RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0305-21
S.B.B.,1
Plaintiff-Respondent, APPROVED FOR PUBLICATION v. September 6, 2023 APPELLATE DIVISION L.B.B.,
Defendant-Appellant. ________________________
Argued April 17, 2023 – Decided September 6, 2023
Before Judges Gooden Brown, DeAlmeida and Mitterhoff.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-1159-21.
Jane J. Felton argued the cause for appellant (Skoloff & Wolfe, PC, attorneys; Jane J. Felton, of counsel and on the briefs; Michaela L. Cohen, Andrew J. Rhein and Steven B. Gladis, on the briefs).
LisaBeth Klein argued the cause for respondent.
Shira Wisotsky argued the cause for amici curiae The American Civil Liberties Union of New Jersey 1 We use initials to protect the parties' privacy and the confidentiality of the proceedings in accordance with Rule 1:38-3(d)(10). Foundation, The American Civil Liberties Union Foundation, The Jewish Orthodox Feminist Alliance, Sanctuary for Families, and Unchained at Last (The American Civil Liberties Union of New Jersey Foundation, and Vera Eidelman (The American Civil Liberties Union Foundation) of the New York and California bars, admitted pro hac vice, attorneys; Shira Wisotsky, Jeanne LoCicero, Sandra S. Park, and Vera Eidelman, on the brief).
Karin Duchin Haber argued the cause for amici curiae The Organization for the Resolution of Agunot, and Shalom Task Force (Haber Silver & Simpson, attorneys; Karin Duchin Haber, of counsel and on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Defendant L.B.B. appeals from the entry of a final restraining order
(FRO) entered against her in favor of her estranged husband, plaintiff S.B.B.,
pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-
17 to -35. The FRO was based on the predicate act of harassment. The
communication underlying the trial judge's finding of harassment was defendant's
creation and dissemination of a video accusing her estranged husband of
improperly withholding a get, a Jewish bill of divorce, and asking community
members to "press" her husband to deliver the get. Because defendant's
communication constituted constitutionally protected free speech, we reverse.
A-0305-21 2 I.
We glean these facts from the record. Following a twenty-year marriage
that produced four children, the parties, both practicing members of the
Orthodox Jewish faith, separated and have been in the process of obtaining a
divorce since mid-2019. The process has been contentious and acrimonious 2
and further complicated by a dispute over a get—a religious bill of divorce.
In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get" (pluralized as "gittin"), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an "agunah" (pluralized as "agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.
[United States v. Stimler, 864 F.3d 253, 259 (3d Cir. 2017), aff'g United States v. Epstein, 91 F. Supp. 3d 573, 582 (D.N.J. 2015), rev'd in part on other grounds sub nom. United States v. Goldstein, 902 F.3d 411 (3d Cir. 2018).]
2 In April 2020, defendant obtained a temporary restraining order (TRO) against plaintiff. Following a protracted FRO hearing during the COVID-19 pandemic, the TRO was dismissed on March 11, 2021.
A-0305-21 3 Sometime in March 2021, defendant made a video addressing the get
dispute. In the video, defendant asserted plaintiff had refused to give her a get
and asked anyone who could to "press" plaintiff to give her a get. On March
19, 2021, after the video was made, plaintiff obtained a TRO against defendant
based on a domestic violence complaint alleging harassment. To support the
complaint, plaintiff testified at an ex parte hearing that beginning around 3:00
p.m. on March 12, 2021, he received numerous phone calls from unknown
numbers, a photograph of himself identifying him as a get refuser and calling
on others to "tell him to free his wife," and, ultimately, the actual video
defendant had composed.
When plaintiff answered one of the incoming calls, the caller identified
himself as being "connected" to various protest "networks" and pressured
plaintiff to turn over the get. During his testimony, plaintiff explained his
belief that the Jewish community reacts violently to the withholding of a get
and that identifying him as a "get refuser" subjected him to kidnappings and
brutal beatings. Plaintiff denied withholding the get, claimed he had given the
get to the Chief Rabbi of Elizabeth in June 2020, and averred that he was
"terrified" of being "harm[ed]" by the "people . . . calling [him]" in respon se to
defendant's accusation and plea in the video. To further support his complaint,
plaintiff recounted a history of emotional abuse largely by name-calling
A-0305-21 4 throughout the course of the marriage. Subsequently, on March 25, 2021,
plaintiff amended the TRO to add cyber harassment as a predicate act.
Defendant moved to dismiss the TRO, arguing any alleged dissemination
by defendant was protected free speech. Relying on State v. Burkert, 231 N.J.
257 (2017), the trial judge denied the motion. On April 8, 2021, an FRO trial
was conducted via Zoom, during which plaintiff and defendant testified. Both
parties were represented by counsel.
During his testimony, plaintiff confirmed that he and defendant were
separated. He lived with his parents while defendant remained in the marital
home with their children. He testified that he received a call on Friday, March
12, 2021, around 3:00 p.m., on the FaceTime videoconferencing app. Plaintiff
did not answer, but was able to see that thirty separate phone numbers had
joined the call, none of which were familiar to him. The group attempted to
call back roughly ten more times before plaintiff put his phone in airplane
mode. About half an hour later, when he turned his reception back on, the
calls resumed. Initially, the calls seemed "weird," but then plaintiff became
"alarmed" by the calls. Plaintiff continued to ignore the calls and blocked the
associated numbers.
Two days later, on March 14, 2021, plaintiff received a message from
his sister in Israel. The message contained a photo of himself that he had
A-0305-21 5 posted as his "status" on the WhatsApp messaging app. Above the photo was
written:
This man has refused to give his wife a get. His name is [S.B.B.]. He is holding his wife chained for over a year and a half. He lives in Elizabeth NJ. If you see him, tell him to free his wife. #FREE[L.B.B.].
In addition to his sister, plaintiff received the photo from one other person he
knew.
When plaintiff saw the photo, he was "shock[ed]," "embarrassed," and
"scared." Plaintiff explained that the photo would give community members
the impression that he was "a get refuser" which "[could] be dangerous for
[him]." Plaintiff testified that he had witnessed his father "[getting] beat[en]
up" because "he was a get refuser." Additionally, plaintiff denied the
accusation and was adamant that he was not a get refuser, having given the get
to the Chief Rabbi of Elizabeth. His "understanding" was that the get would
be provided to defendant "within [twenty-four] to [forty-eight] hours after the
civil divorce [was] done in court." He also suggested that the Chief Rabbi had
the discretion to give the get to defendant at any time. He explained his view
that only a "beth din" could declare someone a get refuser.
Between March 14 and 15, 2021, plaintiff received numerous
communications, including approximately ten "private or anonymous" calls,
none of which he answered. In addition to the anonymous calls, on the
A-0305-21 6 afternoon of March 14, 2021, plaintiff received a message on WhatsApp from
the Chief Rabbi's son. The message contained a video showing defendant
speaking to the camera, saying:
Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach . . . the community Rabbi[] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [3] on his head.
Several friends also sent the video to plaintiff. Plaintiff believed
defendant posted the video "[b]ecause she wanted people to press [him] to give
her a get." When specifically asked what he thought his wife meant by asking
people to "press" him for the get, plaintiff answered:
It can be anything. If we go by Jewish rules, old rules . . . . [y]ou take him, get him and beat him up until he says I will give it, the get. That's the old Jewish law about it. And people take action. Today it
3 Bracha translates to "blessing." Joyce Eisenberg & Ellen Scolnic, Dictionary of Jewish Words 21 (2006).
A-0305-21 7 starts with protesting and then it gets to harming people that are get refusers.
At 10:21 p.m. on March 15, 2021, plaintiff received another call. This
time, thinking the phone number looked "familiar," he answered. Plaintiff
testified the caller introduced himself as "Hiam" and said he was "calling
about the get." He identified himself as someone who "[knew] a lot of people"
and was part of "different networks." According to plaintiff, Hiam told him if
he did not give his wife a get, they would "come and protest next to [his]
house." Hiam added "you know what happen[s] otherwise if you don't give a
get." After Hiam refused to explain how he obtained plaintiff's phone number,
plaintiff hung up. Plaintiff testified that, a moment later, Hiam called back,
screaming at plaintiff and telling plaintiff he wanted "to meet [him]." Plaintiff
hung up again. Plaintiff testified he felt threatened by Hiam's call, which, in
conjunction with the FaceTime calls, the photograph, and the video, made
plaintiff "very scared." Plaintiff specified that although he was not afraid of
defendant in her individual capacity, he was afraid of "others . . . influenced by
her."
Plaintiff also testified about a history of verbal abuse throughout the
twenty-year marriage. He recounted unspecified instances throughout the
marriage when defendant had stated during arguments that he was "nothing,"
A-0305-21 8 "a zero," or "not good," all of which made him feel "like a worthless person."
According to plaintiff, the last such instance occurred "in 2019."
At the end of plaintiff's case in chief but before defendant testified,
defendant moved for a directed verdict. See R. 4:37-2(b). The judge denied
the motion. Thereafter, defendant testified through an interpreter that it was
not her intent to harass plaintiff. She testified that she did not create the
"#FREE[L.B.B.]" photo image and had no part in posting either the video or
the photo on social media. Additionally, she was not part of any of the calls to
plaintiff and did not know who made them. Defendant testified that the first
time she saw the "#FREE[L.B.B.]" photo image was when a friend sent it to
her, but acknowledged she was not concerned by the photo image. She also
admitted creating the video around March 6, 2021, at the request of a
rabbinical judge, and claimed she only sent the video to the rabbinical judge.
She explained that "under [the Jewish] religion [the rabbinical judges] are to
press on the husband to give the get."
On cross-examination, defendant acknowledged that she also sent the
video to a therapist "friend" but was reluctant to divulge the friend's name and
contact information for fear of "potential retribution." Defendant explained
she did not believe that accusing plaintiff of withholding a get in the video
would put him in danger of being threatened or hurt. When questioned about
A-0305-21 9 plaintiff's father's get refusal, defendant testified she was not aware of him
being attacked. Rather, it was her understanding that he had "sat in jail" as a
result of the refusal.
Following the trial, on April 22, 2021, the judge granted plaintiff an
FRO. Among other things, the FRO continued the restraints contained in the
TRO, which barred defendant from having "any oral, written, personal,
electronic, or other form of contact or communication with [p]laintiff," and
specifically ordered defendant to "remove any and all posts from all social
media platforms requesting the 'get'" and "cease and desist . . . creating and
posting on all social media platforms."
In an oral decision supporting the issuance of the FRO, the judge found
plaintiff credible and defendant not credible based on "demeanor," "body
language," and the content of the testimony. Specifically, the judge remarked
that plaintiff's "demeanor was straightforward," "[h]e didn't embellish" his
testimony, "[h]e didn't fidget" while testifying, and his "testimony ma[d e]
sense." Conversely, according to the judge, defendant's "testimony didn't
make much sense," particularly since she claimed she made the video for the
rabbinical judges but addressed the plea in the video to anyone who could help
A-0305-21 10 her. Additionally, the judge pointed out that during questioning, defendant
was "looking all over the room" and "there was a blank look in her face." 4
Based on her credibility assessment, the judge found defendant "created
the video" and "sent it to the community," rather than "the rabbi," in order "to
get the get." Applying the elements of subsection (a) of the harassment
statute, N.J.S.A. 2C:33-4(a), to her factual findings, in accordance with the
first prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the judge
concluded plaintiff "met [his] burden by a preponderance of the evidence" of
proving that defendant committed harassment. Specifically, the judge found
that "while the end result" of making the video and sending it out into the
community "might have been to get her get . . . , the way in which [defendant]
went about getting that get was with a purpose to press, harass, annoy, [and]
alarm [plaintiff]."
The judge also found that the communication was "invasive" of
plaintiff's privacy, as proscribed by N.J.S.A. 2C:33-4(a). See State v.
Hoffman, 149 N.J. 564, 583 (1997). Specifically, the judge found that because
the video was sent to "the Jewish community,"
4 At the outset, the judge noted that although she had previously denied defendant's application for an FRO against plaintiff, the judge was not influenced by her prior decision. In any event, there was no request for recusal.
A-0305-21 11 the purpose of that communication was to infringe upon [plaintiff's] legitimate expectation of privacy not to . . . hav[e] . . . phone calls or . . . people come to the house or picket or call or threaten. But that was the purpose because in that community, that's what happened. You either go to jail, [or] you get beat when you're a get refuser.
So putting that video and telling people to press her husband, to press him for that get, under the totality of the circumstances is a clear intrusion into []his expectation of privacy and safety.
Critically, the judge rejected defendant's free speech claims, explaining
that "one cannot hide behind the First Amendment when that communication is
invasive of the recipient's privacy. The First Amendment cannot protect this
kind of communication to incite, which is clearly invasive of [plaintiff's]
safety and privacy." In assessing the threat to plaintiff's safety associ ated with
being labeled a get refuser, the judge noted:
Now there was no expert that came into this court to explain what a get is or the realities of the get. This [c]ourt is not taking judicial notice of . . . what a get refuser is. But in listening to the testimony of both parties it's clear that it is something serious in the Jewish community. [Plaintiff] testified that he watched his father be beaten because he was a get refuser. And I believe . . . defendant testified . . . that you can go to jail for being a get refuser.
So the [c]ourt does glean from the testimony that being a get refuser in the Jewish community is a very serious allegation with substantial consequences, which is clear from the testimony under the totality of this case.
A-0305-21 12 Because the judge found that plaintiff had proven the predicate act of
harassment based solely on the video, the judge elected not to address the
predicate act of cyber harassment.
Next, applying the second Silver prong and N.J.S.A. 2C:25-29(a), the
judge found that an FRO was "necessary to protect . . . plaintiff from this
continued behavior, . . . [and] from having . . . defendant incite the community
that her husband is a get refuser, which clearly puts him in a very dangerous
position." In her analysis, the judge once again relied on her understanding
that it "can incite violence when you call someone a get refuser." The judge
noted that "[t]he existence of immediate danger to person or property" was
"clear" because when "[y]ou tell the Jewish community that your husband is a
get refuser," then "he is subject to danger period or imprisonment."
The judge explained that although plaintiff stated he was "not
necessarily in fear of defendant herself," he was "in fear of th[e] continued
invasion of his privacy and his safety . . . at the hands of [defendant] by her
actions" and "people are entitled to feel safe" and "to be free of this continued
abuse." The judge also found that "[t]he best interest" of plaintiff and the
parties' children would be served by awarding the FRO because a third party
"acting on defendant's request while the children [were] present . . . would put
not only . . . plaintiff, but the children in danger." Although the judge did not
A-0305-21 13 find that the previous history of domestic violence over the years "shed[] much
light on the Silver decision," under "the totality of the factors," the judge
determined a restraining order was warranted.
Defendant moved for reconsideration. In support, defendant submitted a
May 11, 2021, certification from Rabbi Daniel Shevitz, "an expert trained in
the laws of Jewish divorce." Shevitz opined that defendant is an "agunah" or
"chained woman." He explained that:
In the Jewish tradition, once the marital bond has failed and the couple is no longer living together as husband and wife, the husband is obliged to write and deliver a get. Until then, the wife is not free of her marital responsibilities. . . . Any delay in granting the get causes her to be "chained" to a marriage in form only and is, in my opinion, a form of abuse.
He further explained that even rabbinical courts lack the power to force a
husband to grant a get and that as a result of the husband's unchecked
authority, some men use get withholding as a form of extortion. Referring to a
March 5, 2020, text message exchange between the parties, which showed
plaintiff telling defendant that he would only issue the get if she first signed a
divorce settlement agreement, Shevitz suggested that just such extortionist
behavior might be occurring in this case.
Shevitz stated that in the quest to obtain a get from an intractable
husband, "[f]or centuries, the only tool at the wife's disposal was invoking
A-0305-21 14 public sympathy and pleading her case to the broader community." He added
that in recent years, "agunot (the plural of 'agunah') have turned to social
media with messages asking for community support" in a "'social justice
movement' designed to liberate women . . . using one of the only tools they
have at their disposal—their voices." He opined that the video created by
defendant was "precisely" such an attempt and appended an article to his
certification supporting his opinion.
Defendant also submitted her own certification, in which she explained
that plaintiff has not authorized the Chief Rabbi "to deliver the get until [she]
agrees to his settlement demands" and "she felt [her] only reasonable recourse
was to seek public sympathy to obtain a get." She added that her
understanding, as someone whose first language was not English, was that
"'press' does not mean 'physically harm'" and she "never meant it that way."
She acknowledged that "there have been news reports and federal lawsuits"
about "those who do physically harm get-refusers," but stressed that she had
"never been a part of that."
Following oral argument, on August 27, 2021, the judge denied
defendant's motion as not meeting the standard for reconsideration. See
R. 4:49-2. In a written opinion, the judge pointed out that Shevitz's
certification could have been presented at the time of the initial hearing.
A-0305-21 15 Further, the judge found that whether defendant "is or is not an agunah under
Jewish law" and whether plaintiff "did or did not satisfy the giving of the
[g]et" were irrelevant. The judge also awarded plaintiff attorney's fees and
costs in the amount of $10,035 as compensatory damages. See N.J.S.A.
2C:25-29(b)(4).
In this ensuing appeal of the April 22, 2021 and August 27, 2021 orders,
defendant raises the following points for our consideration:
POINT ONE
THIS COURT MUST APPLY A HEIGHTENED STANDARD OF REVIEW. (NOT RAISED BELOW).
POINT TWO
THE FIRST AMENDMENT PROTECTED DEFENDANT'S FREEDOM TO MAKE AND DISSEMINATE THE VIDEO.
A. The Video Is Protected Speech Under The First Amendment.
B. Nothing Defendant Said Or Did Is Punishable As Incitement.
C. Affirming The Trial Court In This Case Would Render The Harassment Statu[te] Unconstitutionally Overbroad And Vague.
D. The FRO Is An Impermissible Prior Restraint On Defendant's Future Speech.
A-0305-21 16 E. The FRO Violates Defendant's Right To Freely Exercise Her Religion.
POINT THREE
INDEPENDENT OF CONSTITUTIONAL CONCERNS, DEFENDANT'S VIDEO WAS NOT HARASSMENT.
A. The Manner In Which Defendant Communicated Did Not Violate The Harassment Statute.
B. The Video Did Not Intrude Into Plaintiff's Reasonable Expectation Of Privacy, And The Trial Court's Finding To The Contrary Was Based On An Unsubstantiated, False, And Prejudicial Characterization Of The Orthodox Jewish Community.
C. The Trial Court Found That Defendant Had A Legitimate Purpose In Making The Video – i.e., To Get A Get.
D. The Trial Court Failed To Consider The Totality Of The Circumstances, As Our Law Requires.
E. The Trial Court Prejudicially Found Defendant Had A "Purpose To Harass" Before Even Hearing Defendant Testify.
F. The Trial Court Erred By Allowing Plaintiff To Pursue A Defamation Claim Artfully Pleaded As Harassment.
A-0305-21 17 POINT FOUR
THE TRIAL COURT MISSTATED AND MISAPPLIED THE SILVER TEST, AND THE PREREQUISITES FOR AN FRO WERE NOT MET.
A. The Court Did Not Address The N.J.S.A. 2C:25-29(a) Factors As The Law Required.
B. The Trial Court Misapplied Silver By Allowing Plaintiff's Alleged Subjective Fear To Dictate Whether An FRO Was Necessary.
C. The FRO Was Not Necessary To Protect Plaintiff.
POINT FIVE
THE TRIAL COURT'S COUNSEL FEE AWARD VIOLATED THE ENTIRE CONTROVERSY DOCTRINE AND WAS AN ABUSE OF DISCRETION.
We subsequently granted motions by seven organizations to appear as
amici curiae and participate in oral argument in support of defendant's
position. The organizations are: (1) the American Civil Liberties Union of
New Jersey; (2) the American Civil Liberties Union; (3) the Jewish Orthodox
Feminist Alliance; (4) Sanctuary for Families; (5) Unchained at Last; (6) the
Organization for the Resolution of Agunot; and (7) Shalom Task Force.
A-0305-21 18 II.
Our scope of review in these matters is well-established. We generally
defer to the trial judge's findings of fact "when supported by adequate,
substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12
(1998). In particular, we "review the Family Part judge's findings in
accordance with a deferential standard of review, recognizing the court's
'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin-
Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413).
However, in cases implicating the First Amendment, we must "conduct
an independent examination of the record as a whole, without deference to the
trial court." Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of
Boston, Inc., 515 U.S. 557, 567 (1995) (citing Bose Corp. v. Consumers Union
of U.S., Inc., 466 U.S. 485, 499 (1984)); see also Ward v. Zelikovsky, 136 N.J.
516, 536-37 (1994) (applying the same rule in New Jersey). This obligation
springs from the reality that the ultimate constitutional decision before the
court is inextricably intertwined with the underlying facts, and so the court
cannot render a decision on the constitutional question without examining the
facts. Ibid. Thus, it is incumbent upon us to "'make an independent
examination of the whole record,' to ensure that 'the judgment does not
constitute a forbidden intrusion on the field of free expression.'" Ward, 136
A-0305-21 19 N.J. at 536-37 (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 17 (1990)); see
also State v. Carroll, 456 N.J. Super. 520, 532 (App. Div. 2018) (applying the
same standard to Facebook posts to determine "whether [the] defendant's
speech is protected by the First Amendment" in a cyber harassment and
witness retaliation prosecution); Rutgers 1000 Alumni Council v. Rutgers, 353
N.J. Super. 554, 567 (App. Div. 2002) ("Independent review of the record
below is required because this case involves a First Amendment question.").
While the presence of First Amendment issues diminishes a reviewing
court's deference to a trial court's general fact-finding, the specific deference
owed to the trial court's credibility findings remains unchanged. Hurley, 515
U.S. at 567 (citing Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S.
657, 688 (1989)). "Appellate courts owe deference to the trial court's
credibility determinations . . . because it has 'a better perspective than a
reviewing court in evaluating the veracity of a witness.'" C.R. v. M.T., 248
N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).
However, "[a] more exacting standard governs our review of the trial court's
legal conclusions." Thieme, 227 N.J. at 283. Indeed, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,
239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of
A-0305-21 20 Manalapan, 140 N.J. 366, 378 (1995)). "Accordingly, we review the trial
court's legal conclusions de novo." Thieme, 227 N.J. at 283.
In order to grant an FRO under the PDVA, a trial court must make
certain findings pursuant to a two-step analysis delineated in Silver, 387 N.J.
Super. at 125-27. First, the court "must determine whether the plaintiff has
proven, by a preponderance of the credible evidence, that one or more of the
predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125.
Harassment, N.J.S.A. 2C:33-4, is among the enumerated predicate offenses.
N.J.S.A. 2C:25-19(a)(13).
Second, if the court finds that the defendant has committed a predicate
act of domestic violence, the court must then determine whether it "should
enter a restraining order that provides protection for the victim." Silver, 387
N.J. Super. at 126. In making that determination, "the guiding standard is
whether a restraining order is necessary, upon an evaluation of the factors set
forth in [N.J.S.A. 2C:25-29(a)(1) to (6)], to protect the victim from an
immediate danger or to prevent further abuse." Id. at 127. The statutory
factors include "[t]he previous history of domestic violence . . . ;" "[t]he
existence of immediate danger to person or property;" "[t]he financial
circumstances of the [parties];" "[t]he best interests of the victim and any
A-0305-21 21 child;" and "[t]he existence of" an out-of-state restraining order.
N.J.S.A. 2C:25-29(a).
Here, the judge's finding of the predicate act of harassment in violation of
N.J.S.A. 2C:33-4(a) was based exclusively on defendant's creation and
dissemination of the video. A person commits harassment if, "with purpose to
harass another, he [or she] . . . [m]akes, or causes to be made, one or more
communications anonymously or at extremely inconvenient hours, or in
offensively coarse language, or any other manner likely to cause annoyance or
alarm." N.J.S.A. 2C:33-4(a).
A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.
[Hoffman, 149 N.J. at 576.]
Our courts have decreed that N.J.S.A. 2C:33-4(a) "does not proscribe
mere speech, use of language, or other forms of expression." State v. L.C.,
283 N.J. Super. 441, 450 (App. Div. 1995) (citing State v. Fin. Am. Corp., 182
N.J. Super. 33, 36-38 (App. Div. 1981)). No statute could do so, as "[t]he First
Amendment to the federal Constitution permits regulation of conduct, not mere
expression." Ibid. (citing State v. Vawter, 136 N.J. 56, 65-67 (1994)); see,
A-0305-21 22 e.g., Murray v. Murray, 267 N.J. Super. 406, 410-11 (App. Div. 1993) (holding
that words alone, without "purposeful alarm or serious annoyance," were
insufficient to sustain a domestic violence restraining order for harassment).
Instead, "the substantive criminal offense proscribed by subsection (a) 'is
directed at the purpose behind and motivation for' making or causing the
communication to be made." Hoffman, 149 N.J. at 576 (quoting State v.
Mortimer, 135 N.J. 517, 528 (1994)). Thus, "purpose to harass is critical to
the constitutionality of the harassment offense." R.G. v. R.G., 449 N.J. Super.
208, 226 (App. Div. 2017) (quoting State v. Castagna, 387 N.J. Super. 598,
606 (App. Div. 2006)); see also D.C. v. T.H., 269 N.J. Super. 458, 461-62
(App. Div. 1994) (reversing an FRO issued against a father who made a threat
to beat up the mother's boyfriend because the defendant's purpose "was to
dissuade plaintiff's boyfriend from inflicting further corporal punishment upon
his child" rather than to harass the plaintiff).
"A person acts purposely with respect to the nature of his conduct or a
result thereof if it is his conscious object to engage in conduct of that nature or
to cause such a result." N.J.S.A. 2C:2-2(b)(1). A defendant's "mere awareness
that someone might be alarmed or annoyed is insufficient." J.D. v. M.D.F.,
207 N.J. 458, 487 (2011) (citing State v. Fuchs, 230 N.J. Super. 420, 428
(App. Div. 1989)). Likewise, a "victim's subjective reaction alone will not
A-0305-21 23 suffice; there must be evidence of the improper purpose." Ibid. (citing State v.
Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)); see Franklin v.
Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) (concluding that the
evidence established only a "dispute between a couple in the midst of a
breakup, disagreeing over the future of their unborn child" rather than intent to
harass). Still, "[a] finding of a purpose to harass may be inferred from the
evidence presented," and "[c]ommon sense and experience may inform that
determination." Hoffman, 149 N.J. at 577.
The judge found that by creating and disseminating the video, defendant
communicated in a manner proscribed by N.J.S.A. 2C:33-4(a) with a purpose to
harass plaintiff. Further, according to the judge, defendant's communication was
not protected by the First Amendment. The judge's holding was predicated on her
determination that being identified as a get refuser was inherently dangerous and
defendant's purpose in asking members of her community to "press" plaintiff to
give her a get was to incite violence. Conversely, defendant argues that in
creating and disseminating the video, she engaged in constitutionally protected
speech. She contends her speech did not rise to the level of incitement and
thus retained its constitutional protection under the First Amendment.
Subsection (a) of the harassment statute "is 'aimed, not at the content of
the offending statements but rather at the manner in which they were
A-0305-21 24 communicated.'" Id. at 583 (quoting Fin. Am. Corp., 182 N.J. Super. at 39-
40). Indeed, "[m]any forms of speech . . . are intended to annoy. Letters to the
editor of a newspaper are sometimes intended to annoy their subjects. We do
not criminalize such speech, even if intended to annoy, because the manner of
speech is non-intrusive." Ibid.
Here, the judge found that the manner of communication fell under the
so-called "catchall provision" of subsection (a) in that it was made in "any
other manner likely to cause annoyance or alarm." Id. at 581-83;
N.J.S.A. 2C:33-4(a). In order to protect against unconstitutional vagueness
and overbreadth in the statute, the phrase "any other manner likely to cause
annoyance or alarm" has been interpreted narrowly. Hoffman, 149 N.J. at 581-
83. In Hoffman, our Supreme Court explained that the three enumerated
modes of prohibited communication proscribed under the harassment statute—
anonymous, at extremely inconvenient hours, and in offensively coarse
language—each "can be classified as being invasive of the recipient's privacy."
Id. at 583. Likewise, the Court concluded that "the Legislature intended the
catchall provision of subsection (a) [to] encompass only those types of
communications that also are invasive of the recipient's privacy." Ibid. Thus,
in order to satisfy the catchall element, a communication must "intolerably
A-0305-21 25 interfere with a person's reasonable expectation of privacy." Burkert, 231 N.J.
at 283.
Critically, "[l]aws may 'not transgress the boundaries fixed by the
Constitution for freedom of expression.'" Id. at 275 (quoting Winters v. New
York, 333 U.S. 507, 515 (1948)). Thus, as with any speech-regulating statute,
the reach of N.J.S.A. 2C:33-4 is cabined by the federal and state constitutions.
The First Amendment to the United States Constitution provides in part that
"Congress shall make no law . . . abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble." Similarly, Article I,
Paragraph 6, of the New Jersey Constitution proclaims in part 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."
So greatly do we in New Jersey cherish our rights of free speech that our Constitution provides even broader protections than the familiar ones found in its federal counterpart. In preserving and advancing those broad constitutional commands, we have been vigilant, jealously guarding the rights of the people to exercise their right to "freely speak," although their message may be one that is offensive to some, or even to many, of us.
[Borough of Sayreville v. 35 Club L.L.C., 208 N.J. 491, 494 (2012) (citation omitted) (quoting N.J. Const. art. I, ¶ 6).]
A-0305-21 26 As such, "[t]here is no categorical 'harassment exception' to the First
Amendment's free speech clause." Burkert, 231 N.J. at 281 (quoting Saxe v.
State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)).
"Speech . . . cannot be transformed into criminal conduct merely because it
annoys, disturbs, or arouses contempt." Ibid. "The First Amendment protects
offensive discourse, hateful ideas, and crude language because freedom of
expression needs breathing room and in the long run leads to a more
enlightened society." Ibid. To that end, the right to free speech also includes
the right to exhort others to take action upon that speech. "It extends to more
than abstract discussion, unrelated to action." Thomas v. Collins, 323 U.S.
516, 537 (1945) ("'Free trade in ideas' means free trade in the opportunity to
persuade to action, not merely to describe facts."). In fact, "[t]he First
Amendment protects the right to coerce action by 'threats of vilification or
social ostracism.'" Carroll, 456 N.J. Super. at 537 (quoting NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 926 (1982)).
In Claiborne Hardware Co., Black activists in Claiborne County,
Mississippi, organized a boycott of white-owned businesses when local civic
and business leaders refused to assent to demands for equality and racial
justice. 458 U.S. at 899-900. "The boycott was supported by speeches and
nonviolent picketing." Id. at 907. Additionally, "store watchers" stood outside
A-0305-21 27 the targeted businesses and took down the names of those who violated the
boycott. Id. at 903-04. Those names were then "read at meetings of the
Claiborne County NAACP and published in a mimeographed paper entitled the
'Black Times.' . . . [T]hose persons were branded as traitors to the [B]lack
cause, called demeaning names, and socially ostracized." Ibid. In very public
speeches, an organizer stated that violators would be "disciplined," and
warned: "If we catch any of you going in any of them racist stores, we're
gonna break your damn neck." Id. at 902. The boycott went on for years,
during which several decentralized acts of violence occurred, including shots
fired into the homes of boycott violators, beatings, property damage, and
threatening phone calls. Id. at 904-06.
The Supreme Court ruled that the speech, both identifying and
castigating boycott violators and promising retribution, was protected by the
First Amendment. Id. at 915, 929. The Court explained that even speech
designed to prompt others to act through "social pressure and the 'threat' of
social ostracism . . . . does not lose its protected character . . . simply because
it may embarrass others or coerce them into action." Id. at 910. Even the
organizer's speech, which invoked the specter of violence and "might have
been understood as inviting an unlawful form of discipline or, at least, as
intending to create a fear of violence," was protected because "mere advocacy
A-0305-21 28 of the use of force or violence does not remove speech from the protection of
the First Amendment." Id. at 927-29. The Court noted that no actual violence
occurred directly following the statements, and there was "no evidence—apart
from the speeches themselves—that [the organizer] authorized, ratified, or
directly threatened acts of violence." Id. at 929. The Court cautioned that if
such acts of violence did occur, there might be a question of whether the
organizer was derivatively liable, but until then, the speech retained its
protected status. Id. at 928-29.
Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415,
415-16 (1971), the Court addressed "a racially-integrated community
organization['s]" actions "to 'stabilize' the racial ratio in the . . . area" by
influencing a real estate broker who allegedly engaged in "blockbusting" or
"panic peddling" tactics to scare white owners out of Chicago's Austin
neighborhood. Id. at 415-16. The broker acted as the fleeing sellers' agent to
profit from the transactions. Ibid. In an effort to curtail the practice, the
organization began a campaign against the broker. Id. at 417. The
organization traveled to the broker's hometown, some seven miles from
Austin, and began distributing leaflets that were critical of the broker's
practices. Id. at 415-17. Some leaflets "requested recipients to call [the
broker] at his home phone number and urge him" to sign an agreement to stop
A-0305-21 29 his real estate practices. Id. at 417. One leaflet promised to stop the campaign
once he signed the agreement. Ibid. The organization distributed the leaflets
at a shopping center, passed them to parishioners on their way home from the
broker's church, and left them at the homes of the broker's neighbors. Ibid.
Finding that the organization's activities were an "invasion of privacy,"
the state courts enjoined the organization from distributing the leaflets or
picketing in the broker's hometown. Ibid. The appellate court reasoned that
the activities were "coercive and intimidating, rather than informative and
therefore . . . not entitled to First Amendment protection." Id. at 418. The
Supreme Court reversed, concluding that the organization's activities were
protected by the First Amendment. Id. at 419-20. The Court emphasized that
the fact that the organization's intent was "to exercise a coercive impact on [the
broker] does not remove" the First Amendment's protections. Id. at 419.
Additionally, since the injunction was "not attempting to stop the flow of
information into [the broker's] household, but to the public," the invocation of
the broker's right to privacy was unavailing. Id. at 419-20.
In general, "[t]he mere tendency of speech to encourage unlawful acts is
not a sufficient reason for banning it." Ashcroft v. Free Speech Coal., 535
U.S. 234, 253 (2002). "The government may not prohibit speech because it
increases the chance an unlawful act will be committed 'at some indefinite
A-0305-21 30 future time.'" Ibid. (quoting Hess v. Indiana, 414 U.S. 105, 108 (1973)).
Thus, "[w]here a call to others to act neither conveys a plan to act nor is likely
to produce imminent danger, it may not be criminalized, despite its unsettling
message." Carroll, 456 N.J. Super. at 543. Although there is a narrow
exception for speech that is "directed to inciting or producing imminent
lawless action and is likely to incite or produce such action," Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969), we have acknowledged that "[e]ven urging
others to violence is shielded unless the statement is designed and likely to
produce immediate action." Carroll, 456 N.J. Super. at 545.
In Brandenburg, the Supreme Court reversed the conviction of a Ku
Klux Klan leader for statements made at a rally. 395 U.S. at 444-45. At the
rally, a group of hooded Klansmen, several carrying firearms, gathered around
a burning cross. Id. at 445-47. Following a series of anti-Black and
antisemitic remarks and slurs from the group, a single individual began to
speak. Id. at 446. Among other things, he said: "[I]f our President, our
Congress, our Supreme Court, continues to suppress the white, Caucasian race,
it's possible that there might have to be some revengeance [sic] taken." Ibid.
He promised to march on Congress and elsewhere on July Fourth. Ibid.
The speaker was convicted of violating a statute which proscribed
"advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence,
A-0305-21 31 or unlawful methods of terrorism as a means of accomplishing industrial or
political reform." Id. at 445 (alteration in original). The Supreme Court
summarily invalidated the statute, explaining that the "constitutional
guarantees of free speech and free press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action." Id. at 447. "[C]onviction for mere
advocacy, unrelated to its tendency to produce forcible action," is
unconstitutional because it "intrudes upon the freedoms guaranteed by the First
and Fourteenth Amendments." Id. at 447 n.2, 448.
In United States v. Carmichael, 326 F. Supp. 2d 1267, 1285 (M.D. Ala.
2004), the court explained that a "general history" of violence was insufficient
to vitiate First Amendment protections. In that case, a criminal defendant
facing drug distribution charges published a website with the putative goal of
spreading awareness of his case and seeking information about individuals
involved. Id. at 1271-72. The website displayed names and photographs of
individuals labeled as "Agents" and "Informants" beneath a caption reading,
"Wanted," in large, red letters. Id. at 1272. The government sought a
protective order requiring the defendant to remove the website from the
internet on the ground that the website constituted harassment of the
A-0305-21 32 government's witnesses or served to intimidate or threaten the witnesses. Id. at
1274. At an evidentiary hearing, a witness called by the government testified
that the terms "wanted" and "informant" were "threatening" because the term
"informant" had a "bad connotation among criminals and is equivalent to
'snitch.'" Id. at 1275. The witness also suggested that "the website [was]
meant to encourage others to inflict harm" on informants and agents. Id. at
1286.
Specifically citing four cases decided by federal circuit courts in the
prior two years for context, the court acknowledged "numerous cases involving
the murder of informants in drug-conspiracy cases." Id. at 1284.
Nevertheless, the court explained that the proper focus of the inquiry was
defendant's website itself, "not whether the site calls to mind other cases in
which harm has come." Id. at 1285. Thus, while the court acknowledged that
the "broad social context ma[de] the case closer," the "background facts" relied
upon by the government were too "general" to rob the website of its First
Amendment protections, particularly since the court could not find that the
website served "no legitimate purpose" or "cross[ed] the line separating insults
from 'true threats.'" Id. at 1278, 1282.
As to the latter, the court acknowledged that "'true threats' are not
protected by the First Amendment." Id. at 1280 (quoting Virginia v. Black,
A-0305-21 33 538 U.S. 343, 359 (2003)); see also Watts v. United States, 394 U.S. 705, 707
(1969) (originating the true threats doctrine). "'True threats' encompass those
statements where the speaker means 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. "The 'prohibition on true threats
protects individuals from the fear of violence and from the disruption that fea r
engenders, in addition to protecting people from the possibility that the
threatened violence will occur.'" Carmichael, 326 F. Supp. 2d at 1280
(quoting Black, 538 U.S. at 360). However, "evidence of an atmosphere of
general intimidation is not enough to find . . . a 'true threat.'" Id. at 1285.
Applying these principles, we are convinced that the video, whether viewed
on its own or in the context in which it was disseminated, does not fall outside the
First Amendment's protection. The judge concluded that the video was not
protected by the First Amendment because members of the Jewish community
would respond violently to plaintiff being identified as a get refuser. The judge
stated that "[t]he First Amendment cannot protect this type of communication to
incite, which is clearly invasive of [plaintiff's] safety and privacy." However, such
an unspecified general history of violent treatment to which get refusers were
subjected was insufficient to render defendant's video a true threat or an imminent
danger to satisfy the incitement requirement. On the contrary, in Epstein, the
A-0305-21 34 court explained that disseminating the names of get refusers "so that the
reading public will hold them in disrepute," and otherwise taking steps to
"shun and embarrass a recalcitrant husband . . . do[es] not violate the criminal
laws of the United States." 91 F. Supp. 3d at 582.
Critically, the First Amendment "does not prohibit name[-]calling" and
"protects 'vehement, caustic, and sometimes unpleasantly sharp attacks' as well
as language that is 'vituperative, abusive, and inexact.'" Carmichael, 326 F.
Supp. 2d at 1282 (quoting Watts, 394 U.S. at 708). Similarly, "threats of
vilification or social ostracism" do not lose their protected status. Claiborne
Hardware Co., 458 U.S. at 910. If the literal threat "to break . . . necks" in
Claiborne, against a backdrop of actual acts of retaliation and violence committed
by boycott supporters against boycott violators, was not outside the First
Amendment's protection, it is hard to see how defendant's video, with, at most,
only nonspecific threatening connotations, could be unprotected. Id. at 902.
The judge's suggestion that plaintiff had a right to not be subjected to
anonymous phone calls, threats, or picketing at his house—especially absent
evidence that defendant made calls herself or distributed plaintiff's contact
information—is likewise insufficient to render defendant's speech unlawful. Only
the #FREE[L.B.B.] photo image, which the judge did not attribute to defendant,
identified plaintiff's hometown, not the video. Moreover, there was no direct
A-0305-21 35 evidence of a link between the creation of the video, the dissemination of the
video, and plaintiff's receipt of anonymous phone calls. In any event, the acts
of identifying an individual, encouraging others to call them and urge them to
change their behavior, and picketing in their hometown are protected activities
under Keefe, 402 U.S. at 417, 419.
Although the judge found that get refusers, like plaintiff's father, were at risk
of imprisonment, there is no such offense in our penal code. Israeli courts—where
marriage and divorce are governed exclusively by religious law—retain the power
to impose sanctions including fines or jail sentences for get refusal. Jodi M.
Solovy, Civil Enforcement of Jewish Marriage and Divorce: Constitutional
Accommodation of a Religious Mandate, 45 DePaul L. Rev. 493, 501 n.59 (1996).
"Israeli law gives rabbinical courts the authority to issue certain sanctions to
pressure a non-consenting spouse to give consent to a get." Ben-Haim v. Edri, 453
N.J. Super. 526, 530 (App. Div. 2018). No such risk exists in state courts, as it is a
fundamental principle that civil courts may not become entangled in religious
proceedings "if resolution requires the interpretation of religious doctrine." Ran-
Dav's Cnty. Kosher v. State, 129 N.J. 141, 162 (1992); see also Satz v. Satz, ___
N.J. Super. ___, ___ (App. Div. 2023) (slip op. at 16-18) (rejecting the ex-
husband's argument that the trial court violated his First Amendment rights by
enforcing the provisions of a marital settlement agreement, rather than a religious
A-0305-21 36 contract, in which the parties agreed to participate in a beth din proceeding to
obtain a get that the ex-wife sought).
Because calls to exhort social pressure on plaintiff would necessarily fall
under the aegis of First Amendment protection and the specter of imprisonment for
refusing a get is unrealistic, harassment must be found—if at all—in the threat of
violence. However, the judge's conclusion that such threats were real and
imminent is simply not supported by the record. First Amendment protections
cannot be vitiated on unsubstantiated findings of fact. The video itself, which
was not even directed to plaintiff, contained no overt call for or reference to
violence. See Carroll, 456 N.J. Super. at 539 (citing United States v.
Dinwiddie, 76 F. 3d 913, 925 (8th Cir. 1996)) (listing "whether the threat was
communicated directly to its victim" as among the indicia of a "true threat").
Even an overt invocation of violence, however, would be insufficient to strip
the statement of First Amendment protection. See Claiborne Hardware Co.,
458 U.S. at 902; Brandenburg, 395 U.S. at 446-47.
Instead, to qualify as incitement and lose First Amendment protection—
as the judge tacitly found—a communication must be both "directed to inciting
or producing imminent lawless action and . . . likely to incite or produce such
action." Brandenburg, 395 U.S. at 447. However, such is not the case on this
record. The difference between lawful and lawless action "may be identified
A-0305-21 37 easily by reference to its purpose." Claiborne Hardware Co., 458 U.S. at 933.
Defendant's ultimate objective was unquestionably legitimate—it was to get a
get. We are persuaded that under the circumstances of this case, the means
employed by defendant to achieve her goal is entitled to First Amendment
protection.
Of course, should plaintiff ever be subjected to the threat of violence at
the hands of a third party, he will not be without recourse. In Stimler, a small
group of rabbis were convicted of kidnapping-related charges when, ostensibly
on behalf of agunot, they "worked with 'tough guys' or 'muscle men' in
exchange for money to kidnap and torture husbands in order to coerce them to
sign . . . gittin." 864 F.3d at 259-60. Thus, as evidenced in Stimler, the
violent, unlawful pursuit of gittin can be prosecuted. 864 F.3d at 259. But
"[t]he normal method of deterring unlawful conduct is to impose an
appropriate punishment on the person who engages in it." Bartnicki v.
Vopper, 532 U.S. 514, 529 (2001). "[I]t would be quite remarkable to hold
that speech by a law-abiding [speaker] . . . can be suppressed in order to deter
conduct by a non-law-abiding third party." Id. at 529-30.
In sum, the judge's finding that the Jewish community was prone to
violence against get refusers—and the implicit holding that defendant was
aware of and intentionally availed herself of such violent tendencies—is not
A-0305-21 38 supported by the record. The video was intended to get a get. The video did
not threaten or menace plaintiff, and nothing in the record suggests that
plaintiff's safety or security was put at risk by the video. Neither plaintiff's
testimony that his father had been beaten for being a get refuser at an
unspecified time and place nor defendant's vague testimony that plaintiff's
father had been imprisoned for being a get refuser sufficed.
Without credible evidence that the video incited or produced imminent
lawless action or was likely to do so, defendant's speech does not fall within
the narrow category of incitement exempted from First Amendment protection.
Likewise, because the judge's finding of a privacy violation relied upon the
same factual finding, the record does not support the finding that the manner of
defendant's communication violated subsection (a) of the harassment statute.
As our Supreme Court explained, N.J.S.A. 2C:33-4 criminalizes only those
"private annoyances that are not entitled to constitutional protection." Hoffman,
149 N.J. at 576. Defendant's communication does not meet that criteria.
Therefore, we reverse the April 22, 2021, and August 27, 2021, orders. In
so doing, we vacate the FRO and the restraints contained therein as well as the
counsel fee award. In light of our disposition, the TRO should not be reinstated
and we need not address defendant's or amici curiae's remaining arguments.
Reversed. We do not retain jurisdiction.
A-0305-21 39