The First Published Appellate Division Decision of the New Term, by Judge Gooden Brown

S.B.B. v. L.B.B., ___ N.J. Super. ___ (App. Div. 2023). Last week saw the first published Appellate Division opinion of the new Term. Judge Gooden Brown authored the opinion. Here is how she began her opinion, concisely summarizing the matter:

“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.”

After defendant posted the video, plaintiff “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.” Plaintiff sought a restraining order against defendant because, as he testified, he was afraid of being physically harmed by the people who called him.

The Family Part issued a temporary restraining order (“TRO”) in favor of plaintiff. Defendant moved to dismiss the TRO on the ground that defendant had merely exercised her right to free speech. The judge denied that motion. A trial followed, after which the judge granted the FRO at issue. Among other things, the judge found plaintiff credible and defendant not so, based on “demeanor.” The judge denied defendant’s motion for reconsideration. Defendant appealed and the Appellate Division reversed.

Judge Gooden Brown noted that the standard of review of Family Part decisions is ordinarily deferential, “recognizing the court’s special jurisdiction and expertise in family matters.” But “in cases implicating the First Amendment, [appellate courts] must conduct an independent examination of the record as a whole, without deference to the trial court.” She cautioned, however, that that standard does not alter “the specific deference owed to the trial court’s credibility findings.”

Judge Gooden Brown carefully laid out the law of harassment under N.J.S.A. 2C:33-4 as well as the interplay between that law and the First Amendment. “N.J.S.A. 2C:33-4(a) does not proscribe mere speech, use of language, or other forms of expression.” The “purpose to harass is critical to the constitutionality of the harassment offense.” In that regard, “[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. A defendant’s mere awareness that someone might be alarmed or annoyed is insufficient. Likewise, a victim’s subjective reaction alone will not suffice; there must be evidence of the improper purpose.”

Quoting a landmark Supreme Court of the United States decision, NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), Judge Gooden Brown said 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.” She cited other authority as well. In short, “”[t]he mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.'”

In light of those legal principles and the facts of this case, the decision to grant a FRO had to be reversed. “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.” Judge Gooden Brown observed that if plaintiff were later subjected to violence, there was recourse. She cited a case where rabbis who paid “tough guys” or “muscle men” to kidnap and torture husbands into granting a get were themselves convicted of kidnapping-related charges. But punishing defendant for her protected speech by imposing a FRO was improper.