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) (086861) 

Argued January 3, 2024 -- Decided May 6, 2024 

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 with 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. 

After 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 termination.” 

 While 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. The 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 if 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, although 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 rewrite the statute 

“to conform it to constitutional requirements.” Id. at 480-81. 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. (pp. 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. The 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 the rule -- victims and witnesses can disclose information if “there is a legitimate 

business reason to” do so -- but the 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, there 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 that 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. The regulation is unconstitutionally 

overbroad. The Court acknowledges 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 

overbreadth 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 2022

086861

Viktoriya Usachenok, 

Plaintiff-Appellant, 

v.

State of New Jersey

Department of the 

Treasury, John Mayo,

Bulisa Sanders and

Deirdre Webster Cobb,

Defendants-Respondents. 

On certification to the Superior 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. Curran, 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 

bars, 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; Alexander 

Shalom, Jeanne LoCicero, Julie A. Murray, and Gillian 

Thomas (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, consistent 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 Viktoriya

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 her 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 Usachenok 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, Usachenok said it needed to be 

changed “to accurately reflect her complaints.” When Sanders declined to 

make the changes, Usachenok asked if she could call her husband. Her 

husband, an attorney, advised her not to sign the document. According to 

Usachenok, Sanders then accused her of violating the confidentiality directive

and threatened that she could be fired.

In late August 2016, Usachenok received a letter from another Treasury 

investigator that allegedly confirmed some but not all of her claims against 

Mayo.

 Usachenok 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, Usachenok 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 environments 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.

The 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. 261(a) (Jan. 7, 

2002). The 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 

investigatory 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 language 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, the 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 (12) (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.’” The appellate court explained that

the 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, the 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 rights 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 analyze 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, citing 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. The 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 

“requests” 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. 

 Usachenok 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 Federal 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. That 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 Township 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 federal law in certain areas relating to free 

speech. See, 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 Usachenok’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 282-83. 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, 292 (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 which 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 depicted “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, although 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 everywhere. 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 481-82.

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).

 The 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. That 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 victims 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.

 There 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 that [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 the regulation is unconstitutionally overbroad. Its 

breadth encompasses a significant amount of protected speech, and its 

consequences are real, “not fanciful.” See 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 representations that the regulation can 

be narrowed, we cannot rely on them to uphold the rule. See Stevens, 559 

U.S. at 480. 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. Board 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 antiretaliation provisions of the LAD. 
22

complaint is filed.” Id. at 211.4

 The confidentiality rule had five exceptions, 

none 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.

 State 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. 

 To be clear, the challenge here is not over the State’s legitimate 

concerns. It is about how the current regulation sought to promote them. 

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.