Plaintiff has moved for summary judgment and defendants have countered with a motion to dismiss the complaint or in the alternative for summary judgment.
Plaintiff, Oscar Sussman, is an employee of the Department of Health of the State of New Jersey with the position of Director of Consumer Health Services. In his complaint Sussman attacks Executive Orders 19 and 20, which were issued by the then Commissioner of Health, James R. Cowan, pursuant to his authority to adopt rules and regulations governing the internal management of the Department of Health, N.J.S.A. 26:1A-15(b), N.J.S.A. 47:1A-2. The gravamen of the complaint is the allegation that defendants' issuance and implementation of Executive Order No. 20,
and their application of Executive Order No. 19 in support thereof, violate the plaintiff's federal constitutional rights of free expression.
Although Cowan is no longer Commissioner, the Executive Orders are still viable.
The plaintiff's motion for a summary judgment is directed solely to the constitutionality of Executive Order No. 20. It is alleged that this Order is unconstitutional on its face as imposing an invalid prior restraint on free expression. Although the government does not deny that this regulation constitutes a prior restraint, it is urged upon us that it is only a notice requirement. The defendants contend that Executive Order No. 20 merely requires a Department of Health employee to give the office of the Commissioner of Health notice that he intends to have an interview or grant a press release. We were told at oral argument that the reason for its promulgation was to enable the Commissioner, or his representative, to rebut any statements made by the employee which are deemed to be detrimental to Health Department policy.
We reject the defendants' contention that Executive Order No. 20 is merely a notice requirement,
and we hold that Executive Order No. 20 is, on its face unconstitutionally overbroad. Of course, this is not to say that a regulation restricting the freedom of speech of Health Department employees could not be valid if properly drafted. See Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1969); Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965); Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971). As the United States Supreme Court stated in United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1969):
However, Executive Order No. 20 gives the Commissioner of Health unbridled authority to issue or withhold his consent to the issuance of a press release or to permit interviews by Health Department employees without reference to a legitimate Health Department policy or regulation. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969); Lovell v. Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 495 (1938); See Pickering v. Board of Education, supra; Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963); Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).
There is generally a presumption in favor of the constitutionality of legislative acts and administrative regulations. However, where the legislative act either on its face or in its specific application restricts rights protected by the First Amendment, the presumption is against, rather than in favor of, its validity. Thomas v. Collins, 323 U.S. 516, 529-531, 65 S. Ct. 315, 89 L. Ed. 430 (1944). See Opinion of Justice Rutledge in United States v. C.I.O., 335 U.S. 106, 68 S. Ct. 1349, 92 L. Ed. 1849 (1948). We find nothing in this record to establish constitutionally sufficient grounds justifying the impairment of the right ...