In recent months, New Jersey lawmakers have introduced bills S3507 and A4652, proposed by Senator Paul D. Moriarty and Assemblyman Dan Hutchison, respectively. These pieces of legislation have sparked concern among civil liberties advocates and citizens alike. While the stated intent of these bills may be to address public safety or order, their broad language and ambiguous provisions could have a chilling effect on free expression, raising serious questions about their compatibility with the First Amendment of the U.S. Constitution. This article examines how these bills, if enacted, might undermine the fundamental rights to free speech, assembly, and protest that Americans hold dear.
Understanding S3507 and A4652
S3507 and A4652 are companion bills introduced in the New Jersey Senate and Assembly. Critics argue that the legislation, as proposed by Moriarty and Hutchison, could criminalize gatherings of four or more people if their actions or speech are deemed to “offend sensibilities” or disrupt public order in vaguely defined ways. Without access to the exact wording of the bills, this analysis relies on these reported characterizations, which align with broader trends of laws aimed at curbing public demonstrations.
The First Amendment guarantees Americans the right to free speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for redress of grievances. These protections are not absolute—courts have long held that the government can impose reasonable “time, place, and manner” restrictions—but any limitation must be narrowly tailored, content-neutral, and leave open ample alternative channels for expression. S3507 and A4652, as described, appear to flirt with crossing this constitutional line.
Criminalizing Speech and Assembly
One of the most alarming aspects of S3507/A4652, according to critics, is the potential to criminalize speech based on its perceived offensiveness. The First Amendment staunchly protects even offensive or controversial speech, as seen in landmark Supreme Court cases like Cohen v. California (1971), where a man’s jacket bearing a vulgar anti-war message was upheld as protected expression, and Texas v. Johnson (1989), which affirmed the right to burn the American flag as a form of political protest. If these bills, championed by Moriarty and Hutchison, indeed penalize groups for speech that “offends sensibilities,” they could empower authorities to selectively target messages they—or a vocal minority—find objectionable, undermining the content-neutrality requirement.
Moreover, the focus on groups of four or more people raises concerns about the right to assemble. The First Amendment explicitly protects “the right of the people peaceably to assemble,” a cornerstone of democratic participation. Historically, this right has safeguarded protests, rallies, and collective expressions of dissent, from civil rights marches to modern demonstrations. By setting a low threshold for what constitutes a punishable gathering, S3507/A4652 could deter individuals from joining others in public expression, fearing prosecution for merely participating in a small group. This chilling effect could stifle grassroots movements before they even begin.
Vague Language and Overbroad Enforcement
Another potential issue with S3507/A4652 lies in their apparent vagueness. Terms like “offends sensibilities” or other subjective standards (as inferred from public reactions) lack the precision required under constitutional law. The Supreme Court has consistently struck down laws that are overly vague or broad, as they invite arbitrary enforcement and fail to give citizens clear notice of what is prohibited. In Grayned v. City of Rockford (1972), for example, the Court upheld a noise ordinance near schools because it was specific and narrowly tailored, but warned against laws that “delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.”
If S3507/A4652, allows law enforcement or prosecutors to decide what speech or gatherings cross the line based on undefined criteria, the bills could disproportionately target marginalized groups, political dissidents, or unpopular opinions. New Jersey has a rich history of protest—from labor strikes to civil rights demonstrations—and such legislation risks casting a shadow over that legacy by giving authorities unchecked discretion to silence voices they dislike.
The Precedent of Prior Restraint
The bills could also be seen as a form of prior restraint, a concept the Supreme Court has viewed with deep skepticism. In New York Times Co. v. United States (1971), the Court ruled that the government could not stop the publication of the Pentagon Papers absent an extraordinary justification, emphasizing the heavy burden on officials to justify suppressing speech before it occurs. By potentially penalizing gatherings or speech preemptively based on their anticipated impact, S3507/A4652 might shift the burden onto citizens to prove their expression is lawful, rather than requiring the state to demonstrate a clear and immediate danger—flipping the First Amendment’s protective framework on its head.
The Broader Implications
Beyond their immediate legal flaws, these bills reflect a troubling trend of legislative efforts to curb public dissent under the guise of maintaining order. In an era of heightened political polarization, the ability to speak out and gather with others is more vital than ever. If enacted, S3507/A4652, could set a precedent for other states to follow, gradually eroding the robust protections Americans have long enjoyed. New Jersey residents might find themselves self-censoring or avoiding protests altogether, weakening the democratic fabric that relies on open discourse.
A Call for Vigilance
While the intent behind S3507 and A4652 may stem from legitimate concerns—perhaps about public safety or disruptive behavior—their potential to infringe on First Amendment rights cannot be ignored. Free speech and assembly are not mere privileges; they are constitutional guarantees that demand fierce protection, especially when they provoke discomfort or challenge the status quo. Governor Phil Murphy, who has the power to veto these bills, faces a critical decision: uphold New Jersey’s commitment to civil liberties or risk ushering in a law that could suppress the very freedoms that define a free society.
As of now, the fate of S3507/A4652 remains uncertain. Citizens, advocates, and lawmakers must scrutinize the bills’ language, demand clarity, and ensure that any restrictions on expression meet the high bar set by the Constitution. The First Amendment has weathered countless challenges since 1791, but its strength depends on constant vigilance. In New Jersey, that vigilance is needed now more than ever.
