT THIS COMPANY NEEDS TO
PART COMPANY FROM COUNTER MAN OR ANY STATE LEGISLATOR OR ANY STATUTES THAT WOULD
CONVINCE THIS COURT TO PART COMPANY WITH THE COUNTER MAN DECISION. JUSTICE
PATTERSON: HOW DO YOU ADDRESS THE DISSENTER's POINTS IN COUNTER MAN? ALECIA
WOODARD: YOUR HONOR, IN REGARDS TO THE DISSENT IN COUNTER MAN, THE STATE UNDERSTANDS
OBVIOUSLY THE DISSENT IN THE COUNTER MAN OPINION, BUT WITH REGARDS TO THE SUBJECTIVE AND
OBJECTIVE STANDARD, IT WOULD -- THE STATE'S POSITION IN THE SUBJECTIVE STANDARD WOULD BE
A BETTER FIT THAN THE OBJECTIVE. JUSTICE PATTERSON: WHY IS THAT?
ALECIA WOODARD: YOUR HONOR, WELL, IT ALLOWS, AGAIN, FOR THE SPEAKER TO HAVE MORE FREEDOM
IN THEIR SPEECH. BECAUSE, AGAIN, SOMEONE COULD SAY SOMETHING THAT THEY THINK IS JUST
A FLUKE WHILE THE OTHER PERSON OBJECTIVELY THINKS IT'S SOMETHING KIND OF WORSE FOR WEAR.
SO THEN THAT PERSON IS GOING TO GET IN TROUBLE FOR SOMETHING THAT THE OTHER PERSON THOUGHT
COULD HAVE BEEN THREATENING. SO THE STATE BELIEVES THAT THE SUBJECTIVE STANDARD
WOULD BE BETTER AGAIN TO PROTECT THE SPEAKERS IN THIS SCENARIO. JUSTICE FASCIALE:
WHY INTERPRET ARTICLE ONE, PARAGRAPH SIX IN LOCK STEP WITH THE FIRST AMENDMENT IF THE
LANGUAGE IS DIFFERENT? ALECIA WOODARD: YOUR HONOR, WELL, THE STATE
BELIEVES THAT, YES, THE LANGUAGE IS DIFFERENT. BUT, AGAIN, THERE IS -- IN LOOKING AT THE
HUNT FACTORS, THERE IS NO BASIS FOR WHY THERE SHOULD -- IT SHOULD BE DIFFERENT IN REGARDS
TO TRUE THREATS IN THIS CASE. JUSTICE FASCIALE: WHAT ABOUT THE ACTUAL LANGUAGE
OF ARTICLE ONE, PARAGRAPH SIX IN AND OF ITSELF? ALECIA WOODARD: YOUR HONOR,
AGAIN, THE STATE UNDERSTANDS THAT THAT LANGUAGE AGAIN IS DIFFERENT. CHIEF JUSTICE
RABNER: IT'S NOT JUST DIFFERENT. IT PROVIDES AN AFFIRMATIVE RIGHT TO SPEAK FREELY. DOES
THAT DIFFERENCE MATTER? ALECIA WOODARD: YOUR HONOR, IN THIS CASE, THE STATE
BELIEVES THAT IT DOESN'T, BECAUSE ESSENTIALLY BOTH THE CONSTITUTION AND OUR CONSTITUTION
STILL ALLIANCE WITH THE FACT THAT WE WANT TO PROVIDE FREE SPEECH TO ALL INDIVIDUALS.
SO IT'S THE STATE'S BELIEF THAT, AGAIN, THAT WHILE, YES, THERE'S SOME LANGUAGE THAT'S
DIFFERENT, IT'S STILL ALLOWING -- BOTH SIDES ARE STILL ALLOWING FREE SPEECH.
JUSTICE WAINER APTER: WHEN YOU WERE ANSWERING JUSTICE PATTERSON's QUESTION ABOUT OBJECTIVE
VERSUS SUBJECTIVE STANDARD, I WANT TO MAKE SURE I'M UNDERSTANDING. YOU WERE REFERRING
TO THE DISSENT OF JUSTICE BARRETT AND JUSTICE THOMAS, CORRECT? ALECIA WOODARD:
YES, YOUR HONOR. JUSTICE WAINER APTER: WHEN YOU SAID THAT JUST A SUBJECTIVE
STANDARD IS MORE PROTECTIVE OF SPEECH, THE MAJORITY ACTUALLY HELD IN COUNTER MAN THAT
IT'S BOTH AN OBJECTIVE AND A SUBJECTIVE STANDARD, CORRECT? SO THE MAJORITY HELD THAT
A TRUE THREAT IS ALL THREATENING SPEECH BUT HELD THAT THERE MUST BE SOMETHING ADDITIONAL
AND THAT IS A SUBJECTIVE MENTAL STATE/INTENT/MENS REA. SO ARE YOU DISAGREEING WITH THE
MAJORITY OR AGREEING WITH THE MAJORITY? ALECIA WOODARD: I'M SORRY. I THINK
I UNDERSTOOD THE QUESTION. IN REGARDS TO THE SUBJECTIVE VERSUS OBJECTIVE. I UNDERSTAND
THAT THE SUBJECTIVE WITH REGARDS TO THE MENS REA, BUT IN TERMS OF THE SUBJECT OF AN OBJECTIVE
TEST, I AGREE WITH THE MAJORITY OPINION ON THAT. JUSTICE WAINER APTER: OKAY.
CHIEF JUSTICE RABNER: WHY DON'T WE MOVE ON TO THE SECOND POINT ON UNANIMITY.
THE INDICTMENT AND THE VERDICT SHEET SPEAK TO BOTH SECTIONS A AND B. ARE THE ELEMENTS
SPECIFICALLY WITH RESPECT TO INTENT DIFFERENT? ALECIA WOODARD: THE ELEMENTS
IN REGARDS TO -- CHIEF JUSTICE RABNER: INTENT DIFFERENT FOR SECTION A AND
SECTION B? ALECIA WOODARD: YES, YOUR HONOR. THE FOR THE MONETARY CODE OR
IN THE STATUTE, SUBSECTION A REQUIRES ONLY JUST THE PURPOSE OR RECKLESS DISREGARD WHILE
SUBSECTION B HAS THE ADDITIONAL LANGUAGE OF A THREAT TO KILL. CHIEF JUSTICE
RABNER: PURPOSEFUL INTENT. ALECIA WOODARD: YES. WITH THE THREAT TO KILL.
CHIEF JUSTICE RABNER: WERE JURORS EXPRESSLY TOLD THAT THEY NEEDED TO SFIEND
EACH ELEMENT BEYOND A REASONABLE DOUBT AS TO EACH SECTION? ALECIA WOODARD:
YOUR HONOR, THEY WERE TOLD -- SO HOW IT HAPPENED WAS THAT THE COURT DID EXPLAIN THE ELEMENTS
TO BOTH SUBSECTION A AND TO SUBSECTION B AND STATED THAT THEY DID HAVE TO FIND BEYOND A
REASONABLE DOUBT THE ELEMENTS OF THE SUBSECTIONS IN THAT CASE. CHIEF JUSTICE
RABNER: CAN YOU TELL US WHERE AND HOW THE TRIAL JUDGE DID THAT? ALECIA WOODARD:
YOUR HONOR, I DON'T HAVE THAT CITE OFF THE TOP OF MY HEAD, BUT I DO REMEMBER THAT THE
COURT DID EXPLAIN -- CHIEF JUSTICE RABNER: PERHAPS YOU CAN TELL US WHEN YOU
GET UP FOR REBUTTAL SPECIFICALLY WHAT YOU'RE RELYING UPON, BECAUSE THERE'S SOMETHING
UNUSUAL ABOUT THIS CASE. THE INDICTMENT, THE LAPSES, A AND B, AND ACTUALLY USES THE WORDS
AND/OR, WHICH THE JUDGE SPECIFICALLY READ FOR THE JURY. AND THE VERDICT SHEET COLLAPSES
A AND B AS WELL AND CALLS FOR A SINGLE ANSWER. ALECIA WOODARD: YES.
CHIEF JUSTICE RABNER: UNDER THOSE -- WHAT'S THE EFFECT OF THOSE TWO THINGS ON JURY UN
ANIMITY IN THIS CASE? ALECIA WOODARD: YOUR HONOR, THE STATE'S POSITION THAT
IT STILL DID NEED TO BE REQUIRED, AGAIN -- CHIEF JUSTICE RABNER: I'M SORRY.
SAY THAT AGAIN. ALECIA WOODARD: THAT THE SPECIFIC UNANIMITY CHARGE DID NOT
NEED TO BE REQUIRED IN THIS CASE, AND THAT IS BECAUSE, YES, WITH REGARDS TO THAT PARTICULAR
STATUTE THERE IS A SUBSECTION A AND B IN THAT STATUTE. BUT THE FACTS ARE ALL THE SAME IN
THIS CASE. IF WE'RE LOOKING AT PARKER, THE FACTS WERE ALL THE SAME. THE EVIDENCE WERE
ALL BASED ON THE SAME EVIDENCE. CHIEF JUSTICE RABNER: LET'S JUST TAKE THE
VERDICT SHEET FOR A SECOND. IT HAS IN SIX LINES, IT COLLAPSES THE ESSENTIAL PART OF SECTION
A, THE ESSENTIAL PART OF SECTION B AND THEN SAYS, WITH RESPECT TO THIS CHARGE, HOW DO YOU FIND?
IS IT POSSIBLE UNDER THESE CIRCUMSTANCES THAT SIX JURORS FOUND A VIOLATION OF SECTION
A AND SIX FOUND A VIOLATION OF SECTION B AND RETURNED A VERDICT OF GUILTY ON THAT BASIS?
ALECIA WOODARD: YOUR HONOR, IT'S THE STATE'S POSITION THAT IN THIS PARTICULAR
CASE, THAT THE JURORS IN THIS CASE COULD HAVE POSSIBLY FOUND FOR ALL OF A OR ALL OF B
BUT NOT BOTH. AND THAT'S BECAUSE IN THIS CASE THE PROSECUTOR IN THEIR SUMMATIONS AND
THE FACTS THAT THEY WERE GIVEN, THEY WERE TOLD THAT THE STATEMENT THAT WAS MADE WAS THAT
THEY TOLD THEM TO LOOK FOR A HEAD SHOT AND TOWARDS THE SUMMATION THE PROSECUTOR DID
EXPLAIN IF YOU COULDN'T FIND FOR A THEN YOU WON'T BE ABLE TO FIND FOR B. CHIEF
JUSTICE RABNER: I UNDERSTAND THAT THEY COULD HAVE FOUND ALL OF THEM TOGETHER FOR EITHER
A OR FOR B. THE QUESTION IS, WERE THEY DIRECTED THAT THEY HAD TO BE UNANIMOUS AS TO EITHER
A OR B? ALECIA WOODARD: AS TO EITHER A OR B. NO, YOUR HONOR. THE COURT
IN THIS CASE AGAIN EXPLAINED ALL THE ELEMENTS TO BOTH A AND B AND THEN STATED THAT THEY
HAD TO BE UNANIMOUS IN THEIR VERDICT, WHICH WAS A FINDING -- I BELIEVE WAS A FINDING OF
GUILT OR NOT GUILTY. CHIEF JUSTICE RABNER: AND COLLAPSES THESE CHARGES IN
THE VERDICT SHEET DOES NOT LEND CONFUSION TO WHAT THE JURY's MISSION WAS HERE? IS THAT
THE STATE'S POSITION. ALECIA WOODARD: YOUR HONOR, THAT IS THE STATE'S POSITION
IN THIS CASE, BUT ALSO THE STATE'S POSITION WITH REGARD TO THAT WOULD BE THE PLAIN ERROR
STATEMENT. THE DEFENSE IN THIS CASE DIDN'T OBJECT TO THE JURY INSTRUCTIONS OR WHAT WAS
WRITTEN ON THE VERDICT SHEET IN THIS CASE. JUSTICE WAINER APTER: REGARDLESS
OF THE INSTRUCTION OR THE VERDICT SHEET, DO YOU AGREE THAT UNANIMITY ITSELF WAS
CONSTITUTIONALLY REQUIRED? SO IF SIX JURORS HAD FOUND THERE WAS ONLY A VIOLATION OF A
AND NOT B AND SIX JURORS FOUND THERE WAS ONLY A VIOLATION OF B AND NOT A, IS THAT A
CONSTITUTIONALLY SUSTAINABLE VERDICT OR DO YOU AGREE THAT ALL 12 JURORS WOULD HAVE TO AGREE
THAT A WAS VIOLATED OR THAT B WAS VIOLATED IN ORDER TO SUSTAIN A VERDICT? ALECIA
WOODARD: YOUR HONOR, THE STATE WOULD AGREE THAT IT WOULD HAVE TO BE ALL 12.
JUSTICE WAINER APTER: SO IN SOME CASES THERE IS DISCUSSION OF IF THERE'S ONE STATUTE THAT
CAN BE VIOLATED IN SEVERAL DIFFERENT WAYS, THEN THE JURY DOES NOT HAVE TO BE UNANIMOUS
AS TO HOW THE STATUTE IS VIOLATED. BUT YOU ARE AGREEING HERE THAT THE JURY WOULD HAVE
HAD TO BE UNANIMOUS AS TO WHETHER IT WAS A OR B OR BOTH THAT WAS VIOLATED AND IF SIX JURORS
FOUND ONLY A VIOLATION OF A AND NOT B AND SIX JURORS FOUND B BUT NOT A THAT WOULD NOT
BE CONSTITUTIONALLY SUSTAINABLE AS A VERDICT. ALECIA WOODARD: YOUR HONOR,
IF I'M UNDERSTANDING YOUR QUESTION -- SORRY. JUST TO THINK BACK. YOU'RE SAYING IF THEY
WOULD HAVE -- OR I GUESS YOU'RE SAYING IF IT WAS NECESSARY FOR ALL OF THEM -- FOR ALL 12
TO AGREE THAT IT WAS A OR B OR FOR -- JUSTICE WAINER APTER: I'M ASKING, REGARDLESS
OF THE INSTRUCTION OR THE VERDICT AND WHETHER IT COULD HAVE CAUSED CONFUSION OR NOT, AT
BOTTOM, DID ALL 12 JURORS HAVE TO AGREE IF A WAS VIOLATED OR IF B WAS VIOLATED OR COULD
SIX HAVE FOUND ONLY A VIOLATION OF A AND SIX HAVE FOUND ONLY A VIOLATION OF B. IF IT
WAS SIX AND SIX, WOULD THAT BE CONSTITUTIONALLY PERMISSIBLE OR DO YOU AGREE THAT THAT
WOULD NOT BE THE REQUIRED LEVEL OF UNANIMITY UNDER THE CONSTITUTION. ALECIA
WOODARD: YOUR HONOR, IN RESPECT TO THIS CASE, THIS WAS AGAIN A SINGLE STATUTE THAT
ENCOMPASSES -- AGAIN, TERRORISTIC THREATS. IT JUST HAS THOSE TWO SUBSECTIONS IN THAT CASE.
IT'S THE STATE'S POSITION THAT THEY DIDN'T HAVE TO GO FOR A OR B IN THIS MATTER. BECAUSE
THE RESULTS WOULD HAVE BEEN THE SAME. THE RESULTS WOULD HAVE BEEN THE SAME. IT STILL
WOULD HAVE BEEN THE THIRD DEGREE TERRORISTIC THREATS. JUSTICE WAINER APTER:
SO YOU'RE ARGUING A AND B ARE NOT SEPARATE ELEMENTS, INSTEAD THEY'RE JUST SEPARATE WAYS
OF VIOLATING ONE STATUTE AND THE JURY COULD HAVE SPLIT SIX AND SIX AND THAT WOULD HAVE BEEN
CONSTITUTIONALLY COMPLETELY FINE SNICHLT IN THIS PARTICULAR SITUATION, YES, YOUR HONOR.
CHIEF JUSTICE RABNER: HOW CAN THAT BE? YOU STARTED OUT BY CONCEDING THAT A
AND B HAVE DIFFERENT INTENT ELEMENTS. DOESN'T THAT MEAN THEY'RE DIFFERENT STATUTES WITH
DIFFERENT REQUIRED PROOFS? ALECIA WOODARD: YES, YOUR HONOR. IT'S STILL
THE SAME STATUTE. THEY'RE JUST REQUIRED. -- IF I CAN EXPLAIN THAT A LITTLE BETTER. IT'S
STILL THE SAME STATUTE BUT CAN BE PROVEN IN MULTIPLE WAYS. ONE BEING THE PURPOSEFUL
RECKLESS DISREGARD AND THE OTHER BEING THE INTENT TO KILL. BUT IN THE CONTEXT OF THIS
CASE, AGAIN, IT WOULD HAVE NOT CHANGED THE RESULT IN THIS CASE WHERE THERE WAS A OR B.
JUSTICE NORIEGA: JUSTICE NORIEGA: ISN'T IT UN-FAIR THAT WE DON'T
KNOW THE RESULT WHILE WE'RE HAVING THIS JURY CONVERSATION, THAT IT COULD BE FRAGMENTED
AND WE DON'T HAVE A CLEAR PICTURE ON WHAT THE JURY WAS UNANIMOUS ON? ISN'T THAT A PROBLEM
IN ITSELF. ALECIA WOODARD: YOUR HONOR, IT'S THE STATE'S POSITION THAT AGAIN
IN THIS CASE IT WAS A SINGLE STATUTE THAT CAN BE PROVEN IN DIFFERENT WAYS. AGAIN, IT
WOULD HAVE NOT -- IT DIDN'T HAVE ANY CAPACITY TO BE AN UN-JUST RESULT. JUSTICE
PIERRE-LOUIS: BUT IT DID. WE'VE BEEN OVER THIS SEVERAL TIMES OVER THE PAST FEW MINUTES
THAT A VERDICT FROM THE JURY IN WHICH SIX OF THE JURORS MIGHT HAVE FOUND THE DEFENDANT
WAS GUILTY OF VIOLATING PART A OF THE STATUTE BUT NOT PART B AND THE OTHER SIX FOUND THAT
DEFENDANT VIOLATED PART B AND NOT PART A, THAT IS NOT A SUSTAINABLE VERDICT. THIS A VERDICT
THAT WOULD BE IN ERROR BECAUSE IT IS NOT A UNANIMOUS VERDICT BASED ON YOUR CONCESSION
ON STREET ELEMENTS THAT NEED TO BE PROVEN FOR EACH ONE OF THOSE SUBSECTIONS. SO I KNOW
YOU MADE THE ARGUMENT THAT THERE WAS NO OBJECTION, BUT HERE WE'RE TALKING ABOUT THE
POSSIBILITY THAT THE JURY REACHED A RESULT THAT IT MIGHT NOT HAVE REACHED IF THEY WERE
INSTRUCTED PROPERLY. SO HOW COULD THERE HAVE BEEN NO -- I'M NOT UNDERSTANDING YOUR
ARGUMENT. ALECIA WOODARD: YOUR HONOR, THE STATE'S ARGUMENT IS THAT THERE WOULDN'T
HAVE BEEN ANY PLAIN ERROR IN THIS CASE BECAUSE OF THE FACT THAT REGARDLESS IT WOULD HAVE
NOT CREATED -- IT WASN'T CAPABLE OF PRODUCING AN UN-JUST RESULT HERE. JUSTICE
NORIEGA: JUSTICE NORIEGA: IN TERMS OF THE RESULT THOUGH, LET ME POSE TO YOU
WHAT HAPPENS WHEN THE DEFENDANT SEEKS A MOTION FOR RECONSIDERATION OR A MOTION TO REVIEW
THE VERDICT. HOW DOES THAT DEFENDANT -- HOW IS HE ABLE TO PUT FORWARD THE FACTS THAT
CORRESPOND TO THE GUILTY VERDICT IN MAKING THAT ARGUMENT IF NOBODY KNOWS WHICH ONES PERTAIN
TO WHICH PARTICULAR CHARGE OR WHICH FINDING OF THE JURY? ALECIA WOODARD:
YOUR HONOR, AGAIN, IT'S THE STATE'S POSITION THAT -- AGAIN, THE FACTS THAT WERE PRESENTED
IN THIS CASE WERE ALL BASED ON THE SAME EVIDENCE. IT COULD HAVE -- AS THE PROSECUTOR
SAID, THEY COULD HAVE BEEN FOR ALL OR -- ALL FOR A OR ALL FOR B IN THIS MATTER.
JUSTICE NORIEGA: JUSTICE NORIEGA: ARE YOU SAYING ALL OF THE EVIDENCE PRODUCED
BY THE STATE DURING ITS ARGUMENTS AND SUMMATION APPLIED EQUALLY TO A AND B AND ACROSS
THE BOARD, ALL OF THE FACTS THAT WERE INTRODUCED? ALECIA WOODARD: YES. BECAUSE
ALL THE FACTS WERE BASED ON THE SAME EVIDENCE. THE STATE PROVIDED THE VIDEO OF THE STATEMENT
AND THE SO IT WAS ALL RE-LATED. THE PROSECUTOR NEVER PROVIDED THAT SOME EVIDENCE WAS
MEANT FOR THIS OR SOME EVIDENCE WAS MEANT FOR THAT. OR FOR A OR B. THE EVIDENCE WAS
ALL THE SAME WITHIN THE TRIAL. CHIEF JUSTICE RABNER: OTHER QUESTIONS, ANYONE?
CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD, COUNSEL? ALECIA
WOODARD: NOTHING FURTHER, YOUR HONOR. CHIEF JUSTICE RABNER: MR. ZUCKER MAN.
MICHAEL L. ZUCKERMAN: GOOD MORNING YOUR HONORS. MAY IT PLEASE THE COURT.
AS COUNTER MAN VERSUS COLORADO UNDERSCORES, TRUE THREATS WHICH ARE OBJECTIVE
STATEMENTS SUGGESTING THAT AN INDIVIDUAL MEANS TO COMMIT UN-LAWFUL VIOLATION AGAINST A
SPECIFIC PERSON, CAUSE TERROR AND DESTRUCTION. TRUE THREATS ALSO CONTRIBUTE VIRTUALLY
NOTHING TO THE MARKETPLACE OF IDEAS BEING EASILY SEPARABLE FROM STATEMENTS THAT DO. AND
UNUSUALLY AMONG EVEN MUCH LOW VALUE SPEECH, TRUE THREATS ARE NOT CONSENSUS ACCEPTABLE
TO COUNTER SPEECH. IN-DEED, THEY SQUARE OTHERS INTO SILENCE. SOCIETY, THEREFORE, HAS
EVERY INTEREST IN HOLDING PEOPLE ACCOUNTABLE FOR RECKLESS THREATS. AFTER ALL, SUCH THREATS
ARE NO ACCIDENT. THE RECKLESS THREATEN NER KNOWS THERE'S A SUBSTANTIAL RISK THAT HIS STATEMENT WILL BE TAKEN AS VIOLATION TO ANOTHER PERSON YET HE SAYS IT ANYWAY. THAT IS
LY SANCTIONED FOR INSTANCE THROUGH A RESTRAINING ORDER, A GUN SEIZURE, AFTER THREATENING.
IT'S TEXTBOOK LAW THAT THOSE CIVIL AND CRIMINAL REMEDIES RISE AND FALL TOGETHER.
NOR ALL THOSE REASONS, THE BUFFER ZONE ESTABLISHED IN COUNTER MAN INSULATING TRUE THREATS
FROM LIABILITY STRIKES A MORE THAN SUFFICIENT BALANCE. THAT FWL OF COURSE FITS NEW
JERSEY's RECKLESS THREAT PROVISION. IT'S TAKEN FROM THE PENAL CODE TO A TEA. AND THERE IS
NO BASIS TO DIVERGE UNDER THE STATE CONSTITUTION. NOT IN TEXT OR STRUCTURE, IN FACT THE
TEXT BEING RESPONSIBLE FOR THE ABUSE OF THAT RIGHT UNDERSCORES THIS IS A CASE WHERE THE
SPEAKER IS ABUSING HIS RIGHT TO FREE SPEECH BY HARMING ANOTHER PERSON AND BECAUSE POLICY,
PRACTICE AND TRATDZ ALL SUPPORT THE MIDDLE GROUND BALANCE THAT COUNTER MAN STRUCK. I
WELCOME THIS COURT'S QUESTIONS ON ANY OF THE CONSTITUTIONAL ISSUES HERE BUT I'LL OTHERWISE
BEGIN WITH GIVING THE ATTORNEY GENERAL'S POSITION ON HOW THIS STATUTE -- JUSTICE
SOLOMON: IT SOUNDS LIKE PRELIMINARILY THE INTEREST ARE UN-AFFECTED BY TRUE THREATS.
THOSE RIGHTS ARE UN-AFFECTED BY TRUE THREATS. IF YOU PROHIBIT THEM, YOU'RE NOT AFFECTING
THOSE THINGS SOUGHT TO BE PROTECTED BY EITHER CONSTITUTIONAL PROVISION. IS THAT YOUR
CONTENTION. MICHAEL L. ZUCKERMAN: . TRUE THREATS THEMSELVES ARE NOT PROTECTED
AT ALL. NOW, COUNTER MAN SAYS WE ACTUALLY HAVE TO PROBATE A LITTLE BIT MORE JUST TO MAKE
SURE WE DON'T CHILL SPEECH AND OF COURSE WE FULLY ACCEPT THAT. AS YOU KNOW WE ORIGINAL
LY ARGUED WHAT THE DISSENTERS SAID THAT IT SHOULD BE JUST AN OBJECTIVE STANDARD. WE'RE
NOW HERE ACCEPTING THE COUNTER MAN RULING THAT IT HAS TO BE OBJECTIVE PLUS SUBJECTIVE
RECKLESSNESS BUT WITH THAT EXTRA BREATHING ROOM ADDED OUR POSITION IS THERE CAN'T BE ANY
PROBLEM UNDER THE NEW JERSEY CONSTITUTION THAT'S ALREADY A VERY -- AN EXTRA SORT OF PRO
FAL LACTIC STEP THAT COUNTER MAN BUILDS IN AND THERE'S NOTHING IN THE NEW JERSEY
CONSTITUTION THAT WOULD GIVE ANY REASON TO GO EVEN HIGHER. JUSTICE PATTERSON:
WHY ISN'T THE LANGUAGE IN THE NEW JERSEY CONSTITUTION WITH CREATING AN AFFIRMATIVE
RIGHT TO SPEAK SUGGESTIVE OF A BROADER FREE SPEECH RIGHT HERE AS IT RELATES TO TRUE THREATS?
I'M NOT TALKING ABOUT THE GENERAL TOPIC OF FREE SPEECH BUT IT AS IT RELATES TO TRUE THREATS.
MICHAEL L. ZUCKERMAN: JUSTICE PATTERSON, I DON'T THINK THE LANGUAGE OF
ARTICLE ONE, PARAGRAPH SIX DOES ANYTHING DIFFERENT. I THINK THE AFFIRMATIVE RIGHT TO
SPEECH AND THEN ARTICLE ONE PARAGRAPH SIX ACTUALLY GOES ON TO SAY BEING RESPONSIBLE FOR
THE ABUSE OF THAT RIGHT, WHICH MAKES EXPLICIT WHAT THE FIRST AMENDMENT LEAVES IMPLICIT
WHICH IS YOU CAN'T SAY ANYTHING IF WHAT YOU SAY DEEPLY HARMS SOMEONE, IF IT'S A THREAT,
IF IT'S AN ABSENTEE. JUSTICE PIERRE-LOUIS: I THINK YOU SAID THAT THE
FIRST SENTENCE OF ARTICLE ONE PARAGRAPH SIX IS BASICALLY SAYING THE SAME THING AS THE US
CONSTITUTION WHICH STATES THAT CONGRESS SHALL MAKE NO LAW A BRIDGING THE RIGHT TO FREE
SPEECH BUT IN NEW JERSEY CONSTITUTION WE HAVE THAT INTRODUCTORY SENTENCE AND THEN WE HAVE
A SENTENCE NO LAW SHALL BE PASSED WHICH IS SIMILAR TO THE US CONSTITUTION. SO WE
ALREADY HAVE A SENTENCE, A SEPARATE SENTENCE IN THE NEW JERSEY CONSTITUTION THAT IS SIMILAR
TO THE US CONSTITUTION. SO THAT FIRST SENTENCE PROVIDING THE AFFIRMATIVE RIGHT IS --
I CAN'T SEE HOW THAT'S THE SAME WHEN THERE'S AN ADDITIONAL SENTENCE IN OUR CONSTITUTION
THAT STATES THAT THERE SHOULD BE NO LAW PASSED SIMILAR TO THE FIRST AMENDMENT.
MICHAEL L. ZUCKERMAN: SO I THINK YOU'RE RIGHT, JUSTICE PIERRE-LOUIS. I THINK IN SOME
CASES LIKE FOR EXAMPLE A BROOK SITUATION WHERE YOU'RE TALKING ABOUT STATE ACTION, THAT
MIGHT DO SOME WORK. BUT I THINK YOU HAVE TO READ THAT FIRST SENTENCE WITH THE FULL CLAUSE.
SO YOU DO GET AN AFFIRMATIVE GRANT AND THAT CAN EXPLAIN WHY IN SOME CASES LIKE WHEN SOMEONE'S
IN A SHOPPING CENTER THAT'S OPEN TO EVERYBODY THE NEW JERSEY CONSTITUTION MAY GO FARTHER
THAN THE NEW JERSEY CONSTITUTION TO PROTECT MORE SPEECH. JUSTICE PATTERSON:
SCHMIDT WAS THE SAME OBVIOUSLY KIND OF ANALYSIS THAT THAT LANGUAGE WAS VERY PERTINENT
TO THE SCHMIDT SETTING WHICH IS SORT OF A PRE-CURSOR. MICHAEL L. ZUCKERMAN:
I THINK THERE ARE CIRCUMSTANCES WHERE THOSE WORDS CAN ABSOLUTELY DO SOME WORK. IN MANY
CASES. IT'S NOT A LINE OF CASES THAT I THINK GIVES US ANY REAL OR GIVES MY FRIENDS ON
THE OTHER SIDE ANY REAL PURCHASE HERE BECAUSE IT'S QUALIFIED BY THIS IDEA THAT YOU'RE
STILL RESPONSIBLE FOR ABUSING YOUR RIGHT AND YOU'RE RESPONSIBLE FOR WHEN YOUR SPEECH
TRENCHES ON THE RIGHTS OF OTHERS. JUSTICE SOLOMON: IS THAT A LIMIT NATION
THAT GOES BEYOND ANY LIMITATION THAT'S EXPRESSED IN THE US CONSTITUTION? YOU CAN MAKE
THE ARGUMENT THAT THAT FIRST CLAUSE, THAT FIRST SENTENCE MEANS THAT NEW JERSEY's CONSTITUTION
IS MORE STRUCTURED AND LIMITED IN LANGUAGE THAN THE UNITED STATES CONSTITUTION. IT CAN'T
PROVIDE LESS RIGHTS BUT THE LANGUAGE CLEARLY IS NOT BROADER. IT MAY EVEN BE SOMEWHAT
NARROWER. MICHAEL L. ZUCKERMAN: I THINK THAT'S RIGHT. I THINK EXPLICITLY
CALLING OUT THE FACT THAT YOU HAVE TO BE RESPONSIBLE FOR THE ABUSE OF YOUR RIGHT TO
SPEAK IS A CLEAR REFERENCE TO THE FACT THAT WE KNOW THAT THERE ARE A FEW CATEGORIES OF
SPEECH, AND THIS CASE PRESENTS ONE OF THOSE RARE CATEGORIES, WHERE SPEECH IS NOT JUST
A PERSON EXPRESSING THEIR OWN POLITICAL BELIEVES, WHICH WE ALL CELEBRATE, BUT IT'S WHEN
THAT SPEECH BREACHES THE BANKS AND IS THEN TRENCHING ON SOMEONE ELSE's RIGHTS TO EXIST
IN SOCIETY. IT'S FRANKLY TERRIFYING THEM. SO THE THREAT NER WHO THREATENS THEIR EX-SPOUSE
OR EX-GIRLFRIEND, THE PERSON WHO SPENDS A MESSAGE TO THE LOCAL CIVIL SERVANT --
JUSTICE SOLOMON: SO THE NEW JERSEY CONSTITUTION SAYS EXPLICITLY WHAT THE US CONSTITUTION
IMPLIES BOTH IN GRANTING THE RIGHT AND LIMITING THE RIGHT. MICHAEL L. ZUCKERMAN:
I THINK THAT'S RIGHT, JUSTICE SOLE. I THINK IT DOES MAKE EXPLICIT THAT POINT THAT WITH
THE RIGHT IS NOT ACTUALLY WHAT -- I THINK IT WAS JUSTICE BLACK WHO SAID NO LAW MEANS NO
LAW. IT'S NOT REALLY BECAUSE YOU HAVE TO HAVE SOME SITUATIONS IN WHICH A PERSON'S RIGHT
TO SPEAK FREELY WHERE SOCIETY HAS THE ABILITY TO STEP IN AND INTERVENE. FOR EXAMPLE,
WHEN THE PERSON IS TERRIFYING THEIR EX-SPOUSE. WHEN THE PERSON IS SENDING MESSAGES TO
THE RE-PRODUCTIVE RIGHTS PROVIDER. THESE ARE REAL CASES. MESSAGES TO THE LOCAL SYNAGOGUE
OR MOSQUE. IF YOU HAVE A KNOWLEDGE OR PURPOSE STANDARD, IT IS VERY HARD I THINK FOR THOSE
CASES. YOU REALLY RISK IMMUNIZING SOME VERY DEVIOUS SPEAKERS WHO DO WANT TO TERRES FBI
PEOPLE, OBJECTIVELY TERRES FBI PEOPLE. THEY'RE ALREADY PROTECTED BY THE OBJECTIVE TEST
BECAUSE IT HAS TO BE A FEAR OF VIOLATION, NOT JUST AN OBJECTIVE FEAR YOU'RE GOING TO
STOP PAYING YOUR TAXES. IT HAS TO SINGLE OUT A VICTIM OR ACTUAL GROUP OF VICTIMS. NOT
SOMEBODY SAYS SOMETHING BAD SHOULD HAPPEN TO ALL THE JEWISH PEOPLE. AND IT THEN -- SO
WE HAVE ALL THE OBJECTIVE STUFF. IT CAN'T BE AN EGG SHELL VICTIM. AND THEN ON TOP OF
THAT BECAUSE OF COUNTER MAN WE HAVE THIS EXTRA LAYER OF PROTECTION WHICH IS THE SUBJECTIVE
MENS REA. THE PERSON LETS YOU ACTUALLY KNOW THIS COULD REALLY SQUARE SOMEONE AND YET
THEY SAY IT ANYWAY. I THINK IN THAT CIRCUMSTANCE -- JUSTICE WAINER APTER:
ISN'T THE KNOWING PURPOSEFUL STANDARD REQUIRED FOR INCITEMENT? MICHAEL L.
ZUCKERMAN: I THINK IT'S STILL IN QUESTION WHAT THE TEST IS BUT THE TEST IS ALSO UNDERSTOOD
AS BEING BASICALLY A KNOWING AND PURPOSEFUL STANDARD. JUSTICE WAINER APTER:
IS THAT IMPOSSIBLE TO SHOW IN THE WAY THAT YOU'RE ARGUING THAT IT WOULD BE FOR TRUE THREATS?
MICHAEL L. ZUCKERMAN: IT'S A HARDER STANDARD TO MEET FOR VERY GOOD REASONS.
I THINK INCITEMENT IS REALLY NOT THE RIGHT ANALOGY FOR A THREAT. FIRST OF ALL, I THINK
INCITEMENT IS MY DEFINITION AND I THINK THE APPELLATE DIVISION IN STATE VERSUS CAROL
TALKS ABOUT THE DIFFERENCES BETWEEN THE TWO AND THE U.S. SUPREME COURT HAS OBVIOUSLY OR
ALWAYS BEEN ABLE TO DISTINGUISH THE TWO. BUT INCITEMENT IS WHEN A SPEAKER IS TRYING TO
EXTORT THIRD PARTIES TO DO SOMETHING BAD, SOME SORT OF LAWLESSNESS. BUT THE SPEAKER
THEMSELVES IS NOT THREATENING VIOLATION. IN THE THREAT IT'S THE SPEAKER THEMSELF SAYING
THEY'RE GOING TO DO THIS THING THAT HURTS SOMEONE. THAT'S YOUR FIRST DISTINGUISHING
CHARACTERISTIC. SECOND, A GROUP OF VICTIMS. SO THE SPEAKER ON THE STAGE OF
A RALLY WHO SAYS EVERYBODY SHOULD DO SOMETHING HORRIBLE TO JEWISH PEOPLE, THAT'S SORT
OF AN INCHOATE EX-TORE TAXATION. THERE'S A LOT MORE SPACE BETWEEN THAT AND THE PERSON
WHO SAYS I'M GOING TO DO AN ACT OF VIOLATION TO THIS PARTICULAR JEWISH PERSON STANDING
OVER THERE. JUSTICE PATTERSON: TELL US WHAT EVIDENCE THERE WOULD BE, ASSUMING
THE DEFENDANT DOESN'T GET ON THE STAND AND TALK IN TERMS OF RECKLESS DISREGARD OR INTENTION,
WHICH WOULD BE THE DREAM OF ALL PROSECUTORS, BUT ASSUMING THAT DOESN'T HAPPEN, WHAT EVIDENCE
WOULD SUPPORT A CONVICTION UNDER THE RECKLESS DISREGARD STANDARD BUT WOULD NOT SUPPORT
A CONVICTION UNDER AN INTENTIONAL STANDARD? MICHAEL L. ZUCKERMAN: SURE.
I THINK THE CLASSIC EXAMPLES, THE PERSON HAS A PLAUSIBLE BUT NOT OVERWHELMING ARGUMENT
THAT IT WAS -- THEY WERE JUST VENTING. IT WAS THERAPY FOR THEM. IT WAS ART. YOU SEE
THAT IN THE (CASE CITED) CASE WHICH WENT UP TO THE U.S. SUPREME COURT IN I THINK 2015.
THAT DEFENDANT HAS ACTUALLY BEEN RE-CONVICTED FOR THREATENING HIS EX-WIFE, EX-GIRLFRIEND
AND THE U.S. ATTORNEY. WAS SAYING THIS WAS HIS ART AND HE DIDN'T MEAN IT TO SQUARE ANYONE
OF THE IT JUST SO HAPPENED IT WAS BONE CHILLINGLY TERRIFIED BUT HE DIDN'T MEAN IT WOULD BE.
A DEFENDANT COULD EASILY SAY I THOUGHT THEY WOULD TAKE IT AS VENTING. A WARNING, SOMEONE
WHO SAYS TO THE RE-PRODUCTIVE RIGHTS CLINIC, I JUST WAS WATCHING YOU THIS MORNING. I THINK
YOU SHOULD PROBABLY CHECK UNDER YOUR CAR, IT COULD BE THE MORNING THERE'S A BOMB UNDER
YOUR CAR. JUSTICE PATTERSON: WHY WOULDN'T THAT BE EVIDENCE UNDER EITHER
STANDARD? MICHAEL L. ZUCKERMAN: CIRCUMSTANTIAL EVIDENCE IS ALWAYS GOING TO
BE ABLE TO COME IN. I THINK IF YOU'RE PROVING KNOWLEDGE, A DEFENDANT WHO CAN STAND UP
AND SAY I REALLY THOUGHT IT MIGHT BE TAKEN AS A WARNING. I DON'T KNOW. THE PERSON WHO
SAYS IT'S JUST LOCKER ROOM BANTER. I DIDN'T KNOW IF IT WOULD BE TAKEN AS A THREAT. OR
JUST A JOKE. THE PERSON WHO'S STALKING AND THREATENING A PERSON WHO DOESN'T RETURN THEIR
ROMANTIC AFFECTIONS AND SAYS, WELL, I REALLY BELIEVED THERE WAS A CHANCE THIS PERSON MIGHT
COME AROUND AND MIGHT APPRECIATE -- YOU SAW THIS IN STATE VERSUS GANDHI. THERE ARE DEFENDANTS
WHO ARE IN THAT SITUATION. SO IN THOSE KINDS OF CASES IT'S VERY HARD, I THINK, TO ACHIEVE
ANY KIND OF REMEDY AND IT DOESN'T HAVE TO BE A CRIMINAL CONVICTION, IT COULD BE A CIVIL
RESTRAINING ORDER, BECAUSE FREE SPEECH LAW APPLY TO ALL OF THOSE SANCTIONS WHETHER THEY'RE
CIVIL OR CRIMINAL. I THINK IT'S JUST A HIGHER BAR AND I DON'T KNOW THAT WE GET ANYTHING
FOR THAT BECAUSE TO GET BACK TO JUSTICE. JUSTICE NORIEGA: 'S QUESTION, I DON'T KNOW
WHAT THE PEACH IS THAT'S VERY CLOSE TO THE VIOLENT THREAT THAT WE'RE WORRIED ABOUT
CHILLING. AND I THINK THIS ALSO GETS BACK TO JUDGE WAINER's QUESTIONS. WE POLITICAL
SPEECH. PEOPLE ADVANCING MARK SICHL AND OVER THROWING THE GOVERNMENT. THE THREATS, THE
STUFF IN THESE THREATS CASES, THEY'RE NOT AN HEIR STEP AWAY FROM CORE POLITICAL SPEECH.
THIS IS NOT THAT KIND OF -- JUSTICE PATTERSON: WELL, THEY CAN BE. AND THERE ARE
SITUATIONS WHERE THEY ARE. THIS PARTICULAR CASE PERHAPS NOT, BUT THERE CAN BE CASES WHERE
THERE'S A DIFFICULT LINE TO DRAW BETWEEN POLITICAL ADVOCACY AND TRUE THREATS.
MICHAEL L. ZUCKERMAN: I THINK JUSTICE PATTERSON THAT IT'S ALMOST ALWAYS I WOULD SAY
MAYBE ALWAYS PRETTY EASY TO DISENTANGLE THEM. I TOTALLY ACCEPT THE PREMISE THEY CAN TRAVEL
TOGETHER. A PERSON CAN SAY I HATE THE PRESIDENT AND EVERYTHING HE STANDS FOR. WHEN THE
NEXT CLAUSE COMES THEY SAY, OH, BY THE WAY, I'M GOING TO 1600 PENNSYLVANIA AVENUE. THOSE
TWO ARE WILDLY DIFFERENT. OF COURSE THE FIRST CLAUSES ARE PROTECTED. THEY CAN SAY WHATEVER
TERRIBLE THINGS THEY WANT. BUT THEN WHEN YOU GET TO THE NEXT CLAUSE IN THE SENTENCE THAT
SAYS BY THE WAY I'M GOING TO DO PHYSICAL VIENGS TO THIS PERSON OR THEIR FAMILY, IT'S AN
EASILY SEPARABLE SENTIMENT. THAT'S WHERE THE THREAT IS. NOT IN THE POLITICAL DISLIKE
OF WHOEVER THE RECIPIENT IS. JUSTICE PATTERSON: HOW ABOUT THE L B J CASE
THAT WAS CITED EARLIER. MICHAEL L. ZUCKERMAN: I WANTED TO GET BACK TO WATTS.
I THINK WATTS IS A CLEAR EXAMPLE OF BY THE OBJECTIVE TEST ALONE. BECAUSE EVERYBODY KNEW
IN CONTEXT THAT WHAT HE WAS SAYING WAS NOT A BONA FIDE THREAT TO ASSASSINATE PRESIDENT
JOHNSON. IT WAS POLITICAL RHETORIC AT A RALLY AND THAT'S WHY YOU LOOK TO ALL THE CONTEXT
CLUES THAT COME IN. WERE PEOPLE LAUGHING? DID THEY UNDERSTAND THAT THIS WAS SORT OF
A PEOPLE BEING HYPERBOLIC OR WAS IT REALLY -- IN WATTS IT'S AN EASY CASE, THE CONTEXT
WE NOW KNOW SHOWED IT WOULD NOT HAVE EVEN GOTTEN TO THE SUBJECTIVE TEST BECAUSE IT WASN'T
EVEN OBJECTIVELY THREATENING. BUT EVEN A CASE -- JUSTICE WAINER APTER: ON
THE OBJECTIVE PRONG, YOUR ADVERSARY APPEARS TO BE SEPARATELY ARGUING THAT BEYOND THE
RECKLESSNESS STANDARD THE STATUTE IS UN-CONSTITUTIONALLY OVERBROAD BECAUSE IT DOES
NOT INCLUDE A REQUIREMENT THAT A REASONABLE AUDIENCE MUST FEEL THREATENED BY THE SPEECH
OR A REASONABLE PERSON WOULD PERCEIVE THE THREAT AS REAL. BUT YOU SEEM TO AGREE WITH
COUNTER MAN THAT THE GOVERNMENT IS ALREADY REQUIRED TOLL SHOW THAT A REASONABLE PERSON
WOULD PERCEIVE THE THREAT AS REAL. IS THERE ANY ACTUAL DISAGREEMENT HERE? HOW DO YOU
UNDERSTAND YOUR ADVERSARY's POINT? MICHAEL L. ZUCKERMAN: I DON'T -- I
APPRECIATE THE QUESTION. I SDO AGREE WITH THE COUNTER MAN MAJORITY. I DO THINK THE
OBJECTIVE PIECE IS THERE. I THINK YOU HAVE TO SHOW A REASONABLE PERSON WOULD BE AFRAID.
I DO WANT TO BE CLEAR. THE ACTUAL TARGET DOESN'T HAVE TO BE AFRAID. SO IF YOU THREATEN
THE PRESIDENT, YOU DON'T HAVE TO GET THE PRESIDENT UP ON THE STAND TO SAY HE'S REALLY
REALLY AFRAID OF THIS. BUT IT HAS TO BE OBJECTIVELY THREATENING. SO IF IT'S CLEAR
FROM CONTEXT -- AND THE JURY INSTRUCTIONS MAKE THIS I THINK CRYSTAL CLEAR. IT CAN'T BE
FLEETING ANGER. IT CAN'T BE JUST A PERSON WHO'S KIND OF TRYING TO BE PROVOCATIVE. IF
IT'S OBJECTIVELY MENACING TO SOMEONE, THAT IS BAKED INTO THE STATUTE AND TO THE EXTENT
THAT THEY SEE IT DIFFERENTLY I THINK THE STATUTE IS MORE PROTECTIVE THAN THEY'RE READING
IT TO BE. CHIEF JUSTICE RABNER: I UNDERSTAND YOUR ARGUMENT AS FOCUSED ON
THE CONSTITUTIONAL QUESTION. DOES THE ATTORNEY GENERAL HAVE A POSITION WITH RESPECT
TO THE TERRORISTIC THREATS ITSELF? CAN THERE B. MICHAEL L. ZUCKERMAN: SO WE'RE
ONLY HERE ON THE CONSTITUTIONAL QUESTION. I HAVEN'T STUDIED IT ENOUGH. I WOULD DEFER
TO MY COLLEAGUE FROM THE COUNTY ON THAT QUESTION. CHIEF JUSTICE RABNER: THANK YOU.
DANIEL S. ROCKOFF: GOM, GOOD MORNING, YOUR HONOR'S. MY CLIENT HAS BEEN
SPENT THREE YEARS IN PRIP FOR EX KEL 88ING AN OFFICER AND THAT DOES NOT COMFORT WITH
ARTICLE 1, PARAGRAPH 6 AND 18 NFT NEW JERSEY CONSTITUTION BECAUSE IT'S BROAD PROTECTIONS
GUARANTEE HE HAVE REPERSON THE RIGHT TO FREELY SPEAK, WRITE AND PUBLISH HIS SENT MENTS
ON ALL SUBJECTS. HIS ORAL AND WRITTEN CRITICISMS WERE DISSENT FOCUSED ON THE MARN M
WHICH THE GOVERNMENT WAS OPERATING, SPEECH WHICH NEW JERSEY MAY NOT SILENCE VIA CRIMINAL
PROSECUTION, SECURITY EXCEPT UPT THE MOST SNAR ROW CONDITIONS THE TRUE THREATS AND EMERGENCY
SILENCE OF SPEECH THIS EXCEPTION BY OUR NATIONAL COMMEND COMMIT THE T THE FREE DISCUSSION
OF I IDEA AS THE APPELLATE DIVISION HELD TO NARROW A CRIMINAL PROSECUTION UNDER THE
LIMITED EXCEPTION WITHOUT SILENCING IDEAS, THE STATE MUST PROVE THE SPEAKER HAD A SPECIFIC
INTENT TO TERRORIZE VIA SPEECH INSTILLING A REASONABLE FEVER A TACK. FOR 3 REASONS THIS
COURT SHOULD A FIRM, FIRST WE'RE NEW JERSEY, OUR STATE CONSTITUTION IS PLAIN LANGUAGE
AS YOUR HONOR'S POINTED OUT AFFIRMATIVELY PROMISES EVERY PERSON THE PRIET TO FREELY
SPEAK ON ALL SUBJECTS, OFFERS GREATER PROTECTION IN THE FIRST AMENDMENT. ATS A GUARANTEE
OF PRO TECH THAT HAS BEEN DESCRIBE AS BROADER THAN PRACTICALLY ALL OTHERS IN THE NATION
OF THE THE PRUM THUN THE PER SKUGS OF SPEECH ARE UNCONSTITUTIONAL AND MUST HARM REQUIRES
THE DISTINGUISHING BETWEEN PERMISSIBLE AND PROHIBITED INTENT, FROM CRIMINAL LIEFG SPEECH
A RECKLESSNESS STANDARD DOES NOT PROTECT PERMISSIBLE INTENT OF THE IT CHILLS SPEECH,
OVERBROAD, DISKRIM TOESHG IT'S VACHLTH WE CALL ON THIS COURT TO HOLD THAT THE TEST ADOPTED
BY THE APPELLATE DIVISION IN STATE VS. CAROL REASON FATE VERSUS FAIR TRUTH PROSECUTION
TO PROVE INTENT TO TER T RICE FOR SPEECH ON ALL SUBJECTS IS ADEQUATELY ININFENTLY PRO
FEKTED DI THE NEW JERSEY CONSTITUTION PARAGRAPH 6 AND 18. THERE'S SECOND
REASON TO AFFIRM UNDER THE NEW JERSEY CONSTITUTION, EVEN IF TRUTH PROGS SKUGS DON'T
REQUIRE PROOF OF INTENT FOR SPEECH ON ALL SUBJECTS, IT'S AT LEAST REQUIRED WHEN THE
SPEAKER IS EXPRESSING SENT MENTS ON SOCIAL POLITICAL SUBJECT ESPECIALLY MANNER M WHICH
THE GOVERN SMENT OPERATING OR SHOULD BE OPERATING. THAT'S THE MEN NUMB
BECAUSE THE POLITICAL SMEECH IS CENTRAL TO WHY WE PROTECT SPEECH AS A, HOW GOCH THE SHOULD BE
OBJECT, HAD HISTORICALLY RSHGS FREE DISCUSSION ON THIS CORE SUBJECT DOESN'T DISSERVE THE
INDIVIDUAL IT SERVES OUR DI MOCK ACCURACY. 3RD, YOU SHOULD FIND THE FIRST AMENDMENT RIGHT,
INTENT TO TERRORIZE FOR CORE POLITICAL SPEECH. NOW, THAT'S BECAUSE AS THE VIRGINIA B
BRAK AT LEAST SOME 1ST AMENDMENT FLAW NOT DISTINGUISH RG PERMISSIBLE INTENT FROM
PUNISHABLE INTEVENLT I REALIZE THAT MY FRIENDS ON THE OTHER SIDE WANT THE WEAKER REMEDY
FOUNT IN COUNTER NAN THO APPLY ERR, VERY LINE DRAWN IS DISTINGUISHABLE, THAT'S BECAUSE
THERE IS NO NEED FOR ANY HAMMERING IN COUNTERMAN BUT WHETHER THE PROSECUTION WOULD BLEED
OVER INTO SIGH LENING SPEEFRP AT THE FIRST AM RMENT CORE. BEFORE I WRAP MY OPENING I
WANT FO SAY SOMETHING ABOUT THE STATE, WE DO HAVE THE NATIONAL COMMITMENT TO THE EX SPREPGS
OF IDEAS, THAT'S ALWAYS VULNERABLE TO AND REQUIRES A INTERNAL VIGILANCE. CENTRAL CAR
RACK TEFR A COMMUTE NN IS HOIT RESPOND TO THE CHAL LEMG OF THREATENING IDEAS. AND HE
OPINION JUSTICE BRAN P AS THE SEARCH SFEECH KWHER OF A AMERICAN, HE SAID COURAGE IS THE
SECRET OF LIBERTY, THE GREATEST MENACE TO DID HE MACK, NOT HAVE I INERT PEOPLE, THE 3RD
SERIOUS INJURE ALONE, SUPPRESSION AVENUE FREE SPEECH THE AND ASSEMBLY, HE WANTED US TO
A LOUL PEOPLE WITH RADICAL IDEAS TO BE ABLE CHOO CHAL LEFRM POLITICAL AND ASSOCIATE VALUES
SO I LIKE TO HICHGING NEW JERSEY IS THE KIND OF COMMUNITY THAT KR LIVE UP TO THE IDEA
OF CIVIC OCCUR RICHL AND ARE SIS DISSENTHS IDEAS HOW FAR CRUDELY WITHOUT SILENCING HIM.
SO YOU TO SHOULD HAVE AVENUE FIRP THE APPELLATE DIVISION FOR ALL THESE REASONS
AND R DISMISS THE INDICTMENT. SO SO MOVING ON THAT CONCLUDES MOO OPENING STATEMENT I
WOULD ASK YOU TO HOLD AGS A TRUE THREAT RV PROSECUTION PARAGRAPH 6 AND 18 OF OUR NEW
JERSEY CONSTITUTION REQUIRE PROOF OF INTENT TO TERRORIZE, SO I WANT TO START WITH THE PLAIN
LANGUAGE WHICH IS, POINT OUT PT THE LAVENG WITCH. THE COURT: ASK YOU A
PRELIMINARY QUESTION. AND WE ALL THE LEGAL LAND SHAPE HAS SHIFTED WITH COUNTERMAN KOMG
OUT JUST MONTHS AGO, THE BLUT BUT CHAL LERMG UP THE STATE CONSTITUTION BEFORE THE APPELLATE
DIVISION? DANIEL S. ROCKOFF: YES, YOUR HONOR'S T I RAISE THE IT MY CLIENT
RAIDS IT IN THE LAW DIVISION, WAS RAISED IN THE APPELLATE DIVISION, IT WAS RAISED IN FRONT
OF THIS COURT. CHIEF JUSTICE RABNER: HOW DID YOU RAISE IN IT FRONT OF THE
APPELLATE DIVISION. DANIEL S. ROCKOFF: IN FRONT OF THE APPELLATE DIVISION
MY BRIEF, CLEARLY IN MY INTROER DUCK TOWER PARAGRAPH CITED ARTICLE 1, PARAGRAPHS 6 AND
18 IN SUPPORT OF THE PROPOSITION THAT THE NEW JERSEY CONSTITUTION REQUIRES PROOF OF INTENT
TO TERRORIZE, AND LATER ON I WENT TO ON TO DISCUSS THE PRINCIPLE THAT STATE VS. SUBMIT
POINT OUT THAT NEW JERSEY CONSTITUTION AND THESE PROVISIONS ARE BROAD OR CAN BE AND SHOULD BE
INTERPRETED MORE BROADLY THAN THE FEDERAL CONSTITUTION. CHIEF JUSTICE
RABNER: I'M LOOKING AT THOSE TWO POINTS IN YOUR BRIEF RIGHT NOW, THE FIRST POINT HEADING
NUMBER 2 IS THFR THE STATE STATUTE IS UNCONSTITUTIONALLY OVERBROAD AS IT PRESCRIBES
SPEECH PROTECTED WITH THE FIRST AMENDMENT AND THEN THE FIRST SENTENCE SAYS THE STATE STATUTE
VIOLATES THE FIRST AMENDMENT, PERIOD. THERE IS AVENUE STRING CITE THAT INCLUDES THE
REFERENCE TO THE NEW JERSEY CONSTITUTION. AND THEN LATER THERE'S A SINGLE
SENTENCE THAT SAYS THIS COURT SHOULD RECALL THAT NEW JERSEY IS MORE PROTECTIVELY RIGHTS
THAN THE FED CAN YOU TELL CONSTITUTION. DANIEL S. ROCKOFF: YES, YOUR HONOR.
DANIEL S. ROCKOFF: IS THAT ENOUGH? DANIEL S. ROCKOFF: I THINK
IT IS. CHIEF JUSTICE RABNER: TO RAISE AN ISSUE, ROCK RK I RECOLLECTION NIS
I FOCUS ON FIRST AMENDMENT IN MY STATE CONSTITUTIONAL BRIEF PRIOR TO COIN TER MAN AS
OF NOTED IN LIKE STATE VS. CARROLL, THE STATE STATE COURTS JUST RELY ON VIRGINIA V BLACK
BUT I MAINTAIN THAT, YOU KNOW, CITING THE STATE CONSTITUTION IN THE OPENING PARAGRAPH,
IN THE OPENING SENTENCE AND DISCOVERING IT FURTHER, THAT'S SUFFICIENT NOTICE PUT THE
COURT AND THE STATE ON NOTICE THAT THE STATE CONSTITUTION WAS RAISE. I
FURTHER POINT OUT THE STATE, THERE WAS NO CONFUSION WITH THE STATE, I MEAN YES THEIR
RESPONSE IS BRIEF AS WELL BUT THEY ARGUED IN RESPONSE, NO, WE'RE WRONG, I THINK PARAGRAPH
RT 6, 18, NEW JERSEY STATE CONSTITUTION DOES NOT REQUIRE THE SAME RULE. I
ALSO POINT OUT THAT REGARDLESS OF ALL THIS, STATE'S NOTICE OF MALE, THEIR CHOICE TO RELY
ON THE NOTICE OF APPEAL AS OF RIGHT, IT IS PLAIN LANGUAGE WHICH I RELIED ON, THEY ASKED
THIS COURT TO CONSIDER THE CONSTITUTIONALITY. CHIEF JUSTICE RABNER: I'M
ASKING IF YOU RAISED THIS IN FRONT OF THE APPELLATE DIVISION, BECAUSE IF YOU DIDN'T, WE
CAN'T ADD NEW ISSUES WITH RESPECT TO THE STATE CONSTITUTION BEFORE THIS COURT. IS THAT
A FAIR STATEMENT? DANIEL S. ROCKOFF: I, YOUR HONOR'S, YOUR HONOR, I DO
BELIEVE I RAISE IT. I ALSO POINT OUT THAT, I DON'T THINK THAT YOU CAN DECIDE THIS CASE
IN A FAIR MANNER WITHOUT ADDRESSING THE STATE CONSTITUTIONAL ISSUE. I BELIEVE MY CLIENT
RAISED THE STATE CONSTITUTIONAL ISSUE IN THE LAW DIVISION, THE APPELLATE DIVISION, THE
SUPREME KOFRMENT I POINT TO T I CAN'T RECALL EXACTLY BUT I KNOW WHAT THE 4TH AMENDMENT
CASE IS, THERE WAS SOME EARL CASE LAW WHERE THIS COURT LYING SUA SPONTE EVEN WITHOUT THE
ISSUE BEING RAISES ARAISED WENT ON TO DECIDE THAT THE 4TH AMENDMENT WAS BROADER THAN THE
FED CAN YOU TELL CONSTITUTION, SO IT'S NOT AS THOUGH IT IS UNUSUAL, EVEN IN A SITUATION
-- JUSTICE PATTERSON: YOU'RE SAYING NEW JERSEY PROVISION. DANIEL S.
ROCKOFF: YEAH THE OORL IN PARAGRAPH 7 WOULD BE BROADER THAN THE 4TH AMENDMENT MENT IT'S
NOT UNUSUAL IN A CASE WHERE NO PARTY RAISES A STATE CONSTITUTIONAL ISSUE THAT IS PIVOTAL
TO A RESOLUTION AVENUE CASE WHICH I DON'T THINK AGAIN, I WOULD SUBMIT THAT I, I DID
APPROPRIATELY PUT EVERYONE ON NOTICE THAT ISSUE WERE YOU RAIDS. BUT IT'S NOT UNUSUAL FOR
COURT TO REACH THE ISSUE ANY WAY IN ORDER TO REACH AN APPROPRIATE RESOLUTION.
JUSTICE PATTERSON: CAN YOU GIVE US AN EXAMPLE IN THE FREE SPEECH CONTEXT WHERE THE COURT
RAIDS THE STATE CONSTITUTIONAL, OR THE COURT DECIDED STATE CONSTITUTIONAL ISSUE THAT WAS
OF LITIGATED ON THE BASIS VT FEDERAL STANDARD? DANIEL S. ROCKOFF: YOUR HONOR,
NOT OFF THE TOP OF MY HEAD, AGAIN I WOULD PRIMARILY FALL BACK ON MY POSITION THAT THIS
WAS APPROPRIATELY RAISED IN BOTH THE LAW DIVISION THE, APPELLATE APPELLATE DIVISION AND
THE THE SUPREME COURT. THE STATE RESPONDED TO IT AND THAT YOUR HONOR'S HAVE JURISDICTION
THE ON THE STATE CONSTITUTIONAL ISSUE. AS A FALL BACK, YOUR HONOR, YOU COULD
EVEN REMAN IT TO THE APPELLATE DIVISION FOR THE STATE CONSTITUTIONAL ISSUE. I DON'T KNOW
IF THAT'S A COMPLETE, I DON'T THINK THAT'S NECESSARY ALL GIVEN THAT THE ISSUE HAS BEEN
SO THOROUGHLY BRIEFED BUT SINTS THE APPELLATE DIVISION DIDN'T ADD TRES IT THAT REMAINS
A POSSIBILITY, I WANT TO STATE. CHIEF JUSTICE RABNER: I WANT YOU TO GO INTO
THAT AS WELL, THE REASON THE APPELLATE DIVISION DIDN'T THEY SAID YOU DIDN'T ARGUE THAT
IT VIOLATES STATE CONSTITUTIONAL FREE SPEECH GUARANTEE. WERE THEY WRONG.
DANIEL S. ROCKOFF: I DO ACKNOWLEDGE THAT PRE COUNTERMAN THE THRUST OF THE ARGUMENT WAS
VIRGINIA V BLACK THE 1ST AMENDMENT TO PROTECT THIS. CHIEF JUSTICE RABNER:
WERE THEY WRONG? DANIEL S. ROCKOFF: I -- UM, YOUR HONOR'S, OF IT WOULDN'T
HAVE BEEN DISCUSSED EXTENSIVELY AT ORAL ARMTH. THE ORAL ARC MENT DID FOE KISS ON VIRGINIA
V BLACK. CHIEF JUSTICE RABNER: LET'S MOVE ON TO THE NEXT.
DANIEL S. ROCKOFF: AS YOUR HONOR POINTED OUT LANGUAGE IS DIFFERENT, THE ACTUAL WORDS DO
AFFIRMATIVELY PROBLEM PROM MIF EVERY PERSON WILL PROTECT THEIR RIGHT TO FROLY SPEAK, EXPRESS SENT MENTS ON ALL SUBJECTS, WE CONTEND SMIT, A LOT OF CASES HAVE INTERPRET EXTENSIVELY
OTHER STATE CONSTITUTIONS. TO ALLOW SENTIMENT WITH PROTECTED INTENT TO
BE CHILLED, TO BE SILENCED WHEN -- JUSTICE WAINER APTER: THE CLIENT WAS ENGAGE
IN POLITICAL DISSENT, BUT IT SEEMS LIKE THE STATE WAS TRYING TO PROSECUTE FOR THE STATEMENT
YOU THEIRS TEE WORRY BU HEAD SHOT AND THEN IT SEEMS LIKE THEY WERE ALSO ARGUING I KNOW
WHAT YOU DRIVE AND WHERE ALL YOU CURSE WORD LIVE AT, THAT THAT SHOWED THAT THE YOU 30
TEE WORRY ABOUT A HEAD SHOT WAS A TRUE THREAT. HOW IS THAT AN EXAMPLE OF AR POLITICAL
DISSENT. DANIEL S. ROCKOFF: THROW ASPECT IN MY CLIENT KS SPEECH THAT MAKE
THE POLITICAL. IN CONTEXT THIS A CHALLENGE TO A POLICE OFFICER NUMBER 1, AETS A VERBAL
R CHALLENGE TO POLICE ACTION, TO BE ABLE TO DO THAT, FOR MOST PEOPLE THE POLICE ARE THE
STATE. JUSTICE PIERRE-LOUIS: ANY TYPE WITH PLEASE ACTION THEY OBJECT TO
WHICH IS OFTEN RPS THAT WOULD BE CONSIDERED POLITICAL SPEECH NOTWITHSTANDING THE
THREATENING NATURE OF THE STATEMENTS THAT ARE MADE TO THE POLICE OFFICERS OR LAW ENFORCEMENT
OFFICERS WHO ARE DOING THAT DUTIES, THAT'S WAIT SOUND LIKE YOUR ARGUMENT IS HERE.
DANIEL S. ROCKOFF: IT'S IN COULDN'T TESHGS IT'S A CHAL LERMG TO A POLICE OFFICER, IT'S
A SYMBOLIC CHALLENGE TO THE GOVERN, RIGHT, HE'S CRITICIZING AN OFFICER WHO IS A SYMBOLIC
STAND IN FOR THE GOVERNMENT IESHS WOULD ANSWER YOUR QUESTION JEVEN RL YES. PREKS, WATTS
ARGUED THE JUDGMENT S SUPREME COURT AGREED, THIS ISN'T A POLICE OFFICER BUT IN TERMS OF
SYMBOLIC CHALLENGE HE'S TALK ABOUT PRESIDENT JOHNSON. JUSTICE WAINER APTER:
HE'S DOING THAT AT A POLITICAL RALLY, NOT WITH A THIS WHAT NOT ON THE A POLITICAL RAL
THIS WAS DURING AN ACTUAL CONVERSATION WITH A POLICE OFFICER WHO HE WAS SAYING WORRY ABOUT
A HEAD SHOT. DANIEL S. ROCKOFF: OUR FREE SPEECH PROTECTION IN THE STATE
AND FED CAN YOU TELL CONSTITUTIONS DON'T JUST PROTECT SPEECH AT POLITICAL RALLIES, THEY
PROTECT SPEECH, I THINK JUSTICE MARSHAL IN THE ROGERS CONCURRENCE -- JUSTICE
PATTERSON: OF COURSE THEY'RE NOT LIMITED TO PLAT CAN YOU TELL RALLIES BUT YOU HAVE A PTS,
RPS RMSS JUSTICES POINT OUT WEF A DIRECT CONVERSATION WITH A POLICE OFFICER AND IT
WASN'T TALKING ABOUT WE KNOW WHERE POLICE GENERICALLY OR THE GOVERNMENT DRIVES RGS WE
KNOW WHERE YOU DRIVE. DANIEL S. ROCKOFF: RIGHT. YOU KNOW, BUT I WOULD SAY
THAT THAT'S ALL SYMBOLIC OF HIS ACTUAL OBJECTIONS TO WHAT'S, TO THE CHOICES THAT THE POLICE
FORCES MAB MAKING. IN TERMS OF THE. JUSTICE PIERRE-LOUIS: SPECIFICALLY
TO HIM, THOUGH, THIS IS BECAUSE THEY HAD BEEN AT HIS HOUSE PREVIOUSLY, I MEAN THE CONVERSATION
WAS REALLY DIRECTED TOWARDS THE POLICE OBJECTION TOWARDS HIM. AND WHAT IS P HAD AING
WITH HIM, IT'S DIFFICULT TO UNDERSTAND HOW THAT IS A GENERAL COMMENT ON THE STATE OF LAW
ENFORCEMENT AND, YOU KNOW, WHAT WOULD TYPICALLY BE CONSIDERED POLITICAL. DANIEL S.
ROCKOFF: RIGHT. BUT, YOU KNOW, I WOULD POINT OUT, LIKE THE LYNN LANGUAGE WAS UNPLEASANT
BUT UNPLEASANT ATTACKS ON AN OFFICER OR THE GOVERNMENT IS A SYMBOLIC STAND IN ARE
PROTECTED, THE GOVERNMENT CAN'T SILENCE SPEECH JUST BECAUSE IT DISAGREES WITHED MODE OF
FORCE AND VIEWPOINT. JUSTICE PATTERSON: I DON'T HAVE ANY SENSE THAT THE
STATE PROSECUTED YOUR CLIENT BECAUSE OF UNPLEASANTNESS. DANIEL S.
ROCKOFF: I WOULD EM SPA IF A SIZE MY FIRST POSITION EVEN IF THIS COURT DOESN'T JUDGE THE
OVERALL CONTEXT TO BE POLITICAL, OUR PRIMARY COULDN'T TENSE IS THE NEW JERSEY CONSTITUTION
PARAGRAPH 6 AND 18 PROTECTS SPEECH ON ALL SUBJECTS GIVEN THE PLAIN LANGUAGE THE NEW
JERSEY CONSTITUTION PROTECT ALL SUBJECTS, T ALLOW SENTIMENTS WITH PROTECTED INTENTS ON
ANY SUBJECT TO BE CHILLED DESPITE THE PROMISE THAT ONE MAY EXPRESS THOSE SENTIMENTS FREELY.
JUSTICE SOLOMON: SO ANY VERBAL THREAT OF ANY KIND AGAINST THE LAW
ENFORCEMENT OFFICER IS OKAY UNDER THE STATE CONSTITUTION. DANIEL S. ROCKOFF:
NO, YOU WERE. YOUR HONOR, IF THE, WE SIFRP MANY SUBMIT THAT THE STATE MUST PROVE INTENT
T TERRORIZE. SO WE ARE NOT, WE ARE NOT, WE'RE NOT ASKING FOR OF. JUSTICE
SOLOMON: THAT'S THAT'S NO WHAT YOU JUST SAID. DANIEL S. ROCKOFF: I'M SORRY
IF I'VE BEEN MISUNDERSTOOD. WE DO ALSO HAVE A STRONG PRESUMPTION UNDER THE STATE
CONSTITUTION AGAINST CRIMINAL LIEFG SPEECH AND MUST NARROW TO ADDRESS HARM. I WANT TO
POINT OUT 123 A ISN'T NARROW, IT CAST A WIDE NET. JURIES CAN CONVICT EVEN IN THE SPEAKER
NOT OPEN DIDN'T INTENT TO TERRORIZE BUT NO ACTUAL AUD YEEPS PERCEIVED ANY THREAT AT ALL.
WE DON'T KNOW IF THE JURY MADE EITHER OF THOSE FINDINGS HERE. OUR PURPOSE GIVEN TO THE
COLORADO STATUTE WHICH AT LEAST REQUIRED COLORADO TO PROVE AN ACTUAL AUDIENCE WAS HARMED
IN ORDER TO HAVE SOME TETHERING TO THE ACTUAL HARM THE STATE SAYS IT'S TRYING TO PREVENT.
ADDITIONALLY, I WOULD NOTE -- JUSTICE WAINER APTER: YOU'RE SAYING
THE STATUTE WOULD HAVE TO HAVE A SUBJECTIVE PROOF THAT THE PERSON WHO WAS THREATENED FELT
PERSONALLY THREATENED. DANIEL S. ROCKOFF: TO BE CLEESHGS I'M NOT SAYING
THAT THAT'S A REQUIREMENT, ON CONSTITUTION IT IS I'M SAYING WITHOUT IT, IT'S KIND OF LIKE
A PLUS FACTOR, THIS IS EVEN MORE UNTETHERED FROM THE HARM THAT THE STATE SAYS IT'S TRYING
TO PREVENT WHICH IS INTENT TO TR RICE, SO HERE WE HAVE A SITUATION NOT ONLY WHERE THE
STATE CONSTITUTIONALLY ISN'T REQUIRED TO PROVE INTENT TO TERRORIZE, WE DOEVEN KNOW IF
THE JURY FOUND ANY HARM WAS ACTUALLY PERCEIVED. JUSTICE SOLOMON: OF THE
BASE OF CONVICTION OR THE ACTOR'S INTENT OR RECKLESS CONDUCT UPON THE RESIP YEPTS'S
PERCEPTION, DIDN'T WE HELL THAT'S NOT APPROPRIATE, THAT'S NOT PROPER. DANIEL S.
ROCKOFF: YOUR HONOR, I'M NOT CONTENDING THAT T I'M NOT CONTENDING THAT THE SUBJECTIVE
PERCEPTION OF THE AUDIENCE IS CONSTITUTIONALLY NECESSARY. JUSTICE SOLOMON:
IT'S INAPPROPRIATE, CONSTITUTIONALLY INAPPROPRIATE. DIDN'T YOU JUST SAY THE EXACT
OPPOSITE? DANIEL S. ROCKOFF: NO, THE POINT THAT I'M TRYING TO MAKE IS THE
HARM, I'M TRYING TO MAKE PERHAPS THAT THE HARM THAT THE STATE IS TRYING TO GET AT WHICH
IS REALLY TO PREVENT FEAR, WE HEARD A LOT ABOUT THAT DURING MY ADVOCACY ARGUMENT, THE
INTENT RULE. JUSTICE PATTERSON: IT IS REALLY TO PREVENT WHAT?
DANIEL S. ROCKOFF: THE GENERAL PURPOSE MISUNDERSTOOD OF THE TRUE THREAT PROVISION IS
TO PREVENT SPEECH FROM CAUSING FEAR. JUSTICE PATTERSON: CAUSING FEAR.
DANIEL S. ROCKOFF: THE INAT THE PRESENT TIME TO RULE THEY'RE KG THE CONSIDERATE TO A
TOPT PERMISSIBLE INTENT IS NOT SWEPT IN. MY ONLY POINT IS THAT THE TACHT IS UNTETHERED
TO THE STATE'S PRINCIPAL INTEREST FOR ALL TYPES OF REASON. JUSTICE PATTERSON:
WHAT DID THE FRAMERS OF THE STAT CONSTITUTION MEEP IN ARTICLE 1 PARAGRAPH 6 THE LANGUAGE
THE 2ND HALF OF THAT FIRST SENTENCE, THE FULL STEPS IS EVERY PERSON MAY SFREEGLY SPEAK
PUBLISH SENT MENTS ON ALL SUBJECTS, BEING RESPONSIBLE FOR THE ABUSE OF THAT RIGHT, WHAT
DOES THAT SECOND. DANIEL S. ROCKOFF: AT MINIMUM MY ANSWER WOULD BE THAT
I DON'T THINK WHAT THEY'RE TRYING TO GET AT WAS SPEECH WITH PROTECTED INTENT AND THAT'S
REALLY WHAT WE'RE CONCERNED ABOUT HERE. MAT PAT WHAT DOES ABUSE OF THAT RIGHT MEAN, ABUSE
IS OBVIOUSLY, THE FRAMERS AS WE SEE FROM THE DELIBERATIONS THAT WERE WELL RECORDED HAVE
A PRETTY PARTICULAR ABOUT LANGUAGE IN A LOT OF INSTANCES, WHAT DOES ABUSE OF THAT RIGHT?
DANIEL S. ROCKOFF: WELL, OUR POSITION HERE IS THAT IT ESSENTIALLY REFERS
TO A SPEECH WITH SPECIFIC INTENT. INTENT TO TERRORIZE, THE ABUSE OF THAT RIGHT WOULD
ENCOMPASS INNS STAS WHERE THE SPEAKER IS A MESSAGE EVEN WITH SOME OF AUDIENCES HAVING
IT BE TERP ABL A A THREAT (PRN I WANT TO POINT OUT NEW JERSEY ALREADY DISTINGUISHES JUST
TO SORT OF MOVE ON BETWEEN PERMISSIBLE AND PROHIBITED INTENT IN OTHER KASHGSZ I
RECOGNIZE IN THESE CASES DON'T DIRECTLY STAND FOR THAT PROPOSITION BUT BER KER, THERE'S
SOME DISCUSSION IN THOSE CASES OF WHICH LEGITIMATE PURPOSES IN OUR CASE LAW, THE
STATE MUST PROVE TO PROTECT MER PERMISSIBLE SPEECH IF RECKLESSNESS WERE CONSTITUTIONALLY,
FROM I AM PERMISSIBLE IP TENT, THEY TALK ABOUT THOSE TWO CATEGORIES, IN ORDER TO CRIMINAL
LIES SPEECH, 1 PROVISION THAT SWEPT IN INTENT TO ANNOY OR ALARM. THIS COURT RESTRICT
THOSE PROVISIONS TO ENSURE PROTECTED SPEECH, THOSE INTENTS, WOULD NOT BE CRIMINAL LYSED.
SEEM TO AGREE SOMEWHAT, I DON'T KNOW IF THEY WENT AS FAR AS I WANT TO GO BUT THEY SEEM
TO AGREE THAT PROOF OF INTENT TO HARASS WAS KEY TO PERMISSIBLE SPEECH NOT BEING SWEPT
N. JUSTICE PATTERSON: THIS DOES DOESN'T RAISE A BER KER PROBLEM, DOES IT?
P ROCK RK THEY'RE DIFFERENT IN THE BER KER STATUTE WAS A PURPOSEFUL AND INAT THE PRESENT
TIME STATUTE PAL. JUSTICE PATTERSON: PAT IT WAS PURPOSEFUL INAT THE PRESENT TIME
AND THE PART THAT WAS THE FOCUS OF THE COURT'S OPINION DOESN'T HAVE AN ANALOG IN THIS
STATUTE. AM I RIGHT ABOUT THAT? DANIEL S. ROCKOFF: YEAH, YES, YOUR HONOR.
THE STATUTES ARE DIFFERENT. I'M JUST POINTING OUT SOME OF THE REASONING IN THE OPINION
WHERE THE COURT DOES SEEM TO MAKE SOME DISTINCTIONS BETWEEN VARIOUS TYPES OF INAT
THE PRESENT TIME BUT THE CASE GOES INTO THAT REASONING TOO. IT'S POENTSED OUT THAT THERE
COULD BE INSTANCES OF BIAS INTIM DAYS AND THAT'S NOT A PURPOSEFUL INTENT STATUTE WITH
NO MOTIVE TO DISCRIMINATE MUCH THE THRUST OF THE COURT'S REASONING SEEMS TO INDICATE SOME
CONCERN ABOUT THAT. I THINK THE COURT CITED, FOR EXAMPLE, THE PERMISSIBLE INAT THE PRESENT
TIME OF OBJECTING TO AN AUDIENCE PLAYING MUSIC TOO LOUDLY WHICH THE COURT SEEM TOK THERE
WOULD BE SOME PROBLEM WITH PROHIBITING. I GUESS ALL THOSE ARGUMENTS GO TO THE
STRUCTURE OF NEW JERSEY CONSTITUTION AND HOW WE INTERPRET THINGS. BUT WHAT WOULD DO WE
ACTUALLY CARE ABOUT, THE CHILLING EFFECT, RECKLESS TO SHOW SPEECH WITH PERMISSIBLE
INTENT, YOUR HONOR, CHIEF JUSTICE, YOU ASKED THE VERY FIRST QUESTION WHETHER RECKLESSNESS
STANDARD CAN CHILL PROTECTED SPEECH, IT CHUTE ABSOLUTELY CAN. THE RISK PUNISHMENT DEPEND
HOW OTHER MAY PERCEIVE YOUR WORD, EEVEN IF YOUR MEANING IS PROTECTED. IT'S VERY EASY
TO CAUSE PEOPLE I WOULD SAY TO SELF SEP SORE EVEN PERMISSIBLE MESSAGE P BECAUSE THE BENEFIT
THE SPEAKER IS SO SLIGHT AND THE COST OF POTENTIAL IMPRISONMENT IS SO STAGGERING.
JUSTICE WAINER APTER: I THOUGHT WE SAID NNL CASE THERE IS NO SUBJECTIVE REQUIREMENT
THAT THE SPEAKER HAVE ACTUALLY BEEN THREATENED, SO JUST NOW YOU SAID IF YOUR SPEECH DEPENDS
ON HOW IT WOULD BE SUBJECTIVELY UNDERSTOOD BY A PARTICULAR INDIVIDUAL, THAT WILL CHILL
SPEECH. HOW. DANIEL S. ROCKOFF: I'M SORRY I MEANT AS IT WOULD BE UNDERSTOOD
BY AN ORDINARY PERSON. JUSTICE WAINER APTER: HOW IS THAT RELATED TO THE
RECKLESSNESS STANDARD, BECAUSE REGARDLESS, AT LEAST HOW I UNDERSTOOD COUNTERMAN, THERE'S
AN OBJECTIVE REQUIREMENT THAT IT WOULD BE UNDERSTOOD AS AN ACTUAL THREAT BY A
REASONABLE PERSON REGARDLESS OF THE MENS REA OR INTENT AND THEN COUNTERMAN SAID ON TOP
OF THERE THERE ALSO HAS TO BE THE INTENT AND THE LEVEL OF INTENT THAT'S SUFFICIENT IS
RECKLESSNESS AND THEY GO ON TO DEFINE IT PRETTY BROUGHTLY. DANIEL S. ROCKOFF:
SO I GUESS MY FIRST ANSWER IS FIRST OF ALL, I WANT TO FOE TUS ON WHY THE NEW JERSEY
CONSTITUTION GOES ABOVE AND BEYOND THAT IN TERMS OF THE ADDITIONAL BREATHING ROOM REQUIRED.
BUT I WANT TO TALK ABOUT THE THE COUNTERMAN TEST WOULD BE INAPPROPRIATE FOR THE NEW JERSEY
CONSTITUTION WHICH DOES REQUIRE THAT PEOPLE BE ABLE TO EBBS SUPPRESS PROTECTED SENT MEANTS
WITH PERMISSIBLE INTENT FREELY. SO RECKLESS IS OVERBROAD BECAUSE IT'S FOR THE PEOPLE
TO SELF SEVEN SORE COMFORTABLE TO EVERYONE, THAT'S WHAT THE CHILLING EFFECT IS. THAT
CAN'T BE WHAT THE NEW JERSEY CONSTITUTION MEEVEN BY FREELY EX EX SPREFS SENTIMENTS.
FURTHER SOME CIVIL RIGHT PROTECTS, CHALLENGING PUBLIC OFFICIALS AND SPEECH WE HATE.
SO STARTING WITH CIVIL RIGHTS PROTESTS MARCH JUL NULL LIEFD SPEAKERS WHO ARE
WELL ANY SPEECH PLAUSIBLY INTERPRETABLE THREATENED TO AN OR, CAN BE SIGH LEP THE EVEN
MESSAGE PROTECTED INTENT. SO ACTIVIST, FOR INSTANCE WHO HE'LL BE AWARE OF THE RISK GOING
TO A PROTEST WITH A SIGN ECHOING RAP LIR RICKS, YOU HAD F THE POLICE, TAKE OU A COP OR
2, HE'LL BE AWARE THAT THEY SAY MESSAGINGS COULD BE PERCEIVABLE ATS, YOU HAD KROOLY EXPRESS
DISPLEDGE. SAME TOKZ WHETHER RECKLESSNESS IS OVERBROAD WE TALKED EX
SENTENCE I HAVELY PREVIOUSLY CHALLENGING PUBLIC OH FIRMS AS THREATS CAN BE SILENCED. SO
I THINK YOUR HONOR ASKED IF WATTS CAN BE PROS SKOUTD UNDER RECKLESSNESS MUCH THE ANSWER IS
YES, IT CAN BE, THE SPEECH IN WATTS WOULD BE VERBAL EVEN THOUGH THE SUPREME COURT ACQUIT
THE WATTS AND ANY ONE OF THE NATIONAL MALL, LET'S JUST THINGING ABOUT THIS, ANYONE ON
THE NATIONAL MALL WHO THREATEN TO SHOOT THE PRESIDENT IS AWARE OF A RISK IT WILL BE
THREATENING TO AN ORDINARY PERSON EVEN IF YOU HAVE A PROTECTED INTENT LIKE WATTS WHO WAS
TRYING TO CRITICIZE SYMBOLICALLY THE SELECTIVE SERVICE SYSTEM, THE DRAFT THROUGH PRESIDENTON
SON TO CRITICIZE POLICY. JUSTICE WAINER APTER: DISDEGREE ADDITION AGREEING
WITH THE ATTORNEY GENERAL WATT WOULD FAIL THE SUBLT TIFF TEST NO REASONABLE AUD YEPS COULD
HAVE FELT THREATENED BY THE SPEECH, IN CONTEXT IT WAS UNDERSTOOD THAT IT WAS SAID AS PART
OF A PROTEST AND NOT BECAUSE THE PERSON ACTUALLY INTENDED TO KILL PRESIDENT JOHNSON?
DANIEL S. ROCKOFF: I DISAGREE ON THE WATT WOULD BE SUFFICIENTLY PRO TEKTD
UNDER A RECKLESSNESS STANDARD PLUS OBJECTIVELY ORDINARY PERSON STANDARD. SO
THE. JUSTICE SOLOMON: YOU SOUND LIKE YOU'RE SAYING A THREAT TO COMMIT AN
ACT OF VIOLENCE IS WHAT THE STATUTE PROHIBITS DOES NOT DEPEND ON THE CONTEXT IN DECIDING
WHETHER IT IS PROHIBITED OR NOT. IT IS THE THREAT IS PROTECTED. DANIEL S.
ROCKOFF: ALL THE FACTORS THAT THE WATTS COURT TALKED ABOUT, THE WATT COURT DOES A GOOD
JOB OF SAYING WHAT'S NOT, WHAT'S NOT UNPROTECTED SHTHS 1 THING THEY KIND OF FAIL AT --
JUSTICE SOLOMON: SOL YOU SEEM TON SAYING THE THREAT IS PROTECTED, THE CONTEXT
IS IRRELEVANT. DANIEL S. ROCKOFF: THE COULDN'T TECH IS NOT IRRELEVANT,
YOUR HONOR, THE CONTEXT GOES TO WHETHER OR NOT THE DEFENDANT HAD A PERMISSIBLE INTENT
TO TERRORIZE, AS DOES THE LANGUAGE ANALYSIS, AS DOES THE REACTION FTD AUD YOENS, ALL THOS
THINGS IN CONTEXT CAN GO IN TERMS WHETHER THE STATE CAN PROVE THEIR BURDEN TO PROVE INTENT
TO TERRORIZE PLUS AN OBJECTIVELY REASONABLE PERSON IS THREAT AT THE PRESENT TIME, OVERA
NAL LIS, THE KANSAS CASE, ALSO CHALLENGED TO A PUB MRIK OFFICIAL LIKE WATTS.
JUSTICE SOLOMON: DOESN'T CONTEXT ALSO MATTER WITH RESPECT TO RECKLESSNESS STANDARD AS
WELL AS AND RESOLVE THE ISSUE YOU'RE CONCERNED ABOUT? DANIEL S. ROCKOFF:
IT DOES NOT, YOUR HONOR, BECAUSE EVEN IF AS POINTED OUT IN LIKE THE CONTEXT AND THE WATT
CONTEXT, IF SOMEONE HAS A PROTECTED INTENT TO CRITICIZE, FOR EXAMPLE, THE RECKLESSNESS
STAND DRD ONLY REQUIRES THAT THEY BE AWARE OF HOW OTHERS COULD INTERPRET THAT AND YET
THERE SERPLY ARE SUBSTANTIALLY GOOD REASONS TO WANT TO PROTECT THIS TYPE OF SPEAK, SO
BECKER A CASE VERY CLOSE TO MINE, A SPEECH TORE CHALLENGING PUBLIC OFFICIALS ALSO LIKE WATT,
HE WAS ACCURATE SIEFK UNDERPOLICING, NOT OVERPOLICING, HE FOUP HIS DAUGHTER'S DOG IN
THE DITCH, THE POLICE DIDN'T INVESTIGATE HE MOUTHS OUT OF VR OFF TO A POLICE OFFICER,
THE SUPREME COURT IN KANSAS ORDERED A NEW TRIAL WOULD INFRINGE HSS RIGHT TO SPEAK WITH INTENT
TO CRITICIZE. PEDALLING BACK TO THE DISCUSS WE WERE HAVING BEFORE, KANSAS DID SAY THAT
KIND OF CONTEXT CAN BE UNDERSTOOD AS POLITICAL SPEECH, THAT'S A VERY SMALL POINT, I THINK
IN TERMS OF MY ARGUMENT THAT PROTECTING SPEECH ON ALL SUBJECTS JUST WHY RECKLESSNESS STANDARD
WOULD BE INSFISH. ED 0 STANDARD I HAVE IS FOR SPEECH WE LOATH. I'M SHOE YOULY GREEL HATE
SPEECH IS UGLY THERE'S NO QUESTION ABOUT THAT, BUT LIKE I SPEECH THE MESSAGES CAN HAVE
INPRO PROTECTED IP AT THE PRESENT TIME. GOES TO VIRGINIA V BLACK, A PLAN RALLY WHERE
THE SPEAKERS PRESIDENT NIXON, EVER RUN KNOWS THE CAN BE INTERPRETABLE AS FAILING, THEY
FAIL OBJECTIVE STAND DOOSHD TO AVEN IN THE VI SEN NSHTHS A RECKLESSNESS IRRELEVANT RE
CONCILE KABL WITH THE LEECH OF INTENT TO BE PROTECTED. THAT'S OVERBROAD IT'S
DISCRIMINATORY THE RECKLESSNESS STANDARD. CHIEF JUSTICE RABNER: CAN YOU
TELL US POINTEDLY WHAT FREE SPEECH VALUES ARE PROTECTED IN THE, POLICE ARRIVE IN SFONS
A DOMESTIC VIOLENCE CALL AND DURING THE COURTS OF THE RESPONSE THE DEFENDANT SAYS WHAT
WE HAVE NOW REPEATED MULTIPLE TIMES, HEAD SHOT, NOT KNOWING WHERE YOU LIVE, WHAT YOU DRIVE.
DANIEL S. ROCKOFF: THE PROFFER UNIVERSITY OF CHICAGO GOES TO SOME OF THE
VALUES THAT FREE SPEECH PROTECT AND I THINK SOME OF NEM ARE RELEVANT HERE, THE ONE HE
REALLY HIGHLIGHTS HE SAID YOU WANT TO CHECK IF IT SHOWS, USE SPEECH TREELY FO CHECK --
JUSTICE SOLOMON: WHAT WAS THE PROTECTED SPEECH HERE IS I THINK IS WHAT THE
CHIEF WAS ASKING, I DON'T CARE WHAT THE PROFESSOR SAID, HE SAID CERTAIN THINGS THAT WE'VE
REPEATED SEVERAL TIMES. WHAT IS THE NATURE OF THE PROTECTED SPEECH HERE. DANIEL
S. ROCKOFF: WHAT HE'S DOING HE'S USING SPEECH TO CHALLENGE TO, CHALLENGE AN OH FESHL WHO
IS TAKE MANY SPEECH THAT'S CHALLENGING HIM AND THE POLICIES -- JUSTICE
PATTERSON: CAN YOU SPEAK A LITTLE BIT SLOWER. DANIEL S. ROCKOFF: HE'S USING
SPEECH TO OFFICIALS WHO ARE TAKE A SLIGHT AT CHALLENGING Z SPEECH THAT'S, THEY'RE
PUNISHING SPEE THAT CHAL LEFRMS THEM AND THEIR POLICIES. JUSTICE PATTERSON:
TO CHECK OFFICIALS? DANIEL S. ROCKOFF: THE NEED TO. JUSTICE
PATTERSON: TO THREATEN THEM. DANIEL S. ROCKOFF: NO, ACCOUNTABILITY ARGUMENT
THE POLICE ARE ACCOUNTABLE TO THE COMMUNITY. T I TALKED ABOUT THIS BEFORE, I THINK THE
CONTEXT SHOWS AT LEAST OVERALL THAT THESE, THIS IS REALLY SYMBOLIC STAND IN FOR THE CRITICISM
THAT WE'RE MREEGZ, NOT OPENLY IN PERSON WE. JUSTICE PATTERSON: SLOW DOWN,
MY COLLEAGUES MAY BE ABLE TO KEEP YOU WITH YOU BUT I'M NOT. DANIEL S. ROCKOFF:
I GO TO THE CONTEXT, THE LANGUAGE AND THE REYAK THE AUDIENCE. JUSTICE SOLOMON:
IN THIS CASE. DANIEL S. ROCKOFF: SO CONTEXT WE'VE ALREADY DISCUSSED THIS
A LITTLE BIT, HOW POINT IS I THINK OVERALL NOT ONLY ORALLY, BUT ON LINE, THAT THE THRUST
OF EFG PUT TOGETHER WAS THIS WAS A SYMBOLIC, HE'S CHALLENGING THE OFFICER, CRITICIZING
WHAT HE FEELS THEY'RE DOING INCORRECTLY. LANGUAGE, THE LAPG WIFRN WASN'T PLEASANT.
JUSTICE PATTERSON: IF WE SIZE LATE THOSE TWO STATEMENTS WHAT ARE WE STAYING WHAT
WE'RE DOING INCORRECTLY. DANIEL S. ROCKOFF: I WOULD SAY, IT COULD BE DEFINITELY
INTERPRETED AS, SO FOR THE ORAL COMMENTS, SOMETHING PRETTY CLOSE EX SORT TIEGS DROP
DEAD TYPE OF SENTIMENT WHICH NOBODY WHAT NECESSARILY THINK IS UNPROTECTED SPEECH.
JUSTICE SOLOMON: THE CONTEXT GOES WAY BEYOND THAT. YOU'RE ARGUING CONTEXT HELPS
YOU, HOW IN THE WORLD SDET HELP YOU. DANIEL S. ROCKOFF: CONTEXT LANGUAGE,
WE MAY NOT LIKE THIS LANGUAGE BUT IF THAS ANY FIX, NO OFFICIAL CAN DECIDE WHAT'S ORTHODOX.
JUSTICE SOLOMON: YOU HAD GENTS THE POLICE OFFICER RASHD LESS OF HOW EGREGIOUS
IS ILLEGAL. DANIEL S. ROCKOFF: THE AUDIENCE, HE'S ON LINE, YOU KNOW, THE
REACTION I THINK SHOWS AT LEAST PARTIALLY INTENT TO ATECHG FROM A COUPLE OF HUNDRED OF
HIS CLOSEST FRIENDS, HE GETS LIKE 27 LIKES SUPPORTING COMMENTS DESPITE THE COMMENTS THAT
THE STATE FINDS OBJECTIONABLE. JUSTICE WAINER APTER: HE'S ACTUALLY ARGUE
MANY ANY OF THE STATEMENTS ON FACEBOOK WERE THEPSZ A TRUE THREAT, THEY WERE REASON AS
SHOWING THAT THE STATEMENT WORRY ABOUT A HEAD SHOT WAS ACTUALLY A TRUE THREAT?
DANIEL S. ROCKOFF: I DON'T THINK THE RECORD FULLY REFLECTS THAT POSITION, YOUR HONOR.
THEY DO ELICIT ALL THE ON LINE XHEPTS PRETTY EXTENSIVELY ON DIRECT SKNGS SMAGS I
HIGHLIGHTED IN ONE OF MY BRIEFS THERE'S A EACH THE PROSECUTOR SAID EVEN IF EVERYTHING
THAT CAME BEFORE OF THAT SOME OF YOU UNCONVINCED BY THAT THIS, YOU KNOW, COULD BE A TRUE
THREAT ORAL SPEECH YOU TO OSMO COULDN'T VIBT ON THIS ON LINE POST. I THINK
THE OVERALL POINT EVEN IF YOU DISAGREE WITH ME THAT THIS IS, EVEN IF YOU SAY, WELL, A
INTERPRET THIS IS A TRUE THREAT, THE STATE NEEDS TO PROVE INTENT TO TERRORIZE. YOU KNOW
T NEEDS TO GO A JURY, THE JURY NEEDS TO GO MAKE THAT FINDING. I WANT TO
FINISH UP KIND OF MY POINT ABOUT OVERBREATH ROB. CHIEF JUSTICE RABNER: TRY
TO DO IT SUS SUCCINCTLY WE'RE YOPD, ROOK IT'S NOT JUST OVERBROUGHT IT'S DISCRIMINATORY.
DANIEL S. ROCKOFF: WE KNOW THAT OF THIS TYPE OF, THE RECKLESSNESS DISP
ROPORTIONATELY SIGH LEN THE SPEECH FROM MINORITY AUTHOR, PUT RACIAL BIAS, WE KNOW FROM
NEURO SCIENCE STUDIES THE SAME SPEECH CAN BE PERCEIVED AS MORE, A BLACK SPEAK IN OTHER
WORDS ABOUT BLACKNESS, NEUROSIGNS SHOWS THE BRAIN ASSOCIATE BLACK MAN AND THREATS. THE
CRUX IS RECKLESS STAND DAR MORE LIKELY TO BLACK SPEAK THEY ARE, MOIR LIKELY TO BE PERCEIVED
ATS TERRORIZING TORT SAME SPEECH, WE ALSO ING THK RECKLESSNESS IS VAGUE, IN LIGHT OF THE
TIME I'M NOT GEING TO GO SO THOROUGHLY INTO IT BUT I THINK THE CRUX IS THERE'S A LOT OF
UNCERTAINTY, I CITED SOME OF THE SAMPLES FROM POLITICAL SPEENG KERS IN NEW JERSEY,
GOVERNOR, SLITTING THROATS, THERE IS, THERE'S A PROBLEM HERE PEOPLE OF DIFFERENT BACKGROUNDS
DISAGREE, RECKLESSNESS DOESN'T OFFER ENOUGH NOTICE. I WOULD JUST, THAT KIND OF ENDS MY
STATE CONSTITUTIONAL A NAL 6 I WOULD PRESS THE POINT EVEN IF THE COURT DISAGREES WITH
ME THAT SPEECH SHOULD BE PROTECTED 0 ON ALL SUBJECTS EVEN THE STA THE STATE DISAGREES
WERE I ME THIS IS POLITICAL SPEECH, THE COURT SMO AT LEAST CONSIDER HOLDING THAT FOR SPEECHES
WHERE THE INTREECH IS POLITICAL THE CRITICISM OF GOVERNMENT POLICY IS GIK, POLITICAL SPEECH
OCCUPIES A PREFERRED POSITION, IT GETS THE WIDEST ROOM FOR DISCUSSION, THE NARROWEST RAFRMG
FOR ITS RESTRICTION, IT DOESN'T SOUND CONSIST WANT ANT WAY REMEMBER LESSNESS A UNTIL SIS
FOR ME I WOULD SAY AT MINIMUM, FORCE INEN 10 TO TR RICE LAMENT ELEMENT WHICH WHEN THE STATE IS
IT PRO EXCUSE SENTIMENTS ABOUT THE MAERP IN WHICH GOVERNMENTS ON THE OR SHOULD BE ONTD
THAT'S A KWEET FROM ALABAMA. CHIEF JUSTICE RABNER: CAN I ASK YOU TO, MOVE
ON TO THE SECOND ISSUE. DANIEL S. ROCKOFF: I INITIALLY INTENDED TO DISCUSS
COUNTERMAN AND THE FEDERAL ANALYSIS XH I HAVEN'T GONE INTO. DID YOU WANT PLEA TO ADDRESS
THAT I REACH THE UNANIMITY POINT. CHIEF JUSTICE RABNER: YOU CAN REST ON
YOUR BRIEF, WE'RE FAMILIAR WITH COUNTERMAN. DANIEL S. ROCKOFF: SO I WOULD
ASK, TO CLOSE THISH I WOULD ASK YOU TO AFFIRM A TASK, THIS IS BLACK VERSUS I WOULD MOVE
HON TO NUN NIM EMPTY ON THE 578578 FIFR MUCH ENSURE UNANIMOUS VERDICT, WE DON KNOW IF
JURORS WERE IN SUBSTANTIAL AGREEMENT AS TO JUST WHAT THE DEFENDANT DID. CHIEF
JUSTICE RABNER: HAD A LEGAL BACK AND FORNL WITH THE STATE. CAN THERE BE A COULDN'T VIC
OF 6 IF 6 JURORS FIND A HAS BEEN SATISFIED AND ANOTHER 6 FIND BFRMENT IS SATISFIED.
DANIEL S. ROCKOFF: NO, YOU WERE, FRIS BOW AND TIN DULL, THE ORAL ON LINE
SPEECH THEY WERE CONCEPTUALLY DISTINCT. MY CLIENT SAID DIFFERENT THINGS, THE FRAGMENTING
OVER CONCEPTUALLY DISTINCT ACTS IS, T I SUGGEST SCENARIO DESCRIBING TIN DULL, THEY SHOWED
AN EXAMPLE WHERE IS SOME JURORS CONVICTED P AND ONLY ON POSSESSION OF COCAINE, FOUND IN
A DRESSER, OTHER MAY HAVE CONVICTED ON THE COCAINE FOUND IN -- CHIEF
JUSTICE RABNER: MY QUESTION GOES A THRESHOLD ISSUE, 2 DIFFERENT SECTIONS OF THE STATUTE
WITH 2 DIFFERENT SETS OF ELEMENTS, CAN YOU MELD THE 2 WITH RESPECT TO THE JURY GS FINDINGS?
IS IT POSSIBLE FOR THE JURY TO BE FLIT AS TO WHETHER THEY THINK A WAS VIOLATED OR B WAS
VIOLATED. DANIEL S. ROCKOFF: YES YOUR HONOR WRITS POSSIBLE HERE P I THINK
THIS THITS AR VERY LAP AP CONSTITUTIONALLY PERMISSIBLE I THINK IS THE QUESTION.
DANIEL S. ROCKOFF: NO IT'S NOT CONSTITUTIONALLY PERMISSIBLE FOR THE SPEECH
TO BE, SORRY. JUSTICE WAINER APTER: HAVEN'T YOU FOUND IN THE PAST WHEN ONE
STATUTE CAN BE VIOLATED IN SIFRL DIFFERENT COULD GO 98 WAYS, THE JURORS DO NOT ALL HAVE
TO AGREE ON HOW IT WAS VIOLATED. SO HOW DO YOU DISTINGUISH, HOW DO YOU TELL IF ONE STATUTE
THAT CAN BE VI LATED IN SEVERAL DIFFERENT WAYS VERSUS SEPARATE ELEMENTS THAT NEED TO BE
UNANIMOUSLY AGREED BY THE OF COURSE JURY. DANIEL S. ROCKOFF: THE WE DON'T
KNOW WHAT THE JURORS THOUGHT MY CLIENT ACTUALLY DID. THESE ARE DIFFERENT THEORIES BADE
ON DIFFERENT ACTS, DIFFERENT EVIDENCE, WE DON'T KNOW IF THE JURY AGREED ON ANYTHING.
THE UNANIMITY CASES I THINK THERE'S A LOT OF LIKE VERY FACT BASED DISINGS TS IN TERMS
OF WHAT'S PROHIBITED. MAT PAT AS I UNDERSTAND THE STATE'S ARLG MENT ON THIS POINT IS
THAT THE ELEMENTS OF A ARE ESSENTIALLY SUBSUMED UNDER THE ELEMENTS OF B U SO THAT NO JUROR
TO HAVE VIEWED DEFENDANT TO BE GUILTY UNDER B BUT INNOCENT UNDER A. DANIEL S.
ROCKOFF: I WOULD SAY WE DON'T KNOW WHAT THE JURY DELIBERATIONS LOOKED LIKE IN THE JURY
ROOM, WE'RE NOT PRIVY TO THAT, WE HAVE MISS MONSTROSITY HERE. MAT PAT THIS IS NIR ARGUE
MANY AS I UNDERSTAND IT, I MAY BE MISSTATING IT, BUT IF YOU LOOK AT THE TWO STATUTES OR
THE TWO SUBSECTIONS OF THE STATUTE, IF THERE IS, IF WILL IS A FINDING OF GUILT BEYOND A
REASONABLE DOUBT UNDER B, THERE MUST HAVE BEEN A FINDING OF GUILT BEYOND A REASONABLE DOUBT
UNDER A. THAT'S WHAT I UNDERSTAND THEM TO BE SAYING WHY IS THAT WRONG?
DANIEL S. ROCKOFF: I WOULD SAY IT'S WRONG BECAUSE WE JUST DON'T REALLY KNOW WHAT THE JURY
DELIBERATIONS LOOKED LIKE, THEY COULD HAVE COME UP WITH THEIR OWN THEORIES WHY THE UNDERLYING
SPEECH VIOLATED S OR B OR AS TO ONE. JUSTICE WAINER APTER: PARTIALLY IN
THE CONTEXT OF THIS CASE HAVE BEEN OF THIS CASE THERE WAS NO MOTION TO GET MORE PARTICULARITY
REGARDING ARE THE INDICTMENT AS THE CHIEF POINTED OUT, IT DID CHARGE THIS AND/OR, A AND
BFRMENT BUT THERE WAS NO DEFENSE MROEGS TO GET MORE PARTICULARITY ON THAT. AND THE
DEFENDANT AT TRIAL DID NOT OBJECT TO THE PROPOSED JURY CHARGE OR TO THE VERDICT SHEET OWN
THOUGH THE DEFENDANT, DEFENSE COUNSEL SAW ALL OF THAT IN ADVANCE. ROCK RK I WOULD POINT
OUT THE DEFENDANT ACTUALLY DID OBJECT PRETRIAL, IF YOU LOOK LIEU THE LAW DIVISION BRIEF
THAT MY CLIENT FILED, HE POINTS OUT THAT, YOU KNOW, IT'S VERY MURKY HE USE THE WORE, WHAT
THE CHARGES EEVEN ARE, EITHER ORAL OR ON LINE SPEECH OR A OR B. SO EEVEN THERE WAS HE
DIDN'T SPEAK UP PRE RILE HE HAD MADE THIS OBJECTION KNOWN. IT WOULD GO TO
THE JUROR CONFUSION HERE AND THE FAILURE TO INSTRUCT EVEN WHEN THE JURORS CLEARLY
EXHIBITED THEIR CONFUSION. SO THE APPELLATE DIVISION CLEARLY RECOGNIZED --
JUSTICE WAINER APTER: THE TRIAL COURT AGREED WITH COUNSEL'S RESPONSE TO THE JUROR QUESTION.
COUCH SELL AT THAT POINT DIDN'T SAY THE JURY IS OBVIOUSLY CONFUSED, SPECIFIC UNION NAN
EMPTY, WHETHER IT WAS A OR B THAT WAS VIOLATED MUST BE GIVEN THAT NEVER HAPPEN.
DANIEL S. ROCKOFF: HE DID NOT OBJECT SPECIFIC TO THE JUDGE'S ANSWER BUT THE JUDGE DOES
HAVE AN INDEPENDENTS GATEKEEPING RESPONSIBILITY TO PROVIDE CLEAR INSTRUCTIONS ON JURY
AN MIM AN MIM EMPTY. OF FASH FAB THE JUDGE'S HE INSTRUCTIONS DID PROVIDE THAT.
DANIEL S. ROCKOFF: THE JUDGE DIDN'T INSTRUCT ALL JURORS NEEDED TO AGREE ON WHICH PROVISION
WAS VIOLATE, THEY ASK, DOES DO A OR B HAVE TO BE PROVED BEYOND A REASONABLE DOUBT OR JUST
ONE OF THE OTHER AND THE COURT'S ANSWER CREATED MORE CONFUSION, CONVICT ON 1 OR THE OTHER
BUT FADE FO SCLAVEN THAT JURORS HAD THE UNANIMOUSLY AGREE HE HAVE I LATTED 3 A MAT
PAT YOU DON'T DISPUTE THIS A PLAIN ERROR ISSUE, IS THAT RIGHT? DANIEL S. ROCKOFF:
I THINK IT CAN BE UNDER A PLAIN ERROR ANALYSIS BUT I WOULD POINT OUT THAT THERE WAS SOME,
THERE WAS A MOTION FROM THE DEFENSE COUNSEL BASICALLY PUTTING EVERYONE ON NOTICE THAT
THIS IS, PT A MONSTROSITY. I THINK IN COMBINATION WAS THE LACK OF INSTRUCTION OR
RATHER THE CONFUSING INSTRUCTION, THE JUROR QUESTION, THE APPELLATE DIVISION WAS RIGHT
TO, THE JURY OF THE ORAL OR ON LINE STATEMENT THAT WAS THE THREAT, WHETHER IT WAS THE
ONLY, ON LINE POSTINGS OR WHETHER IT WAS ONLY THE ON LINE POSTINGS THAT WERE THE THREAT
AS WELL AS THEY WERE RIGHT THAT THE JURY MAYBE TLIT AS TO WHICH LAW IS VIOLATED, WE JUST
DOEVEN KNOW, AS TO UNANIMITY THIS COURT SHOULD AFFIRM THE OPINION BELOW, WE JUST DOEFRN
KNOW IF JURORS AGREED WHAT MY CLIENT IS, WHAT LAW WE BROKE. CHIEF JUSTICE RABNER:
I THINK WE HAVE YOUR IGS HAD, AFFIRM US UPT THE STATE CONSTITUTION THAT REQUIRES PROOF
OF SPECIFIC INAT THE PRESENT TIME TO TR RICE VIA SPEECH, IP REASON AL FAIR OF A TACK,
BUT WE ASK YOU ROW LIE ON BOTH OF STATE AND FEDS RUL CONSTITUTION, BRAN DEN BERG, BLACK,
HARDWARE AS WELLY CASES LIKE SMIT TO SAY AT MINIMUM CASES WHERE THERE'S SOME TOUCHING
ON WITH THE MANNER IN WHICH THE GOVERNMENT IS OPERATING OR SHOULD BE OPERATING AND WE
FULL CONTEND THAT'S CONSISTENT WITH THE LINE DRAWN IN COUNTERMAN OF AS TO POLITICAL
DEFENSE. SHOULD BE PROTECTED. CHIEF JUSTICE RABNER: MR. SHALOM.
ALEXANDER SHALOM: MAY IT PLEASE THE COURT 4 DIFFERENT THINGS I'D LYING TO SPEND A MINUTE
ON THAT THE STATE CONSTITUTION, I'D LIKE TO TALK ABOUT THE USE OF DEFAMATION JURISPRUDENCE
AS A WEEK TO DETERMINE HOW TO HAM TRUE THREATS. I'D LIKE TO SAY VERY BRIEFLY SOMETHING
ABOUT THE INSIGHT MENT THREATS DICHOTOMY AND THE POINT THAT THE ATTORNEY GENERAL RAISED
ABOUT CRIMINAL AND CIVIL MEETING TO MARCH IN LOCK STEP. BEFORE I GET TO
THAT ON THE FACTS MAKE SURE WE'RE CLEAR ON SMCHLTH I WASN'T CERTAIN. THE HEAD SHOT
COMMENT WAS PART OF THE VERBAL EXCHANGE FROM THE PORCH TO THE STREET. THE, I KNOW WHAT
YOU DRIVE WAS NOT. THAT WAS NOT, THAT WAS FOUND ON FACEBOOK LATER AND SO.
JUSTICE WAINER APTER: THE SAME DAY, CORRECT? ALEXANDER SHALOM: I BELIEVE
IT WAS THE FOLLOWING DAY. DANIEL S. ROCKOFF: IT WAS THE SAME DAY.
JUSTICE FASCIALE: POW A HOUR LATE. ALEXANDER SHALOM: MOVING THERE LETS
EE TALK ABOUT THE STATE CONSTITUTION FOR A MOMENT. JUSTICE SOLOMON I THINK THE
INTERPRETATION AK SEPTD BY THE ATTORNEY GENERAL TO MY ASTONISH MENT BEING RESPONSIBLE
FOR THE ABUSE OF THE THAT RIGHT MEANS THE PROVISION OF ARTICLE 1, PARAGRAPH 6 PROVIDES
LESS PROTECTION THAN THE FIRST AMENDMENT RATHER THAN MORE IS TOTALLY INCONSISTENT WITH
A LONG LINE OF JURISPRUDENCE THAT RECOGNIZES THAT THE AFFIRMATIVE RIGHT TO SPEAK FREELY
IN THE NEW JERSEY CONSTITUTION PROVIDES -- JUSTICE SOLOMON: SAID LESS, I THINK
THEY AGREED THAT IT SAYS EXPLICITLY WHAT THE FEDERAL CONSTITUTION SAID IMPLICITLY.
ALEXANDER SHALOM: IN PART THAT'S ABOUT THE. JUSTICE SOLOMON: IT THEY
DIDN'T SAY WHAT YOU SAID AND I DON'T REMEMBER HEARING THAT. ALEXANDER SHALOM:
I THOUGHT I HEARD YOU SAY JUSTICE SOLOMON THAT IT WAS A NARROW, THE LANGUAGE, OVRL THE
PROTECTIONS COULDN'T BE, YOU MADE THAT CAVEAT, BUT I THINK THE LANGUAGE IS BROADER AND
THIS COURT HAS ALWAYS RECOGNIZED THE LANGUAGE TO BE BROADER. BUT IN PART
IT SEX EXPLICITLY WHAT THE U.S. CONSTITUTION SAYS IMPLICITLY IS BECAUSE THE U.S. SUPREME
COURT SAID THAT EXPLICITLY BY THE TIME OUR STATE CONSTITUTION WAS RATIFIED.
CHIEF JUSTICE RABNER: WHAT DOES THE LANGUAGE MEAN BEING RESPONSIBLE FOR THE ABUSE OF THAT
RIGHT, HOW DO YOU UNDERSTAND IT. ALEXANDER SHALOM: I THINK IT MEENGS VERY
CLEARLY THAT THE RIGHT TO SPEAK FREELY IS NOT WITHOUT LIMITATION. AND SO TRUE THREATS
ARE PROSECUTE ABL. THAT'S NOT A DEBALT ABL POIPTS DAN I THOUGHT ACTUALLY JUSTICE
PATTERSON'S CONCEPTION OF IT WHEN THE STATE WAS UP HERE WAS THE EXACT RIGHT ONE, WHICH
IS THAT WHICH IS PERMISSIBLE, THAT WHICH IS PROSECUTABLE IS SOMETHING A STATUTE PROHIBITS
AND THE CONSTITUTION DOESN'T PROTECT. SO WE ALL AGREE THAT TRUE THREATS CAN FALL INTO
THAT CATEGORY AND WHAT WE'RE STRUGGLING WITH IS FIGURING OUT WHAT IS NECESSARY UNDER THE
CONSTITUTIONAL FRAMEWORK TO SATISFY THE DEMANDS OF ARTICLE 1, PARAGRAPH 6 AND THE 1ST
AMENDMENT. JUSTICE FASCIALE: RESPONSIBLE FOR ABUSE OF THAT RIGHT, OTHER
THAN INTERPRETING THOSE WORDS, ARE YOU AWARE OF ANY OF EX SPRIN SICK EVIDENCE FROM THE
CONSTITUTIONAL NULL CONVENTION THAT SPECIFICALLY ZEROS IN ON WHAT WAS INTENDED BY USING
THOSE WORDS? ALEXANDER SHALOM: I AM NOT, JUS FIS FASCIALE. BUT AS I SAID
IN THE 75, 76 YEARS SINCE THE CONSTITUTION WAS DRAFTED, OF THE CONSISTENT DRUM BEAT HAS
BEEN THAT OUR FREE SPEECH CLAUSE PROVIDES GREATER PROTECTION THAN THE FIRST AMENDMENT.
AND I DON'T THINK THAT IS -- JUSTICE PATTERSON: IS THAT IN EVERY CONTEXT,
HOWEVER, SMIT AND COALITION AND THE SHOPPING CENTER LITIGATION, IT'S DIRECTLY PERTINENT
TO THAT. ALEXANDER SHALOM: THAT'S RIGHT, THAT THAT IS ONE CONTEXT WHERE
THIS COURT HAS FOUND GREATER POE TEKZ BUT IT'S NOT THE OPENLY ONE, I THINK THE ATTORNEY
GENERAL GOES TO GREAT PAINS TO SAY IT'S JUST ABOUT STATE AK, BUMENT WE ALSO SEE THE SAME
THING IN DEFAMATION WITH RESPECT TO THE PUBLIC FIGURE, NONPUBLIC FIGURE DICHOTOMY WHICH
THIS COURT IN IN DAIRY STORES. JUSTICE PATTERSON: R DAIRY STORES THIS COURT
REJECTED THE U.S. SUPREME COURT'S WAY OF THINKING ABOUT THOSE THINGS BECAUSE THEY FOUND
IT TO BE AN AWKWARD AND UNCERTAIN MEVENLTH WELL, THAT'S EXACTLY WHAT WE'RE ASKING THE
COURT TO DO HERE, IF YOU FIND THAT THE U.S. SUPREME COURT'S METHODOLOGY IS WALK WARNED
UNCERTAIN YOU CAN PICK A BET METHOD SO I THINK THAT IS, THERE'S A LONG --
JUSTICE PATTERSON: DOES THE WORD RESPONSIBLE IN THE STATE CONSTITUTION MEAN YOU CAN BE
PROSECUTED, IS THAT CIVILLY RESPONSIBLE, IS THAT CRIMINALLY RESPONSIBLE?
ALEXANDER SHALOM: I THINK YOU CAN BE PROSECUTED FOR SPEECH, I DON'T THINK THAT'S A
CONTROVERSIAL PUPPET, THE DISTRIBUTION, PAL PAL I'M NOT SUGGESTING ATS HE CONTROVERSY ISSUE.
Z. ALEXANDER SHALOM: I DON'T THINK ANYONE COULD ARGUE BUT THAT YOU'RE RIGHT,
THAT SOME SPEECH IS PROSECUTABLE. THE QUESTION IS WHAT PEACH IS PROSECUTABLE.
JUSTICE PATTERSON: SO THAT LANGUAGE IS RELEVANT IN THE SENSE THAT THERE IS A CONSTRAINT
AND IT DOES PERTAIN TO POTENTIAL CRIMINAL PROSECUTIONS? ALEXANDER SHALOM:
IT'S REL VENTS BUT AGAIN I DON'T THINK ANYONE DOUBTS THAT IT'S TRUE. I THINK, YOU HAVE
TO READ THE WHOLE ARTICLE 1, PARAGRAPH 6 AND WHAT IT SAYS IS YOU GOT THESE BIG RIGHTS
BUT THEY'RE NOT WITHOUT EXCEPTIONS SO OUR JOB THEVEN IS TO FIGURE OUT DOES THIS CALL IN THE
BUCKET OF BIG RIGHTS OR AN EXCEPTIONS, BUT I WANT TO SAY THE ATTORNEY GENERAL IN INVOKING
HUNT SAID, LOOK, NO ONE RAISES ANY REASONS WHY WE SHOULD STREET THIS UP THE STATE CONSTITUTION
THAN THE FEDERAL CONSTITUTION. THAT'S NOT TRUE IN, ADDITION TO THE LANGUAGE WHICH MANY
MEMBERS OF THAT IS COURT HAVE REFERENCED THIS MORNING, OUR BRIEF TALKS A LOT ABOUT NEW
JERSEY'S REJEK OF CRIMINAL LIABLE AND HOW THE LEGISLATIVE CHOICES THAT JUSTICE HANDLER
FOUND THE SAME THING, LEGISLATIVE CHOICES CAN IVEN FORM WITHER THE STATE CONSTITUTIONAL
NORM SHOULD BE DIFFERENT THAN FEDERAL CONSTITUTIONAL NORMS, I THINK IT'S THE
FOOTNOTE 1 OF OUR SUPPLEMENTAL BRIEF. IN COUNTERMAN, JUSTICE KAY BEGAN'S OPINION
TACK ABOUT THE GOAL DELOX ZONE AND THE STATE DAY ALSO SAID NOT EVERYONE IS GOING TO BE
HAPPY. TRUE THAT'S NOT A WAY TO DECIDE A CASE, LE TAKE WE'RE TRI TO GET IT RIGHT. SO
I THINK PAP PA BEAR WAS TOO HARD AND BABY BEAR WAS TOO SOFT, SO THEY'RE TRYING TO FIGURE
OUT WHETHER JUST RIGHT WAS MOM MA BEAR'S BED BUT THE STATE SLEEP NUMBER BED TO FIGURE
OUT THE FIT FOR OU STATE AND I THINK THAT'S WHAT WE'RE TRY TO GET AT. JUSTICE
WAINER APTER: I THINK JUSTICE KAY BEGAN ACKNOWLEDGED THAT THE FIRST AMEND MANY AND
THE STATE MENGS THIS IN COMPETING INTEREST, BOTH BRO TEKTING SPEECH AND PROTECTING PEOPLE
FROM BEING THREATENED IN A WAY THAT CAUSES THEM SERIOUS EMOTIONAL HARM, SERIOUS FINANCIAL
HARM, SOMETIMES PHYSICAL HARM AND I THINK THAT JUSTICE KAG AGAIN BOTH OF THOSE EFT TS.
ALEXANDER SHALOM: WITHOUT A ET DOUBT, THAT GETS TO JUSTICE NORIEGA'S
QUESTION ABOUT WHAT IS NOT PROSECUTE ABL WITH A KNOWLEDGE REQUIREMENT THAT THAT IS PROSECUTE
ABL WITH A RECOLLECTION LEKNESS REQUIREMENT AND I'M GOING TO GET TO THAT. PERHAPS BEFORE
I DO LET ME FEND A MINUTE ON DEFAMATION JUSTICE COMING UP WITH THE RECKLESSNESS STANDARD
THAT SHE A ADOPTED IN COUNTERMAN RELIES 0 A LOT ON DEFAMATION BUT NEW JERSEY DIVERGES
FROM FEDERAL LAW ON DEFAMATION. SO THERE'S A COUPLE OF THINGS. THE FIRST
IS IF YOU LOOK AT THE JURY CHARGE THAT IS GIVEN IN A CIVIL DEFAMATION SUIT IN NEW JERSEY,
IT DEFINES RECKLESSNESS MUCH MORE RIG RIGOROUSLY THAN THE YOU'RE CHARGE OR RECKLESSNESS
IN THE CRIMINAL CONTEXT OF THREATS HERE. SO JUST QUICKLY, IN DEFAMATION THE DIFFERENT
MUST HAVE ACTUALLY NOPE THAT THE DEFAMATORY STAM ASTAEMENT WAS FALSE, WE DOPE HAVE THAT,
OR THAT THE DEFENDANT COMMUNICATED DEFAMATORY STATEMENT WITH A HIGH DEGREE OF AWARENESS,
IT WAS PROBABLY FALSE OR THAT THE DEFENDANT TRULY HAD SERIOUS DOUBTS AS TO THE TRUTH OF THE
DEFAMATORY STATEMENT. AND SO WHAT I THINK THAT MEANS IN THIS CASE IS IN ORDER
TO ESTABLISH RECKLESS DISREGARD UNDER KIND OF NEW JERSEY'S BOULDER SENSE OF PROTECTION
HERE THE PROSECUTION WOULD HAVE TO ESTABLISH DWLARD MR. FAIR SUBJECTIVELY ENTER TAPED IN
HIS MIND THE SERIOUS POSSIBILITY THAT HIS WORDS WOULD ACTUALLY INSTILL FEAR.
JUSTICE PATTERSON: YOU DECIDE THE FEF IF A MAGS IS DECIDED UNDER PREPONDERANCE STANDARD
AND OBVIOUSLY THAT SIGNIFICANTLY DECREASES THE BURDEN ON A PLAINTIFF AS OH POWER TO THE
BURDEN OF REASONABLE DOUBT, THE BURDEN THAT'S KNOW THAT AND STATE, IS THAT REALLY AN
ANALOGY, DO MORE, YOU'RE SARING IS MORE RESTWRIKT TIFF, IF THEY HAVE TO DO MORE BUT UNDER
PREPONDERANCE STANDARD, THEP THE STATE HAS TO DO WITH A PERHAPS A BROADER DEFINITION UNDER
A REASONABLE DOUBT STANDARD IS THAT I'M JUST WONDERING IF THE COMPARISON IS --
ALEXANDER SHALOM: I THINK THAT THE GENERAL PRINCIPLE BEHIND WITH WHY REQUIRE BEYOND A
REASONABLE DOUBT AND A PREPONDERATE IN A THE TABLG ASTAKES ARE DIFFERENT HERE.
JUSTICE PATTERSON: I UNDERSTAND THAT. ALEXANDER SHALOM: LET ME ACTUALLY
THEN JUST USE YOUR QUESTION, JUSTICE PATTERSON, TO DETER TORE TO THE 4TH FIENT KRFL DI
CHOTOMY. OF. JUSTICE WAINER APTER: YOU'RE SAYING IT WAS BECAUSE CIVIL FEF
DEFAMATION IS DIFFERENT IN NEW JERSEY THAN IT IS FED #RU8LY R WHEN YOU EXPLAIN THE JURY
CHARGE IT SOUNDED LIKE SKABLTLY FALL BACK POSITION. ALEXANDER SHALOM:
THAT'S RIGHT. Z. JUSTICE WAINER APTER: NEW YORK TIMES VERSUS SULLIVAN WHICH
IS A FEDERAL CASE P THE WAY SHE FRAMED IT AS TRUE THREATS THAT REQUIRE A HIGH DEGREE OF
AWARENESS THAT A STATEMENT WAS PROBABLY THREAT TECH ARE OR SO YUS DOUTSZS TO THREATENING
NATURE OF THE STATEMENT. ALEXANDER SHALOM: ABSOLUTELY THAT'S RART ATHAT'S RIGHT
IF YUR GOING TO BORROW DEFAMATION, YOU GOT TO BRING THE WHOLE THING, YOU CAN'T BRING RT
PA OF IT YOU HAVE TO BRING THE ALL, SO THERE'S REALLY THREE THINGS, THERE'S KNOWLEDGE
THAT WE'RE ASKING FOR, THERE'S RECKLESSNESS THAT THE STATE IS ASKING FOR AND THN THERE'S
RECKLESSNESS AS JUPT #1250D BY I THINK A THE JUST SIS SAID SKAMTH 8 WHAT DID HE HAVE MALGS
WOULD REALLY TEACH IF WE WERE BORROWING FROM IT. JUSTICE WAINER APTER:
YOU'RE AGREEING NEW JERSEY DEFAMATION AS THE NEW YORK TIMES VERSUS SULLIVAN DID HE HAVE
IF A NATION WHICH IS HIGHER THAN JEN IN OTHER WORDS HICK RECKLESS THEY SAY.
ALEXANDER SHALOM: 1 OTHER THING ABOUT DEFAMATION, BORROW THE GOOD WITH THE BAD WHICH IS
THIS IDEA OF INDEPENDENT REVIEW OF THE OPERATIVE FACTS. AND SO OF THAT'S WHAT HAPPENS
IN A DEFAMATION CASE, RIGHT? ANY KIND OF CASE THAT IMPLICATES FREE SPEECH THERE SHOULD BE
INPEPT #1YUR7B8 JUDICIAL REVIEW OF THE OPERATIVE CASE, A FAMILY LAW CASE THAT INVOLVED
A THREAT S B VERSUS L B IT'S A BULB MRISH SKAS, S B B VERSUS L B B. IN THAT CASE THE
COURT DOES A REALLY NICE JOB OF EXPLAINING THAT ORDINARILY THEY DEFER TO THE FAMILY LAW
JUDGE FOR ALL THE REASONS THAT DEFERENCE IS TYPICALLY #3R0E7 YUT BUT WHEN THE FIRST AM
MENT IS IMPLICATED THEY MUST CONDUCT A INDEPENDENT EXAMINATION OF THE ROAR AS A WHOLE WITHOUT
DEFERENCE TO THE TRIAL COURT AND THEY KRIELT TO THE SAINT PATRICK'S DAY PARADE HURLY,
SO A NEW JERSEY CASE, AND THE OBLIGATION SPINS FROM THE REALITY THE ULTIMATE CONSTITUTIONAL
QUESTION IS SO DEEPLY INTER DEFINED WITH THE FACTS. JUSTICE PATTERSON:
YOU'RE SUGGESTING A DIFFERENT STANDARD OF REVIEW. ALEXANDER SHALOM: YES.
JUSTICE PATTERSON: FOR THIS CASE? ALEXANDER SHALOM: YES
FR A FIP CAN YOU TELL CRIMINAL CASE. IF I MIGHT, SO IF YOU, THE STATE END ITS SUPPLEMENTAL
BRIEF SAYING THE OBJECTIVE AND SUBJECTIVE STANDARDS PROTECT INDIVIDUALS WHO EVEN GAUGE
IN MERE HIGH THE DEFENDANT FOUP THE DFT WAS NOT ONE OF THEM, THE JURY VERDICT ENDS THE
INQUIRY AND IT'S A THEY TALK ABOUT SUFFICIENCY CASES AND BUT THAT'S NOT HOW IT SHOULD BE
IN A CRIMINAL CASE RAISING FIRST AMENDMENT ISSUES AND AS MR. ROCKOFF TALKED ABOUT THAT'S
BECAUSE YOU HAVE DIFFERENT JURIES THAT HAVE DIFFERENT SENSITIVITIES AND A REVIEWING COURT
HAS AN INDEPENDENT ONL GAGS AS THEY DO IN A DEFAMATION CASE TO REVIEW THE FACTS RS
OBJECTIVELY AND INDEPENDENTLY, AND TO, IF WE'RE GOING TO ADOPT DEFAMATION AS OUR TAPPED
DAR WE HAVE TO ADOPT ALL THE JURISPRUDENCE THAT GOES ALONG WITH THAT. MY TIME IS WIPEDING
DOWN SO LET ME VERY QUICKLY TALK ABOUT THE IVEN CITE MENT THREAT DICHOTOMY. THE
STATE SEEMS SATISFIED WITH THE DILS TWINGS BETWEEN THEM BECAUSE INCITE MENT IS A HAIR
STEP AWAS MRIT KA CAN YOU TELL WAY, I DON'T KNOW PA HAIR STEP IS FOR OBVIOUS REASONS,
I'M NOT SURE THLT ANSWER ON WATTS IS SATISFACTORY BECAUSE WHAT THE STATE SAID IS WATTS
TURNS OUT NOT TO BE A TRUE THREAT CASE BECAUSE IT FAILS THE OBJECTIVE TEST AND I AGREE
WITH THAT, IT DID. BUT IT WAS PROS SCOUTED AS A TRUE THREAT CASE NOT AVEN INSIGHT MENT
CASE AND IT WAS CLEARLY POLITICAL SPEECH, SO IF I TOK YOUR QUESTION JUSTICE WAINER APTER
IS I'M NOT SURE WERE THAT TRUE THREATS DON'T DEAL WITH POLITICAL SPEE AND INCITE MENT
DOES DEAL WITH MRIT #KU8 SPIECH, I DON'T THINK ULTIMATELY WATTS WAS AN UNCONSTITUTIONAL
NULL APPLICATION OF THE LAW CHANGES THAT YOU CAN GET THREAT, YOU CAN GET POLITICAL SPEECH
IN THREATS CASES AND IN INCITE MENT CASES, INKRIEMENT MENT ILY GOING TO ASK SOMEONE ELSE
TO BREAK THE LAW VEN THREATS ARE I'M GOING TO BREAK THE LAW IMMINENTLY. THE I AM MI NENTS
IS WHAT CALLS THEM OUT OF THE I AM AMBIT OF FREE SPEECH PRO TESHGSZ I'M NOT SURE THE
DISTINCTION ABOUT WHO IS GOING TO BREAK THE LAW IS ONE THAT IS 1 OF A CONSTITUTIONAL DIMENSION.
FINALLY, ON CIVIL AND CRIMINAL, ATTORNEY GENERAL SPENT A LOT OF TO MY TALKING
ABOUT HORRIBLE CASES OF THREATS THAT WE ALL CAN AGREE ARE TERRIBLE, AND BUT ABSENT FROM THAT
IS ASSERTION THAT THOSE OF PROSECUTE ABL UNDER RECKLESSNESS STANDARD BUT FAIL UNDER A
KNOWLEDGE STANDARD. I THINK IN MOST OF THOSE CASES THE WAY KNOWLEDGE WOULD BE
PROVEN IS BY THE REACTION OF THE VICTIM. RIGHT, SO IF THE VICTIM ACTS WITH, SAYS SOMETHING,
I'M SCARED, THENTS' HARD FOR THE #2KE69 TO SAY I HAD NO IDEA THAT THIS WAS GOING TO BE
TERRIFYING. BUT THE CIVIL, CRIMINAL DISTIVENGS IS THE EXACTLY THE ONE JUSTICE PATTERSON
WHICH YOU JUST RAISED RGS EVEN WITH THE KNOWLEDGE STANDARD, IF WHAT YOU'RE TRYING TO DO
IS SEIZE A GUN THAT, IMPOSE, IMPOSE A CIVIL RESTRAINING OR, SUS SPEND SOMEONE FROM
SCHOOL, YOU DO VOEN T TO PROVE THAT MENS REA BEYOND A REASONABLE DOUBT, YOU SIMPLY NEED
TO PROOFRN IT BY A PREPONDERANCE OF THE EVIDENCE. SO THE HE A TRUE THAT A CONSTITUTIONAL
STAND DAR, WHATEVER THE MENS REA IS APPLIES WITH EQUAL FORCE IN CIVIL AND DOCTORAL PROCEED
ING BUT THE PURP, BURDEN OF PROOF OF COURSE IS DIFFERENT IN CRIMINAL AND CIVIL PROCEED
ING, ALSO IN THE COURT HAS ANY FURTHER QUESTIONS RB RAB. THE. CHIEF JUSTICE
RABNER: MR. ROSEN. OF. BRUCE S. ROSEN: MAY IT PLEASE THE COURT, I THANK
OF MR. SHALL LOCAL FOR STEALING MOST OF MY THUNDER BUT I'LL GIVE YOU A LITTLE OF MY
THOUGHTS. CHIEF JUSTICE RABNER: YOU'RE NOT THE FIRST. BRUCE S.
ROSEN: THAT'S CORRECT. OF THE ONE THING KR OF THAT I BELIEVE THE COURT HAS LOOK AT, THIS
OUTRAGEOUS WHAT THIS GENTLEMAN SAID, YOU KNOW, I HAVE A BACK PROUPD IN DEFAMATION LAW
AND IN LOOKING AT THIS COULDN'T AT THE PRESENT TIME, CONTEXT, VERIFY ABILITY, THIS COURT
SO MANY TIMES THIS COURT HAS RAISED THAT AND SAID THIS IS WHAT WE MUST DO IN THE CIVIL
CONTEXT OF DEFAMATION AND WE ARE TAKING AN ACTUAL, THE DEFAMATION LAW IS SO EXACTING IN
TERMS OF THAT CONTEXT THAT IT'S JUST MISSING HERE AND WHEN YOU LOOK AT THE JURY CHARGE,
IT REALLY, IT DOESN'T GIVE YOU EVERYTHING THAT THE DEFAMATION LAW GIVES YOU, IT SAYS THE
WORDS OR ACTIONS THE DEFENDANTS MUST BE OF SUCH A NATURE TO CONVEY MENACE OR FOEFR A CRIME
OF CRY HAVE I LEN TO THE OR NARD PERP IT'S NOT A HAVE I LENGTHS FLEETING AGO GER OR WAS
MADE MERELY TO ALARM. IF I'M LOOKING AT WHAT THE DEFENDANT SAID IN THIS
CASE, I'M LOOKING AT SOMEONE WHO, A, THEY APPARENTLY CAME TO HIS HOUSE A FEW WEEKS BL
AND FOUND NOTHING SO HE'S ISHGED ALREADY. HIS WIFE IS OUTSIDE, EX-WIFE IS SAYING I WANT
THE TV, YOU KNOW RNGS AND HE'S SAYING TOED POLICE OVER AND OVER AND OVER, WHY ARE YOU
BOTHERING ME, WHAT IS THIS, WHY ACHL I SO IMPORTANT, GET OUT OF MOI FACE. THAT'S
SEFRMLY WHAT HE'S SAYING, AND IF YOU LOOK AT THE CONTEXT THAT, OF THAT I NEVER DID ANYTHING
TO YOU, WHY ARE YOU BOTHERING ME, AND THEN, YOU KNOW, BLANKING, BLANKING, YOU THEIRS TEE,
WORRY ABOUT A HEAD SHOT COMES IN THE CONTEXT OF WORRY ABOUT SOMETHING MORE IMPORTANT,
WHY ARE YOU BOTHERING ME. THAT'S WHAT THIS DEFENDANT IS SAYING THROUGHOUT THIS. THIS IS
NOT A CASE OF LIME I GOING TO GET YOU, YOU KNOW, WORRY ABOUT THIS BECAUSE I'M AR ROUP
THE NENGS CORNER, YOU KNOW, HE'S. JUSTICE PIERRE-LOUIS: THIS IS POLITICAL
SPEECH. BRUCE S. ROSEN: IN A SENSE IT'S POLITICAL SPEECH, THE HE A CERTAINLY
PUBLIC SPEECH, I AM ABLE TOO TELL THE POLICE YOU'RE THE BOING THE WRONG PERSON RNGS YOU
HAVE YOU ARE HARASSING ME POLICE, THAT'S WERE THIS. JUSTICE PIERRE-LOUIS:
SOUP LOIK A THREAT. JUSTICE SOLOMON: YOU'RE MAKING THE WEIGHT OF THE
EVIDENCE ARGUMENT THAT THIS WAS A MOMENTARY AK ACT OF AN DPER AND HOSTILITY AND DOESN'T
SATISFY THE REQUIREMENT OF THE CHAMP NOT A CONSTITUTIONAL ARGUMENT. BRUCE
S. ROSEN: YOU CAN MAKE BOTH HERE. JUSTICE SOLOMON: I AGREE YOU CAN.
BRUCE S. ROSEN: WHAT I'M ARGUING IS HAVING DONE MANY, MANY DEFAMATION CASES, THE INAT
THE PRESENT TIME A NOL SIS THAT'S REQUIRED IN ORDER GET BACK TO THE QUESTION THAT YOU
ASKED ABOUT CONSTITUTIONAL ISSUE, I MUST ECHO WHAT WAS SAID EARLIER ABOUT INPEPT
CONSTITUTIONAL REVIEW, YOU HAVE IT IN LIABLE CASES AND VIA THE SUPREME COURT AND CERTAINLY
THAT THIS IS A 1ST AMENDMENT ISSUE, WET YOU DECIDE IT FOR OR AGAINST RS THERE ARE 1ST
AMENDMENT ELEMENTS HERE, I DON'T THINK ANYBODY DOUBTS THAT AND I THINK THIS COURT NEEDS
TO TAKE AN INDEPENDENT VIEW OF WHAT WAS SAID AND HOW IT WAS VIEWED. WHAT I WAS STRIEING
TO GET AT EARLIER WAS THAT IN LOOKING AT THE JURY CHARGE OR THE STAND DAR JURY CHARGE,
IT SEEMS TO CONFLATE THE TWO, THE INDEPENDENT A HE IS MENT AND THE SUBJECTIVE ASSESSMENT
BECAUSE THE FIRST PART OF IT SAYS THE WORDS OR ACTIONS OF THE DEFENDANT MUST BE OF SUCH
NATURE HAS TO CONVEY MENACE OR FEVER CRIME OF VIOLENCE TO THE ORDINARY PERSON, NOT A
VIOLATION OF STATUTE, THE THREAT, SUPPRESSED, ANGER OR MERELY TO ALARM. THAT FLEETING
ANGER IS CERTAINLY PART OF THE DEFAMATION VIEW. I MEAN IN A DEFAMATION CASE THE JUDGE
IS THE GATEKEEPER AND HE LOOKS AT CONTEXT AND OBVIOUSLY VERIFY ABILITY WHICH IS NOT REALLY
AN IRRELEVANT HERE BUT THAT CONTEXT IS SO IMPORTANT AND THE CONTENT IS SO IMPORTANT AND
YOU DON'T HAVE REALLY AN INDEPENDENT VIEW, ALL YOU'RE ASKING IS THIS FLEETING. YOU'RE
NOT ASKING WHETHER IT'S HYPER BOWLY, JUST LOOK AT WARD VERTSZ OH COULD HAVE SKI OR THE
RESTATEMENT THAT'S REPEATED IN WARD ABOUT, YOU KNOW, SITUATIONS LIKE THIS WHERE THERE'S
SUCH ANGER AND ANGRY WORDS EXCHANGED ARE NOT ACTIONABLE. AND I DON'T UNDERSTAND AND HOW
THE CRIMINAL LAW WHICH IS SO MUCH MORE EXACTING AND SO MUCH MORE OF A CONSTITUTIONAL
ISSUE, WELL IT'S NOT, IT'S A DIFFERENT AMENDMENT, BUT IT'S SO IMPORTANT FOR THE LAW TO BE
EXACTING AND TO DOUGH MANNED THAT THERE BE STANDARDS AND THIS, FOR THE JUDGE TO
BASICALLY TELL THE JURY THE ONLY THING THAT YOU REALLY NEED TO KNOW DID THE CONVEY FEAR
AND I'M NOT TALKING ABOUT EXPRESSING FLEETING ANGER, IT DOESN'T GO INTO NEARLY THE TYPE
OF DETAIL THAT A DEFAMATION CHARGE WOULD GO INTO. JUSTICE WAINER APTER:
ADVOCATING SOMETHING LIKE THE 8 CIRCUIT FACTORS IN DIN WIT TEE I BELIEVE THE REACTION
OF THE RECIPIENT THE THREAT AND OF OTHER LISTENERS, WHETHER THE THREAT WAS
CONDITIONAL, WHETHER THE THREAT WAS COMMUNICATED DIRECTLY TO THE VICTIM, WHETHER THE MAKER
OF THE THREAT MADE SIMILAR STATEMENTS TO THE VICTIM IN THE PAST, AND WHETHER THE VICTIM
HAD REASON TO BELIEVE THAT THE MAKER OF THE THREAT HAD A PROPENSITY TO ENGAGE IN
VIOLENCE. BRUCE S. ROSEN: WELL, JUSTICE, I HAVE TO ADMIT THAT NOT BOWING
FAMILIAR WITH IT, I AM NOT RAISING DIN WIT TEE MYSELF BUT SINCE THE COURT HAS WRAZED IT
SHTHS I THINK THOSE ARE THE TYPE OF THINGS, AMONG OTHERS, BECAUSE I THINK THEY CONFLATE
THE TWO ISSUES, THE, I THINK THE DIM WIT TEE REALLY GOES TO THE SUBJECTIVE FACTORS AS
WELL AS TO THE OF OBJECTIVE FACTORS. BUT IT'S FOR THE COURT TO ACT, REALLY NEEDS TO
ACT AS A GATEKEEPER HERE, ARE WE REALLY TALKING ABOUT, AND TO SET A STANDARD FOR THESE
ARE THE CIRCUMSTANCES, THESE ARE THE THINGS YOU MUST LOOK AT, #34R AND MRS. OR MS. JURY,
YOU HAVE TO LOOK AT THE CONTEXT, YOU HAVE TO LOOK AT EVERYTHING FIRST AS AN OBJECTIVE
STANDARD, NOT SIMPLY WHETHER ET EXPRESSES FLEETING ANGER WAS MADE MERELY TO ALARM. AND
THE SECOND PART NEEDS TO BE DEEPER AND THE NEEDS TO BE, I WOULD SAY THE ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AGREES WITH BOTH COUNSEL ON THE ON THIS SIDE THAT IT NEEDS TO BE
A DEEPER LOOK AT WHAT WAS SAID. JUSTICE NORIEGA: AS A PRACTICAL MATTER CAN
YOU EXPLAIN WHAT THE STARPD DARD IS YOU'RE PROPOSING? BRUCE S. ROSEN: I'M
PROPOSING, AFTER HAVING LOOKED AT THIS AND LISTENING TO THE AGO; THAT THE JURY
INSTRUCTION BE EXPANDED TO ADD MORE MENT WILLS OF CONTEXT TO WHAT IS GOING ON, PERHAPS
SOME OF THE DIN WIT TEE TON TEXT, BUT INDEPENDENTLY, YOU KNOW, TO MAKE THIS STATUTE
OR TO MAKE IT CONSTITUTIONAL AND TO MAKE THE FAIR AND TO NOT VIOLATE THE NEW JERSEY
CONSTITUTION IS TO -- JUSTICE PATTERSON: DOES THE CIVIL DEFAMATION
STANDARD TAKE INTO ACCOUNT THREATS WHICH IS WHAT WE'RE HERE T TALK ABOUT, WE'RE HERE TO
TALK ABOUT THREATS. I MEAN I DON'T KNOW YOU UNDER THE INFLUENCE HAVE TREMENDOUS AMOUNT
OF EXPERIENCE IN DEFAMATION, BUT IN GENERAL, DEFAMATION IS ABOUT SAYING SOMETHING NEGATIVE
ABOUT SOMEONE'S, THAT AFFECTS THE REPUTATION AND POTENTIALLY COST THEM MONEY, BUT DOES
IT REALLY, DOES THE CIVIL DEFAMATION LAW REALLY ADDRESS THE #45R9 OF THIS CASE WHICH IS
A THREAT. BRUCE S. ROSEN: JUSTICE PATTERSON, IT DOES IN THE SENSE THAT
THE WORDS THAT ARE ANALYZED AS PART OF, IT COULD BE A THREAT, IT COULD BE SORT OF AP EBBS
TORSION TYPE THREAT IN A DEFAMATION MATTER, IT COULD, THERE'S CERTAINLY THAT KIND OF DEEP
ANALYSIS OF THE CONTEXT IS COMPLETELY MISSING IN THIS STATUTE OR IN THIS JURY INSTRUCTION,
I APOLOGIZE. AND I BELIEVE THAT IT IS IMPORTANT TO HAVE THAT SAME EXACTING, NOT TO CONFLATE
IT, BECAUSE ALL YOU HAVE HERE, DO YOU SERIOUSLY COULD WE THINK THAT A JURY IS LOOKING
AT THIS AND SEPARATING THOSE WORDS OR ACTIONS THE MUST BE OF SUCH A NATURE AND THEN TO
SAY, WELL, DID THEY DO IT TO TERRORIZE, ARE THEY REALLY SEPARATING THE RECKLESS DISREGARD
FROM THE WORDS THAT WERE MEANT AS A NATURE TO CONVEY? ARE WE REALLY GIVING THE
INDEPENDENT, ARE WE HAVING AN OBJECTIVE STANDARD LIKE COUNTERMAN TALKS ABOUT AND A SUBJECTIVE
STANDARD OR ARE THEY BEING CONFLATED THE JURY INSTRUCTION? THAT'S THE POINT THAT I WANTED
TO RAISE. AND. AND AS FAR AS -- JUSTICE PATTERSON: DID THE
DEFENDANT CHALLENGE THE JURY INSTRUCTION ON THE GROUNDS THAT YOU'RE RAUFR OFFERING HERE
AS AN AMICUS? BRUCE S. ROSEN: KWLONG THEY DID, YOUR HONOR. AND I, YOU
KNOW, I'M DOING THIS IN TERMS OF AN OBSERVATION TO THE COURT AFTER LISTENING TO ALL THESE
ARGUMENTS, AND I DON'T KNOW WHETHER IT'S PROPER IN THE SENSE OF RAISESING SOMETHING AS
AN AMICUS THAT WASN'T RAISED BELOW. BUT IN HEARING COUNTERMAN, AND YOU ASKED THE AMICUS
AND EVERYONE ELSE TO TALK ABOUT COUNTERMAN, AND I THINK THAT COUNTERMAN REALLY, IT BRING
US INTO THE FORETHE DEFAMATION LAW TO TRY TO COME UP WITH A STANDARD THAT GIVES BREATHING
SPACE. BUT IT DOESN'T REALLY GIVE BREATHING SPACE MUCH THIS RECKLESSNESS STANDARD IS
SORT OF AMORPHOUS VEN THE REAL BREATHING SPACE WOULD COME WITH AN ACTUAL MAL LASS STANDARD.
MALICE, THAT'S BREATHING SPACE FROM THIS COURT. JUSTICE PATTERSON: YOU'RE
SAYING BREATHING SPACE THAT WOULD ALLOW SUFFICIENT ROM FOFR SPEECH.
BRUCE S. ROSEN: EXACTLY. I POL JOYCE FOR NOT BEING CLEAR DON THAT. BUT HIS RECKLESS
NAS STAND DAR IS IN THE REALLY CHEER. ONE OTHER POINT WAS MADE IN THE BRIEFS
BUT WASN'T MADE AS CLEARLY HERE IS THAT COUNTERMAN PROVIDES, IS REALLY DIRECTED AT A
STALKING CASE WHERE THE SPEECH WASN'T, IT WASN'T THE CONTENT OF THE SPEECH, IT WAS THE
WAY THE SPEECH WAS MADE TO ANNOY, HER RAS AR TERROR RICE. AND HERE THE, YOU KNOW, IF
YOU WENT TO THOSE FACT TORSION, JUSTICE WAINER APTER, THE COPS PAUKD AFTER WAY, THEY'RE
LIKE, THREAT, AND THEY SORT OF LAUGHED THE OFF UNTIL SOMEBODY SHOWED THEM ANOTHER POLICEMAN
SHOWED THEM LOOK AT WHAT WAS WRITTEN AFTERWARDS. I DON'T KNOW WHAT WAS IN THEIR HEADS
OBVIOUSLY, BUT I KNOW THAT NO ONE TOOK IT SERIOUSLY AT THE TIME BECAUSE HE WAS VENTING.
AND IN THE CONTEXT OF THAT, IF THIS WAS A DEFAMATION CANES HE SAID SOME THINGS THAT
SOMEHOW AFFECTED SOMEONE'S REPUTATION, NOT OPENLY DOES DEFAMATION GOES TO REPUTATION BUT
IT GOES TO EMOTIONAL DISTRESS, YOU KNOW, I WOULD THINK IT WOULD BE PRETTY EASY MOTION
TO DISMISS. PAT NAT A CIVIL CASE. ROSE RS IN A CIVIL CASE. MICHAEL L. ZUCKERMAN:
THANK YOU, YOUR HONORS. I WILL RESPOND ON A FEW POIPTS BN THE CONSTITUTIONAL ISSUE.
I WILL TRY MY BEST TO CHANNEL THE STATE, THE COUNTY ON ANY QUESTIONS ABOUT THE UNANIMITY
ISSUE BUT NO PROMISES OF DOING ANY JUSTICE ON THEIR POSITION ON THAT. ON THE
CONSTITUTIONAL QUESTION. JUST QUICKLY. THE RECKLESSNESS STANDARD WHICH I THINK I HEARD
MY FRIEND '0 N THE OTHER SIDE WAY WAS SORT OF INCHOATE. IT COMES STRAIGHT FROM THE MODEL
PENAL CODE. MANY STATES ADOPTED IT AS NEW JERSEY DID BACK IN THE '70S WHEN THEY ADOPTED
THE MODEL PENAL CODE. CONSCIOUSLY DISREGARD A RISK OF OBJECTIVELY SUGGESTING THAT YOU
INTEND TO CONVEY HARM TO ANOTHER PERSON. I THINK THAT IS A COMPLETELY WORKABLE STANDARD.
I HEARD SOME OF MY FRIENDS ON THE OTHER SIDE TALK ABOUT THE IDEA THAT MAYBE
THERE SHOULD BE SOME DIVERGENCE FOR POLITICAL STATEMENTS. I THINK THAT WOULD BE HIGHLY
UN-WORKABLE IN THIS CONTEXT, PARTICULARLY BECAUSE IT'S VERY, VERY EASY TO GAIN AND PARTICULARLY
HARD TO PULL APART. IF SOMEBODY WANTS TO WRITE A POSTS CRITICIZING THEIR SPOUSE, THEY
CAN'T DO MUCH TO MAKE THAT A PUBLIC ISSUE. BUT THEY CAN THROW IN POLITICAL MISS SOCH
93. JUSTICE WAINER APTER: ON THE RECKLESSNESS STANDARD, WHAT'S YOUR POSITION
ON JUSTICE SOCIETY SOTO MEYERS WHERE SHE EXPLAINS RECKLESSNESS IS A PRECISE AND DEMANDING
FORM OF RECKLESSNESS THAT WOULD ME A HIGH DEGREE OF AWARENESS, THAT A STATEMENT WAS PROBABLY
THREATENING OR SERIOUS DOUBTS AS TO THE THREATENING NATURE OF THE STATEMENT.
MICHAEL L. ZUCKERMAN: WE THINK THAT THE RECKLESSNESS STANDARD THAT THE JUSTICE PUTS
FORWARD FOR THE MAJORITY, WE THINK THE MIDDLE GROUND IS RIGHT. WE THINK THAT THE MODEL
PENAL CODE, RECKLESSNESS CONSCIOUSLY DISREGARDS A SUBSTANTIAL AND JUSTIFIABLE RISK IS
A TOTALLY WORKABLE STANDARD. THE DEFAMATION ACTUAL MALICE CASES THAT THE JUSTICE WAS
DRAWING ON, I THINK SHE EXPLAINS REALLY WELL IN THE MAJORITY OPINION WHY WE SHOULDN'T
RUSH TO IMPORT DEFAMATION WHOLESALE BECAUSE IF ANYTHING DEFAMATION IS ACTUALLY A MUCH
STRONGER CASE FOR PROTECTING SPEECH. FIRST OF ALL, THE ANALOGY TO DEFAMATION IS SELECTIVE.
IT IS, AS THIS COURT HAS MADE CLEAR, YOU DON'T EVEN GET ACTUAL MALICE IN LOTS OF DEFAMATION
CASES. YOU JUST GET IT IN SOME WHEN IT'S ABOUT A PUBLIC MATTER. IN THIS STATE OBVIOUSLY UNDER
OUR CONSTITUTION IT'S ALMOST ALL PUBLIC MATTERS WITH SOME COMMERCIAL SPEECH CARVED OUT.
BUT PRIVATE STATEMENTS STILL ARE A NEGLIGENCE STANDARD AND IN FACT WITH THREATS BECAUSE
WE'RE DOING A SORT OF CATEGORICAL BALANCING, THREATS ARE OFF PRIVATE. A PERSON SAYING
TO ANOTHER ONE I MIGHT HURT YOU. THE IDEA THAT WOULD GET SOMETHING EVEN HIGHER THAN
RECKLESSNESS, I THINK THE ANALOGY TO DEFAMATION REALLY REALLY BREAKS DOWN. IT ALSO BREAKS
DOWN BECAUSE DEFAMATION IS THE CLASSIC EXAMPLE WHERE YOU CAN ENGAGE IN COUNTER SPEECH.
SOMETIMES THE THREAT NERS WANT THE ATTENTION SO IT ACTUALLY MAKES THE PROBLEM WORSE.
IT'S ALSO QUITE DANGEROUS. WE DO NOT WANT PEOPLE ENGAGING IN SELF-HELP ABOUT THREATS
WHEREAS IN OTHER FIRST AMENDMENT CONTEXT THE COURT HAS SAID WHEN IT COMES TO FALSITY,
WHEN IT COMES TO IN-CORRECT COMMERCIAL OR QUESTIONABLE COMMERCIAL SPEECH AND IN THE
DEFAMATION CONTEXT, SELF-HELP IS THE THING WE WANT. WE WANT PEOPLE TO GO OUT AND SAY NO
THAT'S WRONG. YOU CAN'T DO THAT WITH THE THREAT NER. SO I JUST -- I THINK
JUSTICE WAINER THAT ALSO BRINGS UP WHAT MY FRIENDS FROM THE ACLU OF NEW JERSEY SUGGESTS
MAYBE WE SHOULD BRING IN OTHER RULES OF EVIDENCE REVIEW. I THINK YOU CAN LEAVE THAT FOR
THE NEXT CASE. I DON'T THINK MR. FAIR ACTUALLY BROUGHT RAISE TO SUFFICIENCY OF THE
CHALLENGE. I THINK IT'S BEEN KIND OF INJECTED BELATEDLY. JUSTICE PATTERSON:
SO IT ALSO TRUE THAT THE STANDARD, THE SUGGESTION SHOULD BE THERE SHOULD BE A MORE EXACTING
STANDARD OF REVIEW FOR FACTUAL FIND NEGOTIATION A DEFAMATION CONTEXT AND THEREFORE HERE.
HAS THAT BEEN RAISED IN THIS CASE? MICHAEL L. ZUCKERMAN: I THINK THE ACLU
IS FIRST TO BRING THAT INTO THIS CASE AND I THINK THAT'S BETTER TO LEAVE THAT TO A CASE
WHERE IT'S PROPERLY PRESENTED AND LET IT WORK IT'S WAY UP THROUGH THE APPELLATE DIVISION
IN THE ORDINARY COURSE. ON THE CIVIL AND CRIMINAL POTENTIAL DISLER JUNCTION,
I THINK MY FRIEND ON THE OTHER SIDE MISSES A POINT. MANY OF OUR CIVIL REMEDIES BAKE IN
THE CRIMINAL CONDUCT. SO TO GET A RESTRAINING ORDER YOU HAVE TO SHOW A PREDICATE OFFENSE
OFTEN AND IT CAN BE THREATS IS ONE OF THE I THINK CLASSIC EXAMPLES OF WHAT PEOPLE GO
INTO COURT TO SHOW. SAME FOR AN EXTREME RISK PROTECTION ORDER. YOU HAVE TO SHOW A
PREDICATE CRIMINAL OFFENSE. SO IDEA THAT YOU CAN JUST PULL THE TWO APART ACTUALLY IN PRACTICE
I DON'T THINK WORKS. I THINK THAT'S WHY THE COURT REPEATEDLY POINTS OUT IN INCITEMENT,
IN DEFAMATION, WE TREAT THE FIRST AMENDMENT AND HERE WE SHOULD TREAT ARTICLE ONE PARAGRAPH
SIX AS REALLY BEING THE SAME ACROSS THE BOARD. JUST LAST, I KNOW THAT SOME
OF MY FRIENDS ON THE OTHER SIDE HAVE SORT OF RAISED A LITTLE BIT OF A SUFFICIENCY OF THE
EVIDENCE POINT. I JUST WANT TO MAKE TWO QUICK POINTS. FIRST THE CONTEXT OF THIS. I
BELIEVE THEY HAD SERVED A WARRANT ON MR. FAIR's RESIDENCE BACK IN FEBRUARY. THEY HAD
RECOVERED SOME GUNS. HE THEN POSTS ON FACEBOOK IN APRIL THAT HE STILL HAS HIS GUNS. THEN
HE MAKES THE COMMENTS, I HEARD PORCH THIS MORNING, I THOUGHT IT WAS THE SECOND FLOOR
WINDOW, WORRY ABOUT A HEAD SHOT. THEN WITH SEVERAL HOURS LEFT TO COOL OFF HE GOES BACK
ON FACEBOOK AND SAYS I KNOW WHERE YOU LIVE, I KNOW WHAT YOU DRIVE. SO IN CONTEXT
THERE IS REALLY A REASON TO THINK THAT'S QUITE SCARY. MR. FARES IS OF COURSE FREE TO
SAY EVERYTHING HE WANTS IN WHATEVER HE THINKS ABOUT THE POLICE AS A POLITICAL MATTER.
HE'S NOT BEING PROSECUTED FOR ANY OF THAT. IT'S WHEN IT CHANGES INTO SAYING OFFICER HEALEY
MIGHT NOT BE ABLE TO GO HOME AND SEE HIS FAMILY THAT NIGHT. THAT'S THE ONLY THING AT
ISSUE IN THIS CASE. SO I DON'T THINK THERE'S ACTUALLY MUCH DIFFERENCE ON THE CORE
CONSTITUTIONAL VALUES AS MAYBE SOME OF MY FRIENDS ON THE OTHER SIDE WOULD SUGGEST.
SO WITH THAT AGAIN WE'D ASK YOU TO REVERSE ON THE CONSTITUTIONAL ISSUE. I'M HAPPY TO TRY
TO ANSWER ANY QUESTIONS ON THE UNANIMITY ISSUE. CHIEF JUSTICE RABNER: WE'LL
GIVE YOU A PASS ON THAT. THANK YOU, MR. ZUCKER