For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
[56 NJ Page 214] This is a declaratory judgment suit brought as a class action against the Attorney General and local law enforcement officials, also as a class. The complaint alleges violation of plaintiffs' First Amendment rights of speech and association. The complaint revolves about a
memorandum, entitled "Civil Disorders -- The Role of Local, County and State Government" (herein Memorandum), prepared by the Attorney General of the State and sent to local law enforcement officials. The trial court denied the Attorney General's motion to dismiss the complaint for failure to state a claim for relief and granted plaintiffs' motion for summary judgment. Anderson v. Sills, 106 N.J. Super. 545 (Ch. Div. 1969). The Attorney General appealed and we certified the matter before argument in the Appellate Division.
The record made on the motion for summary judgment was exceedingly sparse. After the trial court's decision, the Attorney General moved with supporting affidavits for reconsideration and for leave to file an answer. The trial court, concluding that its views were not altered by the proof thus tendered, denied the motion for reconsideration but did order that the answer and affidavits be filed nunc pro tunc as of the time of the argument of the motion for summary judgment.
The record was thus enlarged, but in our view it remained inadequate for a decision upon the merits. The constitutional issue was presented in a hypothetical way within an aura of surmise and speculation. The trial court should have refused to decide it on a motion for summary judgment. That this is so will appear from what follows.
In 1967 there were a number of civil disorders in our State including some costly riots. The Memorandum, as its caption suggests, deals with that subject. It was sent to all local police units on April 23, 1968, following a conference between the Governor and the mayors of the municipalities of the State.
The Memorandum is not a regulation, or a directive, or an order. It is simply a communication from the Attorney General to independent local law enforcement units, all outside the Attorney General's official chain of command. The
Memorandum is basically informational.*fn1 It deals with the role of local, county, and State governments with respect to civil disorders.
The Memorandum suggests guidelines based upon the intensity of the disorders and the ability of the municipality to cope with them. It describes the primary duty of each municipality, the basis for a call upon neighboring municipal and county resources, the basis for a call for limited State Police assistance, and finally the basis for State intervention. It recommends advance planning as to each of the stages just mentioned and in comprehensive fashion discusses the problems to be anticipated and the facilities and resources available.
Virtually at the end of the Memorandum appears the following statement which plaintiffs stress:
Our State Police have been working closely with local police in various communities throughout the State in a continuing effort to
keep abreast of potential civil disorder problems. In that respect therefore, we are already familiar generally with basic problems in these communities. However, these problems change and we should never become over confident to the end that we lose sight of the cause, as well as the effect of civil disturbances. The State Police Central Security Unit has distributed Security Summary Reports (Form 421) and Security Incident Reports (Form 420) (see Appendix G) to each police department. It is necessary that these reports be used routinely to inform the State Police of the situation in your community. We urge you to see that this vital intelligence is communicated to this central bureau for evaluation and dissemination.
Plaintiffs say the Memorandum will result in police invasion of their First Amendment rights and build that complaint upon the content of forms 420 and 421 and the instructions for their preparation contained in "Appendix G" of the Memorandum. That appendix, including the forms, is reproduced at the end of this opinion.
Form 420 calls for a report of an "incident." As the instructions related to the form explain, the "incident" may be "anticipated" or "in progress" or "completed." The form calls for a statement of the "type" of incident and the instructions give as " Examples: Civil disturbance, riot, rally, protest, demonstration, march, confrontation, etc." The form calls for the names of the organizations or groups involved in the "incident," and the instructions suggest as " Examples of types: Left wing, Right wing, Civil Rights, Militant, Nationalistic, Pacifist, Religious, Black Power, Ku Klux Klan, Extremist, etc." and as " Examples of How Involved: Sponsor, co-sponsor, supporter, assembled group, etc."
Form 421 relates to an individual, as distinguished from an incident. Among the instructions appear: " Spouses Full Name -- Type full name of spouse. If wife, include maiden name or names by any other marriages," and " Associates -- Enter names and addresses of associates, include aliases and nicknames. List additional associates in Narrative." The "Narrative" portion of the form reads: "citizenship/naturalization data -- parental background/occupation -- armed forces service/draft status -- membership, affiliation
and/or status with organizations or groups -- education background -- habits or traits -- places frequented -- parole/probation data -- data on immediate family -- financial/credit status -- include other record of past activities, findings and/or observations."
On the basis of the several items we have just collated, plaintiffs envision that a mere rally, protest, demonstration or march of a pacifist group will precipitate a police dossier of everyone who attends, including therein his butcher's and banker's opinion of his credit. Adverting then to the portion of the Memorandum quoted above which says it is "necessary that these reports be used routinely to inform the State Police of the situation in your community" and urges that the intelligence be communicated "to this central bureau for evaluation and dissemination," plaintiffs enlarge upon their hypothetical horribles and see each such citizen harried amid his family, friends, and business associates. There is not an iota of evidence that anything of the kind has occurred or will, or that any person has been deterred by that prospect.
The individual plaintiffs themselves do not claim to have been deterred. In their affidavits on the motion for judgment, one plaintiff says she is chairman of the Students for a Democratic Society at St. Peter's College, and as an example of her activity she tells of "a sit-in at the office of the President." She adds that during a student strike which followed, "pickets were photographed by two men in plain clothes in an unmarked car" but there is no evidence as to their identity.*fn2 The husband of that affiant says he has participated in a number of marches, rallies, and protests in opposition to the Viet Nam war, in support of burners of draft cards, and in protest of some alleged "racist policies" of a large religious organization. He adds that he hopes to be a lawyer and fears the Memorandum "may hinder my chances at being accepted
at the law school of my choice"; that although "I have thus far not been deterred from exercising my First Amendment rights by the existence of the aforesaid memorandum, its existence is a factor which I must weigh in deciding whether or not to speak or act on a particular occasion;" and that "as an organizer of rallies, marches, protests and demonstrations, I feel that I must warn potential participants that, pursuant to the Attorney General's Memorandum they are subject to being investigated and classified by the police despite the lawfulness of our activity." Another affiant says she is a member of an urban renewal association and has picketed in support of its aims and as well against some alleged "racist policies" of the religious organization already referred to, but she says that she feels "the existence of the memorandum may deter me from exercising my First Amendment rights in the future." She says she is "particularly concerned lest a police investigation such as that directed by the memorandum lead my landlord to believe that I had done something illegal." Another affiant describes his activities, including picketing of police headquarters, a stand-in at a bank, a sit-in at a mayor's office, and the distribution of antiwar leaflets and peace marches. He says "I cannot say that I will be deterred in the future from exercising my First Amendment rights" but he believes that "police surveillance, investigation, and cataloguing, and * * * disseminating the garnered information" may jeopardize his right to associate with others "should my activities become subject to the Attorney General's memorandum." The final affiant, the president of the Jersey City Branch of the NAACP, says that "once our organization and its members are investigated and categorized as per the memorandum, other persons in the community who are potential supporters * * * will disassociate themselves from any NAACP activity and a valuable audience will be lost."
The foregoing is a resume of the record upon which the trial court held that the portion of the Memorandum we quoted above, entitled "Potential Problems," and forms 420
and 421 violate the First Amendment, and granted sweeping injunctive relief we will discuss later in this opinion. There was no evidence that the Memorandum was intended or has been read by local police officials to call for any action which invades a constitutionally protected area. There was no evidence that the Attorney General intended to intimidate anyone. Nor does it appear that he even sought to publicize the use of these forms. Indeed, according to the affidavit of Lieutenant Goch of the State Police submitted on the motion for reconsideration, there is no form 420 or 421 as to any of the plaintiffs, and there is no index file on any of them except one, and as to him only because of an arrest record going back to 1963.
Defendants contend that since plaintiffs have not been harmed they lack "standing" to sue. We do not require that injury shall be experienced as a condition for suit, State v. Baird, 50 N.J. 376, 378 (1967), and there is good reason to permit the strong to speak for the weak or the timid in First Amendment matters. Nonetheless the prospect of wrongful conduct must be real and not fanciful, Grand Union Co. v. Sills, 43 N.J. 390, 409-411 (1964); Burton v. Sills, 53 N.J. 86, 92 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969), for the chance of error is substantial if an issue is accepted in a setting that is merely hypothetical. Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969); United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 89-90, 67 S. Ct. 556, 91 L. Ed. 754, 767 (1947). Especially is this so when the decision depends upon striking a balance between competing constitutional values.
In this connection it is important to note what is and is not before us. We are not dealing with a statute imposing criminal liability for its violation, as in United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508
(1967); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); Watkins v. United States, 354 U.S. 178, 77 S. Ct. 1173, 1 L. Ed. 2d 1273 (1957), or a statute which affects the right to public employment, Keyishian v. Board of Regents of New York, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), or to pursue a profession, Konigsberg v. State Bar of California, 336 U.S. 36, 81 S. Ct. 997, 6 L. Ed 2d 105 (1961). Where a statute thus affects an individual, it may on its face invite the question whether because of vagueness or overbreadth it unnecessarily deters an individual from speech or activity protected by the First Amendment.
Here, the Memorandum imposes no liability or obligation or restriction whatever upon the citizen. Nor does it order the policeman to take action against a citizen upon the pain of discipline if the policeman does not comply. It is no more than a communication to law enforcement agencies about their respective powers and duties. It is wholly informative and advisory. It does not command; it merely encourages cooperation among all agencies concerned with the problem of civil disorders.
This is not to say that only statutes, regulations, or binding directives may spawn a First Amendment problem. But it would be unreasonable to require that intragovernmental communications be drafted with a precision the Constitution demands of a legislative enactment. The writer of the Memorandum could well assume the reader would be aware of the limitations of his office and would understand that the writer was not advocating anything arbitrary, oppressive, or foolish. The police are much too occupied for idle investigations. We think it preposterous to suppose that the Memorandum was intended or was understood to recommend round-the-clock surveillance of every person who attends an anti-war meeting.
When the Memorandum and forms 420 and 421 are read without strain, the common sense of the situation readily emerges. There have been serious disorders involving heavy losses of life and property. The police function is pervasive. It is not limited to the detection of past criminal events. Of at least equal importance is the responsibility to prevent crime. State v. Dilley, 49 N.J. 460, 464 (1967). In the current scene, the preventive role requires an awareness of group tensions and preparations to head off disasters as well as to deal with them if they appear. To that end the police must know what forces exist, what groups or organizations could be enmeshed in public disorders. This is not to ask the police to decide which are "good" and which are "bad." In terms of civil disorders, their respective virtues are irrelevant, for a group is of equal concern to the police whether it is potentially the victim or the aggressor. The police interest is in the explosive possibilities and not in the merits of the colliding philosophies. And it must be evident that a riot or the threat of one may best be ended with the aid of private citizens who because of their connections with the discordant groups can persuade them from a course of violence. Hence a police force would fail in its obligation if it did not know who could be called upon to help put out the burning fuse or the fire.
In the summer of 1967 there were serious riots. Both the President of the United States and the Governor of this State appointed commissions to study the problem and to make recommendations. The Report of the National Advisory Commission on Civil Disorders (March 1, 1968) in its "Supplement on Control of Disorders" encouraged the preparations which the Memorandum here involved seeks to achieve. It reads (p. 269):
INTELLIGENCE -- The absence of accurate information both before and during a disorder has created special control problems for police. Police departments must develop means to obtain adequate
intelligence for planning purposes, as well as on-the-scene information for use in police operations during a disorder.
An intelligence unit staffed with full-time personnel should be established to gather, evaluate, analyze, and disseminate information on potential as well as actual civil disorders. It should provide police administrators and commanders with reliable information essential for assessment and decisionmaking. It should use undercover police personnel and informants but it should also draw on community leaders, agencies, and organizations in the ghetto.
In his affidavit accepted by the trial court on the motion for reconsideration, Lieutenant Goch of the State Police described the activities of its Central Security Unit. He stated in part:
At the present time information concerning crime and criminals is gathered by the intelligence unit in the Organized Crime Task Force in the New Jersey State Police and information concerning extremist organizations and incidents concerning disturbances arising out of racial, social and economic tensions is gathered by the central security unit, the human relations unit and the civil disturbance unit.
Specifically, some of the past and present reasons for the accumulation of information by the State Police are: (a) to aid in the evaluation and determination of the probability of unlawful disorders, large-scale violence, and potential riots; (b) to aid in the determination of supplemental police manpower needs; (c) to facilitate decisions and planning for coping with disorders anticipated or in progress; (d) to aid in the assessment of tension within communities and possible causes of unrest; (e) to aid in familiarization with the past activities of professional agitators, their tactics and control over their followings; and (f) to furnish information for meetings of the Governor with officials of various State Departments including the Department of Community Affairs, Department of Education, Department of Institutions and Agencies, Division on Civil Rights, Office of Attorney General, and Division of State Police for their study of the causes of civil disorder, so that this information can be used by the Governor and appropriate governmental agencies to alleviate present tensions and prevent future and potential disorders.
He pointed out that forms 420 and 421 were prepared prior to the Memorandum and were not devised for it. He emphasized that the forms deal with public incidents only, and are simply suggestive of the kinds of information the State Police believe should be on hand; that like information
had always been received through liaison with police agencies; that in fact most of the information called for in these forms can be obtained from newspaper clippings; that such information as appears with respect to these plaintiffs was received from news clippings or other agencies, rather than by way of these forms; that information from all sources is integrated, and is available to public agencies only on a "need-to-know basis," and is never available to private interests.
Other affidavits accepted on the motion for reconsideration spell out the measures taken to keep up with a fast-moving scene and to anticipate explosive situations. They repel the notion that the program was intended or has been used to harass anyone. An assistant to the Governor stated:
I have convened during the past year, as the Governor's representative, meetings held on a regular basis with officials of the Department of Community Affairs, Department of Education, Division of Civil Rights, Division of State Police, Division of Law and National Guard, the purpose of which is to review potential trouble-spots within the state, to discuss methods by which the state may respond to community tensions and civil disorder in a constructive manner, and to make contingency plans in the event disorders are threatened or occur.
One aspect of these meetings is the exchange of information concerning community tensions and potential trouble-spots amongst the officials of the various agencies represented.
The State Police have, for example, supplied information on occasion that a particular group would be holding a public meeting at a particular time and place and that a volatile situation could develop. Thereafter members of this agency and others contact these groups or mentioned leaders to avert the development of disorders.
The Director of the Division on Civil Rights added:
I have attended, during the past year, meetings held on a regular basis with the Governor or his representatives and officials of the Department of Community Affairs, Department of Education, Division of Law, Division of State Police and National Guard, at which we have reviewed potential trouble spots within the state and discussed both immediate and long-range measures by which the state may respond to existing community tensions and the underlying causes of urban problems in a constructive manner.
As Director of the Division on Civil Rights, I also direct members of my staff to submit reports concerning protests, demonstrations and other manifestations of tension and discord within the urban community. Sometimes, as a result of these reports and other information received by me, I contact representatives of organizations involved in protests, demonstrations, etc. to hear their grievances and to discuss possible ways of dealing constructively with the problems faced by the community.
It of course is not our purpose here to resolve a factual issue. We refer to the affidavits simply because on their face they assert a purpose to discharge a plain duty of government and ...