The New Jersey Supreme Court recently announced that it has granted certification in a case challenging the terroristic threats statute, N.J.S.A. 2C:12-3(a), which criminalizes a threat to commit a crime of violence made “in reckless disregard of the risk of causing…terror.” The Appellate Division found the statute to be constitutionally overbroad in violation of the First Amendment.
Facts of the Case
Defendant was charged in a one-count indictment of making terroristic threats within the meaning of “N.J.S.A. 2C:12-3a and/or b.” The indictment was never amended, and defendant never moved for a particularization of what part of N.J.S.A. 2C:12-3 was being charged.
Instead, the matter went to trial and, after two days of testimony, the jury was asked to decide: whether, on May 1, 2015, defendant threatened to commit a crime of violence “with the purpose to terrorize” Officer Sean Healey, or whether he made that threat “in reckless disregard of the risk of causing such terror,” or whether he made that threat “with the purpose to put [Officer Healey] in imminent fear of death” under circumstances reasonably causing Officer Healey “to believe the immediacy of the threat and the likelihood it would be carried out.” The jury responded “guilty” to this multi-faceted question. The Defendant appealed, arguing that the reckless-disregard portion of N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad.
Appellate Division’s Decision
The Appellate Division held that the reckless-disregard portion of N.J.S.A. 2C:12-3(a) is “unconstitutionally overbroad because it has the capacity to criminalize speech and expressions protected by the First Amendment.” According to the Court, “[t]his holding alone requires that defendant be given a new trial since no one can tell from the jury verdict whether defendant was convicted under the unconstitutional portion of N.J.S.A. 2C:12-3(a) or the remaining provisions which clearly pass constitutional muster.”
In reaching its decision, the New Jersey Supreme Court cited Virginia v. Black, 538 U.S. 343, 358-59 (2003), in which the U.S. Supreme Court held that a state can punish threatening speech or expression only when the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” It went on to conclude that Black strongly suggests the “reckless disregard” element in N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad.
“Because N.J.S.A. 2C:12- 3(a) permits a conviction for uttering a threat ‘in reckless disregard of the risk of causing . . . terror,’ it unconstitutionally encompasses speech and expression that do not constitute a ‘true threat’ and, therefore, prohibits the right of free speech guaranteed by the First Amendment,” the court wrote.
Issues Before the NJ Supreme Court
The New Jersey Supreme Court granted certification on November 14, 2022. The justices agreed to consider the following question: “Is the portion of the terroristic threats statute, N.J.S.A. 2C:12-3(a), which criminalizes a threat to commit a crime of violence made ‘in reckless disregard of the risk of causing . . . terror,’ unconstitutionally overbroad and did the jury instructions fail to ensure a unanimous verdict?”