**1 SYLLABUS**  **This syllabus is not part of the Court’s**  **opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor**  **approved by the Court and may not summarize all portions of the opinion.**  Viktoriya Usachenok v. State of New Jersey, Department of the Treasury (A- 40
- 22 ) ( 08 6861 ) Argued January 3, 202 4
-- Decided May 6, 20 24 RABNER, C. J., writing for a unanimous Court. **In this appeal, the Court considers the constitutionality of a regulation that**  **applies to harassment and discrimination investigations in State workplaces. Part of the regulation requires State investigators to “request” that anyone interviewed “not**  **discuss any aspect of the investigation w ith others.” N.J.A.C. 4A:7** 

**- 3.1(j).**  **In May 2016, plaintiff Viktoriya Usachenok filed an internal complaint with the Department of Treasury**  **claiming that her supervisor sexually harassed her and**  **subjected her to a hostile work environment. Consistent with the text of N.J.A.C.**  **4A:7**

**- 3.1(j) at the time,**  **the EEO/AA investigator directed Usachenok not to discuss**  **the investigation with others and had her sign a form to acknowledge that directive.**  **A fter Usachenok asked her husband, an attorney**  **, about**  **whether to sign a particular**  **document related to the investigation**  **, the investigator accused Usachenok**  **of violating the confidentiality directive and threatened she could be fired.**  **Usachenok filed a complaint**  **that, among other claims, challenged the confidentiality directive** 

**. The**  **version of N.J.A.C. 4A:7** 

**- 3.1(j)**  **then in effect included**  **the following language: “**  **All persons interviewed, including witnesses, shall be directed not to discuss any aspect of the investigation with others in light of the important privacy**  **interests of all concerned. Failure to comply with this confidentiality directive may result in administrative and/or disciplinary action, up to and including terminatio**  **n.”**
**W hile this appeal was pending**  **in the Appellate Division , the Civil Service**  **Commission amended the regulation. The relevant portion of N.J.A.C. 4A:7** 

**- 3.1(j)**  **now provides that “ the EEO/AA Officer/investigator shall request that all persons**  **interviewed, including witnesses, not discuss any aspect of the investigation with others, unless there is a legitimate business reason to disclose such information.**  **” The Appellate Division rejected Usachenok’s constitutional challenge to the**  **current regulation , focusing on the change from a directive to a permissive “request”**  **through the amendment. The Court granted**  **certification. 253 N.J. 579 (2023). 2** 

HELD: **The State Constitution guarantees an affirmative right to speak freely. N.J.**  **Const. art. I, ¶ 6.**  **The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them.**  **Although N.J.A.C. 4A:7** 

**- 3.1(j) seeks to advance legitimate interests --**  **“to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy**  **interests of all concerned”**

**-- it reaches too far in trying to achieve those aims and**  **chills constitutionally protected speech.**  **T he rule is overbroad under the State**  **Constitution, and the Court strikes the relevant part of the regulation.**
**1**

**. New Jersey’s**  **Constitution provides broader protection for free expression than the Federal Constitution**  **and practically all others in the nation**

**. (pp. 12** 

**- 13**  **)**
**2**

**. The**  **overbreadth doctrine considers the extent of a law’s deterrent effect on legitimate expression.**  **A law is facially invalid on overbreadth grounds**  **i f the statute**  **prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The United States Supreme Court’s application of the overbreadth doctrine**  **in United States v. Stevens**  **illustrates the principle**

**. The**  **Court found that the statute challenged in that case created an offense “of alarming breadth” because, a**  **lthough it**  **purported to criminalize animal cruelty, the statute did not actually require “**  **that the depicted conduct be cruel**  **, ”**  **such that hunting periodicals could run afoul of the law. 559 U.S. 460, 474** 

**- 76 (2010).**  **The Court explained that it “would not uphold an unconstitutional statute based on the**  **Government’s representation that it would use the statute “to reach only ‘extreme’ cruelty**  **, ”**  **and that it could not r ewrite the statute**  **“to conform it to constitutional requirements.” Id.**  **at 48 0-8**  **1. Because “the presumptively impermissible applications of [the law] far outnumber[ed] any**  **permissible ones,” the Court held that the law was “substantially overbroad, and therefore invalid under the First Amendment.”**  **Id. at 481** 

**- 82.**  **(p p.**  **14**

**- 17**  **)**
**3**

**. Consistent with the Supreme Court’s approach, the “first step” in this appeal is to**  **examine the text of the regulation to construe its scope. See**  **id. at 474.**  **T he critical**  **language in N.J.A.C. 4A:7**

**- 3.1(j**  **) has few, if any, limits. It directs state actors to ask**  **victims and witnesses not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great**  **deal of protected speech , and it**  **has no time limit. One exception appears in the text of t**  **he rule**

**-- victims and witnesses can disclose information if “there is a legitimate**  **business reason to” do so**

**-- but t**  **he regulation does not offer guidance about what that**  **means . And the regulation**  **does not require that victims be told they are free to decline to follow the request**  **, that they can consult with an attorney about it , or that**  **there will be no repercussions if they exercise their protected right to free speech.**  **Although framed as a request, t here is an inherent power imbalance between the**  **investigator who makes the request and the witness who hears it , with the result that**  **many employees will undoubtedly give up their right to speak freely. (pp. 17** 

**- 20)** **3**

**4. Counsel for the Attorney General proposed revisions tha**  **t would help address the**  **regulation ’s broad scope, but the Court cannot expand**  **and rewrite the final sentence to render it constitutional.**  **Id. at 481** 

**. T**  **he regulation is unconstitutionally overbroad.**  **T he Court**  **acknowledge s**  **the State’s good**

**- faith representations that the**  **regulation can be narrowed ,**  **but it**  **cannot rely on those representations to uphold the**  **rule. See**  **id. at 480.**  **The Court strikes the last sentence of N.J.A.C. 4A:7** 

**- 3.1(j)**  **on overbre**  **adth grounds based on the broad protections in the State Constitution** 

**. The**  **Court explains why its opinion in**  **R.M. v. Supreme Court of New Jersey , 185 N.J.**  **208 (2005), does not alter its analysis**  **here. (pp.**  **20**

**- 22**  **)**
**5**

**. In**  **striking part of the regulation, the Court does not question the principles**  **the regulation**  **tries to foster**

**. The concerns addressed by confidentiality are**  **entirely legitimate and are also important considerations in criminal and internal affairs**  **investigations. The Court stresses that nothing in**  **its opinion should be construed to**  **limit requests for confidentiality by investigators in those settings. (pp. 22**  **-23)**
REVERSED. The last sentence of N.J.A.C. 4A:7
- 3.1(j) is STRICKEN . The matter is REMANDED to the trial court for further proceedings.
JUSTICES PATTERSON, SOLOMON , PIERRE
- LOUIS , FASCIALE , and NORIEGA join in CHIEF JUSTICE RABNER’s opinion . JUSTICE WAINER APTER did not participate.**1 SUPREME COURT OF NEW JERSEY**  **A- 40**  **September Term 20 22** 

**086861**
**Viktoriya Usachenok ,**  **Plaintiff**

**- Appellant**  **,**

**v. State of New Jersey**  **Department of the Treasury**  **, John Mayo,**  **Bulisa Sanders and**  **Deirdre Webster Cobb, Defendant**  **s- Respondents** 

**. On**  **certification to the Sup**  **erior Court, Appellate Division** 

**. Argued**  **January 3, 2024 Decided**  **May 6, 2024**
**Andrew Dwyer argued the cause for appellant (Smith Eibeler,**  **James M. Curran, and The Dwyer Law Firm,**  **attorneys; Christopher J. Eibeler, of counsel and on the**  **briefs , and**  **Lisa A. Hernandez, Devin T. Russo, and James M. Cu**  **r ran,**  **on the briefs). Donna Arons, Assistant Attorney General, argued the**  **cause for respondents (Matthew J. Platkin, Attorney**  **General, attorney; Donna Arons, of counsel, and Adam**  **Robert Gibbons, Nicole Adams, Adam Marshall, and Levi Klinger** 

**- Christiansen, Deputy Attorneys General, on**  **the briefs). 2**  **Julie A. Murray (American Civil Liberties Union**  **Foundation) of the District of Columbia and New York**  **bar s,**  **admitted pro hac vice, argued the cause for amici curiae American Civil Liberties Union of New Jersey and**  **American Civil Liberties Union (American Civil Liberties Union of New Jersey Foundation**  **, and American**  **Civil Liberties Union Foundation, attorneys; Alex ander**  **Shalom ,**  **Jeanne LoCicero, Julie A. Murray,**  **and Gillian Thom**  **as (American Civil Liberties Union Foundation)**  **of the New York bar, admitted pro hac vice, on the brief).** 

**CHIEF JUSTICE RABNER**  **delivered the opinion of the Court.**
**In this appeal, we consider the constitutionality of a regulation that applies to harassment and discrimination investigations in State workplaces.**  **Part of the regulation requires State investigators to “request” that anyone**  **interviewed “not discuss any aspect of the investigation with others.” N.J.A.C.**
**4A:7**

**- 3.1(j).**  **The regulation’s request for confidentiality has a broad sweep. Investigators must ask all victims and witnesses who are interviewed not to**  **speak to others**

**-- in other words, not to a spouse, an attorney, or the public.**  **And the regulation has no time limit; the request extends indefinitely, even after an investigation has ended.**  **An exception in the regulation allows victims and witnesses to disclose**  **information if “there is a legitimate business reason to” do so. Ibid. But the**  **phrase is not defined, and a reasonable person would find it difficult to 3** 

**understand what the vague language means. In addition, investigators are not required to tell victims and witnesses that they are free to disregard the State’s**  **request. In this case, an employee of**  **the Department of Treasury lodged an internal complaint that her manager sexually harassed her at work.**  **Investigators interviewed her**  **and, c onsistent with the version of the regulation**  **then in effect, directed her not to discuss the investigation with anyone.**  **The Civil Service Commission (CSC) amended the regulation afterward. It now calls on investigators to “request,” not “direct,”**  **that victims and**  **witnesses remain silent about all aspects of the investigation. Ibid. Plaintiff’s**  **complaint in this appeal seeks**  **a declaratory judgment that the current regulation is unconstitutional.**  **The State Constitution guarantees an affirmative right to speak freely**  **that is broader than the protections in the First Amendment. Compare** 
**N.J. Const. art. I, ¶ 6**  **, with**  **U.S. Const.**  **amend. I. The guarantee extends to**  **victims of harassment and discrimination who have a right to speak out about what happened to them.**  **Although the regulation seeks to advance legitimate interests** 

**-- “to**  **protect the integrity of the investigation, minimize the risk of retaliation . . . ,**  **and protect the important privacy interests of all concerned,”**  **N.J.A.C. 4A:7** 

**- 4** 

**3.1(j), it reaches too far in trying to achieve those aims and chills**  **constitutionally protected speech. We**  **therefore hold that**  **the rule is overbroad**  **under the State Constitution. As a result, we reverse the judgment of the Appellate Division and strike the relevant part of**  **the regulation**

**. I.**  **To recount the facts, we rely on the assertions in plaintiff Vi**  **k toriya**  **Usachenok’s fourth amended complaint but make no findings of fact** 

**. In May 2016, Usachenok filed an internal complaint with the Equal**  **Employment Opportunity and Affirmative Action (EEO/AA) office in the Department of Treasury.**  **She claimed he r supervisor John Mayo**  **sexually harassed her and subjected her to a hostile work environment.**  **Bulisa Sanders, an EEO/AA investigator, and her supervisor, Deirdre Webster Cobb, met with Usachenok**  **to investigate the complaint. At the**  **meeting, Usachenok stated that**  **Mayo made sexual advances toward her, gave her unwanted gifts and love letters, and engaged in other inappropriate**  **behavior. Consistent with**  **the text of N.J.A.C. 4A:7**

**- 3.1(j)**  **(the “regulation” or “paragraph (j)”)**  **at the time, Sanders directed**  **U sachenok**  **not to discuss the**  **investigation with others and had her sign a form to acknowledge the**  **confidentiality directive. Sanders also advised Usachenok that she could be**  **disciplined if she violated the directive**

**. 5** 

**According to Usachenok, at a meeting**  **in June 2016, Sanders asked her**  **to sign a statement the investigators had prepared that**  **summarized her**  **allegations. After reading the statement,**  **U sachenok**  **said it needed to be changed “to accurately reflect her complaints.”**  **When Sanders declined to**  **make the changes, U sachenok**  **asked if she could call her husband. Her husband, an attorney, advised her not to sign the document**  **. According to**
**U sachenok**  **, Sanders then**  **accused her of violating the confidentiality directive and threatened**  **that she could be fired.**
**In late**  **August 2016, U sachenok**  **received a letter from another Treasury**  **investigator that**  **allegedly confirmed**  **some but not all of her**  **claims against Mayo.** 
**U sachenok**  **filed a complaint**  **against the Department of Treasury, Mayo, Sanders, and Cobb on July 21, 2017.**  **The fourth amended complaint alleged a**  **hostile work environment, retaliation, and discrimination, among other claims**

**. Relevant to this appeal, the complaint also challenged the confidentiality**  **directive in N.J.A.C.**  **4A:7**

**- 3.1(j).**  **On October 29, 2018, U**  **sachenok filed an order to show cause**  **and sought**  **an order declaring the confidentiality directive of**  **paragraph (j) null and**  **void**

**. Because the allegation challenged the validity of a rule**  **promulgated by a state agency**  **, the State moved to transfer that part of the amended complaint to 6** 

**the Appellate Division, pursuant to Rules 1:13** 

**- 4 and 2:2** 

**- 3(a). The trial court**  **granted the request.**
**II.**
**To provide context for**  **what follows, we outline the regulation**  **and its history**  **here**

**. The regulation**  **stems from Executive Order No. 106, which Governor**  **Christine Todd Whitman issued in 1999.**  **Exec. Order No. 106 (Dec. 17, 1999),**  **32 N.J.R. 139(a) (Jan. 18, 2000). The**  **Executive Order stressed the importance**  **of prohibiting discrimination, harassment, or hostile**  **environment s**  **in the workplace** 

**. Ibid.**  **It also emphasized the need for model procedures to handle internal**  **complaints. Ibid. To achieve those aims, the Governor put into effect**  **a policy submitted by the Department of Personnel**

**. Ibid.** 
**Th e Executive Order led to various changes**  **to N.J.A.C. 4A:7.**  **Among other**  **amendments, N.J.A.C.**  **4A:7**

**- 3.1(i)**  **was added. It stated**  **that , “[t]**  **o the extent practical and appropriate under the circumstances, confidentiality shall**  **be maintained throughout the investigatory process. ”**  **34 N.J.R. 26 1**  **(a) (Jan. 7, 2002)** 

**. T**  **he regulation added that**  **“ [a]**  **ll persons interviewed shall be directed not to discuss any aspect of the investigation with others**  **” and that**  **“[f]ailure to comply with this confidentiality directive may result in disciplinary action.”**  **Ibid. 7** 

**In 2007, those confidentiality requirements were re**

**- codified**  **at N.J.A.C.** 
**4A:7**

**- 3.1(j)**  **with minor changes**

**. See**  **39 N.J.R. 3499(a) (Aug. 20, 2007). At**  **the time, paragraph (j) continued to mandate confidentiality and warn of disciplinary action. It**  **read in full**  **as follows:**

**All complaints and investigations shall be handled, to the**  **extent possible, in a manner that will protect the privacy interests of those involved.**  **To the extent practical and appropriate under the circumstances,**  **confidentiality shall be maintained throughout the investigat**  **ory process.**  **In the course of an investigation, it may be**  **necessary to discuss the claims with the**  **person(s) against whom the complaint was filed and other persons who may have relevant knowledge or**  **who have a legitimate need to know about the matter. All persons interviewed, including witnesses, shall be**  **directed not to discuss any aspect of the investigation with others**  **in light of the important privacy interests of all concerned.**  **Failure to comply with this confidentiality directive may result in administrative**  **and/or disciplinary action, up to and including termination of employment** 

**. [N.J.A.C. 4A:7** 

**- 3.1(j) (2007**  **) (emphases added)**  **.] In 2019, while this**  **appeal was pending, the CSC proposed to amend paragraph (j). 51 N.J.R. 1311(a) (Aug. 19, 2019).**  **The amendment, adopted in**  **March 2020,**  **made two notable changes: (1) it removed languag e**  **that mandated witnesses**  **“ be directed”**  **not to speak with others and**  **instead mandated that they be**  **“request [ed]**  **” not to do so; and (2) it eliminated**  **the 8** 

**rule’s last sentence, which threatened disciplinary action**

**. 52 N.J.R. 887(a)**  **( Apr** 

**. 20, 2020**  **). In proposing the change, t**  **he CSC stated investigators would**  **“advise” people interviewed during an investigation “why it is important not to**  **disclose any aspect of the investigation to other persons without a legitimate and substantial business justification.**  **” 51 N.J.R. 1311(a). The proposal also**  **explained that warning**  **of “the imposition of a penalty could have a chilling effect on potential claimants.”**  **Ibid. Paragraph (j) now reads as follows:**  **All complaints and investigations shall be handled, to the extent possible, in a manner that will protect the**  **privacy interests of those involved. To the extent**  **practical and appropriate under the circumstances, confidentiality**  **shall be maintained throughout the investigative process.**  **[1] In the course of an**  **investigation, it may be necessary to discuss the claims with the person(s) against whom the complaint was**  **filed and other persons who may have relevant knowledge or who have a legitimate need to know**  **about the matter. In order to protect the integrity of the**  **investigation, minimize the risk of retaliation against the**  **individuals participating in the investigative process, and protect the important privacy interests of** 

**1 Because the second sentence**  **of paragraph (j) is directed to the agency and**  **its personnel, as opposed to victims and witnesses, we do not address it**  **further. We also accept the State’s**  **representation that other sections of the regulation that discuss disciplinary action**  **generally do not apply to paragraph**  **(j). See, e.g.**  **, N.J.A.C.**  **4A:7.31(d) and (k). For similar reasons, we do not**  **adopt the argument that the general language in N.J.A.C. 4A:2**

**- 2.3(a)(1)**  **(failure to perform duties), (2) (insubordination), or (1 2**  **) (other sufficient cause) provides a basis for disciplinary action with regard to paragraph (j).** **9 all concerned,**  **the EEO/AA Officer/investigator shall request that all persons interviewed, including**  **witnesses , not discuss any aspect of the investigation**  **with others, unless there is a legitimate business reason to disclose such information.**  **[N.J.A.C. 4A:7**

**- 3.1(j)**  **( effective Apr** 

**. 20, 2020)**  **(emphasis added) .]** 
**III**

**. The Appellate Division rejected Usachenok’s constitutional challenge to**  **the current**  **regulation. The appellate court focused on the following language in paragraph (j)**  **: “the EEO/AA Officer/investigator**  **shall request that all persons interviewed,**  **including witnesses, not discuss any aspect of the investigation.” (emphasis**  **added). The court**  **found that “the plain language . . . does not restrict speech**  **and does not constitute an improper prior restraint of speech.” At the same time, the Appellate Division recognized that the**  **word “request” may be**  **considered a command depending upon the context**  **in which it is used.**  **Citing the CSC’s amendment**  **to the regulation**

**-- which replaced**  **the**
**term “direct**  **[] ” with “request”** 

**-- the**  **court observed that “the intent . . . was to eliminate a confidentiality requirement and its potential chilling effect . . . and**  **replace[] it with a permissive ‘request.’” T**  **he ap pellate court**  **explained that**
**t he exception in the regulation** 

**-- for**  **when “there is a legitimate business 10** 

**reason to disclose . . . information”**

**-- further**  **supports the permissive nature of the request** 

**. The Appellate Division also concluded that the amended regulation did**  **not violate the public policies**  **underlying the Law Against Discrimination**  **(LAD)**

**. In doing so, t**  **he court stressed the important values**  **behind a request**  **for confidentiality :**  **to “**  **promote []**  **a fair investigatory**  **process that protects both the**  **accuser and the accused while respecting the free**

**- speech right**  **s of**  **all.” The Appellate Division**  **ultimately remanded the case to the trial court**  **and directed it to enter an order dismissing Usachenok’s challenge to the regulation.**  **We granted Usachenok’s petition for certification. 253 N.J. 579 (2023)** 

**. We also granted leave to participate**  **as a friend of the Court to**  **the American**  **Civil Liberties Union of New Jersey and the**  **American Civil Liberties Union (**  **jointly, the ACLU).** 
**IV. Usachenok contends the Appellate Division did not an**  **a lyze whether the**  **regulation has a chilling effect on an employee’s right to free speech. She**  **maintains the State’s intent in drafting the amendment does not answer that critical question, and that paragraph (j)**  **operates as an unconstitutional restraint 11** 

**on speech. Usachenok also**  **argues the current regulation is overbroad and** 
**vague ,**  **and that it violates the LAD**

**. In addition, c**  **iting Stericycle, Inc.**  **& Teamsters Local 628, 372 N**  **.L.R.B. No. 113 (2023)**  **, Usachenok asks this Court to adopt a balancing test to**  **determine the validity of confidentiality**  **regulations. The State argues that “because the request is truly a request, neither the**  **State nor Federal Constitution is implicated.” Both the language**  **of the regulation**  **and its context, according to the State, make clear that no adverse**
**consequences follow from declining the request.**  **T he**  **State asserts that the amendment**  **is a permissible**  **expression of the government’s viewpoint that**  **confidentiality will protect the integrity of an investigation. The State therefore**  **maintains there is no basis to invalidate the regulation or promulgate a new test. In addition, the State submits**  **that nothing in the State Constitution**  **or the LAD calls for a different outcome. The ACLU stresses that the New Jersey Constitution provides broader**  **protection than the First Amendment and affords an independent ground to**  **uphold Usachenok’s constitutional claim.**  **Merely because the regulation “request**  **s” confidentiality,**  **the ACLU submits, does not insulate it from constitutional scrutiny. The ACLU also asks the Court to adopt its own**  **balancing standard for public**

**- employee speech claims** 

**. 12** 

**We granted Usachenok’s motion to expand the record. 252 N.J. 379**  **(2022 ). Because we do not rely on the additional information**  **submitted , we**  **do not reference the parties’ arguments relating to it.**
**V.**
**U sachenok**  **contends that the amended regulation violates her right to speak freely under the State Constitution. We review constitutional challenges**  **to statutes and regulations de novo. See**  **State v. Hill, 256 N.J. 266, 280 (2024)**  **(statute) ;**  **Ran**

**- Dav’s Cnty. Kosher, Inc. v. State**  **, 129 N.J. 141, 167 (1992) (regulation)** 

**. And**  **we construe**  **“ regulation**  **[s] to render [them]**  **constitutional if [**  **they are] reasonably susceptible to such a construction.” Karins v. City of Atlantic**  **City , 152 N.J. 532, 546**  **( 1998)** 

**. A.**  **The State Constitution**  **provides broader protection**  **for free expression than the**  **F ederal Constitution**  **does**

**. The First Amendment to the United States Constitution, applied to the**  **states by the Due Process Clause of the Fourteenth Amendment, directs that**  **“Congress shall make no law . . . abridging the freedom of speech.” U.S.** 
**Const. amend. I**  **; Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., 585 U.S.**  **878, 891**

**- 92**  **(2018). 13** 

**New Jersey’s Constitution “guarantees a broad affirmative right to free speech.”**  **Dublirer v. 2000 Linwood Ave. Owners, Inc., 220 N.J. 71, 78 (2014)**

**. Article I, Paragraph 6 provides that “[e]very person may freely speak, write**  **and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or**  **of the press.” N.J. Const. art. I, ¶ 6.**  **Th at**  **language has been described as**  **“broader than practically all others in the nation.” Green Party v. Hartz Mountain Indus., Inc.**  **, 164 N.J. 127, 145 (2000). The**  **“State Constitution’s free speech clause is generally interpreted as** 

**co -**  **extensive with the First Amendment .”**  **E & J Equities, LLC v. Bd. of Adjustment of Franklin, 226 N.J. 549, 568 (2016) (quoting**  **T ownship**  **of Pennsauken v. Schad, 160 N.J. 156, 176 (1999)). As a result, principles of**  **federal constitutional law, in general, help**  **guide our analysis. Ibid.**  **At the same time, we have found that the**  **New Jersey Constitution**  **affords greater protection than federa l**  **law in certain areas relating to free speech** 

**. S**  **ee, e.g. ,**  **Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482, 493 (2012) (**  **quoting N.J. Coalition Against War in the Middle East v.**  **J.M.B. Realty Corp., 138 N.J. 326, 353 (1994) (private action in addition to state action**  **); Dublirer**  **, 220 N.J. at 79 (same); W.J.A. v. D.A.**  **, 210 N.J. 229, 242 (2012) (defamation).** **14 B.**  **We focus on paragraph (j) to assess Usa chen**  **ok’s facial constitutional**  **challenge . Usachenok contends the**  **regulation is unconstitutionally overbroad.**  **“Overbroad laws ‘may deter or “**  **chill ”**  **constitutionally protected speech**  **[.] ’**  **” United States v. Hansen, 599 U.S. 762, 769** 

**- 70**  **(2023) (**  **quoting Virginia v. Hicks, 539 U.S. 113, 119**  **(2003) );**  **Hill , 256 N.J. at 28**  **2-8 3.**  **In those**  **situations ,**  **“would**

**- be speakers [may] remain silent,” and “society**  **” would**  **then “ lose their contributions to the ‘marketplace of ideas.’” Hansen**  **, 599 U.S. at 770**  **(quoting Hicks , 539 U.S.**  **at 119**  **)**

**. The overbreadth doctrine**  **thus considers the extent of a law’s “deterrent effect on legitimate expression.”**  **State v. Hoffman , 149 N**  **.J. 564, 582**  **(1997 ) (**  **internal quotation omitted**  **). As this Court recently observed, “[o]verbreadth is unlike a typical facial**  **challenge.” Hill**  **, 256 N.J. at 283. “[I]**  **t does not require a challenger to ‘establish that no set of circumstances exists under which [a statute] would be**  **valid. ’**  **” Ibid.**  **(quoting Hansen**  **, 599 U.S.**  **at 769). Courts may**  **find that a law is facially invalid on overbreadth grounds**  **“[ i]**  **f the challenger demonstrates that the statute ‘prohibits a substantial amount of protected speech**  **’ relative to its**  **‘plainly legitimate sweep.’” Hansen**  **, 599 U.S. at**  **770 (quoting**  **United States v. Williams**  **, 553 U.S. 285, 29 2**  **(2008) );**  **accord Hill**  **, 256 N.J. at 283; United** 
**States v. Stevens , 559 U.S. 460, 473**  **(2010)**

**. 15** 

**When a court holds**  **a law facially unconstitutional under the overbreadth**  **doctrine, all enforcement of the law is suspended. Hicks ,**  **539 U.S. at**  **119**

**. To**  **justify that outcome ,**  **the “law’s unconstitutional applications must be realistic,**  **not fanciful,” and they “must be substantially disproportionate to the statute’s lawful sweep.**  **” Hansen**  **, 599 U.S. at**  **770 ;**  **Hill , 256 N.J. at 283.**  **The United States Supreme Court’s application**  **of the overbreadth doctrine in Stevens**  **illustrates the principle** 

**. In that case,**  **the Court reviewed**  **a federal**  **law that made it a crime to “create[], sell[], or possess[] a depiction of animal cruelty,” if done for “commercial gain**  **.” 559 U.S. at 464** 

**- 65**  **(citing 18 U.S.C. § 48**  **(a) ). The statute defined “depiction of animal cruelty” as any**  **depiction “in w**  **hich a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such**  **conduct ” violated federal law or a law in**  **the state where**  **“ the**  **maiming, mutilation, torture, wounding, or killing took place.”**  **Id. at 465 n.1.**  **The law ’s primary intent, based on the legislative**  **history, was to address “crush videos” that depict**  **ed “**  **the intentional torture and**  **killing of helpless animals.**  **” Id.**  **at 465. The allegations in Stevens**  **involved depictions of**  **animal fighting.**  **Id. at**  **466. The**  **defendant argued the indictment was facially invalid under the First**  **Amendment and moved to dismiss the charges.**  **Id. at 467.**  **The Supreme**  **Court agreed** 

**. Id.**  **at 482. 16** 

**The Court**  **began its analysis by construing the law’s**  **text**

**. Id.**  **at 474. As the Court explained, “it is impossible to determine whether a statute reaches**  **too far without first knowing what the statute covers.” Ibid. (**  **quoting Williams**  **, 553 U.S. at**  **293). And when reading the law, the Court observed that**  **it created an offense “of alarming breadth.” Ibid. Although the law purported to criminalize animal cruelty,**  **“nowhere” does the statute “require[] that the depicted conduct be cruel.” Ibid.**  **In addition,**  **a lthough the text’s reference to intentionally**  **maiming, mutilating, and**  **torturing “convey[ed] cruelty**  **, ”**  **wounding and killing did not. Ibid. The**  **Court described multiple**  **examples of hunting and livestock slaughter that**  **were illegal in only**  **some parts of the country ,**  **yet the statute’s**  **broad language**  **prohibited their depiction**  **every where** 

**. Id.**  **at 474**

**- 77.**  **Hunting periodicals and television programs could**  **likewise run afoul of the law.**  **Id. at 476.**  **The Court declined to accept the Government’s representation that it would use the statute “to reach only ‘extreme’ cruelty.”**  **Id. at 480.**  **It explained it “would not uphold an unconstitutional statute merely because the**  **Government promised to use it responsibly.” Ibid. Nor could the Court**  **rewrite the statute “to conform it to constitutional requirements.” Id.**  **at 481 (quoting**  **Reno v. ACLU**  **, 521 U.S. 844, 884**

**- 85**  **(1997)). Because “the**  **presumptively impermissible applications of [the law] far outnumber[ed] any 17** 

**permissible ones,” the Court held that the**  **law was “substantially overbroad, and therefore invalid under the First Amendment.”**  **Id. at 48**  **1-8 2.** 
**VI**

**. A.**  **Consistent with the Supreme Court’s approach ,**  **the “first step” in this**  **appeal is to examine the text of the regulation**  **to construe its scope**

**. See**  **id**

**. at**  **474. In an overbreadth challenge, the proper**  **focus belongs on “what the [law] covers,” not what regulators**  **or legislators may have**  **intended it to cover.**  **See id.**  **at 465, 474. We therefore begin with the critical language in paragraph (j), which is**  **rather broad**  **: “the EEO/AA Officer/investigator shall request that all persons interviewed, including witnesses, not discuss any aspect of the investigation**  **with others**

**. ”**  **N.J.A.C. 4A:7** 

**- 3.1(j).** 
**T he section has few, if any, limits. It directs state**  **actors to ask victims**  **and witnesses to give up their constitutionally protected right to free speech. It**  **commands investigators to request complete confidentiality**  **in every investigation.**  **And it extends to all witnesses without exception. Taken at face**  **value, victims and witnesses are asked not to speak with their spouse or an 18** 

**attorney. Likewise, they may**  **reasonably understand that they are being asked not to contact other government agencies or law enforcement officials.**  **2 In short, the request is as simple as it is wide** 

**- ranging: not to speak with**  **anyone about any aspect of any**  **investigation into harassment or**  **discrimination**

**. T**  **hat request**  **encompasses a great deal of protected speech.**
**As described in the last sentence of paragraph (j), the request also has no**  **time limit. It appears**  **to extend indefinitely,**  **even beyond the end of**  **an investigation.**  **One exception appears in the text of the rule: victims and witnesses can disclose information if “there is a legitimate business reason to” do so. Ibid.**  **The regulation does not define the phrase or offer guidance about what it** 

**2 The State**  **submits that employees can file a lawsuit or a complaint with the Division on Civil Rights**  **consistent with N.J.A.C.**  **4A:7**

**- 3.1(h)** 

**. That section**  **provides that employees cannot be retaliated against or subjected to “**  **adverse employment consequences**  **” for “bringing a complaint, providing information**  **for an investigation, or testifying in any proceeding under this policy**  **.” Paragraph (d)**  **also states that “[a] person who wishes to take action about**  **prohibited sexual physical contact can file a criminal complaint with law enforcement of the municipality where the incident occurred.”**  **Id. at**  **(d). But**  **investigators are not required to convey that information, and it is unclear how victims and witnesses unfamiliar with the regulation would know about those**  **sections**

**. More generally, the State suggests that any employee who is**  **unsure of the regulation’s sweep can ask the investigator**  **to clarify it**

**. That approach**  **would shift the onus onto victims and witnesses rather than keep the focus where it belongs** 

**-- on the request investigators are required to make.**  **See id.**  **at (j).** **19**

**means, and any reasonable person would find it difficult to understand the**  **rule’s vague language.**  **What the regulation leaves out is also significant. It**  **does not require that v**  **ictims be told**  **they are free to**  **decline to follow the request. They**  **are not told they can consult with an attorney**  **about it**

**. Nor are**  **they told there will be** 

**no repercussions if they exercise their protected right to free speech.**  **Viewed as a whole, the unadorned language**  **of the regulation extends quite**  **broadly. The State**  **, however, correctly points out that paragraph (j) no**  **longer directs victims and witnesses not to speak about investigations; it**  **instead requests them not to. Yet**  **the way the**  **request must be conveyed exacerbates its potential to chill protected speech.** 
**T here is an**  **inherent power imbalance here**  **between the investigator who**  **makes the**  **request and the witness who hears it. Investigators speak on behalf of an agency of the State** 

**. Beyond that, victims and witnesses dependent on**  **their employer can**  **reasonably be concerned they may face**  **consequences if they fail to comply** 

**. Cf.**  **Stericycle , 372 N**  **.L.R.B. No. 113**  **, at**  ***2 ( assessing**  **facial challenges to employer work rules and noting that**  **“ [b]**  **ecause employees are typically (and understandably) anxious to avoid discharge or discipline,**  **they are reasonably inclined both to construe an ambiguous work rule to prohibit statutorily protected activities and to avoid the risk of violating the** **20**

**rule by engaging in such activity ”)**  **; NLRB v. Gissel Packing Co., 395 U.S.**  **575, 617 (1969) (noting, in the labor relations setting, that balancing an employer’s**  **right of expression and the employees**  **’ equal right to associate**  **freely “must take into account the economic dependence of the employees on their employers”)** 

**. As a result,**  **many employees will undoubtedly**  **give up their**  **right to speak freely and will**  **remain silent. At oral argument, counsel for the Attorney General stated**  **that ,**  **consistent with the intent of the regulation**  **, investigators**  **“ should explain to**  **the witness that they are not required to**  **” follow the request.**  **Counsel also did not**  **object to the Court including in an opinion that**  **the “**  **request should be**  **accompanied by**

**. . . some language that makes**  **it clear**  **that [1]**  **it is not**  **mandatory and th at**  **[2] there [**  **will be ]**  **no discipline .”**  **Revisions to the regulation of that type**  **would help address its broad** 
**sweep**
**. But we cannot expand and rewrite the final sentence of the**  **regulation**
**to render it constitutional.**  **Stevens , 559 U.S. at 481.**  **Nor would changes of**  **the sort proposed be a candidate for judicial surgery. To save an otherwise unconstitutional**  **rule, courts on occasion**  **can “**  **excise a**  **constitutional defect or engraft**  **a needed meaning**  **” to ensure**  **a statute’s survival. Hamilton**  **Amusement Ctr. v. Verniero, 156 N.J. 254, 280 (1998) (**  **quoting Right to**  **Choose v. Byrne , 91 N.J.**  **287, 311 (1982)**  **); accord**  **State v. Natale , 184 N.J.** **21**

**458 , 485 (2005**  **). Adding**  **substantial language to the regulation**  **here, though, would extend beyond the limits of judicial surgery.** 
**We therefore hold**  **that t**  **he regulation is**  **unconstitutionally overbroad. Its**  **breadth encompasses a significant amount of protected**  **speech , a**  **nd i**  **ts**
**consequences are real, “not fanciful**  **.” S ee**  **Hansen , 599 U.S.**  **at 770** 

**. The**  **scope of the rule will**  **cause countless victims and witnesses**  **to surrender their**  **protected right to speak freely about harassment and discrimination. Although**  **we acknowledge the State’s good** 

**- faith representation**  **s that the regulation can**  **be narrowed, we cannot**  **rely on th em**  **to uphold the rule.**  **See Stevens**  **, 559**
**U.S. at 48 0** 

**. We therefore strike the last sentence of paragraph (j) on**  **overbreadth grounds based on the broad protections in the State Constitution** 

**. 3** 
**B. The Court’s opinion in**  **R.M. v. Supreme Court of New Jersey ,**  **185 N.J.**
**208 (2005),**  **does not alter the above analysis. In that case, the Court**  **invalidated the confidentiality provisions of Rule 1:20** 

**- 9, which “mandate[d]**  **that a grievance filed against an attorney remain[] confidential until a formal**

**3 For that reason, we do not rely on or**  **discuss the standards the parties cite**  **from Pickering v. B**  **oard of Education, 391 U.S. 563**  **(1968) , or Stericycle, 372**  **N.L.R.B. No. 113** 

**. Nor do we reach Usachenok’s argument based on the anti** 

**** **retaliation provisions of the LAD**

**. 22** 

**complaint is filed.” Id.**  **at 211. 4**  **The confidentiality r**  **ule had five exceptions ,** 

**n one of**  **which applied to the case. Ibid.**  **In striking the rule’s broad requirement of confidentiality on First Amendment grounds, the Court observed that ethics committees can still**  **“recommend that the grievant maintain the confidentiality of the process during the investigatory stage and the grievant can agree to do so when it is in**  **his or her interest .”**  **Id. at 229**  **(emphasis added). Paragraph (j) does not convey the latter point. The Court in**  **R.M. also noted that if ethics**  **investigators “can establish a compelling need for secrecy based on the specific and articulable facts of a case, [they] can seek an appropriate order**  **requiring confidentiality.” Ibid.**
**C. In striking part of the regulation, we do not**  **question the principles it**  **tries to foster :**  **“to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all**  **concerned.” N.J.A.C.**  **4A:7**

**- 3.1(j).**  **Confidentiality protects the privacy interests of all involved, particularly at a stage when allegations have yet to be proven.**  **It also protects the integrity** 

**4 The current version of the Rule states that grievants**  **may comment publicly about “the disciplinary process, the filing and content of the grievance, and the**  **result.” R.**  **1:20**

**- 9(b).**  **Respondents have the right to reply publicly. Ibid. 23** 

**of an investigation. Among other benefits, it prevents witnesses from coordinating their stories either in an innocent or nefarious way.**  **Confidentiality may**  **also encourage reluctant witnesses to speak. And it can**  **minimize the risk of retaliation during or after an investigation. Those interests and concerns are entirely legitimate**  **and are also important**  **considerations in criminal and internal affairs investigations. See**  **N. Jersey Media Grp., Inc. v. Township**  **of Lyndhurst, 229 N.J. 541, 579 (2017)**

**. We do not address those types of investigations here, and nothing in this**  **opinion should be construed to limit requests for confidentiality by investigators in those settings.** 
**S t**  **ate actors can express the government’s viewpoint**

**. As the United**  **States Supreme Court observed in Matal v. Tam**  **,**

**[t] he First Amendment prohibits Congress and other**  **government entities and actors from “**  **abridging the freedom of speech**  **” ; the First Amendment does not say**  **that Congress and other government entities must abridge their own ability to speak freely.** 

**. . .**

**. . . . When a government entity embarks on a course**  **of action, it necessarily takes a particular viewpoint and rejects others.**  **The Free Speech Clause does not require government to maintain viewpoint** 

**- neutrality when its**  **officers and employees speak about [**  **a course of action**  **]. [**  **582 U.S.**  **218, 234**  **(2017) .]** **24**

**As a result, state investigators can**  **explain the benefits of confidentiality to victims and witnesses**  **in investigations tied to the regulation. And victims, in turn, have the**  **right to disagree and**  **speak freely** 

**. T**  **o be clear, t he challenge here is not over the State’s legitimate**  **concerns. It is about how the current regulation sought to promote the m.**  **VII. For the reasons set forth above, we reverse the judgment of the**  **Appellate Division and strike the last sentence of paragraph (j) on overbreadth grounds**  **under the State Constitution. We remand to the trial court for further proceedings relating to**  **the pending complaint.** 

**JUSTICES PATTERSON, SOLOMON, PIERRE**

**- LOUIS, FASCIALE, and**  **NORIEGA join in CHIEF JUSTICE RABNER’s opinion. JUSTICE WAINER APTER did not participate.**