Hudson County Criminal Lawyer Blog
On December 9, 2021 the New Jersey Appellate Division published a decision which struck down a portion of New Jersey’s terroristic threats statute. In State v. Calvin Fair, the defendant was charged with and convicted of terroristic threats. On appeal, Defendant argued constitutional over breadth regarding N.J.S.A. 2C:12-3(a). Said section criminalizes threats of violence made with the purpose to terrorize another […] or in reckless disregard of the risk of causing such terror. A three-judge panel agreed with the appellant’s arguments and struck down subsection (a). This resulted in a reversal of Defendant’s conviction and a remand for a new trial.
In Fair, the court analyzed different opinions throughout our nation’s state and federal courts. The court analyzed this case, in part, through the lens of the “true-threat” doctrine. The “true-threat” doctrine recognizes that our nation has a “profound national commitment to the debate on public issues which may well include vehement, caustic and sometimes unpleasantly sharp attacks […]” as well as “vituperative, abusive and inexact language.”
The court then focused on Virginia v. Black which held that Virginia’s criminal statute did “not run afoul of the First Amendment” because it did not just ban cross burning; it banned cross burning “with intent to intimidate.” The Court in Black 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.”
In following Virginia v. Black, the appellate panel found that the “reckless disregard” element in N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad because it lacked the intent component. Specifically, the court held that in order to properly be outside of First Amendment protections, a threat speaker must mean to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Thus, it is not enough that a reasonable person might perceive words as a threat, a jury must find that the speaker actually intended to convey a threat.
In Bergen, Passaic and Hudson counties police regularly charge individuals with the criminal offense of terroristic threats. If you or someone you know has been charged with an offense related to statements you have allegedly made, it is important to understand whether or not those statements are protected by the First Amendment of the United States Constitution. For a free consultation regarding that issue, please do not hesitate to contact our Jersey City or Secaucus offices at 201-470-3215.