New Jersey Appeals Court Says Even Some Forms Of Harassment Are Protected Speech

Like it or not, there are a lot of unconstitutional harassment laws on the books. While it's always nice to see the First Amendment protect speech we like, it's just as likely to protect speech we don't like. And harassment laws are often written far more broadly than they should be, given the First Amendment implications.

In this case, brought to us by Keith Kaplan and his extremely informative Twitter thread, a whole lot of things are going on at once. It's not often you see a state harassment statute, a string of court-enabled First Amendment violations, and Jewish divorce law all in the mix at the same time.

Yet, that is what we have here. And it all begins with an attempted divorce, which is vastly complicated by the Jewish religion's rules and regulations. The decision [PDF] from the New Jersey appeals court explains a bit of the relevant law, as well as the relevant practices of members of the Jewish faith, before getting to the First Amendment issues.

The plaintiff and defendant (the one-time husband and wife) are known simply by their initials: S.B.B. and L.B.B. The defendant is the estranged wife, L.B.B., who was hit with a FRO (final restraining order) in the lower court, predicated on that court's misunderstanding of the First Amendment, as well as two New Jersey laws: its harassment statute and the Prevention of Domestic Violence Act (PDVA).

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 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.

So, refusing to hand over a get" can result in all sorts of bad things for the person refusing to do so. And that's just within this community. But technological advances have ensured those who feel wronged by the lack of a get have plenty of options to pressure the opposing party into delivering this needed bill of divorce.

That's what happened here:

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.

That's how the TRO (temporary restraining order) was obtained. S.B.B. (the husband) was also subjected to other forms of harassment that may or may not have included his estranged wife. An amended request for a restraining order added cyber harassment to the mix. Testimony from S.B.B. asserted that he had also been subjected to multiple FaceTime calls from numbers he didn't recognize, as well as one allegedly generated by his wife but that was joined" by thirty phone numbers he didn't recognize. Things along this line (posting of his photo while labeled a get refuser," videos sent to S.B.B.'s rabbi about his get refusal, etc.) continued for a few more weeks.

L.B.B. (the wife) argued her video and other online communications were protected by the First Amendment. The lower court disagreed, finding S.B.B. credible in his allegations and, without seeking any outside expert to testify on the specifics of Orthodox Judaism, awarded a permanent restraining order to the husband on the grounds that these communications and postings constituted harassment under state law.

[T]he 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 associated 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.

The appeals court, however, welcomed the contributions of several experts when taking its pass at this case.

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.

The appeals court says not only did the lower court use the wrong First Amendment standard, it used the wrong standard when applying the state's harassment law.

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).

The lower court chose to focus on the catch-all phrase at the end of the statute: any other manner likely to cause annoyance or alarm." That's far too vague to be constitutional, at least as applied by the lower court.

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."

[...]

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).

Here's how the lower court should have handled this:

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.

The video that resulted in the defendant being hit with a permanent restraining order did not even approach the outer limits of First Amendment protection.

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.

And you can't take away one person's First Amendment rights just because other people got a bit too carried away in their support" of the estranged wife.

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. [...] [T]he 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.

The First Amendment still protects some forms of harassment, even those state statutes might attempt to (unconstitutionally) regulate. Nothing in this case suggests L.B.B. did anything more than engage in protected speech.

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.

That's the end of all the restraining orders and their accompanying restrictions on L.B.B.'s speech. What remains is an enshrined right to engage in speech others may not like and, in fact, maybe suffer negative consequences as a result of it. But just because someone is on the losing" end of a private dispute that spilled out onto social media doesn't mean they have the right to ask the government to shut up the person currently on the winning end.