Judge Fisher concluded with the following in relevant part: While it may be true that the views expressed in unjoined separate opinions might provide some insight into how three sitting Justices might rule when the issue eventually comes before the high Court, at present their views possess no precedential value. The dissenting opinions in Elonis, while rendered in a case the Court did hear, were minority views; no other Justice stated an agreement with either Justice Alito’s or Justice Thomas’s views and they, in fact, did not agree with each other. And the Court’s denials of writs of certiorari in Perez and Boettger “import no expression of opinion upon the merits of the case.” United States v. Carver, 260 U.S. 482, 490 (1923).
As Justice Frankfurter stated, the Court “has said again and again and again that such a denial has no legal significance whatever bearing on the merits of the claim.” Durr v. Burford, 339 U.S. 200, 226 (1950) (dissenting opinion). And, if the denial of a writ of certiorari has zero legal value, an opinion expressing an agreement or disagreement with the denial of certiorari is worth less than zero. See Singleton v. Commissioner, 439 U.S. 940, 944-46 (1978) (writing separately about a denied writ of certiorari, Justice Stevens explained “why he has resisted the temptation to publish opinions dissenting from denials of certiorari,” noting that “if there was no need to explain the Court’s action in denying the writ, there was even less reason for individual expressions of opinion about why certiorari should have been granted in particular cases.”
In short, it may be that a few members of the Supreme Court have expressed their views about the issue before us, but those views are not binding on us. We are, however, bound by Virginia v. Black and, like the Kansas Supreme Court, we agree that Black strongly suggests the “reckless disregard” element in N.J.S.A. 2C:12-3(a) is unconstitutionally overbroad. To be a true threat – and, by being a true threat, falling outside the First Amendment’s protection – a speaker must “mean to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Black, 538 U.S. at 359. We thus agree with Justice Sotomayor’s non-precedential view that “it is not enough that a reasonable person might have understood the words as a threat – a jury must find that the speaker actually intended to convey a threat.” Perez, 137 S. Ct. at 855. Because N.J.S.A. 2C:12-3(a) permits a conviction for uttering a threat “in reckless disregard of the risk of causing terror,” it unconstitutionally encompasses speech and expression that do not constitute a “true threat” and, therefore, prohibits the right of free speech guaranteed by the First Amendment.
Justice Fisher could have based the Court’s decision on state constitutional grounds. That would have insulated it from United States Supreme Court review. However, choosing to do so is a technique that is almost always reserved for the New Jersey Supreme Court since they can review the appellate panel’s decision regardless of its constitutional basis.