Even where all three special circumstances for abstention exist, courts may refuse to abstain if the resulting delay would cause irreparable harm to the parties. Id. at 141; Biegenwald, 882 F.2d at 753-54. Where a candidate for state judicial office mounted a challenge to the Pennsylvania Code of Judicial Conduct which prohibited him from announcing his views on disputed political or legal issues, the potential harm caused by a delayed decision on the merits rendered abstention inappropriate. Stretton, 944 F.2d at 141. With only a few weeks remaining before the election, a timely state court decision probably could not be obtained, leaving the plaintiff and other candidates in doubt about appropriate topics for campaign discussion. Id. Similarly, the disadvantages of abstaining significantly outweighed the advantages where the plaintiff, a death row inmate, might not be alive by the time the state judicial process had run its course and the litigation returned to federal court for resolution. Biegenwald, 882 F.2d at 753. Since the delay caused by the decision to abstain would, as a practical matter, deprive the death row inmate of any possible remedy for the alleged constitutional violations, abstention was inappropriate. Id. Both of these cases demonstrate that the harm caused by a delayed decision must be truly extraordinary in order to render abstention inappropriate.
Determining whether the harm to Reverend Cummings that would result from a delayed decision meets this high threshold raises unique First Amendment concerns. In the First Amendment context, the harm of a delayed decision and therefore the appropriateness of Pullman abstention varies, depending upon whether the plaintiff challenges the relevant statute on its face or as applied. Chez Sez, 945 F.2d at 633-34. The Supreme Court has held that "'abstention . . . is inappropriate for cases [where] . . . statutes are justifiably attacked on their face as abridging free expression.'" City of Houston v. Hill, 482 U.S. 451, 467, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987) (quoting Dombrowski v. Pfister, 380 U.S. 479, 489-90, 14 L. Ed. 2d 22, 85 S. Ct. 1116).
Distinguishing between facial and as applied challenges makes sense under the Third Circuit's two-step Pullman analysis. See Chez Sez, 945 F.2d at 633. If a statute is justifiably attacked on its face, then it is not susceptible to a limiting construction that would eliminate or alter the federal constitutional question presented, and thus the first "special circumstance" criterion for Pullman abstention is not met. See Hughes, 906 F.2d at 964. Furthermore, if the challenged statute is in fact invalid on its face, then the delay resulting from a decision to abstain would cause an extremely harmful chilling effect, a discretionary consideration that would weigh strongly in favor of immediate judicial intervention. See, e.g., Stretton, 944 F.2d at 140.
In contrast, a plaintiff, by challenging a statute as applied, does not raise such concerns. "Where the state courts can, in a single proceeding, determine the bounds of the state statute by choosing between one of several alternative meanings of the statute, abstention has been held proper even where a First Amendment challenge is concerned." Chez Sez, 945 F.2d at 634 (citing Babbitt v. United Farm Workers, 442 U.S. 289, 308, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979)). Pullman abstention is not inappropriate per se simply because a statute is being challenged on First Amendment grounds. Id.
Moreover, New Jersey law provides a specific mechanism that could substantially mitigate the harm or chilling effect for an individual awaiting a state court determination of whether a challenged statute is constitutional as applied to him. Under New Jersey law, an individual may seek a binding declaratory ruling from the appropriate administrative agency concerning the applicability of the challenged statute to specific persons or conduct. N.J.S.A. § 52:14B-8. If this Court were to abstain, Reverend Cummings could avail himself of this administrative procedure while his claims were pending in state court. By seeking a declaratory ruling from the Division, Reverend Cummings could eliminate much of the harm caused by his alleged uncertainty as to whether his religiously and politically motivated speech and expressive conduct violate the NJLAD.
Although Reverend Cummings has mounted a facial challenge to N.J.S.A. sections 10:5-12e and n, this does not end the Court's abstention inquiry. According to the Supreme Court, Pullman abstention is inappropriate where a plaintiff "justifiably" mounts a facial challenge to a statute. City of Houston, 482 U.S. at 467 (quoting Dombrowski, 380 U.S. at 489-90). Therefore, this Court must assess the viability of Reverend Cummings' facial challenges to the NJLAD's two aid and abet provisions before making any final determination regarding abstention. If Reverend Cummings' facial challenges are entirely without merit, then there is an increased likelihood that Pullman abstention will be appropriate for his remaining claims, challenging the two provisions, N.J.S.A. sections 10:5-12e and n as they apply to him. See Chez Sez, 845 F.2d at 633-34.
D. Reverend Cummings' Facial Challenge
Reverend Cummings contends that N.J.S.A. sections 10:5-12e and n, which prohibit aiding and abetting discrimination against persons based upon affectational or sexual orientation, are unconstitutional on their face and thus should be declared invalid. According to Reverend Cummings, the challenged provisions are unconstitutional on their face for two reasons: (1) they are unconstitutionally vague and overbroad; and (2) they are content-based regulations which impermissibly discriminate against disfavored viewpoints, such as Reverend Cummings' belief that people should be discriminated against based upon their sexual orientation. Both of these theories for facially invalidating the challenged aid and abet provisions lack merit.
The overbreadth doctrine embodies the principle that the First Amendment "needs breathing space" and "that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be muted and perceived grievances left to fester because of the possibly inhibitory effects of overly broad statutes." Broadrick v. Oklahoma, 413 U.S. 601, 611, 612, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).
In an existing case or controversy, the overbreadth doctrine permits "a litigant whose own activities are unprotected . . . nevertheless [to] challenge a statute by showing that it substantially abridges the rights of other parties not before the Court." Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 634, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); accord Dombrowski, 380 U.S. at 486 (holding that overbreadth doctrine does not require "that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.").
A successful overbreadth challenge precludes enforcement of a challenged statute unless and until it is either rewritten by the legislature or authoritatively reinterpreted by a state court to remove the chilling effect upon constitutionally protected expression. Broadrick, 413 U.S. at 613. Consequently, "application of the overbreadth doctrine . . . is, manifestly, strong medicine" that should be employed to invalidate an entire statute only where the statute's overbreadth is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," id., and where the statute is not susceptible to a limiting construction or partial invalidation. Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 96 L. Ed. 2d 500, 107 S. Ct. 2568 (1987) [hereinafter Airport Commissioners]. "The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render its susceptible to an overbreadth challenge." City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 80 L. Ed. 2d 772, 104 S. Ct. 2118 (1984) [hereinafter Taxpayers for Vincent].
As a guiding principle, federal courts should "never formulate a rule of constitutional law broader than is required by the precise facts to which it is applied." United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 80 S. Ct. 519 (1961) (citations omitted). For this reason, courts should not ordinarily invalidate statutes as facially overbroad "where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish." Brockett v. Spokane Arcades, 472 U.S. 491, 504, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985). In such cases, there is:
no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged. The statute may be declared invalid to the extent that it reaches too far, but otherwise left intact.
Unless it appears that "any attempt to enforce" the challenged legislation "would create an unacceptable risk of the suppression of ideas," a court should declare an entire statute invalid on its face only if the record indicates that the challenged statute will have a different impact upon third parties not before the court than it has upon the plaintiffs. Taxpayers for Vincent, 466 U.S. at 801; see also Laurence H. Tribe, American Constitutional Law, § 12-28 (2d ed. 1988) (noting the Supreme Court's increasingly unwillingness to assume the existence of a chilling effect, instead placing "a mounting burden on the individual to show that the apparent inhibition of free expression is in fact highly probable and socially significant."). Courts should not engage in overbreadth analysis where a plaintiff claims that a statute is overbroad precisely because it applies to him. Moore v. City of Kilgore, 877 F.2d 364, 390-92 (5th Cir. 1989), cert. denied, 493 U.S. 1003, 107 L. Ed. 2d 557, 110 S. Ct. 562 (1989) (Higginbotham, J., concurring).
First, it is not true that "any attempt to enforce" the challenged provisions of the NJLAD "would create an unacceptable risk of the suppression of ideas." See id. Even if the challenged provisions of the NJLAD prohibit speech advocating discrimination, as Reverend Cummings claims, the provisions also encompass conduct that the State may legitimately prohibit. For example, the State could permissibly prohibit, for example, an individual from offering a $ 500 reward to employers for each time that they refuse to hire a gay or lesbian job applicant because of the applicant's sexual orientation. Such a reward scheme would have little to do with the expression of ideas and could legitimately be regulated by the state because of the secondary effects of such conduct. Therefore, Reverend Cummings cannot bring an overbreadth challenge on the ground that the two challenged provisions are not capable of constitutional application. See id.
Second, Reverend Cummings has failed to established that the challenged aid and abet provisions would have any different effect on third parties not before the Court than it has on himself. The Amended Complaint indicates that where its allegations refer to "Plaintiffs," this term includes not only Reverend Cummings but also OPC members. Amended Compl. P 12. To the extent the Amended Complaint asserts claims by Reverend Cummings in his individual, as opposed to his official capacity as a minister, the allegedly prohibited aiding and abetting activities that he and other OPC members engage in and intend to continue are identical. In so doing, Reverend Cummings has failed to overcome the presumption that this Court should assess the constitutionality of N.J.S.A sections 10:5-12e and n as they apply to him, as opposed to on their face. This Court expresses no opinion as to whether the challenged aid and abet provisions are in fact overbroad. Reverend Cummings has failed, however, properly to assert such a challenge.
2. Viewpoint Discrimination
As explained by the Supreme Court, "there is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard." Police Dep't v. Mosley, 408 U.S. 92, 96, 33 L. Ed. 2d 212, 92 S. Ct. 2286 (1972) (citation omitted). "The First Amendment's hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion on an entire topic." Burson v. Freeman, 504 U.S. 191, 197, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (1992); R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 2542-48, 120 L. Ed. 2d 305 (1992).
Applied to expressive conduct, the preference for content-neutrality permits "nonverbal expressive activity [to] be banned because of the action it entails, but not because of the ideas that it expresses." R.A.V., 112 S. Ct. at 2544; Texas v. Johnson, 491 U.S. 397, 406, 105 L. Ed. 2d 342, 109 S. Ct. 2533 (1989). As long as the expressive conduct is not regulated because its message, "acts are not shielded from regulation merely because they express a discriminatory idea or philosophy." R.A.V., 112 S. Ct. at 2546-47.
"Content-based regulations [of speech and expressive conduct] are presumptively invalid." R.A.V., 112 S. Ct. at 2542 (citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991)). Consequently, courts, as the first step in a First Amendment analysis, must determine whether a statute is content-neutral or content-based. Rappa v. New Castle County, 18 F.3d 1043, 1053 (3d Cir. 1994). The level of constitutional scrutiny applied to a challenged regulation depends upon this determination. If a statute is content-based, it is unconstitutional unless the State can show that it "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Educ. Ass'n v. Perry Local Educators' Ass'n., 460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983); accord Burson, 504 U.S. at 198. In contrast, courts apply a more relaxed level of scrutiny to content-neutral restrictions, which will be upheld "so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986) (citations omitted).
"Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'" Id. at 48 (citations omitted). Where a statute is "aimed not at the content" of the restricted speech but "at the secondary effects" generated by or associated with the speech, the statute is content-neutral. Renton, 475 U.S. at 48; see also Boos v. Barry, 485 U.S. 312, 320, 99 L. Ed. 2d 333, 108 S. Ct. 1157 (1988). For this reason, the Supreme Court upheld a city zoning ordinance restricting the location of adult movie theaters, but not other types of theaters, as content-neutral, because the ordinance targeted the secondary effects of adult movie theaters, such as crime and diminished property values, not the content of the adult films themselves. 475 U.S. at 47-49. As a long as a statute "serves purposes unrelated to the content of expression," it is content-neutral, "even if it has an incidental effect upon some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) (citing Renton, 475 U.S. at 47-49).
Elaborating upon the secondary effects doctrine, the Supreme Court has indicated that "listeners' reactions to speech . . . [or] the emotive impact of speech upon its audience is not a secondary effect" capable of supporting a finding of content-neutrality. R.A.V., 112 S. Ct. at 2549 (quoting Boos, 485 U.S. at 321).
According to Plaintiff, the NJLAD discriminates based upon both content and viewpoint. Plaintiff argues that the provisions of the NJLAD:
impose severe disabilities upon the religious viewpoint that homosexuality, bisexuality and adultery the protected sexual preferences are behaviorally (as opposed to genetically) determined, and are sinful and immoral . . . while speech supporting the sexually "permissive" and "expansive" viewpoint is not similarly burdened, but actually favored and protected . . .