cdTOCtest

contended that the language he uttered would not
support guilt under N.J.S.A. 2A:170-29(1) (superseded
by N.J.S.A. 2C:33-4b), the constitutional criteria
recognized by the Supreme Court in State v. Rosenfeld, 62
N.J. 594, 603-604 (1973). The Court disagreed and
held that “when offensive language is directed specifically
to another individual and is of such a nature and uttered
in such circumstances as likely to result in an immediate
breach of the peace, the conduct may be constitutionally
proscribed ..., i.e., not protected by the First
Amendment.” It is irrelevant that the person to whom
the language was directed was not offended.

In State in Interest of H.D., 206 N.J. Super. 58 (App.
Div. 1985), defendant was adjudicated delinquent
under N.J.S.A. 2C:33-2b for directing the words “you
God-dammed jerk off,” “fucking jerk off,” and “I’m going
to kick the shit out of you” to a police officer while in
custody at the North Plainfield Police Department. In
striking down the statute as unconstitutionally
overbroad, the Appellate Division held that “there is no
valid statutory authority for prosecution based upon the
public use of coarse or abusive language which does not
got beyond offending the sensibilities of the listener.” Id.
at 61.

Hamilton Amusement Center, Inc. v. Poritz, 298 N.J.
Super. 230 (App. Div. 1997), aff’d, 156 N.J. 254 (1998),
cert. denied, 527 U.S. 1021 (1999). The Appellate
Division dissolved an injunction imposed by the trial
court, finding that N.J.S.A. 2C:34-7c, which limits the
size, number and context of sexually oriented businesses,
is not an unconstitutional content-based restriction on
free speech or void for vagueness.

Chez Sez VIII, Inc. v. Poritz, 297 N.J. Super. 331
(App. Div.), certif. denied, 149 N.J. 409 (1997), cert.
denied, 522 U.S. 932 (1999), reversed the trial court’s
ruling restraining enforcement of N.J.S.A. 2C:33-12.2.
The appellate court found that the statute, which
prohibits private booths or enclosures which facilitate
sexual activity in sexually oriented businesses, was a
content-neutral time, place, and manner restriction that
was not unconstitutionally vague. Accordingly, it
dissolved the restraints, thereby allowing law enforce-
ment to arrest for this fourth-degree crime.

Wisconsin v. Mitchell, 508 U.S. 476 (1993). The
government may attack “hate speech” by a ‘penalty
enhancement” approach, under which existing crimes
like assault, vandalism and arson are punished more
severely if the prosecution shows that the crime was
motivated by one of a listed set of biases. However, the

existence of bias is an element of the offense that must be

found by a jury, beyond a reasonable doubt. See also

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000).

H. Commercial Speech

The government may restrict truthful commercial

speech only if the regulation (1) directly advances (2) a

substantial governmental interest (3) in a way that is “no

more extensive than necessary” to achieve the

government’s objective. Virginia State Board of Pharmacy

v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748

(1976) (Virginia could not forbid a pharmacist from

advertising his prices for prescription drugs because the

state’s desire to prevent price-cutting was not strong

enough to qualify as “substantial”).

In Greater New Orleans Broadcasting Ass’n v. United

States, 527 U.S. 173 (1999), a broadcasters association

and others sued United States and Federal Communica-

tions Commission, seeking declaratory and injunctive

relief permitting them to broadcast advertisements for

legal gambling at area casinos. Held: the prohibition on

broadcasting lottery information could not be applied to

petitioners’ radio and television stations, which were

located in Louisiana, where gambling was legal.

In United States v. Edge Broadcasting Co., 509 U.S.

418 (1993), the owner and operator of radio station

sought declaratory judgment that federal statutes

prohibiting radio broadcast of lottery advertising by

licensees in nonlottery states violated First Amendment

and equal protection clause. The Supreme Court held

that federal statutes prohibiting the broadcast of lottery

advertising by broadcasters licensed in states that do not

allow lotteries, while allowing such broadcasting by

broadcasters licensed in states that allow lotteries,

regulate commercial speech in a manner that does not

violate First Amendment.

In Posadas de Puerto Rico Associates v. Tourism Co. of

Puerto Rico, 478 U.S. 328 (1986), operators of Puerto

Rican gambling casino filed declaratory judgment

action, seeking a declaration that Puerto Rico statute and

regulations restricting advertising of casino gambling to

residents of Puerto Rico violated their commercial speech

rights under the Constitution. Held: The statute and

regulations did not facially violate the First Amendment.

Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

The qualified First Amendment right means that lawyers

have a limited right to advertise. Thus, a state may not