concurring in part and dissenting in part.
I am in full agreement with the majority’s conclusion that any restraint on the truthful dissemination of jurors’ names, previously made public in pretrial proceedings, is unconstitutional. I also join in my colleagues’ rejection of the lower courts’ stated reasons for restraining post-verdict interviews of jurors initiated by the media. The passage of time, the already-ordered change of venue and a searching voir dire will ensure an adequate jury pool and the empanelling of impartial jurors capable of the free exchange of ideas. That is what the Sixth Amendment requires. U.S. Const. amend. VI.
I part company from the Court in connection with its extraordinary and unprecedented expansion of the prior restraint imposed by the lower courts on juror interviews. That order was entered without notice, without any basis in fact and without an effort at circumscription, thus constituting an intolerable infringement on First Amendment freedoms.
I
Restrictions on speech “may be lawfully imposed, if at all, only when narrowly tailored” to achieve a compelling state interest. Florida Star v. B.J.F., 491 U.S. 524, 541, 109 S.Ct. 2603, 2613, 105 L.Ed.2d 445, 460 (1989). Like speech, newsgathering is entitled to First Amendment protection. Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626, 639 (1972); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510, 513 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but ... the right to receive ... and freedom of inquiry[.]”) (citations omitted); In re Express-News Corp., 695 F.2d 807, 808-9 (5th Cir.1982) (“[Fjreedom to speak is of little value if there is nothing to say.”). The question whether a prior restraint on those First Amendment rights is narrowly tailored to protect a compelling interest requires a “determinfationj whether, as Learned Hand put it, ‘the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of *224free speech as is necessary to avoid the danger.’ ” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 96 S.Ct. 2791, 2804, 49 L.Ed.2d 683, 699 (1976) (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir.1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951)); Express-News Corp., supra, 695 F.2d at 810 (“A court rule cannot[ ] ... restrict the journalistic right to gather news unless it is narrowly tailored to prevent a substantial threat to the administration of justice.”) (emphasis added). A court reviewing “one of the most extraordinary remedies known to our jurisprudence” must consider, among other factors, “how effectively a restraining order would operate to prevent the threatened danger” and whether other measures short of restraint would mitigate the effects of unrestricted speech. Nebraska Press Ass’n, supra, 427 U.S. at 562, 96 S.Ct. at 2804, 49 L.Ed.2d at 699. In other words, the order must be necessary and it must be effective at achieving the government’s goals.
In adjudicating whether a restraint on First Amendment freedoms meets those standards, all affected parties must be given proper notice and an opportunity to be heard, and the ordering court must cite to specific evidence explaining the necessity of its restrictions. Id. at 565, 96 S.Ct. at 2806, 49 L.Ed.2d at 701 (finding nothing in record, other than judicial speculation, supporting determination that no less restrictive alternatives would protect fair trial rights); United States v. Antar, 38 F.3d 1348, 1351 (3d Cir.1994) (“In order to restrict the right of access, ... a court must carefully articulate specific and tangible, rather than vague and indeterminate, threats to the values which the court finds override the right of access.”); State ex rel. Beacon Journal Pub. Co. v. Kainrad, 46 Ohio St.2d 349, 348 N.E.2d 695, 697 (Ohio 1976) (“Before issuing any such order not to publish, it is obligatory upon the court to hold a hearing and make a finding that all other measures within the power of the court to insure a fair trial have been found unavailing and deficient.”).
The fundamental First Amendment rights of free speech and the press demand the due process protections of the Fourteenth *225Amendment. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 1446-47, 20 L.Ed.2d 491, 495 (1968) (citing Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927)). In Davis v. Scherer, 468 U.S. 183, 201, 104 S.Ct. 3012, 3022-23, 82 L.Ed.2d 139,154 (1984), the Supreme Court explained:
While “(m)any controversies have raged about ... the Due Process Clause,” ... it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate (a protected) interest ..., it must afford “notice and opportunity for hearing appropriate to the nature of the case” before the termination becomes effective.
[Ibid, (emphasis added) (quoting Board of Regents v. Roth, 408 U.S. 564, 570 n. 7, 92 S.Ct. 2701, 2705 n. 7, 33 L.Ed.2d 548, 556 (1972) (quoting Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90 (1971))).]
Those are the principles that should inform our analysis.
II
There are two separate orders at issue in this case. The first is the trial court order (affirmed by the Appellate Division) that restrained publication of jurors’ names and prohibited post-verdict interviews of jurors initiated by the media. The second is this Court’s order of April 22, 2002, reversing the interdiction against publication of jurors’ names and expanding the restraints to include a prohibition on juror-initiated contact with the media.
Each order individually violates the procedural due process principles to which I have adverted. The trial court did not give notice, hold a hearing or take evidence before issuing its restrictive orders. In fact, early in the proceedings the court apparently promised jurors that their names would never be published. Even after the media challenged the court’s orders, no evidence was adduced to support any factual findings that could justify the restrictions. Post-restriction argument is inadequate in these circumstances, in the absence of an emergency, because it has the improper effect of placing the burden on the opponent of the already-imposed restriction to show why it should be lifted when it is the proponent who should have borne the laboring oar from the beginning.
*226Moreover, this Court’s order has generated a due process problem of its own. Throughout these proceedings and even during oral argument before this Court, all parties expressed an understanding that the sole post-verdict interview issue was whether the restraint on media-initiated contact with jurors was justified. It was conceded by all parties, at all stages, that the trial court’s order did not prohibit juror-initiated expressions or interviews. Yet that is exactly what the majority interdicted in the expanded order it entered on April 22, 2002. In other words, without argument and without notice that it intended to expand the trial court’s restraints, the Court acted to impair the jurors’ free speech rights and consequently to limit the media’s access to that information.
It goes without saying that if — at the request of a litigant — a court could not constitutionally grant relief that would “terminate, impair or modify a substantial right or claim of another” without providing that party with notice and an opportunity to be heard, England v. Doyle, 281 F.2d 304, 306 (9th Cir.1960) (citing Chaloner v. Sherman, 242 U.S. 455, 37 S.Ct. 136, 61 L.Ed. 427 (1917)), that neither could it do so sua sponte. In short, the extraordinary expansion of the trial court order to prohibit juror-initiated publicity, without notice or an opportunity to be heard on that specific issue, separate and apart from its substantive deficiency (see infra Point III), violated the procedural due process guarantees of the United States Constitution as well as our own. U.S. Const. amends. V, XIV; N.J. Const, art. 1, para. 1.
Ill
A
Obviously, if there is no true danger to any compelling interest, there is no need for a preventative measure. In such circumstances any limitation on a First Amendment right would fail. The majority has proposed as a compelling interest that media publication of the discharged jurors’ perceptions about the trial *227will afford the prosecution an “undue advantage” in preparation for retrial, thus setting the stage for defendant to advance a “colorable” Sixth Amendment claim on appeal. Ante at 219, 801 A.2d 271-72.
That notion is nothing more than judicial speculation that is not only unsupported by the record but controverted by it. Intense media attention surrounded every aspect of this ease. Gavel-to-gavel television coverage of the trial occurred along with legal and political disquisition on every word that the jurors heard out of the mouths of the witnesses, the attorneys and the court. Third-party commentary about the weaknesses and strengths of the parties’ cases could be seen and heard daily on almost any area network newscast and even through postings on Internet websites. Courier-Post Online, Fred Neuiander on Trial, at http://www.southjer-seynews.com/neulander; Courtroom Television Network LLC, The Rabbi and the Hitmen, at http://www.eourttv.com/trials/neu-lander/index.html. Newspaper coverage was at a saturation point.
Simply stated, no aspect of this case has escaped public discourse. Thus, it is extremely unlikely that any comments made by former jurors would give even a crumb of new insight to a moderately competent prosecutorial team. In fact, it is so improbable that neither defense counsel nor the lower courts even alluded to it obliquely as support for a prior restraint. In sum, the record not only is devoid of anything to support the concerns on which the majority today rests its unprecedented decision; it, in fact, belies that decision.
B
Even assuming, however, that media interviews with jurors could be viewed as somehow problematic from a trial strategy point of view, that would not, in any event, be an invitation to a broad and unrestricted prior restraint on speech and the press. For any restraint to pass muster it would nevertheless have to satisfy the twin standards of necessity and effectiveness. Nebraska Press Ass’n, supra, 427 U.S. at 562, 96 S.Ct. at 2804, 49 *228L.Ed.2d at 699. In other words, it would have to be limned narrowly to impose the least restriction necessary to ameliorate the perceived evil. Implicit in such tailoring are the notions of underinclusivity and overbreadth, both of which are offended by the majority’s order here.
Underinclusivity inheres in orders restraining the media:
When a State attempts the extraordinary measure of punishing truthful publication ..., it must demonstrate its commitment to advancing [the competing] interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant. Where important First Amendment interests are at stake, the mass scope of disclosure is not a surrogate for injury. A ban on disclosures effected by "instrurmntfs] of mass communications” simply cannot be defended on the ground that partial prohibitions may effect partial relief.
[Florida Star, supra, 491 U.S. at 540, 109 S.Ct. at 2613, 105 L.Ed.2A at 460 (emphasis added) (citations omitted).]
The order as modified and affirmed is underinclusive because it does not prevent jurors from discussing with friends, co-workers, relatives or even total strangers their reactions to the trial, and it certainly does not bar those third parties from relaying such information to the media. Neither does it prevent jurors from posting their thoughts on an Internet newsgroup or website or writing an essay or book about their experiences. See Nancy S. Marder, Deliberations and Disclosures: A Study of Past-Verdict Interviews of Jurors, 82 Iowa L.Rev. 465, 474 n. 21 (noting that in past thirty years, jurors have written over twelve books about their jury service). Indeed, if one of the jurors is a member of the media and chooses to write an editorial about his or her own jury service, such activity is beyond the scope of the order. In effect, the order is a partial prohibition directed solely at the media that provides ineffective relief and thus suffers from under-inclusivity.
At the other end of the spectrum is the problem of overbreadth, which occurs when the government restricts more speech than is necessary to achieve a permissible result. The danger created by overbroad restraints is that “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by [an order] susceptible of application to protected expression,” Gooding v. Wilson, 405 U.S. *229518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408, 413 (1972), i.e., where the “continued existence of the [order] in unnarrowed form would tend to suppress constitutionally protected rights.” Coates v. City of Cincinnati 402 U.S. 611, 620, 91 S.Ct. 1686, 1691, 29 L.Ed.2d 214, 221 (1971) (White, J., dissenting) (citation omitted); Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940) (“In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.”). In sum, a restraint on speech
must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”
[Gooding, supra, 405 U.S. at 522, 92 S.Ct. at 1106, 31 L.Ed.2d at 414 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed2d 405, 418 (1963)).]
The total ban on all contact between jurors and the media on all subjects renders the Court’s order overbroad, prohibiting even those communications that could not possibly be relevant to trial strategy. The order effectively precludes inquiry into jurors’ perceptions about general, public matters such as the judicial system and jury selection process. It prevents the jurors from speaking about the impact of jury duty on their day-to-day personal and professional lives. It even sanctions investigative reporting about issues of public importance. For example, after the mistrial, four PNI reporters published an article revealing a serious issue over whether the foreperson was actually a New Jersey resident. Joseph A Gambardello et al., Rabbi Juror: ‘We All Saw it a Totally Different Way,” Philadelphia Inquirer, Nov. 16, 2001, at Al. Each of those four reporters has since been held in contempt and sentenced for publishing the foreperson’s name, and three of them for attempts to contact her and other jurors — actions that could not affect “trial strategy” in any possible way.
The combination of underinelusiveness and overbreadth presented here is a common one in orders that fail to pass constitutional muster and should have the same effect in this case. That is not to suggest that there could never be a limit imposed on *230post-verdict media-juror contact. Other courts have recognized that carefully limited restrictions based on the particular facts and circumstances presented might be permissible. United States v. Antar, 38 F.3d 1348, 1363-64 (3d Cir.1994) (holding that prohibition against repeated interview requests fails “in the absence of findings that jurors were being harassed or that a threat of harassment was impending” and that restrictions against inquiry into juror votes should be supported by trial court’s explanation for necessity of such restriction); Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1236-37 (10th Cir.1986) (citation omitted) (overturning “sweeping restraint forbidding all contact between the press and former jurors without a compelling reason” but recognizing that trial court may inform jurors of right to refuse interview and instruct them “not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room”).
What is clear, however, is that the kind of ineffective yet overbroad restriction imposed by the trial court and expanded by the majority based on invalid animating principles cannot stand if the First Amendment is to be accorded any meaning whatsoever.
IV
One final point. The majority purports to base its decision to continue and expand the restrictions on the media’s First Amendment rights on the protection of defendant’s Sixth Amendment rights. However, it expressly rejects (correctly, I believe) the notion that the restraints are necessary to ensure an impartial and freely deliberative jury on retrial, the hook to the Sixth Amendment. The majority instead yokes its argument to State v. Baker, 310 N.J.Super. 128, 708 A.2d 429 (1998), a capital case involving prosecutorial misconduct in which jurors’ notes and charts from their guilt-phase deliberations were discovered by the State and then reported publicly through a newspaper reporter. Id. at 131 & n. 1, 708 A.2d 429. In precluding the State from further pursuing the death penalty with the empanelment of a new jury, *231the court carefully noted that it was the unique circumstances of the case — specific, articulable factors of prejudice directly caused by the State’s misdeed — that made it a clear candidate for application of the fundamental fairness principle. Id. at 138-39, 708 A.2d 429. Moreover, the State’s misconduct was the very reason that the defendant facing death was put in the additionally precarious position of losing his experienced trial counsel, who could no longer continue his pro bono representation; losing his original, carefully selected jury; and facing new jurors who would hear a “sanitized” version of the State’s case without the benefit of exposure to vigorous cross-examination and the nuances of live witnesses’ testimony. Id. at 134-35, 708 A.2d 429. The Appellate Division determined that “in the context of the magnitude of the prosecutorial misconduct here,” id. at 136, 708 A.2d 429, and the “substantial ] and irremediable] prejudice[ ]” the defendant would suffer in a penalty phase with a new jury, fundamental fairness demanded that the State be barred from further pursuing the death penalty. Id. at 139, 708 A.2d 429.
The Baker court did not fault, in the slightest, the media’s actions: “I want to make it clear that the reporter’s actions were not wrong which occurred here. Indeed, they were the vehicle by which the [prosecutor’s] wrong came to light____” Id. at 133, 708 A.2d 429. Baker’s unique circumstances demanded invocation of the fundamental fairness principle against the State because of State misconduct amounting to “an egregious, intentional and intolerable” invasion into the secrecy of juror deliberations, which in fact unduly prejudiced defendant. Id. at 139, 708 A.2d 429. No constitutional fair trial rights were at stake, nor were the media’s First Amendment freedoms.
In this ease, on the other hand, it is the media that seeks to exercise its First Amendment right to access discharged jurors either on their initiative or on its own. No party presently before us has been accused of prejudicial misconduct involving an empaneled jury. Indeed, the sole and tenuous connection that the majority finds to Baker is the importance of secrecy to protect the sanctity of the jury process, ante at 221, 801 A.2d 274, a notion it *232outright rejected at an earlier portion of its opinion. Ante at 218, 801 A.2d 270.
The retrial will be an entirely new and distinct event, with both parties beginning on equal footing, with equal access to all information reported by the media. As noted above, the majority’s fears that even lawful and fair media reporting about the deliberations of discharged jurors might give the State some added benefit is so remote a possibility as to be illusory. Broad restrictions against media access simply are not necessary. The new jurors, in a new venue, after searching voir dire will hear the case anew with their own ability to observe witnesses first-hand.
V
The outright ban on contact with discharged jurors is an unconstitutional prior restraint entered without regard to procedural due process of law. The minimal incremental potential impact of a former juror’s statements on the State’s retrial ease, if any, is trivial in light of the extensive publicity about every other aspect of the case, from the killing of Carol Neulander and her husband’s arrest and indictment through the gavel-to-gavel coverage of the first trial and beyond. Interviews with discharged jurors do not present “the kind of threat to fair trial rights that ... possess the requisite degree of certainty to justify restraint.” Nebraska Press Ass’n, supra, 427 U.S. at 569-70, 96 S.Ct. at 2808, 49 L.Ed.2d at 704. Even if media interviews with jurors presented a realistic threat to defendant in the form of an unfair State advantage on retrial, the order affirmed and expanded by the majority is unconstitutionally underinclusive and overbroad. Therefore, I dissent.
Chief Justice PORITZ joins in this opinion.
For affirmance as modified — Justices STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI — 5.
Concurring in part; dissenting in part — Chief Justice PORITZ, and Justice LONG — 2.