State v. Tate, 220 N.J. 393 (2015)

In New Jersey, N.J.S.A. 9:6-1(d) defines a variety of acts that constitute “child abuse,” including “the habitual use . . . in the hearing of [a] child, of profane, indecent or obscene language.” The defendant had been convicted of child abuse because he pleaded guilty to using “off-color language” and “cursing” in the presence of a 13-year-old foster child. He appealed his conviction, arguing that his plea colloquy failed to set forth a factual basis for a violation of the child-abuse statutes.

Pashman Stein Walder Hayden P.C. attorney CJ Griffin submitted an amicus curiae brief to the New Jersey Supreme Court on behalf of the American Civil Liberties Union of New Jersey (ACLU-NJ). Although the ACLU-NJ agreed with the defendant that the plea colloquy was insufficient and argued that his plea should be vacated, it also argued that the statute itself is constitutionally overbroad and vague and violates free-speech rights protected by both the United States and New Jersey constitutions. Specifically, we noted that “curse words” and “off-color language” do not necessarily fall within the constitutionally unprotected category of obscenity and pointed out that under the statute, a parent could technically be criminally convicted for “merely cursing at the television every week during a football game.”

Ultimately, the court agreed that the plea colloquy was insufficient and vacated the defendant’s guilty plea. The court stated that because it found the plea colloquy to be insufficient, it need not reach the larger constitutional question.

Press Coverage:

N.J. man asks state Supreme Court to strike down law against cursing in front of children | NJ.com | March 29, 2019
N.J. Supreme Court Tosses Man's Child Abuse Guilty Plea Based On ‘Off-Color' Language | CBS New York | February 2, 2015

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