The opinion of the court was delivered by: FORMAN
Plaintiffs in this action seek a judgment declaring unconstitutional a New Jersey sedition statute, N.J.Rev.Stat. § 2A:148-22.
Pursuant to 28 U.S.C. §§ 2281 and 2284 a three-judge court was convened to hear argument and pass upon the constitutional issues raised. On March 12, 1968, counsel filed with the court a stipulation of fact and several affidavits, upon which trial was to proceed. There being no material facts in dispute, no live testimony or other evidence was offered.
Plaintiffs, suing on behalf of themselves and "all other persons similarly situated," are active members of various organizations opposed to this country's involvement in the conflict in Vietnam and have engaged in many activities demonstrating such opposition. Plaintiff Straut is an ordained minister and pastor of Christ Methodist Church in East Rutherford, New Jersey. According to both the complaint and the stipulation he has given many public speeches and sermons in which he has described the war as unjust and violative of the tenets of Christianity, as well as being inconsistent with the Constitution, the United Nations Charter and the Nuremberg judgments. He has participated in several activities designed to discourage others from enlisting in the armed forces and to dissuade them from assisting the United States in its participation in the war.
In addition, Reverend Straut is a member of the National Emergency Committee of Clergy and Laymen Concerned About Vietnam and a representative of the Bergen County Peace Council.
Plaintiff Backer, also an ordained minister, is vicar of Grace Episcopal Chapel in East Rutherford and is a member of the organizations mentioned above.
Prior to May 25, 1967, he was an outspoken critic of the United States' role in Vietnam and participated in activities designed to discourage enlistment in the armed forces and assistance in prosecuting the war. As an example of his beliefs and activities, he took a course offered by the American Friends Service Committee in order to qualify as a counselor of those who may have conscientious objection to participating in all wars, or the Vietnam war in particular.
Defendant Calissi is the Prosecutor for Bergen County, New Jersey, and the state official charged with enforcement of the statute here challenged in Bergen County. That statute, N.J.Rev.Stat. § 2A:148-22, provides:
a. Prints, publishes or circulates any book, newspaper, pamphlet, or written or printed matter that advocates or attempts to advocate that persons should not enlist in any of the armed forces of the United States, or of this state, or
b. Advocates or teaches, by word of mouth or otherwise, in any public place or at any meeting where more than 5 persons are assembled, that any person should not enlist in any of the armed forces of the United States or of this state; or
c. Advocates or teaches that the citizens of this state should not aid, abet or assist the United States in prosecuting or carrying on war with the enemies of the United States --
Is guilty of a high misdemeanor."
N.J.Rev.Stat. § 2A:85-6 provides that punishment for a high misdemeanor shall be a fine of not more than $2,000, or imprisonment for not more than 7 years, or both.
On May 25, 1967, defendant delivered a speech before the Bergen County Grand Jurors' Association. The speech was reported the following day on the front page of The Record, a leading Bergen County newspaper, under the headline "War Defiers Can Be Jailed."
The article revealed that Mr. Calissi had recently discovered "by accident" the existence of the New Jersey sedition statute set out above, and that it was possible that "every one of Bergen County's thousands of residents who march or even just speak out against the American military action in Vietnam" could be prosecuted under its terms. The newspaper account also reported that "[when] the prosecutor read the law to the group, one juror stated gleefully 'We've got them coming and going.' Calissi nodded in agreement." The day after this article appeared, May 27, defendant was interviewed on radio station WINS in New York and stated that it was his duty to enforce this statute and he would do so if violations were brought to his attention. On May 31, 1967, The Record published a statement issued by Mr. Calissi the previous day, in which he asserted that upon receiving complaints, he would be compelled to prosecute anti-draft advocates under the statute.
Plaintiffs contend that the existence of N.J.Rev.Stat. 2A:148-22, coupled with defendant's threats to enforce it, have the immediate purpose and effect of intimidating them and thousands of others, and of deterring them from the exercise of their First Amendment rights of freedom of speech, religious belief, press and association. It is asserted that the statute is overly broad and vague "and its overbroad sweep has a chilling effect upon the exercise of rights guaranteed to all citizens by the First and Fourteenth Amendments." In addition, plaintiffs argue that the statute violates the Supremacy Clause of the Constitution in that it legislates in an area preempted by Congress. Jurisdiction over the complaint is said to arise under 28 U.S.C. ...