Petition for Writ of Certiorari — Lawson v. Murray

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/ Supreme Court, U.

(\) PILED

941450 mar 1 1995

NO. aFFee-OF-THE CLERK

In The

Supreme Court of the United States

October Term, 1994

MICHAEL LAWSON and DAVID CRIST,

Petitioners,

ELRICK MURRAY and BELINDA MURRAY,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of New Jersey

PETITION FOR WRIT OF CERTIORARI

RicHArD F. Coxtier, Jr.

Legal Center for Defense of Life

65 Madison Avenue

Morristown, New Jersey 07960

(201) 984-0725

Attorney for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

After finding that petitioners had not committed any

crimes or torts, and that their picketing had been peaceful and

lawful, the Supreme Court of New Jersey nevertheless issued

a permanent injunction prohibiting petitioners from: picketing

within 100 feet of the home of a physician who performs

abortions; picketing in a group of more than 10 persons

outside the 100-foot buffer zone; picketing more than one

hour every two weeks; and picketing without giving 24 hours’

advance notice to the police. The court below interpreted

Madsen v. Women's Health Ctr., Inc., 114 S. Ct. 2516 (1994)

aS an “invitation” to impose such restrictions on picketing in

residential neighborhoods, and held that state courts have

“inherent authority” to restrain peaceful picketing in order to

effectuate a state’s “common-law public policy” in favor of

residential privacy. The court below also found its injunction

to be content-neutral, although it applies only to pro-life

picketers. Accordingly, the questions presented are:

1. After Madsen v. Women’s Health Ctr., Inc., is a show-

ing of actual or imminent violation of statutory or common

law still a constitutional prerequisite to the issuance of an

injunction imposing restrictions on picketing in a residential

neighborhood?

2. Are all injunctions restricting picketing subject to the

new intermediate standard of review which was announced in

Madsen v. Women’s Health Ctr, Inc., or is peaceful and lawful

picketing still protected by the strictest standards of review

under the First and Fourteenth Amendments and the doctrine

of prior restraints?

QUESTIONS PRESENTED ~— Continued

3. After Madsen v. Women’s Health Ctr., Inc., must all

injunctions imposing restrictions on picketing by a group

expressing a particular viewpoint be considered content-neu-

tral, even if they are issued without a showing of actual or

imminent violation of statutory or common law?

4. Does an injunction imposing a 100-foot “picket-free

zone” surrounding the property of a physician who performs

abortions burden more speech than is necessary to protect his

residential privacy against peaceful and lawful picketing?

iil

PARTIES

In addition to the parties listed in the caption of this

petition, the following were listed as parties in the caption of

the case in the court below: Jane Doe (a fictitious name) and

John Doe (a fictitious name).

Neither of the petitioners in this case is a corporation.

See Rule 29.1.

TABLE OF CONTENTS

Page

CET eee PURO NOEs 6 vec vcececevercseeceéwess i

PO 6.6.0 ckaeb cd dcuvedduseniedbsrieasesbneteana iti

eee Ge Fe ED 56.6 6 A Sande kveednwenaeens vi

IO GEM covcvccvcsneccsoesdedsacapeedas |

PE be iva 'e'e's Sean deddacenke binds ods tion tes 2

CONSTITUTIONAL PROVISIONS................... 2

DUET E GIF TOU GPRM 66s cccsecccesevessvess 2

REASONS FOR GRANTING THE WRIT............. 6

IV.

THE DECISION OF THE NEW JERSEY SUPREME

COURT DIRECTLY CONFLICTS WITH A DECI-

SOON OF} ‘Time SEA TES CHEE ow. ccc nw cnes

THE DECISION OF THE NEW JERSEY

SUPREME COURT DIRECTLY CONFLICTS

WITH SETTLED CONSTITUTIONAL DOC-

TRINE REQUIRING ACTUAL OR IMMINENT

MISCONDUCT BEFORE PICKETING CAN BE

COE Sec beceetinUatvncedeueeeesesanses

THE DECISION OF THE NEW JERSEY

SUPREME COURT DIRECTLY CONFLICTS

WITH THE DOCTRINE OF PRIOR

SPUR sik kcccdbbetecnrcuenejessas cues

THE DECISION OF THE NEW JERSEY

SUPREME COURT DIRECTLY CONFLICTS

WITH THE APPLICABLE DECISIONS OF

THIS COURT AND THE DECISIONS OF

OTHER STATE AND FEDERAL COURTS.....

A. Restrictions Applicable Only to Pro-Life

Picketers Are Content-Based..............

be A meee et tee ee

ee ee

TABL.E OF CONTENTS — Continued

Page

B. The “Standard” Adopted by the Courts

Below Fails to Meet the Standards Estab-

lished by the Decisions of This Court..... 22

C. Courts Cannot Create “Picket-Free Zones” in

Residential Neighborhoods................ 25

SE oh lc dbs daca uwandedieusuass49a5 caeeu 30

APPENDICES:

A. Opinion, Supreme Court of New Jersey (Dec. 1},

RS A rn rn ee er Ma ttt:

Opinion, Superior Court of New Jersey, Appellate

Soprano CHD. OS, SOOO ice escacsainvinneeces 65a

Oral opinion, Superior Court of New Jersey,

Chancery Division (July 25, 1991).............. 88a

Final Order for Permanent Injunction, Superior

Court of New Jersey, Chancery Division (July

| Pe pant ee eet ree Pere 106a

Opinion, United States District Court for the

District of New Jersey (Apr. 24, 1991)........ 108a

Order, United States Court of Appeals for the

Feed Chose (Aas. 3, FORE. ic cecdvcsevrecs 123a

TABLE OF AUTHORITIES

Page

Cases

Alexander v. United States, 113 S. Ct. 2766 (1993)........ 1]

Boos v. Barry, 485 U.S. 312 (1988)............ 19, 20, 23

Carey v. Brown, 447 U.S. 455 (1980) ........... 8, 17, 21

Carroll v. President of Princess Anne, 393 U.S. 175

SE Sk rhe Oks ke UVSC kas eee & ed beeen aeawenn 11, 13

City of Houston v. Hill, 482 U.S. 451 (1987) .......... 23

City of Ladue v. Gilleo, 114 §S. Ct. 2038 (1994)........ 19

City of Prairie Village v. Hogan, 253 Kan. 423, 855

ee eee EE waa cide bb het ako nkebee a aeesenn ta 26

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

SP cheba DASUr ETEK CALA O ah Ene dL uaueeneie ee oie 19

Community for Creative Non-Violence v. Turner, 893

ae Cae Cs SU A i chince nse avende Manwns 26

Davis v. Francois, 395 F.2d 730 (Sth Cir. 1968) ....... 14

Davis v. Village of Newburgh Heights, 642 F. Supp.

ee Ge Se GE evicdceeiasccenvrnckeabaennda 14

Forsyth County v. Nationalist Movement, 112 S. Ct.

ee LS 6 5 is 0 0b dieu eae ea eedeber 19, 22, 24

Frisby v. Schultz, 487 U.S. 474 (1988) ............ passim

Gregory v. City of Chicago, 394 U.S. 111 (1969) ...... 28

Healy v. James, 408 U.S. 169 (1972).................. 21

Hirsh v. City of Atlanta, 495 U.S. 927 (1990).......... 12

Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848

ey ee kb iic 6h eoec ness tessa vcs 14

Hynes v. Mayor & Council of Oradell, 425 U.S. 610

POSES csv aeurenrs neces Aree keas piel eee nde eaesen 14

Vii

TABLE OF AUTHORITIES — Continued

Page

Lawson v. Murray, 115 S. Ct. 44 (1994). ............... 6

Madsen v. Women’s Health Ctr., Inc., 114 S. Ct. 2516

SO csc cas rdecPieawe dabneste sna ceaweraaen’ passim

Murray v. Lawson, 138 N.J. 206, 649 A.2d 1253

REP r ry eer eer rey ore ee eee passim

Murray v. Lawson, 136 N.J. 32, 642 A.2d 338 (1994),

vacated, 115 S. Ct. 44 (1994) .... cc cccecsccces passim

Murray v. Lawson, 264 N.J. Super. 17, 624 A.2d 3

(App. Div. 1993), aff'd, 136 N.J. 32, 642 A.2d 338

(1994), vacated, 115 S. Ct. 44 (1994)........... passim

NAACP. vy. Claiborne Hardware Co., 458 U.S. 886

RDS? rohan pee AMP EN telahe teensy pee ORE 9, 21, 24

Near v. Minnesota, 283 U.S. 697 (1931)............... 13

Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).... 11

Operation Rescue v. Women’s Health Ctr, Inc., 626 So. 2d

664 (Fla. 1993), rev'd sub nom. Madsen v. Women’s

Health Ctr, Inc., 114 S. Ct. 2516 (1994) ........... 21, 24

Organization for a Better Austin v. Keefe, 402 U.S.

Se EER dk das cree eeeks Cite vdesaeennéseaeee passim

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

Se SG Be SN oh ebb bndcede pexadivaeeceaee’ 16

Police Dep't v. Mosley, 408 U.S. 92 (1972)............ 17

Pro-Choice Network v. Schenck, 34 F.3d 130 (2d Cir.

1994), reh’g en banc granted, ___ F.3d ___ (2d Cir.

ERASE AS IED ae SRO pa oe ee CN OR ene ig Care rs ee 14

Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981).... 14

vill

TABLE OF AUTHORITIES - Continued

Page

Schneider v. New Jersey, 308 U.S. 147 (1939) ......... 14

Shuttlesworth v. City of Birmingham, 394 U.S. 147

SP kA RAGS ROE AUAd RC odbree Cass awk heed pe keneee 22

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

Dee MES 6 AVG UESs db re eeneeebbun eeeexe ru 12, 22, 24

Thomas vy. Collins, 323 U.S. 516 (1945)..........0.... 14

Town of Barrington v. Blake, 568 A.2d 1015 (RI.

NES 058th ba WA 0s eRe ee bbe bade bd eee eeds ckvewn 26

United States v. Eichman, 496 U.S. 310 (1990) ........ 19

Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993) ..... 26

Vance v. Universal Amusement Co., 445 U.S. 308

SOEs £05 S94 O55 veh eked beh eserin cal vekiacki dan: 23

Vittitow v. City of Arlington, 43 F.3d 1100 (6th Cir.

PEs Sib ebro Kaos RS eek ee 6, 8, 14, 27, 30

Walker v. City of Birmingham, 388 U.S. 307 (1967).... 14

STATUTES

ras Gs SED Gi avs di eens cnsaca ces canredses passim

ae es MI, FU gv cds dndowksacpessdaccves passim

ee as cre dees oh ciedee ewes Coke aia Cueene 2

MISCELLANEOUS

Laurence H. Tribe, American Constitutional Law (2d

Oy HOE Fs ben ccrwdetenscevicea ti ndnvickusatierciee. 13

The Supreme Court, 1993 Term — Leading Cases, 108

ee U8 a ee 10

Anna Farneski, City Woman May Picket Church She

Says Is Cult, Courier-News, Jan. 11, 1995, at B-1 .... 22

— owe eo aRsle-

Se OO Mets te er OP

In The

Supreme Court of the United States

October Term, 1994

MICHAEL LAWSON and DAVID CRIST,

Petitioners,

ELRICK MURRAY and BELINDA MURRAY,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of New Jersey

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The most recent decision of the Supreme Court of New

Jersey is reported at 138 N.J. 206, 649 A.2d 1253 (1994).

(App. la) The earlier decision of the Supreme Court of New

Jersey is reported at 136 NJ. 32, 642 A.2d 338 (1994),

vacated, 115 S. Ct. 44 (1994). (App. 38a) The decision of the

Appellate Division of the Superior Court of New Jersey ts

reported at 264 N.J. Super. 17, 624 A.2d 3 (1993). (App. 65a)

The opinion and the permanent injunction of the Chancery

Division of the Superior Court of New Jersey (App. 88a,

106a) are unreported. The opinion of the United States Dis-

trict Court for the District of New Jersey (App. 108a) ts

unreported. The order of the United States Court of Appeals

for the Third Circuit (App. 123a) ts unreported.

JURISDICTION

The opinion and judgment of the Supreme Court of New

Jersey in this case was entered on December 1, 1994. This

Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitution

provides as follows:

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a

redress of grievances.

The first section of the Fourteenth Amendment to the

United States Constitution provides as follows:

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. .No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

Like many of their fellow citizens, petitioners Michael

Lawson and David Crist are strongly opposed to abortion,

which they consider to be the killing of innocent human life.

In order to translate their deeply held convictions into con-

crete action, petitioners regularly exercise their constitutional

right to communicate their views to the public by means of

peaceful demonstrations throughout New Jersey. Respondent

Elrick Murray is a physician who performs abortions at var-

ious locations in the northern half of New Jersey. One of his

abortion clinics is located in Howell, near the homes of

petitioners. Petitioners routinely participate in pro-life picket-

ing outside of the Howell clinic.

In January 1991, petitioners decided to participate in a peace-

ful demonstration in the neighborhood of Dr. Murray’s home in

Westfield, New Jersey, about one hour’s drive from Howell. The

purpose of this demonstration was to protest abortion, to protest Dr.

Murray’s involvement in abortion, to raise public consciousness on

the abortion issue, and to educate and persuade Dr. Murray, his

neighbors and other members of the public passing by.

A day or two before the demonstration, petitioners

informed the Westfield police about it. Although Westfield

does not have any ordinances prohibiting or regulating picket-

ing, the police met with petitioners and instructed them on

basic guidelines for picketing, such as staying on the public

sidewalks, avoiding trespassing, and remaining orderly and

peaceful.

On Sunday, January 20, 1991, in compliance with the

police instructions, and under observation by six or seven

police officers, petitioners and approximately 55 other dem-

onstrators walked single-file or two abreast up and down the

public sidewalks on the suburban residential street where Dr.

Murray lives.!' The demonstrators carried signs with state-

ments such as “Stop Abortion Now,” “Abortion Kills Chil-

dren,” “Choose Life,” “Stop Killing Babies” and “Legalized

Abortion Is Legalized Murder!” Some of the signs displayed

aborted babies, and others used Dr. Murray’s name (for exam-

ple, “Dr. Murray Please Stop Abortions,” “Dr. Murray scars

women and kills their unborn children” and “Elrick Murray

Pre-Born Baby Exterminator and Nomad Abortionist”).

The demonstrators did not mass or congregate in front of

Dr. Murray’s home, but rather walked throughout the entire

neighborhood, following a route spanning about 10 houses.

The demonstration, which lasted only one hour (from 3:00 to

4:00 P.M.), was orderly and peaceful. There was no violence,

trespassing, loud noise, obstruction of traffic, or any other

! The trial judge found that respondents live in “a very upper middle class

residential . . . neighborhood” on a street approximately 600 yards long, 33 yards

wide and lined with at least 15 single-family homes on each side.

disorderly conduct. No arrests were made or even requested;

indeed, the police who observed the demonstration did not

even bother to write a report about it. Far from being dis-

turbed by the picketing, Dr. Murray (who was home alone)

watched a football game on television, talked on the tele-

phone with several neighbors, and even supervised the deliv-

ery of two babies over the telephone.

Nevertheless, Dr. Murray and his wife, respondent

Belinda Murray, filed the present action in the Superior Court

of New Jersey almost three weeks after the demonstration,

accusing petitioners of “annoying, disturbing, disrupting,

intimidating, molesting and otherwise intentionally interfer-

ing with respondents’ privacy and quiet enjoyment of their

property.”* Respondents applied for and obtained a Tempor-

ary Restraining Order censoring petitioners’ signs, prohibit-

ing petitioners from distributing literature to respondents and

their neighbors, and limiting demonstrations to once every

three weeks, for one hour, with only two demonstrators at a

time.*

Petitioners removed the case to the United States District

Court and moved for dissolution of the Temporary Restrain-

ing Order. Because the district judge refused to grant or deny

the motion, petitioners filed an interlocutory appeal and

requested a stay of the Temporary Restraining Order pending

appeal. The United States Court of Appeals for the Third

Circuit denied the stay and remanded the case for a deter-

mination as to whether the Temporary Restraining Order had

* When asked to specify the conduct of petitioners that gave rise to the

allegations quoted in the text, Dr. Murray replied: “One, | think that they presented

themselves in an overwhelming number. Two, I think that they carried placards that

were blatantly ignorant in content. And three, they were consorting with my

neighbors in a fashion that was curious.” According to his testimony, “the neighbors

learn{ed] for the first time that [I] perform abortions” and “learned for the first time

that a physician who does an abortion is said to be a killer.” Dr. Murray also

admitted: “[T]he most annoying thing was that they were in front of my house.

There are a number of doctors that practice abortion in their practice and why me.”

* In his trial testimony, Dr. Murray candidly admitted the chilling effect of the

Temporary Restraining Order: “I thought that the spirit of the injunction was to

discourage them, because there'd be no sense in them coming with only two.”

————

‘ 5

expired. (App. 123a) The district judge subsequently held that

the Temporary Restraining Order had expired. On her own

motion, the district judge dismissed respondents’ federal

claim and then remanded the remaining state claims to the

Superior Court of New Jersey. (App. 108a) The state trial

judge immediately re-imposed the Temporary Restraining

Order.

After a full trial on the merits, the trial court found that

petitioners had committed no crimes and that respondents had

failed to establish any of the tort causes of action they had

asserted. Nevertheless, the trial judge went on to reject peti-

tioners’ “position that no injunction can issue unless a crime

or an expressed tort has been committed.” Instead, the trial

judge held that he has the “inherent authority” to balance the

interests of the parties. Based solely on this “inherent equita-

ble power,” the trial judge entered a permanent injunction

prohibiting petitioners from “picketing in any form including

parking, parading or demonstrating in any manner, within 300

feet of the Murray residence.” (App. 88a, 106a)

The Appellate Division of the Superior Court of New

Jersey upheld the “inherent power” of trial judges to enjoin

First Amendment activities in the absence of any actual or

threatened crime or tort. After finding that “an injunction 1s

necessarily directed to a particular class of speakers,” and

that this injunction is a “300-foot restriction on expression of

a particular viewpoint,” the effect of which is “to disallow in

this particular location, the vicinity of Dr. Murray’s home,

anti-abortion picketing only,” the Appellate Division upheld

the injunction as “a content-neutral time, place and manner

restriction.” (App. 65a)

The Supreme Court of New Jersey affirmed, agreeing

that state courts have “inherent authority” to enjoin peaceful

expressive activities in residential neighborhoods. After rec-

ognizing that the permanent injunction “restrain{s] the

expressive activities only of anti-abortion picketers,” the

court found the injunction to be content-neutral. The court

held that “a common-law public policy exists and that that

policy implicates a significant government interest justifying

the imposition of injunctive restrictions” on peaceful First

Amendment activities. The court concluded that the complete

ban on pro-life demonstrations within 300 feet of respon-

dents’ home “meets the requirements for narrow tailoring of a

‘place’ restriction.” (App. 38a)

This Court granted certiorari, vacated the judgment

below, and remanded for further consideration in light of

Madsen v. Women’s Health Ctr, Inc., 114 8. Ct. 2516 (1994).

See Lawson v. Murray, 115 S. Ct. 44 (1994).

The Supreme Court of New Jersey interpreted the remand

as an “invitation” to impose a “picket-free zone” smaller than

300 feet. Accordingly, the original injunction was replaced

with the following:

Defendants and all those in active concert or

participation with them:

(1) are prohibited at all times and on all days

from picketing in any form within 100 feet of the

property line of the Murray residence, located at

917 Carlton Road, Westfield, New Jersey;

(2) may picket in a group of no more than ten

persons outside the 100-foot zone around the Mur-

ray residence for one hour every two weeks;

(3) must notify the Westfield police depart-

ment at least twenty-four hours prior to any

intended instance of picketing pursuant to this

injunction of the number of picketers and of the

time and duration of the intended picketing.

(App. la-37a)

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of New Jersey is in

direct conflict with the decision of this Court in Madsen y.

Women’s Health Center, Inc., and other applicable decisions

of this Court. The decision below is also in direct conflict

with the subsequent decision of the Sixth Circuit in Vittitow v.

City of Arlington, 43 F.3d 1100 (1995), and clashes in several

important respects with the decisions of other state appellate

courts and federal courts.

The issues presented in this case are of considerable

national significance. Across the nation, physicians and other

per sean

‘ 7

employees of abortion businesses have used suits for injunc-

tive reliéf in an effort to restrain anti-abortion activities in

residential neighborhoods. Some courts — like the court below

~ have disregarded or distorted constitutional principles in

their result-oriented justifications for enjoining peaceful pick-

eting. Far from halting this disturbing trend, Madsen has

increased the doctrinal confusion, as is evidenced by the

directly conflicting interpretations given to Madsen by the

New Jersey Supreme Court and the Sixth Circuit. Unless this

Court intervenes to re-affirm that actual or imminent miscon-

duct is a constitutional prerequisite for injunctions against

picketing, and to clarify the correct standard of review for

injunctions restricting peaceful and lawful picketing in resi-

dential neighborhoods, the lower courts will continue their

unjustified nullification of the First Amendment right to

express oneself in a residential public forum.

Petitioners respectfully come before this Court seeking

vindication of fundamental rights guaranteed by the Constitu-

tion. Petitioners are here not only on their own behalf, but

also on behalf of countless citizens whose constitutional

rights to freedom of speech and freedom of assembly will be

chilled or choked if the lower courts retain a blank warrant to

clear residential streets merely because one of the residents

may be upset by the message. This case presents an important

opportunity for this Court to reaffirm that the First Amend-

ment is not an idle platitude that may be jettisoned whenever

it clashes with someone’s personal preference for the sounds

of silence in the streets.

This Court should grant the present petition for a writ of

certiorari and put a halt to the steady erosion of First Amend-

ment doctrine that is being used to justify the suppression of

free speech activities in residential neighborhoods.

I. THE DECISION OF THE NEW JERSEY SUPREME

COURT DIRECTLY CONFLICTS WITH A DECI-

SION OF THE SIXTH CIRCUIT.

The original decision of the New Jersey Supreme Court

upheld an injunction prohibiting picketing within 300 feet of

the residence of a physician who performs abortions. (App.

38a) After this Court remanded for further consideration in

light of Madsen v. Women’s Health Ctr., Inc., 114 8. Ct. 2516

(1994), the New Jersey Supreme Court decided to accept what

it perceived as “the United States Supreme Court's invitation

in Madsen to impose ‘a limitation on the time, duration of

picketing, and number of pickets outside a smaller zone.’

(App. 33a) Consequently, the court below reduced the

“picket-free zone” from 300 feet to 100 feet, observing that

“{a] buffer of 100 feet is required here because it places the

border of the zone approximately one-and-one-half lots away

from the [physician’s] residence.” (App. 35a)

One month later, the United States Court of Appeals for

the Sixth Circuit reversed an almost identical injunction that

prohibited picketing in front of a physician’s home and the

two homes on either side of the physician’s home. Vittitow v.

City of Arlington, 43 F.3d 1100 (6th Cir. 1995). In sharp

contrast with the New Jersey Supreme Court’s reading of

Madsen, the Sixth Circuit concluded that Madsen “makes it

clear that any linear extension beyond the area ‘solely in front

of a particular residence’ is at best suspect, if not prohibited

outright.” /d. at 1105. |

The decisions of the New Jersey Supreme Court and the

Sixth Circuit are flatly contradictory. Therefore, this Court

should grant review to settle this glaring conflict.

Il. THE DECISION OF THE NEW JERSEY SUPREME

COURT DIRECTLY CONFLICTS WITH SETTLED

CONSTITUTIONAL DOCTRINE REQUIRING

ACTUAL OR IMMINENT MISCONDUCT BEFORE

PICKETING CAN BE ENJOINED.

“There can be no doubt that . . . peaceful picketing on the

public streets and sidewalks in residential neighbor-

hoods . . . [constitutes] expressive conduct that falls within

the First Amendment’s preserve.” Carey v. Brown, 447 U\S.

455, 460 (1980). Indeed, this Court has specifically ruled on

two separate occasions that peaceful pro-life picketiig in the

residential neighborhood of a physician who performs abor-

tions 1s an activity that lies “at the core of the First Amend-

ment.” Frisby v. Schultz, 487 U.S. 474, 479 (1988): see

; 9

Madsen, 114 S. Ct. at 2530. Because peaceful picketing in a

residential neighborhood is a constitutionally-protected activ-

ity, the state courts simply cannot treat such picketing as if it

were wrongful in itself. See Organization for a Better Austin

v. Keefe, 402 U.S. 415 (1971); NAACP v. Claiborne Hardware

Co., 458 U.S. 886 (1982). In other words, the mere exercise

of the right to engage in peaceful picketing is not a valid basis

for the issuance of an injunction suppressing future picketing.

Nevertheless, the court below held directly to the con-

trary. Without even mentioning the Supremacy Clause, the

court below held that New Jersey's “common-law public

policy” in favor of residential privacy overrides the First

Amendment right to engage in peaceful picketing and autho-

rizes state courts to impose restrictions — including “picket-

free zones” — on peaceful picketing in residential neighbor-

hoods.*

The decision below explicitly admits that the injunction

in this case was “not imposed to remedy unlawful conduct.”

(App. 2la)

[Petitioners] and ACLU argue that no distance lim-

itation, no matter how small, is permissible,

because no conduct-based factors are present (e.g.,

prior violation of a judicial order, or unlawful or

disorderly conduct) to warrant such relief. That

view is inconsistent with our reading of Madsen

that a smaller picket-free zone is permissible, even

in the absence of such factors.

+ it is important to note that all causes of action alleged in the Complaint -

including invasion of privacy — were resolved in favor of petitioners. (App.

92a-97a) The “common-law public policy” theory was contnved by the New Jersey

Supreme Court after-the-fact in order to justify the issuance of an injunction in the

absence of criminal or tortious conduct. It deties logic to hold that equitable rehet

can be based on “common-law public policy” when the same relief has already been

denied under the common-law torts from which the “public policy” was denved. Ot

course, the courts below are free to interpret New Jersey's common law and public

policy any way they choose, however illogical. Nevertheless, the Supremacy Clause

forbids them from using their peculiar interpretation of state law to nullify nghts

secured by the First and Fourteenth Amendments, including the nght to picket

peacefully on residential streets.

(App. 34a) Having held that residential picketing can be

restramed without any conduct-based justification, the court

below perceived the task of a reviewing court as being limited

to judging the reasonableness of the restraints under the new

intermediate standard which was announced in Madsen, 114

S. Ct. at 2524-25. Thus, in the view of the New Jersey

Supreme Court, liability ().« . wrongful conduct on the part of

the picketers) is no longer an issue in residential picketing

cases (App. 47a); the only issue is the reasonableness of the

remedy.

This view, which flies in the face of long-settled consti-

tutional doctrine, is the unfortunate but predictable result of a

lack of rigor in the Madsen opinion. Indeed, even before the

decision below was issued, commentators had already pointed

out the weakness in Madsen that the New Jersey Supreme

Court was able to exploit:

The. [Madsen] Court should have explicitly

required, as a matter of constitutional principle, that

injunctions targeting expressive activity be based

on a finding of an actual or imminent violation of

law closely related to the interests served by the

injunction. The Court acknowledged in a footnote

that “[u]nder general equity principles,” findings of

a past or imminent violation of law and a danger of

recurrence are required, but nowhere tn its opinion

did the Court make clear that a close connection

between the enjoined speech and a violation of law

should be a constitutional prerequisite to the issu-

ance of an injunction against speech.

The Supreme Court, 1993 Term — Leading Cases, 108 Harv. L.

Rev. 139, 278 (1994) (emphasis in original; footnotes omit-

ted). This Court should take advantage of the opportunity

presented by this case to clarify First Amendment doctrine by

closing the loophole in Madsen which has already been used

to justify the suppression of protected speech.

a eo os

ail te ht et

il. THE DECISION OF THE NEW JERSEY SUPREME

COURT DIRECTLY CONFLICTS WITH THE

DOCTRINE OF PRIOR RESTRAINTS.

One of the most well-settled and unequivocal of all

constitutional doctrines is the bedrock principle that prior

restraints against expressive activities are prohibited by the

First Amendment. “The elimination of prior restraints was a

leading purpose in the adoption of the First Amendment.”

Carroll v. President of Princess Anne, 393 U.S. 175, 181 n.5

(1968) (internal quotation marks & citation omitted).

“The term prior restraint is used to describe administra-

tive and judicial orders forbidding certain communications

when issued in advance of the time that such communications

are to occur.” Alexander v. United States, 113 S. Ct. 2766,

2771 (1993) (internal quotation marks, emphasis & citation

omitted). The speaker who proceeds in the face of a prior

restraint faces punishment simply for violating the dictates of

the restraint, regardless of whether the expressive activity

would have been otherwise lawful. Subsequent punishment

schemes, by contrast, impose sanctions only after specific

tortious or criminal conduct has occurred. The “time-honored

distinction between barring speech in the future and penaliz-

ing past speech .. . is critical to our First Amendment

jurisprudence.” /d. at 2773.

This Court has made it absolutely clear that “prior

restraints upon speech . . . are the most serious and least

tolerable infringement on First Amendment rights.” Nebraska

Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

Any system of prior restraint . . . “comes to this

Court bearing a heavy presumption against its con-

stitutional validity.” The presumption against prior

restraints is heavier — and the degree of protection

broader — than that against limits on expression

imposed by criminal penalties. Behind the distinc-

tion is a theory deeply etched in our law: a free

society prefers to punish the few who abuse rights

of speech after they break the law than to throttle

them and all others beforehand. It is always diffi-

cult to know in advance what an individual will say,

and the line between legitimate and illegitimate

speech is often so finely drawn that the risks of

freewheeling censorship are formidable.

Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,

558-59 (1975) (citations omitted; emphasis in original).

Not surprisingly, Madsen did not abolish or vitiate the

doctrine of prior restraints. Instead, Madsen merely clarified

that the doctrine is inapplicable where “the injunction was

issued not because of the content of petitioners’ expres-

sion, .. . but because of their prior unlawful conduct.” 114 S.

Ct. at 2524 n.2. In other words, an injunction issued without

reference to “prior unlawful conduct” is still a prior restraint

and therefore presumptively unconstitutional, while an

injunction issued to remedy “prior unlawful conduct” is sub-

ject to the new (lower) standard of review articulated in

Madsen. In determining which standard of review applies, the

crucial distinction is whether or not the challenged injunction

was based on a finding of “prior unlawful conduct.”

The decision of the Supreme Court of New Jersey strikes

at the heart of the doctrine of prior restraints. The courts

below recognized that petitioners had not engaged in any

criminal or tortious conduct. Consequently, the challenged

injunction was issued in advance of any conduct for which

punishment may be appropriate. Nevertheless, instead of

reviewing the injunction as a prior restraint, the Supreme

Court of New Jersey applied the more deferential standard

articulated in Madsen. This represents a fundamental jurispru-

dential error.

Unlike the injunction in Madsen, the injunction in the

present case was not predicated upon a finding of any wrong-

ful conduct on the part of petitioners.© Therefore, the injunc-

tion at issue here is governed by the doctrine of prior

> This is the same distinction that Justice Stevens recognized in Hirsh v

City of Atlanta, 495 U.S. 927 (1990), where he stated that an injunction against a

march by persons who did not have a history of illegal conduct “constitutes a naked

prior restraint.”

that petitioners not only had engaged in tortious conduct, but also had repeatedly

‘ 13

restraints rather than the new standard articulated in Madsen.

Under the doctrine of prior restraints, the injunction at issue

is presumptively unconstitutional and should be reviewed as

such. The result of such review must be reversal of the

injunction, because New Jersey’s “common-law public pol-

icy” in favor of residential privacy cannot overcome the

presumption of unconstitutionality.

The Supreme Court has spoken of constitu-

tionally permissible prior restraints as “exceptional

cases.” This impression has been reinforced by the

Court's decisions refusing to perceive threats

to... a homeowner's privacy as sufficiently excep-

tional to justify prior restraints.

Laurence H. Tribe, American Constitutional Law § 12-36, at

1045-46 (2d ed. 1988) (footnotes omitted). See also id. at

1051 n.32 (“the degree of intrusion into the home itself [is] a

factual question which cannot confidently be resolved in

advance of the expressive acts sought to be enjoined”).

Contrary to the suggestion of the court below, an injunc-

tion need not restrict the content of the enjoined expression tn

order to qualify as a prior restraint. In Organization for a

Better Austin v. Keefe, 402 U.S. 415 (1971), this Court struck

down an injunction that forbade “passing out pamphlets, leaf-

lets or literature of any kind, and from picketing,” calling the

injunction a “prior restraint.” /d. at 417, 419 (emphasis

added). In Carroll v. President of Princess Anne, 393 U.S.

175 (1968), this Court reviewed an injunction that forbade

“holding rallies or meetings .. . which will tend to disturb and

endanger the citizens of the County and... . from using. . .-

any ... sound making or producing device thereby disturbing

the tranquility of the populace of the County.” /d. at 177 n.3.

Again, the Court analyzed the injunction as a prior restraint.

Id. at 181. Indeed, the seminal prior restraint case of Near v.

Minnesota, 283 U.S. 697 (1931) invalidated a court order

which forbade a// future publication of a newspaper.

——s ——

violated an earlier injunction.” 114 S$. Ct. at 2532 (opimon of Stevens, J. concurnng

& dissenting).

Nor can the doctrine of prior restraints be circumvented

by dismissing the restrictions at issue here as “only indirect or

minor effects on speech.” (App. 19a) A 100-foot “picket-free

zone” is not an incidental burden on speech: far smaller

“bubble zones” have been held unconstitutional. See, e.g.,

Madsen, 114 S. Ct. at 2528: Pro-Choice Network v. Schenck,

34 F.3d 130 (2d Cir. 1994), reh'g en banc granted, ___ F.3d

_. (2d Cir. 1994); see also Vittitow v. City of Arlington, 43

F.3d 1100 (6th Cir. 1995). “[O]ne is not to have the exercise

of his liberty of expression in appropriate places abridged on

the plea that it may be exercised in some other place.” Schad

v. Borough of Mt. Ephraim, 452 U.S. 61, 76-77 (1981), quot-

ing Schneider v. New Jersey, 308 U.S. 147, 163 (1939). The

requirement that petitioners notify the police 24 hours in

advance of picketing 1s also unconstitutional. See Thomas v.

Collins, 323 U.S. 516, 546 (1945) (“We think a requirement

that one must register before he undertakes to make a public

speech to enlist sapport for a lawful movement is quite

incompatible with the requirements of the First Amend-

ment”); Hynes v. Mayor & Council of Oradell, 425 U.S. 610

(1976) (invalidating an ordinance requiring canvassers to

“notify the Police Department, in writing, for identification

only”). Similarly, arbitrary limitations on the number of pick-

eters have repeatedly been condemned as violative of the First

Amendment.’ See, e.g.. Howard Gault Co. v. Texas Rural

Legal Aid, Inc., 848 F.2d 544, 558-61 (Sth Cir. 1988); Davis v.

Francois, 395 F.2d 730, 735 (Sth Cir. 1968); Davis v. Village

of Newburgh Heights, 642 F. Supp. 413, 415 (N.D. Ohio

1986). Thus, the restrictions imposed by the New Jersey

Supreme Court are clearly significant enough to trigger the

doctrine of prior restraints.

? “When protest takes the form of . . . picketing on public streets and

sidewalks, the free passage of traffic and the prevention of public disorder and

violence become important objects of legitimate state concern.” Walker v. City of

Birmingham, 388 U.S. 307, 316 (1967). The courts below found that petitioners’ °

conduct did not implicate these limited state interests, and that the public sidewalks

in respondents’ neighborhood easily accommodated 60 picketers. Therefore, limit-

ing the number of picketers to a totai of 10 persons is completely unjustified.

The need to affirm the applicability of the prior restraint

doctrine to injunctions against picketing is particularly impor-

tant today. Over the last several years, lower courts have

tended with increasing frequency to disregard, distort or

reject this Court’s teachings on this question.® The decision

below is the latest and most egregious example of this dis-

turbing trend. This Court should intervene and put a decisive

halt to this trend by clarifying that prior restraints issued by

judges are no more tolerable than prior restraints issued by

the executive and legislative branches of government.

Although Madsen recognizes that prior restraints “do

often take the form of injunctions,” 114 S. Ct. at 2524 n.2, it

fails to delineate when an injunction constitutes a prior

restraint. As a result of “never outlining a precise test” (App.

17a), Madsen leaves the lower courts without reliable guid-

ance, thereby giving them room to maneuver and thus placing

First Amendment rights at greater risk of deliberate or inad-

vertent infringement. This Court should take advantage of the

opportunity presented by this case to clarify that injunctions

issued without conduct-based justification are prior restraints

and therefore presumptively unconstitutional.

IV. THE DECISION OF THE NEW JERSEY SUPREME

COURT DIRECTLY CONFLICTS WITH THE

APPLICABLE DECISIONS OF THIS COURT AND

THE DECISIONS OF OTHER STATE AND FED-

ERAL COURTS.

The decision of the Supreme Court of New Jersey in this

case directly conflicts in many important respects with the

applicable decisions of this Court and the decisions of other

state and federal courts.

® Curiously, these cases always seem to arise in the context of anti-abortion

demonstrations, raising the question whether a result-onented mentality might not

be at work.

A. Restrictions Applicable Only to Pro-Life Pick-

eters Are Content-Based.

In Madsen, this Court announced a new standard of

review applicable to injunctions that restrict First Amendment

activities. However, Madsen made it clear that the new stan-

dard is applicable only “when evaluating a content-neutral

injunction.” 114 S. Ct. at 2525. As recognized in Madsen,

injunctions that are content-based remain subject to a much

higher standard of review — the “heightened scrutiny set forth

in Perry Education Assn., 460 US, at 45.°9 114 S. Ct. at 2524.

Thus, the crucial threshold issue that determines which stan-

dard of review to apply is whether or not the challenged

injunction ts content-based.

The demonstrators in Madsen argued that the Florida

injunction was content-based because it applied only to anti-

abortion protestors. In rejecting this argument, this Court

relied on the fact that the demonstrators had been guilty of

“prior unlawful conduct.”

Our principal inquiry in determining content

neutrality is whether the government has adopted a

regulation of speech “without reference to the con-

tent of the regulated speech.” . . . We thus look to

the government's purpose as the threshold consider-

ation. Here, the state court imposed restrictions on

petitioners incidental to their antiabortion message

because they repeatedly violated the court's origt-

nal order.

114 S. Ct. at 2523-24 (citations omitted; emphasis added).

On the threshold issue of content-neutrality, the present

case is easily distinguished from Madsen. Unlike the unruly

demonstrators in Madsen, who “not only had engaged in

tortious conduct, but also had repeatedly violated an earlier

injunction,” id. at 2532 (opinion of Stevens, J.), the peti-

tioners in the present case were peaceful and orderly and did

not commit any crimes or torts. Consequently, the Madsen

” Under Perry's “heightened scrutiny,” a content-based restriction must be

“necessary to serve a compelling state interest” and must be “narrowly drawn to

achieve that end.” 460 U.S. at 45.

‘ 17

conclusion of content-neutrality simply does not apply here.

Because petitioners were not guilty of wrongful conduct, the

injunction against their First Amendment activities must be

analyzed under other precedents on the issue of content-

neutrality.

Under these precedents, many of which are cited in

Madsen, id. at 2523, a restriction is content-neutral only if it

can be justified without reference to the content of the regu-

lated speech. In applying this test, the court below committed

serious constitutional error by concluding that the challenged

injunction is content-neutral. As recognized by the Appellate

Division of the Superior Court of New Jersey, “an injunction

is necessarily directed to a particular class of speakers,” and

the injunction at issue here is a “restriction on expression of a

particular viewpoint.” (App. 82a, 84a) More importantly, the

Appellate Division conceded that the effect of the injunction

is to “disallow in this particular location, the vicinity of Dr.

Murray's home, anti-abortion picketing only, but that is the

effect of [petitioners’] viewpoint.” (App. 84a) The Supreme

Court of New Jersey agreed that the injunction “restrain[s]

the expressive activities only of anti-abortion picketers.”

(App. 5la)

Given these findings by the courts below, it 1s impossible

to fathom, much less to justify, their conclusion that the

challenged injunction is content-neutral. Only one viewpoint

is banned from respondents’ neighborhood, and only one

particular group of picketers is banned from respondents’

neighborhood. Such discrimination violates not only the First

Amendment but also the equal protection clause of the Four-

teenth Amendment. See Carey v. Brown, 447 U.S. 455 (1980);

Police Dep't v. Mosley, 408 U.S. 92 (1972).

Discriminatory restrictions on picketing do not avoid

constitutional condemnation merely because they are embod-

ied in an injunction rather than a statute. Madsen teaches that

discriminatory injunctions can pass constitutional muster, but

only if they are issued in order to remedy “prior unlawful

conduct.” The New Jersey Supreme Court expressly rejected

this teaching:

[Petitioners and ACLU assert that] Madsen requires

this Court to find that if an injunction affecting

speech is not issued to remedy a past or threaten: -

violation of the law, no basis other than the content

of the speech exists to justify the regulation. That ts

not at all the case.

(App. 21a) Nevertheless, where (as here) an injunction ts

issued without reference to “prior unlawful conduct,” it ts

indistinguishable from any other attempt by an organ of state

government to use the coercive power of the state to discrimi-

nate among speakers. If a legislature cannot discriminate

among viewpoints when it implements a state’s public policy

in favor of residential privacy, certainly a state court cannot

discriminate among viewpoints when the sole basts for its

action is the rationale that it is implementing the same public

policy.'°

The courts below attempted to rationalize their conclu-

sion by arguing that the injunction does not mention the

content of petitiohers’ message but “merely forbid[{s] them

from picketing within a Certain distance of [respondents’]

residence,” in order to prevent “the intimidating effect of the

bodily presence of picketers on the residents of the home.”

(App. Sla, 85a) However, this rationale proves too much,

because every advocacy group has an “intimidating effect” on

its Opponents (and even neutral citizens) when it marches

through their neighborhood. Thus, the rationale of the courts

below would foreclose all advocacy in any neighborhood

where even a single opponent (or neutral citizen) claimed to

feel “intimidated.” Furthermore, picketing cannot be accom-

plished without “bodily presence,” so as a practical matter the

rationale of the courts below would proscribe a form of

10 Madsen's repeated emphasis on the fact that the protestors had been

guilty of “pnor unlawful conduct” erects a constitutional distinction between courts

acting in their normal judicial capacity to remedy “pnor unlawful conduct” and

courts acting as self-appointed mini-legislatures to implement their own notions of

public policy without regard to “prior unlawful conduct.” The opimons below make

it clear that this case falls into the latter category. (See, e.g., App. 21a, 47a-48a, 53a,

S6a)

expression that is clearly permissible in residential neighbor-

hoods.!!

More importantly, it is well-settled that restrictions on

picketing cannot be justified solely by reference to the impact

of the picketers’ activities on their audience. Such a justifica-

tion renders the restrictions content-based. “Listeners” reac-

tion to speech is not a content-neutral basis for regulation.”

Forsyth County v. Nationalist Movement, 112 S. Ct. 2395,

2403 (1992); see United States v. Eichman, 496 U.S. 310,

317-19 (1990).

In Boos v. Barry, 485 U.S. 312 (1988). this Court invali-

dated a 500-foot restriction on displaying signs near foreign

embassies, even though the restriction was neutral on its face.

In doing so, this Court clearly held that arguments based on

psychological damage (such as an “intimidating effect”) sup-

posedly resulting from picketing necessarily implicate the

content of the message.

Regulations that focus on the direct impact of

speech on its audience present a different situation.

Listeners’ reactions to speech are not the type of

“secondary effects” we referred to in Renton [v.

Playtime Theatres, Inc., 475 U.S. 41 (1986)]. To

take an example factually close to Renton, if the

ordinance there was justified by the city’s desire to

prevent the psychological damage it felt was associ-

ated with viewing adult movies, then analysis of the

measure as a content-based statute would have been

appropriate. The hypothetical regulation targets the

'! After arguing that the injunction is content-neutral because it merely pro-

tects respondents from being intimidated by petitioners’ “sheer physical presence”

(App. Sia), the court below observed that the injunction does not prevent petitioners

from leafletting and door-to-door canvassing within the 100-foot “picket-free

zone.” (App. 20a) However, leafletting and door-to-door canvassing require “sheer

physical presence.” If “sheer physical presence” is permitted under the injunction,

then obviously it 1s impossible to justify the injunction on the ground that it is

necessary to prevent “sheer physical presence.” An injunction which is designed to

prevent “sheer physical presence” but at the same time permits such “sheer physical

presence” is self-defeating, irrational and impermissibly underinclusive. See City of

Ladue v. Gilleo, 114 S. Ct. 2038, 2043-46 (1994).

direct impact of a particular category of speech, not

a secondary feature that happens to be associated

with that type of speech.

* * *

[Respondents] rely on the need to protect the dig-

nity of foreign diplomatic personnel by shielding

them from speech that is critical of their govern-

ments. This justification focuses only on the content

of the speech and the direct impact that speech has

on its listeners. The emotive impact of speech on its

audience is not a “secondary effect.” Because the

display clause regulates speech due to its potential

primary impact, we conclude it must be considered

content-based.

Id. at 321 (emphasis in original).

This point was re-affirmed in Madsen, when this Court

invalidated the “images observable” portion of the Florida

injunction: “The only plausible reason a patient would be

bothered by ‘images observable’ inside the clinic would be if

the patient found the expression contained in such images

disagreeable.” 114 S. Ct. at 2529.

In Boos v. Barry and Madsen, this Court was merely

articulating the obvious: the audience 1s claiming psychologi-

cal damage in response to a particular message, not in

response to all messages. Consequently, the reaction of the

audience is necessarily conient-based. In the present case,

respondents do not care about any type of picketing other than

anti-abortion picketing. They did not and cannot claim that

they feel “intimidated” by any other type of picketing. There-

fore, in focusing on the “intimidating effect” of petitioners’

picketing on respondents, the courts below justified the

injunction by reference to the content of petitioners’ message,

despite their protestations to the contrary.'* As a result, the

injunction is plainly content-based.

'2 Even more outrageous is the reliance of the court below on “unpleasant

incidents” which were “never connected” to petitioners but nevertheless supposedly

caused respondents to feel “threatened” by petitioners’ peaceful picketing. (App.

6a, 31a) It is grossly unconstitutional to punish petitioners for the alleged conduct of

Because the injunction is content-based, the Supreme

Court of New Jersey erred in reviewing and upholding the

injunction under the lower standard applicable to content-

neutral restrictions on speech. The injunction cannot with-

stand scrutiny under the higher standard applicable to con-

tent-based restrictions. Like prior restraints, content-based

restrictions are presumptively unconstitutional. R.A.V. v. City

of St. Paul, 112 S. Ct. 2538, 2542-43 (1992). Only a compel-

ling state interest can justify a content-based restriction.

Frisby v. Schultz, 487 U.S. 474, 481 (1988). Residential

privacy 1s not a sufficiently compelling interest to justify

content-based restrictions on picketing, Carey v. Brown, 447

U.S. 455, 465 (1980); Organization for a Better Austin vy.

Keefe, 402 U.S. 415 (1971), as New Jersey’s Appellate Divi-

sion recognized in this case. (App. 82a) Nevertheless, resi-

dential privacy was the only interest proffered by the courts

below to support the injunction’s “total ban on picketing.”

Accordingly, the courts below failed to identify a state inter-

est sufficient to overcome the presumptive unconstitutionality

of the injunction.

As noted by the New Jersey Supreme Court, its decision

is the latest in a growing trend of state court opinions holding

that “injunctions against anti-abortion protestors outside

the unknown perpetrators of these incidents. This Court has repeatedly reyected this

type of “guilt by association” as a valid basis for restricting speech. See. e.¢.,

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Healy v. James, 408 U.S.

169 (1972). Significantly, the protestors in Madsen were allowed to picket in

residential neighborhoods even though the very same protestors had been tound

guilty of wrongful conduct elsewhere (at the abortion clinic), including the creation

of “a threat of violence and intimidation.” See Operation Rescue v. Women’s Health

Ctr, Inc., 626 So. 2d 664, 671 (Fla. 1993), rev'd sub nom. Madsen v. Women’s

Health Ctr, Inc., 114 §. Ct. at 2529-30. Unlike the unruly demonstrators in Madsen,

the picketers in the present case were found to have been peaceful and orderly at all

tumes. The record is devoid of any objective basis for respondents’ purported

feeling of “intumidation.” Accordingly, the sole factual basis for the injunction boils

down to nothing more than the subjective reaction respondents claimed to experi-

ence upon seeing these particular picketers, which is a content-based justification.

doctors’ residences . . . are content neutral.”'* (App. 52a)

Thus, the issues presented in this case are of considerable

national importance. Consequently, this Court should grant

the petition for a writ of certiorari and clarify that an injunc-

tion banning peaceful residential picketing by a particular

group of speakers is content-based and therefore unconstitu-

tional.

B. The “Standard” Adopted by the Courts Below

Fails to Meet the Standards Established by the

Decisions of This Court.

When a state gives one of its officials the power to deny

use of a traditional public forum in advance of actual expres-

sion, it must constrain the discretion of the official with

“narrow, objective, and definite standards.” Forsyth County vy.

Nationalist Movement, 112 S. Ct. 2395, 2401-03 (1992), quot-

ing Shuttlesworth v. City of Birmingham, 394 U.S. 147,

150-51 (1969). As explained in Southeastern Promotions, Ltd.

v. Conrad, 420 U.S. 546, 553 (1975):

Invariably, the Court has felt obliged to con-

demn systems in which the exercise of such author-

ity was not bounded by precise and clear standards.

The reasoning has been, simply, that the danger of

censorship and of abridgment of our precious First

Amendment freedoms is too great where officials

have unbridled discretion over a forum’s use. Our

distaste for censorship — reflecting the natural dis-

taste of a free people — is deep-written in our law.

'* See note & supra. In Madsen, one of the factors leading to the conclusion

of content-neutrality was the following: “There 1s no suggestion tn this record that

Flonda law would not equally restrain similar conduct directed at a target having

nothing to do with abortion.” 114. Ct. at 2523. The same ts not true of New Jersey

law. When a New Jersey judge was recently asked to impose a 100-foot “picket-free

zone” around the homes of church members to protect them from a picketer who

called thew church a cult. he ruled that the picketer “won't be held to the same

standards as anti-abortion protestors who picket a Westfield physician's home.”

Anna Farneski. City Woman May Picket Church She Says Is Cult, Courner-News,

Jan. 11. 1995, at B-I

According to one of the opinions below, a state judge may ban

peaceful picketing in a residential neighborhood upon a finding

that such picketing has an “intimidating effect” on one of the

residents. (App. 85a) However, a feeling of “intimidation” on the

part of a homeowner is an “inherently subjective” standard, and

this Court has repeatedly rejected such standards. E.g., Boos vy.

Barry, 485 U.S. 312, 322 (1988). The “intimidating effect” stan-

dard provides courts with unfettered discretion to proscribe expres-

sive activities that annoy or offend a homeowner — or a judge.

Because the “intimidating effect” standard “is susceptible of regu-

lar application to protected expression,” it cannot survive scrutiny

for vagueness and overbreadth. E.g., City of Houston v. Hill, 482

U.S. 451, 465-67 (1987). Thus, the absence of precise, objective

and definite standards for denying the use of a residential public

forum is another fatal flaw in the decisions below.'4

The Supreme Court of New Jersey asserts that its system

of banning speech in residential neighborhoods passes consti-

tutional muster because the decision-maker is a judge, whose

discretion is “constrained by well-recognized principles of

law.” (App. 52a) However, the mere fact that the decision-

maker is a judge does not cure the fundamental defect in New

Jersey's system of banning residential picketing. Judicial cen-

sorship is entitled to no more deference than legislative or

executive censorship. See Vance v. Universal Amusement Co.,

445 U.S. 308, 317 (1980). Dressing up the description of the

'* The “intimidating effect” standard appears only in the opinion of New

Jersey's Appellate Division. (App. 85a) The New Jersey Supreme Court employs an

even vaguer “standard” — peaceful picketing can be enjoined if it “impermissibly

interfere[s} with . . . residential privacy.” (App. Sla) The court apparently forgot

that “interference” had been alleged in the Complaint and explicitly rejected by the

tnal court. (App. 94a-97a) However, the new “standard” does not require a showing

of actual “interference,” because the court below believes that residential picketing

“wnherently and offensively interfere{s] with . . . residential privacy.” (App. 21a)

Under this view, the mere exercise of the constitutional right to engage in peaceful

residential picketing is sufficient, in and of itself, to constitute “interference.”

However, the First Amendment forbids state courts from defining constitutionally-

protected means of expression as wrongful conduct. See Organization for a Better

Austin v. Keefe, 402 U.S. at 419-20.

decision-making procedure in highfalutin terms such as “bal-

ancing” (App. 48a-49a) does not mean that the discretion of

the judge is bounded by narrow, objective and definite stan-

dards, as required by the Constitution. The role of a New

Jersey judge is indistinguishable from schemes involving

“appraisal of facts, the exercise of judgment, and the forma-

tion of an opinion,” which schemes have been repeatedly

condemned by this Court. E.g., Forsyth County v. Nationalist

Movement, 112 S. Ct. at 2401; Southeastern Promotions, Ltd.

v. Conrad, 420 U.S. at 554.

Furthermore, in Organization for a Better Austin vy.

Keefe, 402 U.S. 415 (1971), this Court invalidated an mjunc-

tion against residential expressive activities despite findings

by state trial and appellate courts that the activities were

“coercive and intimidating” and invaded the plaintiff's pri-

vacy. Similarly, in Madsen this Court invalidated an injunc-

tion against residential protests, even though the state trial

and appellate courts had found that the protestors had

“{cjreated a threat of violence and intimidation” and had

invaded the residents’ privacy. Operation Rescue v. Women’s

Health Ctr., Inc., 626 So. 2d at 671, 678, rev'd sub nom.

Madsen v. Women’s Health Ctr., Inc., 114 S. Ct. at 2529-30.

The fact that the state courts in Keefe and Madsen were

“constrained by well-recognized principles of law” did not

insulate their decision from constitutional condemnation. The

same result should obtain here.

Finally, in setting a “standard” that focuses solely on the

“intimidating effect” of speech on its listeners, the courts

below effectively nullified the decisions of this Court afford-

ing constitutional protection to advocacy designed to “intimi-

date” the audience. For example, in Organization for a Better

Austin v. Keefe, this Court held: “The claim that the expres-

sions were intended to exercise a coercive impact . . . does

not remove them from the reach of the First Amendment.” /d.

at 419. Similarly, in NAACP vy. Claiborne Hardware Co., 458

U.S. 886, 910 (1982), this Court stated: “Speech does not lose

its protected character . . . simply because it may embarrass

others or coerce them into action.” Under the standard estab-

lished by the decisions below, “coercive” speech loses its

: 25

constitutional protection if it succeeds in producing a feeling

of “intimidation.” The First Amendment will not tolerate a

standard that permits only the most insipid and ineffective

speech.

In short, the “intimidating effect” standard adopted by

the courts below flies squarely in the face of numerous

decisions of this Court. Accordingly, this Court should grant

the present petition for a writ of certiorari and condemn the

rogue notion that lower courts can use such a sweeping and

subjective standard to ban peaceful picketing in residential

neighborhoods.

C. Courts Cannot Create “Picket-Free Zones” in

Residential Neighborhoods.

The decision below created a !100-foot “picket-free zone”

surrounding the residence of respondents. This decision con-

flicts with the precedents of this Court and other appellate

courts governing peaceful picketing in residential neighbor-

hoods.

In Frisby v. Schultz, 487 U.S. 474 (1988), this Court

confronted a facial challenge to a municipal ordinance that

seemed to ban residential picketing. After holding that resi-

dential picketing is protected by the First Amendment, the

Court construed the ordinance narrowly in order to avoid

constitutional difficulties. As a result, the scope of the ordi-

nance was limited to a ban on single-residence picketing. In

reaching this result, the Court carefully distinguished between

“focused picketing taking place solely in front of a particular

residence” and “[g]eneral marching through residential neigh-

borhoods, or even walking a route in front of an entire block

of houses.” /d. at 483. The Court also noted: “Protestors have

not been barred from the residential neighborhoods. They

may enter such neighborhoods, alone or in groups, even

marching.” /d. at 484. Significantly, the Court stated: “The

type of focused picketing prohibited by the . . . ordinance is

fundamentally different from more generally directed means

of communication that may not be completely banned in

residential areas.” Id. at 486 (emphasis added).

The state supreme courts of Rhode Island and Kansas

followed the teaching of Frisby. In order to avoid constitu-

tional difficulties, these courts construed ordinances forbid-

ding residential picketing to ban only picketing confined to

the front of a single residence.'> See Town of Barrington v.

Blake, 568 A.2d 1015, 1021 (R.I. 1990); City of Prairie

Village v. Hogan, 253 Kan. 423, 855 P.2d 949 (1993). The

Supreme Court of Texas, likewise heeding Frisby’s holding

that residential picketing is core First Amendment activity,

overturned an injunction against picketing within 400 feet of

an abortionist’s residence. Valenzuela v. Aquino, 853 S.W.2d

512 (Tex. 1993). The court held that in the absence of either

an ordinance or some specific tortious conduct, the injunction

was improper; residential picketing, even focused, single-

residence picketing, is not per se unlawful. /d. at 513-14.

In Madsen v. Women’s Health Ctr., Inc., this Court invali-

dated a Florida injunction which banned demonstrations

within 300 feet of the homes of physicians and other

employees of an abortion clinic.

[T]he 300-foot zone around the residences in

this case is much larger than the zone provided for

in the ordinance which we approved in Frisby. The

ordinance at issue there made it “unlawful for any

person to engage in picketing before or about the

residence or dwelling of any individual.” The prohi-

bition was limited to “focused picketing taking

place solely in front of a particular residence.” By

contrast, the 300-foot zone would ban “[g]eneral

marching through residential neighborhoods, or

even walking a route in front of an entire block of

houses.” The record before us does not contain

sufficient justification for this broad a ban on pick-

eting; it appears that a limitation on the time, dura-

tion of picketing, and number of pickets outside a

'S See also Community for Creative Non- Violence v. Turner, 893 F.2d 1387,

1393 (D.C. Cir. 1990) (interpreting Frisby “as allowing protestors to express their

message by marching through the streets of a neighborhood so long as they did not

stop and direct their picketing at a particular residence’).

smaller zone could have accomplished the desired

result.

* . ”

We strike down as unconstitutional . . . the 300-foot

buffer zone around the residences, because th[is]

provision[ ] sweep[s] more broadly than necessary

to accomplish the permissible goals of the injunc-

tion.

Id. at 2529-30 (citations omitted). All nine Justices joined in

this result.

According to the Sixth Circuit, Madsen “makes it clear

that any linear extension beyond the area ‘solely in front of a

particular residence’ is at best suspect, if not prohibited

outright.” Vittitow v. City of Arlington, 43 F.3d at 1105.

Nevertheless, without any conduct-based justification,!©

the court below prohibited peaceful picketing within 100 feet

of respondents’ home. This “picket-free zone” runs counter to

the precedents discussed above in at least two significant

respects. First, by pushing picketers 100 feet away from a

given residence, the injunction goes far beyond a ban on

single-residence picketing. Second, by creating an absolute

“no-entry” zone, the injunction bans not only the lingering

presence at issue in Frisby but also the transient presence

characteristic of “walking a route in front of an entire block

of houses.”

__In the present case, petitioners did precisely what Frisby

said they could do — picket in front of an entire block of

houses.'? It is plain error to prohibit them from doing so. The

'© While conceding that the picketing was peaceful and lawful, the court

below suggested that respondents were “under siege.” (App. 26a) However, the

duration of the picketing never exceeded one hour, and the frequency of the

sporadic picketing was never less than once every three weeks. The record reflects

only three one-hour demonstrations and one 15-minute demonstration over a six-

month penod. This hardly qualifies as a “siege.”

'7 The New Jersey Supreme Court conceded that the picketing in this case

“spanned a length of approximately ten houses.” Nevertheless, the court suggested

that this was the equivalent of targeted picketing in front of a single residence,

because there were always some picketers moving past respondents’ home. (App.

opinion below rips out of context this Court's remarks about

protection of residential privacy, ignoring the limitation of

those remarks to targeted picketing and also ignoring the

contrary remarks requiring that the neighborhood as a whole

be open to picketing. The 100-foot “picket-free zone” embod-

ied in the injunction here clearly cannot pass muster under

Frisby and Madsen. Respondents’ privacy interests are lim-

ited to the borders of their own property and do not extend to

the public streets and sidewalks of the surrounding neighbor-

hood. Thus, respondents’ limited privacy interests are not a

valid excuse for restricting their neighbors’ access to the

marketplace of ideas. See Organization for a Better Austin v.

Keefe, 402 U.S. 415, 420 (1971) (“respondent is not attempt-

ing to stop the flow of information into his own household,

but to the public”). Respondents’ remedy is to “pull [their]

curtains,” not to prohibit all peaceful pro-life picketing obser-

vable from their home. See Madsen, 114 S. Ct. at 2529.

The fatal flaw in the opinion below is its exaltation of a

homeowner's right to privacy to the point where picketers

must bear the burden of advancing a compelling reason for

their presence in a residential neighborhood. This approach ts

a direct inversion of the presumptions established in the

decisions of this Court. These decisions stand for the funda-

mental proposition that a public street in a residential neigh-

borhood is a traditional public forum for the exercise of First

Amendment rights. Thus, the starting point of any enalysis

must be the fact that petitioners have the right to picket in

respondents’ residential neighborhood. This right of residen-

tial picketing cannot be extinguished or restricted unless it ts

26a, 60a) This equation of single-residence picketing with general neighborhood

picketing is transparently result-oriented. The New Jersey Supreme Court's expan-

sion of the “targeting” concept conveniently nullifies the distinction in Frisby and

Madsen between single-residence picketing and “walking a route in front of an

entire block of houses.” By definition, walking a route in front of an entire block of

houses requires passing the houses more than once. Furthermore, as the Sixth

Circuit recently observed: “All picketing of this nature will have a target, otherwise

it is not really picketing.” 43 F.3d at 1107. Nevertheless, in New Jersey, one can no

longer circle a block repeatedly, as did the protestors in Gregory v. City of Chicago,

394 U.S. 111 (1969), without being accused of “targeting” one of the residents -

which, of course, was precisely the motive of the protestors in Gregory and the

leafletters in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).

abused by criminal or tortious conduct on the part of peti-

tioners.

It is difficult to imagine any residential picketing that

would survive the free-wheeling and purely subjective “bal-

ancing” test adopted by the court below. This test completely

ignores the strong presumption in favor of residential picket-

ing and accords greater weight to the limited interest in

privacy, wielding it as a sword to clear the streets instead of a

shield against particularized abuses. In effect, the New Jersey

Supreme Court has placed a judicial thumb on the scale in

order to rig the results of the “balancing” test in favor of

privacy, because it apparently disagrees with the greater

weight the Constitution accords to free speech in residential

areas (or, worse still, because it disagrees with petitioners’

message).

| This is why the starting point of analysis — the presump-

tive constitutionality of peaceful residential picketing — is so

important in this case. Once one accepts thi: starting point, it

follows that the mere act of peaceful residential picketing

cannot be deemed wrongful, no matter how much it may upset

respondents. Those who wish to restrict petitioners’ right of

residential picketing must bear the heavy burden of showing

that petitioners abused the right by engaging in wrongful

conduct above and beyond the mere act of picketing. No such

showing was made in this case. It is undisputed, and it was

found as a fact, that petitioners were peaceful and erderly at

all times. Consequently, there is no factual or legal basis for

restricting petitioners’ right to picket in respondents’ neigh-

borhood.

In short, this case cries out for this Court to exercise its

jurisdiction and to issue a significant decision on this consti-

tutional issue of major national importance, in order to clarify

that peaceful citizens cannot be denied the right to express

themselves in residential neighborhoods. Censorship of resi-

dential picketing is completely alien to our system of govern-

ment and shou!’ be resoundingly rejected by this Court.

Otherwise, the lower courts will continue to disregard or

distort this Court's decisions and fundamental freedoms will

continue to be suppressed under the guise of solicitude for

residential privacy.

CONCLUSION

The decision of the Supreme Court of New Jersey is

riddled with constitutional errors that represent a radical

departure from the applicable decisions of this Court. In

particular, the decision below is in direct conflict with this

Court’s decision in Madsen v. Women’s Health Center, Inc.

and the Sixth Circuit's subsequent decision in Vittitow v. City

of Arlington. Therefore, this Court should grant the petition

for a writ of certiorari and reverse the decision below.

Respectfully submitted,

RicHarp F. Coxwter, Jr.

Legal Center for Defense of Life

65 Madison Avenue

Morristown, New Jersey 07960

(201) 984-0725

Attorney for Petitioners

February 24, 1995

649 A.2d 1253

SUPREME COURT OF NEW JERSEY

BELINDA MURRAY AND ELRICK A. MURRAY, M.D.,

PLAINTIFFS-RESPONDENTS v. MICHAEL ANDREW

LAWSON, DAVID CRIST, JANE DOE (A FICTITIOUS

NAME) AND JOHN DOE (A FICTITIOUS NAME),

DEFENDANTS-APPELLANTS.

Argued November 7, 1994 -

Decided December 1, 1994.

SYNOPSIS

Physicians sought to enjoin antiabortion protestors

from picketing in front of their residences. The Superior

Court, Chancery Division, Essex County, entered perma-

nent injunction in favor of one physician and granted

restraining order with respect to other. Protestors

appealed. The Superior Court, Appellate Division, 264

N.J.Super. 17, 624 A.2d 3, affirmed as to one physician

and, 264 N.J.Super. 11, 624 A.2d 1, affirmed as modified

as to the other. Appeal was taken. The Supreme Court of

New Jersey, 136 N.J. 32, 642 A.2d 338, affirmed as mod-

ified and remanded. Protestors petitioned for writ of

certiorari. The Supreme Court, 115 S.Ct. 44, granted cer-

tiorari, vacated judgment, and remanded. On remand, the

Supreme Court of New Jersey, Clifford, J., held that: (1)

injunction restricting picketing around private residence

was not impermissible prior restraint; (2) injunction was

content neutral and served significant government inter-

est in protecting residential privacy; and (3) injunction

would burden no more speech than necessary if it were

modified to prohibit picketing unless it was 100 feet from

physician’s home, in group of ten or fewer protestors, no

more often than one hour every two weeks, and only

after local police were notified.

Affirmed as modified.

Richard F. Collier, Jr., argued the cause for appellants.

Pamela Mandel argued the cause for respondents.

Frank L. Corrado argued the cause for amicus curiae

American Civil Liberties Union of New Jersey (Rossi,

Barry, Corrado, Grassi & Radell and Marsha Wenk, attor-

neys; Mr. Corrado and Ms. Wenk, on the briefs).

Charles J. Walsh argued the cause for amicus curiae The

American College of Obstetricians and Gynecologists

(Sills, Cummis, Zukerman, Radin, Tischman, Epstein & Gross,

attorneys; Mr. Walsh and Steven R. Rowland, of counsel

and on the letter briefs).

Andrea M. Silkowitz, Assistant Attorney General,

argued the cause for amicus curiae Attorney General of

New Jersey (Deborah T. Poritz, Attorney General, attorney;

Jaynee Lavecchia, Assistant Attorney General, of counsel).

Dara Klassel, a member of the New Jersey and New

York bars, submitted a brief on behalf of amici curiae

Planned Parenthood Federation of America and Planned

Parenthood Affiliates of New Jersey (Ansell, Zaro, Bennett

and Grimm, attorneys; Ms. Klassel and Richard B. Ansell, on

the brief).

The opinion of the Court was delivered by

CLIFFORD, J.

In Murray v. Lawson, 136 N.J. 32, 642 A.2d 338 (1994),

this Court upheld an injunction prohibiting defendants,

anti-abortion protestors, from picketing within 300 feet of

the residence of plaintiffs, a physician who performs

abortions and the physician’s wife. We concluded that the

injunction was a permissible time, place, and manner

restriction on defendants’ speech. Thereafter, the United

States Supreme Court announced its decision in Madsen v.

Women’s Health Center, Inc., 512 U.S. __, 114 S.Ct. 2516,

129 L.Ed. 2d 593 (1994), which held impermissible under a

stricter constitutional standard an injunction prohibiting

anti-abortion protestors from picketing within 300 feet of

the residence of any owner, agent, staff member, or

employee of the defendant in that case, a clinic at which

abortions are performed.

The Murray defendants petitioned the United States

Supreme Court for a writ of certiorari. The Supreme

Court granted certiorari, vacated our earlier judgment,

and remanded the cause to this Court “for further consid-

eration in light of Madsen.” ___ U.S. __, __, 115 S.Ct. 44,

44, 130 L.Ed.2d 6, __ (1994). Having revisited our earlier

decision, we are persuaded that the 300-foot restriction

we upheld in Murray cannot remain in place and that we

must alter the terms of the injunction.

The facts are set forth in detail in Murray, supra, 136

N.J. at 36-40, 642 A.2d 338. We repeat here only those

facts that are relevant to the remand from the United

States Supreme Court.

Plaintiff Dr. Elrick Murray is a licensed obstetrician

and gynecologist with a private practice in Plainfield. Dr.

Murray performs abortions at several hospitals and

clinics in New Jersey. He and his wife, plaintiff Belinda

Murray, live with their three children in a suburban

neighborhood of Westfield. In 1991 the children were

ages six, eleven, and fifteen. For about two years before

January 1991, defendants regularly demonstrated against

abortion by picketing at one of the clinics where Dr.

Murray performs abortions.

On December 14, 1990, defendant Lawson, having

discovered Dr. Murray’s Westfield address, went to that

address to determine whether it was current. Lawson was

surprised to find a residence instead of an office. Lawson

rang the doorbell and plaintiffs’ then-fourteen-year-old

son answered the door. After confirming that the house

was the Murray residence, Lawson told the boy to tell his

father to stop doing abortions. Mrs. Murray came to the

door and told Lawson to leave and not to return. He left

immediately. Mrs. Murray testified that the visit fright-

ened and upset her.

About a month later, Lawson informed the Westfield

police that approximately fifty people planned to picket

peacefully outside the Murray residence on Sunday, janu-

ary 20, 1991. The administrator of one of the clinics at

which Dr. Murray worked warned him about the protest.

On the advice of the Westfield police, Dr. Murray sent his

family away for the day but he remained at home.

On January 20 two police officers met the fifty-seven

picketers at a nearby school, instructed them on basic

picketing rules, and escorted them to the sidewalk in

front of the Murray residence. The picketers walked in a

single-file loop on the sidewalk in front of the Murray

residence and in front of about ten surrounding houses.

Defendants, walking generally two abreast but sometimes

four or five abreast, carried signs that stated variously,

“Dr. Murray scars women and kills their unborn chil-

dren,” “Elrick Murray pre-born baby exterminator and

nomad abortionist,” and they exhibited a placard that

showed a decapitated infant with the caption “Elrick

Murray, abortionist.” Defendants also spoke to several

neighbors including one teenager whom they asked

whether he knew that a killer lived in the neighborhood.

In February 1991 plaintiffs filed suit in the Chancery

Division seeking damages and injunctive relief against

defendants, Lawson, Crist, and fictiously-named others.

The complaint charged Lawson with trespass and

charged all defendants with disruption of plaintiffs’ use

and enjoyment of their property, intrusion on their seclu-

sion, damage to Dr. Murray’s professional reputation and

pecuniary interests, and deprivation of the right to pri-

vacy under the State and federal constitutions. On Febru-

ary 8, 1991, the first scheduled hearing date of the case,

defendants Lawson and Crist picketed for about fifteen

minutes on the sidewalk in front of plaintiffs’ residence

and in front of other residences on the block.

After a hearing on February 14 and 22, 1991, the

Chancery Division entered a temporary restraining order

restricting the picketers from using the words “mur-

derer” or “killer,” from referring to members of the Mur-

ray family by name, from carrying the sign with the

decapitated fetus, and from hand-delivering written

material to residents of the neighborhood. The order also

limited defendants’ picketing to two persons, for one

hour, every three weeks.

No demonstrators picketed at the Murray residence

until May 4, 1991. On April 22, 1991, however, one of the

clinics at which Dr. Murray performed abortions burned

to the ground under circumstances that persuaded police

and fire officials that the fire had been the work of an

arsonist. Between April 22 and May 4, 1991, defendant

Lawson picketed at another clinic and at Dr. Murray's

office. On May 2, 1991, another clinic at which Dr. Murray

performed abortions received a bomb threat, causing the

police to evacuate the site. Authorities never determined

who was responsible for the fire or for the bomb threat.

Although no evidence linked defendants to the arson or

to the warning of a bomb, the doctor felt threatened by

and fearful of defendants.

On May 4, 1991, two days after the bomb threat,

defendant Lawson and another picketer reappeared to

picket in front of the Murray Residence. Dr. Murray

called the police. After the police arrived, the doctor

came out of his house and engaged in a heated verbal

exchange with the picketers. At the urging of the police,

Dr. Murray returned to his house, but then emerged

again and took a swing at Lawson. Dr. Murray was later

convicted of simple assault in the Westfield Municipal

Court.

After a final hearing, the Chancery Division entered a

permanent injunction in July 1991, prohibiting “defen-

dants and all persons in active concert or participation

with them ** * from picketing in any form including

parking, parading or demonstrating in any manner,

within 300 feet of the Murray residence * * * .” The court

dismissed the claim of interference with Dr. Murray’s

profession, considered the claim for interference with use

and enjoyment of property as subsumed under the

tortious-invasion-of-privacy claim, found Lawson's tres-

pass irrelevant to the picketing, and declined to award

money damages for plaintiffs’ invasion-of-privacy and

intentional-infliction-of-emotional-distress claims.

Defendants appealed the trial court’s issuance of the

injunction. Plaintiffs did not cross-appeal the court's

other rulings. In a published opinion, the Appellate Divi-

sion upheld the 300-foot restriction, 264 N.J.Super. 17, 624,

A.2d 3 (1993), finding that the trial court had the author-

ity to issue the injunction and that the restrictions con-

tained therein survived defendants’ free-speech

challenge.

We granted defendants’ petition for certification, 133

N.J. 445, 627 A.2d 1149 (1993), and thereafter affirmed the

Appellate Division’s judgment upholding the injunction.

We determined that the Chancery Division did have the

authority to issue the injunction and that the 300-foot

restriction contained therein was a permissible time,

place, and manner restriction on defendants’ speech.

Murray, supra, 136 N.J. 32, 642 A.2d 338.

First, we concluded that the injunction was content

neutral. We reasoned that although the injunction

restricted the speech of only anti-abortion protestors, the

Chancery Division had imposed it not because of the

protestors’ viewpoint but rather only because defendants’

conduct had interfered with plaintiffs’ residential privacy.

Id. at 45-46, 642 A.2d 338. Next, we decided that protec-

tion of residential privacy constitutes a significant gov-

. ernment interest justifying the imposition of injunctive

restrictions. Id. at 47-49, 642 A.2d 338. To support that

proposition we relied on our common law and on the

United States Supreme Court decision in Frisby v. Schultz,

487 U.S. 474, 484, 108 S.Ct. 2495, 2502, 101 L.Ed.2d 420,

431 (1988) (concluding that protection of residential pri-

vacy is significant government interest). Finally, we

found that the 300-foot ban had been narrowly tailored to

promote that significant government interest in the pro-

tection of residential privacy. Id. at 51-53, 642 A.2d 338.

As ordered by the United States Supreme Court, we

now reconsider the foregoing holdings in light of Madsen,

supra, 512 U.S. __, 114 S.Ct. 2516, 129 L.Ed.2d 593.

Because Madsen necessarily determines the outcome

here, we outline the Court’s opinion in that case in some

detail. In Madsen, the respondents operated abortion

clinics throughout central Florida, including one such

clinic on a highway called “Dixie Way” in Melbourne.

The petitioners, anti-abortion protestors, picketed and

demonstrated outside the clinic. 512 U.S. at __, 114 S.Ct.

at 2521, 129 L.Ed.2d at 603. In September 1992 a Florida

state court issued a permanent injunction prohibiting the

protestors “from blocking or interfering with public

access to the clinic, and from physically abusing persons

entering or leaving the clinic.” Id. at ___, 114 S.Ct. at 2521,

129 L.Ed.2d at 603. Six months later, the clinic sought to

expand the restrictions. Id. at __, 114 S.Ct. at 2521, 129

L.Ed.2d at 603. The trial court made additional findings of

fact and issued a broader injunction, which the Florida

Supreme Court upheld and which eventually became the

Se Ey pet

LINE SRA MA 1 SH OR, Be ART EIS PAC

subject of the United States Supreme Court's ruling in

Madsen.

In respect of the protestors’ continued activities at

the clinic despite the existence of the earlier injunction,

the trial court found that the protestors had “continued to

impede access to the clinic by congregating on the paved

portion of the street — Dixie Way - leading up to the

clinic, and by marching in front of the clinic’s drive-

ways.” Id. at __, 114 S.Ct. at 2521, 129 L.Ed.2d at 603.

Vehicles attempting to enter the clinic’s parking lots had

to reduce speed to allow the protestors to move out of the

way, and as they slowed, sidewalk counselors would

approach the vehicles and attempt to give the occupants

antiabortion literature, and would urge them not to use

the clinic’s services. Id. at __, 114 S.Ct. at 2521, 129

L.Ed.2d at 603. The people outside the clinic whose

number varied from a mere handful to a throng of 400,

would sing, chant, and use loudspeakers and bullhorns,

Id. at ___, 114 S.Ct. at 2521, 129 L.Ed.2d at 603.

The trial court also found that the protestors’ activ-

ities had affected the health of the clinic’s patients. The

difficulty in gaining access to the clinic had made the

patients more anxious and tense, thereby requiring that

they receive more sedation before undergoing surgical

procedures, which in turn increased the risk of such

procedures. Moreover, patients inside the clinic could

hear the noise from the protests, a circumstance that

caused more stress during the procedures and during

recovery. Finally, for those patients who chose not to

enter the clinic because of the crowd, the risks to their

health were increased by the delay. Id. at ___, 114 S.Ct. at

2521, 129 L.Ed.2d at 603.

10a

The trial court also made findings related to the

protestors’ activities at the residences of the clinic's staff.

The Florida Supreme Court appended to its own opinion

the trial court’s specific factual findings:

G. On other occasions since the entry of

the injunction * ** , the respondent *** and

others in concert with him approached the pri-

vate residences or temporary lodging places of

clinic employees. These approaches included

not only direct communication with the occu-

pants (sometimes the ‘home alone’, minor chil-

dren of the occupants), but also carrying signs,

walking up and down on the sidewalk or street

in front of the residence, shouting at passersby,

contacting (ringing doorbells of) neighbors, and

providing literature identifying the clinic

employee as a ‘baby killer’.

H. On one occasion the respondent * * *

with others went to the vicinity of the motel

where a staff physician was temporarily staying

and demonstrated. While respondent * * *

remained outside just off the premises of the

motel, others went upon the premises of the

motel, some entering the motel lobby, yelling

‘child murderer’ and ‘baby killer’. The doctor

testified that as a result of such activity his

departure for the clinic was delayed by one-half

hour.

[626 So.2d 664, 677-78 (1993).|

Based on those findings, the trial court determined

that the restraints imposed by its initial injunction were

insufficient. See Madsen, supra, 512 U.S. at ___ 114 S.Ct. at

2521, 129 L.Ed.2d at 604. Accordingly, the trial court

expanded the injunction on activities at the clinic by

lla

providing that the protestors were prohibited from enter-

ing the clinic’s premises; from blocking access to the

clinic; from picketing within thirty-six feet of the clinic’s

property line; from making sounds or showing images

that could be heard or seen inside the clinic; from

approaching physically, within 300 feet of the clinic, any

person seeking to use the clinic’s services (unless such

person indicates a desire to speak to the protestors); and

from assaulting owners, staff, or patients of the clinic. Id.

at ___, 114 S.Ct. at 2521-22, 129 L.Ed.2d at 604-05.

The trial court’s expanded injunction also included

restrictions protecting the clinic’s owners, agents, staff,

and employees at their homes. It prohibited the protes-

tors

{a]t all times on all days, from approaching,

congregating, picketing, patrolling, demonstrat-

ing or using bullhorns or other sound amplifica-

tion equipment within three-hundred (300 feet

of the residence of any of the [clinic’s]

employees, staff, owners or agents, or blocking

or attempting to block, barricade, or in any.

other manner, temporarily or otherwise,

obstruct the entrances, exits or driveways of the

residences of any of the {clinic’s] employees,

staff, owners or agents. The [protestors] and

those acting in concert with them are prohibited

from inhibiting or impeding or attempting to

impede, temporarily or otherwise, the free

ingress or egress of persons to any street that

provides the sole access to the street on which

those residences are located.

[626 So.2d at 680.]

12a

The Supreme Court of Florida upheld all portions of

the expanded injunction against a free-speech challenge.

626 So.2d 664 (1993). After granting certiorari 510 U.S.

__, 114 S.Ct. 907, 127 L.Ed.2d 98 (1994), the United States

Supreme Court upheld some provisions of the injunction

and struck down others. First, the Court determined that

the injunction was not content based, even though the

injunction restricted the speech of only the anti-abortion

protestors. The Court reasoned that the injunction was

not an expression of hostility toward the protestors’ mes-

sage but a response to the protestors’ repeated violations

of the trial court’s original order. Madsen, supra, 512 ULS.

at __, 114 S.Ct. at 2523-24, 129 L.Ed.2d at 606. Accord-

ingly, the Court found that strict scrutiny was not the

appropriate standard by which the Court should analyze

the constitutionality of the injunction. Id. at ___ 114 S.Ct.

at 2524, 129 L.Ed.2d at 607.

The Court then noted that if the underlying contro-

versy had challenged a generally-applicable statute

instead of an injunction, the Court “would determine

whether the time, place, and manner regulations were

‘narrowly tailored to serve a significant governmental

interest.’ ” Id. at __, 114 S.Ct. at 2524, 129 L.Ed.2d at 607

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 791,

109 S.Ct. 2746, 2753, 105 L.Ed.2d 661, 675 (1989)). How-

ever, focusing on the differences between injunctions and

generally-applicable statutes, the Court found that a dif-

ferent standard was required. A statute results from a

legislative choice regarding the promotion of a specific

societal interest, but an injunction “can be tailored by a

trial judge to afford more precise relief than a statute

where a violation of the law has already occurred.” Id. at

13a

__, 114 S.Ct. at 2524, 129 L.Ed.2d at 607. Because

“liJnjunctions also carry greater risks of censorship and

discriminatory application than do general ordinances,”

id. at__, 114 S.Ci. at 2524, 129 L.Ed.2d at 607, they should

be “no broader than necessary to achieve [their] desired

goals.” Id. at __, 114 S.Ct. at 2525, 129 L.Ed.2d at 608.

Accordingly, the Court determined that the test to be

applied in the evaluation of a content-neutral injunction

should be “whether the challenged provisions of the

injunction burden no more speech than necessary to serve

a significant government interest.” Id. at ___, 114 S.Ct. at

2525, 129 L.Ed.2d at 608.

Applying that test to the Florida clinic restrictions,

the Court first agreed with the Florida Supreme Court's

conclusion that numerous significant state interests justi-

fied the issuance of injunctive relief: “ensuring the public

safety and order, *** promoting the free flow of traffic

on public streets and sidewalks, * * * protecting the

property rights of all its citizens,” id. at __, 114 S.Ct. at

2526, 129 L.Ed.2d at 609, and securing medical privacy,

ibid. The Court then turned to whether the specific

restrictions imposed on the activity outside the clinic

burdened more speech than necessary to serve those

goals.

The Court upheld two of the restrictions on the prot-

estors’ activities around the clinic. First, it upheld the

validity of the thirty-six-foot-buffer zone, finding that

“t]he state court seems to have had few other options to

protect access given the narrow confines around the

clinic.” Id. at __, 114 S.Ct. at 2527, 129 L.Ed.2d at 610. The

Court also recognized that although “[t]he need for a

l4a

complete buffer zone near the clinic entrances and drive-

way may be debatable, * * * some deference must be

given to the state court’s familiarity with the facts and the

background of the dispute between the parties even

under our heightened review.” Id. at __, 114 S.Ct. at

2527, 129 L.Ed.2d at 610-11. The Court also upheld the

noise restrictions, finding that they “burden{ed] no more

speech than necessary to ensure the health and well-

being of the patients at the clinic.” Id. at ___, 114 S.Ct. at

2528, 129 L.Ed.2d at 612.

The Supreme Court also struck down several of the

injunctive order’s restrictions. For example, the Court

found unconstitutional that portion of the thirty-six-foot-

buffer-zone restriction that included private property,

concluding that that restriction “burden[ed] more speech

than necessary to protect access to the clinic.” Id. at ___

114 S.Ct. at 2528, 129 L.Ed.2d at 612. The Court also struck

down the images-observable-within-the-clinic restriction,

determining that it burdened more speech than necessary

to protect the patients and their families; the clinic could

merely pull its curtains so that patients could avoid see-

ing images that they found disagreeable. Id. at __, 114

S.Ct. at 2529, 129 L.Ed.2d at 612-13. Finally, the Court

found impermissible the prohibition on physically

approaching patients within 300 feet of the clinic (unless

the patients indicated a desire to be approached), con-

cluding that it too “burden[ed] more speech than neces-

sary to prevent intimidation and to ensure access to the

clinic.” Id. at __, 114 S.Ct. at 2529, 129 L.Ed.2d at 613.

Moving to the residential restrictions, the Court first

noted that the same analysis that applied to the noise

15a

restrictions around the clinic applied to the noise restric-

tions around the residences. Id. at __, 114 S.Ct. at 2529,

129 L.Ed.2d at 613-14. Then the Court struck down the

restriction prohibiting picketing within a 300-foot zone

around the residences of clinic owners, agents, staff, and

employees. The Court noted that in Frisby, supra, 487 U.S.

at 484, 108 S.Ct. at 2502, 101 L.Ed.2d at 431, it had previ-

ously recognized that the protection of residential privacy

is a State interest of the highest order. Id. at ____ 114 S.Ct.

at 2529-30, 129 L.Ed.2d at 614. But it found that the

restriction in Madsen burdened more speech than neces-

sary to protect that interest:

[T]he 300-foot zone around the residences in

this case is much larger than the zone provided

for in the ordinance which we approved in

Frisby. * * * The prohibition was limited to

‘focused picketing taking place solely in front of

a particular residence.’ By contrast, the 300-foot

zone would ban ‘[gleneral marching through

residential neighborhoods, or even walking a

route in front of an entire block of houses.’ The

record before us does not contain sufficient justifica-

tion for this broad a ban on picketing; it appears that

a limitation on the time, duration of picketing, and

number of pickets outside a smaller zone could have

accomplished the desired result.

[Id. at ___, 114 S.Ct. at 2530, 129 L.Ed.2d at

614 (quoting Frisby, supra, 487 U.S. at 483,

108 S.Ct. at 2502, 101 L.Ed.2d at 431)

(emphasis added).]

Finally, the Court rejected vagueness and over-

breadth challenges to the injunction as well as a freedom-

of-association challenge. Id. at __, 114 S.Ct. at 2530, 129

L.Ed.2d at 614. We note, too, that three Justices would

l6a

have found the injunction content-based and would have

used the strict-scrutiny standard to determine whether

the injunction in Madsen passed muster under the First

Amendment, see id. at ~ _, 114 S.Ct. at 2537-40, 129

L.Ed.2d at 623-27 (Scalia, J., joined by Kennedy and

Thomas, JJ., concurring in judgment in part and dissent-

ing in part), and that another Justice would have adopted

a more jenient standard than that enunciated by the

majority in determining whether an injunction survives a

free-speech challenge, see id. at __, 114 S.Ct. at 2531-34,

129 L.Ed.2d at 615-16 (Stevens J., concurring in part and

dissenting in part).

Ill

First, we address defendants’ claim that this Court

should not apply Madsen at all because unlike the injunc-

tion in that case, the injunction at issue here is a “prior

restraint” on speech and thus presumptively unconstitu-

tional. That argument is based on a footnote in the United

States Supreme Court’s opinion in Madsen:

We also decline to adopt the prior restraint anal-

ysis urged by petitioners. Prior restraints do

often take the form of injunctions. Not all

injunctions which may incidentally affect

expression, however, are “prior restraints” in

the sense that that term [i]s used [in earlier

opinions of the Court]. Here petitioners are not

prevented from expressing their message in any

one of several different ways; they are simply

prohibited from expressing it within the 36-foot

buffer zone. Moreover, the injunction was not

issued because of the content of petitioners’

‘

17a

expression but because of their pri

conduct. eir prior unlawful

[512 U.S. at n. 2, 114 S.Ct. at 252

— fl. 4, Af. 4 n. 2,

129 L.Ed.2d at 607 n. 1 (citations omitted). }

Defendants argue that because no unlawful conduct

occurred in this case, the Murray injunction must neces-

sarily be evaluated under prior-restraint doctrine and not

under the standard that the Court applied in Madsen.

Thus, defendants assert, “In determining which standard

of review applies, the crucial distinction is whether * * *

the challenged injunction was based ona finding of ‘prior

unlawful conduct.’ ” We do not agree.

Generally, “[t]he term prior restraint is used ‘to

describe administrative and judicial orders forbidding cer-

tain communications when issued in advance of the time

that such communications are to occur.’” Alexander v

United States, 509 U.S. __, __, 113 S.Ct. 2766, 2771 125

L.Ed.2d 441, 450 (1993) (quoting M. Nimmer, Minicew on

Freedom of Speech § 4.03 at 4-14 (1984)); see also Laurence

H. Tribe, American Constitutional Law § 12-24 at 1040 (2d

ed. 1988) (noting that central feature of prior restraint is

“attempt| ] to suppress speech prior to publica-

tion *** ”). Injunctions are often “classic examples of

prior restraints.” Alexander, supra, 509 U.S. at __, 113

S.Ct. at 2771, 125 L.Ed.2d at 450. But as the Supreme

Court noted in Madsen, not all injunctions that “inciden-

tally affect expression * * * are ‘prior restraints’ * * * .” 512

_ at___n. 2,114 S.Ct. at 2524 n. 2, 129 L.Ed.2d at 607 n.

Although never outlining a precise test, the Supreme

Court has considered a number of factors in determining

18a

whether a restriction is a prior restraint. One of those

factors is whether the restraint prevents the expression of

a message. See ibid. (“Here petitioners are not prevented

from expressing their message in any one of several dif-

ferent ways; they are simply prohibited from expressing

it within the 36-foot buffer zone.”); Alexander, supra, 509

U.S. at ___, 113 S.Ct. at 2771, 125 L.Ed.2d at 450 (finding

that order requiring petitioner to forfeit property related

to racketeering activity was not prior restraint because it

“does not forbid petitioner from engaging in any expres-

sive activities in the future, nor does it require him to

obtain prior approval for any expressive activities”).

Thus, the Supreme Court has consistently found (often

without discussion) that injunctions are prior restraints if

they forbid entirely the publication of a message. Exam-

ples of cases involving prior restraints are CBS, Inc. v.

Davis, 510 U.S. ___, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994)

(enjoining CBS from airing video taken at meat-packing

company); National Socialist Party of America v. Village of

Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977)

(enjoining petitioners from marching, walking, parading,

distributing pamphlets, or displaying materials within

town); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct.

2791, 49 L.Ed.2d 683 (1976) (enjoining news media from

publishing or broadcasting accounts of defendant's con-

fessions and admissions until jury was impaneled); New

York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140,

29 L.Ed.2d 822 (1971) (attempting to enjoin newspapers

from publishing contents of classified study regarding

decision-making process on United States’ Vietnam pol-

icy); Carroll v. President & Commissioners of Princess Anne,

19a

393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968) (restrain-

ing white supremist organization from rallying). How-

ever, “The Court frequently finds that regulations with

only indirect or minor effects on speech are not really

prior restraints at all.” Tribe, supra, § 12-36 at 1051 n. 37.

See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 705 n. 2,

106 S.Ct. 3172, 3177 n. 2, 92 L.Ed.2d 568, 577 n. 2 (1986)

(noting that closure of adult bookstore differs from prior

restraints because “order would impose no restraint at all

on the dissemination of particular materials, since

respondent is free to carry on his bookselling business at

another location * * * ”); Seattle Times Co. v. Rhinehart, 467

U.S. 20, 34, 104 S.Ct. 2199, 2208, 81 L.Ed.2d 17, 27 (finding

that order prohibiting dissemination of information

obtained through discovery before trial is not prior

restraint because “the party may disseminate the identi-

cal information covered by the protective order as long as

the information is gained through means independent of

the court’s processes”), cert. denied, 467 U.S. 1230, 104

S.Ct. 2690, 81 L.Ed.2d 884 (1984).

The injunction at issue here, like the Madsen injunc-

tion, does not forbid defendants from expressing their

message; they are simply prohibited from expressing it by

picketing within the 300-foot zone that the injunction

establishes. Defendants can picket on the remainder of

the Murrays’ block (the injunction bans picketing within

300 feet of the Murray residence and the block on which

they live is 1800 feet long); throughout the rest of the

neighborhood; and at the offices, clinics, and hospitals

out of which Dr. Murray works. Moreover, as amicus

curiae American College of Obstetricians and Gynecolo-

gists asserts, the injunction does not preclude defendants

20a

from engaging in other forms of communication even

within the protected zone. Amicus curiae Attorney Gen-

eral points out that the injunction does not preclude

distributing leaflets or engaging in door-to-door canvass-

ing. Only the picketing targeted at the Murray residence

was prohibited because only that activity was found

inherently and offensively to interfere with plaintiffs’

residential privacy.

Another factor in determining whether a restriction

imposes a prior restraint on speech is whether the injunc-

tion was issued because of the content of the expression.

See Madsen, supra, 512 U.S. at ___n. 2, 114 S.Ct. at 2524 n.

2, 129 L.Ed.2d at 607 n. 2 (“Moreover, the injunction was

issued not because of the content of petitioners’ expression

* * * but because of their prior unlawful conduct.”

(emphasis added)). In Southeastern Promotions, Ltd. v. Con-

rad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), the

Court emphasized that licensing or regulatory systems

that focus on content are invalid prior restraints because

they result in censorship. The issue in Southeastern Promo-

tions, Ltd. was “whether First Amendment rights were

abridged when respondents denied petitioner the use of a

municipal facility in Chattanooga, Tennessee, for the

showing of the controversial rock musical ‘Hair.’ ” Id. at

547, 95 S.Ct. at 1241, 43 L.Ed.2d at 452. The Court found

that the system by which the Chattanooga Board regu-

lated the use of its facilities resulted in prior restraints on

speech because it did not operate pursuant to acceptable

standards. “One seeking to use a theater was required to

apply to the board. The Board was empowered to deter-

mine whether the applicant should be granted permis-

sion * * * on the basis of its review of the content of the

2la

production.” Id. at 554, ©5 S.Ct. at 1244, 43 L.Ed.2d at

456-57 (emphasis added). The Court's finding of a prior

restraint in that case reflected society’s “distaste for cen-

sorship.” Id. at 553, 95 S.Ct. at 1244, 43 L.Ed.2d at 456.

The injunction here, however, was not entered

because of the content of defendants’ message, despite

defendants’ and amicus curiae American Civil Liberties

Union of New Jersey’s (ACLUNJ’s) strong protestations

to the contrary. Defendants and ACLUNJ assert that the

Supreme Court’s opinion in Madsen requires this Court to

find that if an injunction affecting speech is not issued to

remedy a past or threatened violation of the law, no basis

other than the content of the speech exists to justify the

regulation. That is not at all the case. We are not per-

suaded that our conclusion in Murray, supra, 136 N.J. at

45, 642 A.2d 338, that the injunction at issue is content

neutral was error.

Although not imposed to remedy unlawful conduct, this

injunction is justified on a basis other than the content of

defendants’ speech: the court granted it to protect the Mur-

rays from targeted picketing that inherently and offensively

interfered with their residential privacy. Thus, the injunction

was entered pursuant to the court's authority to grant equi-

table relief to enforce a valid public policy of this State. See

id. at 42-44, 642 A.2d 338. As the Court has noted in the

labor-picketing context, “a State, in enforcing some public

policy, * * * whether announced by its legislature or its

courts, could constitutionally enjoin peaceful picketing

aimed at preventing effectuation of that policy.” International

Bhd. of Teamsters v. Vogt, Inc., 354 U.S. 284, 293, 77 S.Ct. 1166,

1171, 1 L.Ed.2d 1347, 1353, reh’g denied, 354 U.S. 945, 77 S.Ct.

1423, 1 L.Ed.2d 1558 (1957). In Murray, we gave detailed

22a

consideration to the public policy favoring protection of

residential privacy and explained why that policy is suffi-

ciently strong to implicate a significant government interest,

136 N.J. at 47-50, 642 A.2d 338, and we need not repeat that

discussion here. Moreover, the United States Supreme Court

confirmed in Madsen that protection of residential privacy is

a significant government interest. 512 U.S. at __, 114 S.Ct.

at 2530, 129 L.Ed.2d at 614 (stating that “ ’ “[t]he State’s

interest in protecting the well-being, tranquility, and pri-

vacy of the home is certainly of the highest order.” ’”

(quoting Frisby, supra, 487 U.S. at 484, 108 S.Ct. at 2502,

101 L.Ed.2d at 431 (quoting Carey v. Brown, 447 U.S. 455,

471, 100 S.Ct. 2286, 2296, 65 L.Ed.2d 263, 276 (1980))).

We also rejected defendants’ other arguments that the

injunction is content based. Our analysis in Murray, 136

N.J. at 45-47, 642 A.2d 338, which concludes that an

injunction is not necessarily aimed at content merely

because it restrains only a specific group of speakers,

appears to be entirely consistent with Madsen. See 512

U.S. at___, 114 S.Ct. at 2524, 129 L.Ed.2d at 606 (“In short,

the fact that the injunction covered people with a particu-

lar viewpoint does not itself render the injunction content

or viewpoint based.”). We reject as well the argument that

the trial court entered the injunction here because of the

Murrays’ reaction to the content of defendants’ speech.

As the trial court noted, “the [c]ourt is assessing whether

defendants have intruded into plaintiffs’ privacy, not

whether plaintiffs are disgruntled by what defendants are

expressing.”

In sum, this injunction is not a pre-publication

restraint or the result of a discriminatory licensing or

regulatory system, characteristics of cases invalidated

23a

under prior restraint doctrine; nor does the injunction

forbid defendants from expressing their message or

restrict their activities merely because of the position that

their message articulates. Therefore, the injunction is not

a “prior restraint.” Even if that were not the case, how-

ever, this injunction would fall within at least one “estab-

lished exception to the doctrine of prior restraint,”

Southeastern Promotions, Ltd., supra, 420 U.S. at 555, 95

S.Ct. at 1245, 43 L.Ed.2d at 457, in that it would be

permissible to protect a “captive audience.” Id. at 556, 95

S.Ct. at 1245, 43 L.Ed.2d at 457. As the Supreme Court

noted in Frisby, supra, targeted residential picketing can

make residents captive listeners within their homes, and

therefore “protection of the unwilling listener” is an

important component of residential privacy. 487 U.S. at

484, 108 S.Ct. at 2502, 101 L.Ed.2d at 431; see also Hazel A.

Landwehr, Note, Unfriendly Persuasion: Enjoining Residen-

tial Picketing, 43 Duke L.J. 148, 158 (1993) (noting that

State’s “ability to control the flow of ideas into the home

is based not only on a concern for preserving the sanctity

of the home but also on a recognition that homeowners

present a captive audience for speakers”).

We now turn to the question whether the injunction

that we upheld in Murray, prohibiting picketing within

300 feet of the Murray residence, runs afoul of Madsen.

We conclude that as currently structured, the injunction

does not satisfy the stricter standards that the United

States Supreme Court announced in Madsen.

24a

That the injunction at issue here is content neutral

and that it serves a significant government interest in

protecting residential privacy is beyond question. See

supra at 223-226, 649 A.2d at 1262-1263 (discussing rea-

sons that this injunction meets Madsen’s requirements of

content neutrality and significant government interest).

Therefore we proceed to the more difficult question:

whether the injunction burdens more speech than neces-

sary to serve that interest. In Murray, we held that the

restriction banning picketing within 300 feet of the Mur-

ray residence was narrowly tailored to protect plaintiffs’

residential privacy. Id. at 51-53, 642 A.2d 338. But the

standard enunciated in Madsen is more stringent. We

conclude that under the stricter standard a 300-foot

speech-free zone cannot be sustained on this record.

However, recognizing the desirability of bringing these

proceedings to a conclusion, we choose not to remand for

further hearings but rather to modify the injunction con-

sistent with our understanding of the dictates of Madsen.

To repeat, in Madsen, to justify the 300-foot restriction

around the residences of all owners, agents, staff, and

employees of the clinic, the trial court made only the

following findings in respect to the protestors’ activities:

G. On other occasions since the entry of

the injunction * * * , the respondent * * * and

others in concert with him approached the pri-

vate residences or temporary lodging places of

clinic employees. These approaches included

not only direct communication with the occu-

pants (sometimes the ‘home alone’, minor chil-

dren of the occupants), but also carrying signs,

walking up and down on the sidewalk or street

in front of the residence, shouting at passersby,

25a

contacting (ringing doorbells of) neighbors, and

providing literature identifying the clinic

employee as a ‘baby killer’.

H. On one occasion the respondent

*** with others went to the vicinity of the motel

where a staff physician was temporarily staying

and demonstrated. While respondent * * *

remained outside just off the premises of the

motel, others went upon the premises of the

motel, some entering the motel lobby, yelling

‘child murderer’ and ‘baby killer’. The doctor

testified that a> a result of such activity his

departure for the clinic was delayed by one-half

hour.

[626 So.2d at 677-78.]

Noticeably absent in those findings is any reference to,

much less any detailed description of, the physical sur-

roundings of the residences of the owners, agents, staff,

and employees of the clinic. The findings recited above

appear to indicate only that some of those persons lived

in houses in residential neighborhoods and in motels, and

that the protestors picketed and protested at several loca-

tions. Nothing specific in those findings showed that a

300-foot restriction was necessary in «very (or even in

any single) instance to protect the privacy of the resi-

dents. Finding that “[t]he record before us does not con-

tain sufficient justification for this broad a ban on

picketing,” the United States Supreme Court therefore

vacated the injunction, 512 U.S. at __, 114 S.Ct. at 2530,

129 L.Ed.2d at 614, at the same time pointedly observing

that “a limitation on the time, duration of picketing, and

number of pickets outside a smaller zone could have

accomplished the desired result.” Ibid. (emphasis added).

26a

In sharp contrast to the sparse findings of the state

court in Madsen, however, is the well-developed record

before us in this case. The record demonstrates that

defendants’ conduct invaded the Murrays’ residential

privacy and that therefore some form of injunctive relief

was necessary to protect plaintiffs’ interest. Even defen-

dants recognized at oral argument that peaceful targeted

picketing can be enjoined to prevent the invasion of

residential privacy. As the ACLU acknowledged, one

aspect of heightened concern in this case was the fact that

during the original picketing, although defendants

marched a route of approximately ten houses, at no time

was the area in front of plaintiffs’ house free from picket-

ers. Thus, injunctive relief is necessary here to protect

plaintiffs from being “under siege” by defendants. The

question then becomes whether the 300-foot restriction is

appropriate, and if not, whether the record before us is

sufficient to enable us to rewrite the “buffer zone” provi-

sion to burden no more speech than is necessary to pro-

tect plaintiffs’ residential privacy.

Although the trial court did not set forth its reasons

for abandoning the preliminary injunction’s restrictions

(limiting picketing to two persons, every third week, for

one hour) in favor of a 300-foot picket-free zone, the

record fully supports the decision to impose some form of

buffer. Unlike the trial court in Madsen, from the outset

the trial court in this case gave painstaking consideration

to the physical layout of the neighborhood and made an

exhaustive appraisal of defendants’ picketing. Even in its

earliest hearing in the case, on February 8, 1991, on

plaintiffs’ application for a temporary restraint, the court

27a

was concerned with drafting an injunction tailored to the

precise facts at issue:

And for the record let me just say that I’m

familiar generally with the street, although if I

recall — I haven't been on it in awhile. If I recall

correctly, it isn’t a continuous street it goes

down to one street and stops and then if you're

trying to find it you have to do like a dog leg

and then you go down the street again and if I

recall correctly, the neighborhoods are not iden-

tical. In other words, some blocks have very

narrow lots and others have large lots.

Now, I don’t know what Dr. Murray has. I'd

be very interested in knowing that because if

this is on a block where all the frontages are a

hundred or 200 feet wide, where there are less

houses, as opposed to lots that are 40 or 50 feet

wide, that would influence me simply because it

might have some relationship to the concentra-

tion of people in a smaller area who want to

relax on Sunday.

Instead of issuing a temporary restraint at that first

hearing, however, the court continued the hearing to

another date to allow defendants to submit further certi-

fications. By the time of that subsequent hearing, the trial

court had personally examined plaintifts’ neighborhood.

I want to place on the record the fact that |

drove down the street, the 900 block, and I think

Dr. Murray’s house is 917. I looked at his house

from the outside and I looked at the houses on

the block, on both sides of the street.

* * * There [are] no vacant lots, it’s not

rural, it’s strictly a suburban town, all improve-

ments, improved street, curb, mostly sidewalks,

28a

but not entirely. It appears to me every lot has a

one-family house on it. [I]t appears to me the lot

sizes run anywhere from 65 to 70 feet in fron-

tage in that area. It’s purely residential. * * * .

[T]here’s no commercial behind it or on either

end of the block. * * * .

** * That Dr. Murray is entitled to reason-

able peace and quiet without harassment, with-

out intrusion, without offensive language [is

clear], and to a lesser extent the neighbors, but

the neighbors are not my primary concern at

this point * ** .

* * *

And it seems to me we have to be realistic

here and protect Dr. Murray to the extent that |

can, consistent with the price we all pay for

freedom and that is to put up with peaceable

activities of others, whom we violently disagree

wn > *..

29a

And secondly, [the injunction might change]

by virtue of a distance that I might increase

when we increase, if we do increase, the number

of pickets. * * * .

‘

** * [I]f I consider [allowing] more [picket-

ers], I'm going to push you further away from

the front of his house.

Before issuing its permanent injunction on July 25,

1991, the trial court heard testimony from plaintiffs and

from several picketers, describing both plaintiffs’ neigh-

borhood and the picketing that had taken place. The

court also viewed a number of photographs of the initial

picketing. In imposing the 300-foot permanent order, the

court noted:

[I]t is clear that the first amendment protec-

tion of defendant's picketing must be tailored in

accordance with the plaintiff’s privacy interests.

The former cannot be paramount in all

instances. This would defy its limited First

Based on that and other evidence, including a video-

tape of the initial picketing outside plaintiffs’ house, the

court's temporary order limited the picketing to two per-

sons, every third week, for one hour. The court thus

concluded that the 300-foot restriction that plaintiffs had

originally requested was “for the time being excessive.”

But the court also noted,

I'm going to allow them in front of the house on

the public sidewalk. I will not require them,

because it’s only two, to be 50 or 300 feet away.

Later on, when this - when the dust settles on

this case, I would be more than happy to enter-

tain a motion * * * , when I get a better feel for

this case, if it’s going to continue, to increase the

number of pickets ***.** *.

Amendment protection. * * * The latter cannot

prevent expression completely.

In light of its authority to fashion an equita-

ble remedy, this court will enjoin the defendants

from picketing within 300 feet of the plaintiffs’

residence. They may move through the neigh-

borhood, but they cannot come within 300 feet

of the Murray’s home.

* . *

In order that it be crystal clear, in referring

to the tax map of the town of Westfield ** * , |

note that Dr. Murray's house is on block 643 on

lot 12 that he faces on Carlton Road, a distance

which I have previously indicated. [Plaintiffs’

house is set back approximately twenty-five feet

30a

from the sidewalk on a 600-yard-long, thirty-

three yard-wide block of Carlton Road.] That

street is bounded by the intersection on the west

by Grove Street, on the east by Clifton Street. On

the remaining block in the back to the north is

Central Avenue, which I take cognizance of the

fact it is a rather busy street * * * . [H]owever,

I'm satisfied based upon the pictures which are

in evidence, based upon the testimony and the

undisputed fact that Carlton Road itself is a

completely residential street on both sides, so is

Grove Street, so is Clifton Street. To the south is

a street entitled The Boulevard. * * * . [T]he

whole area * * * might be characterized, “the

neighborhood,” although I’m not limiting the

neighborhood to those streets. I'm just trying to

give anyone reading this opinion a rough idea of

what the immediate neighborhood is like.

Consequently, absent any further legislative

response from the Town of Westfield, this court

will not restrict the peaceable picketing any fur-

ther than what I have indicated. Such restric-

tions are consistent with the First Amendment

protection afforded to defendants without

intruding upon plaintiff's privacy.

The court entered a final order to that effect on July 25,

1991.

The foregoing recital demonstrates that the trial court

developed an extensive record before making its deter-

mination: it watched a videotape and looked at pictures

of the protesting; it heard the testimony of the picketers

and the Murrays; it personally examined the residential

street in question; and it consulted the town tax map.

3la

Moreover, the trial court was aware not only of unpleas-

ant incidents that had preceded the issuance of the pre-

liminary injunction (including one in which a neighbor of

plaintiffs turned a sprinkler on the picketers and later

received an unsigned postcard, never connected to defen-

dants but nevertheless a source of concern to plaintiffs,

warning that “people who live in wood houses shouldn’t

waste water”) but also of the confrontation between Dr.

Murray and the picketers that culminated in Murray’s

assault on Lawson. Those circumstances were therefore

sufficiently lacking in serenity as to justify the trial

court's adoption of a bright-line zone to eliminate confu-

sion.

Missing from this record, however, is any explana-

tion of why the trial court chose a picket-free zone of

precisely 300 feet. When asked at oral argument what in

the record justified such a large free zone, plaintiffs’ reply

was only that this Court should defer to the trial court.

Amicus curiae American college of Obstetricians and

Gynecologists asserted that if the trial court had known

at the time of its decision the “talismanic” words “bur-

dens no more speech than necessary,” it would have used

them. On our review under the Supreme Court’s more

stringent standard, those responses are hardly satisfac-

tory.

Defendants suggested at oral argument that cases

from other courts imposing large picketing-free zones in

residential areas had convinced the trial court that a 300-

foot zone would be permissible. For example, on Septem-

ber 14, 1990, another Chancery Division court had

imposed a temporary restraining order in Boffard v.

32a

Barnes, prohibiting anti-abortion protestors from picket-

ing within 200 feet of the cul-de-sac on which was located

the residence of a physician who performs abortions.

(The preliminary and permanent injunctions, however,

issued after the trial court’s order herein, ultimately pro-

hibited picketing “within the immediate vicinity” of the

plaintiffs’ residence.) 248 N.J.Super. 501, 591 A.2d 699

(1991), aff'd in part and rev'd in part, 264 N.].Super. 11, 624

A.2d 1 (App.Div.1993), aff'd as modified and remanded, 136

N.]. 32, 642 A.2d 338 (1994). And in a Texas case the court

upheld a ban prohibiting picketing within 400 feet of a

physician’s residence. Valenzuela v. Aquino, 800 S.W.2d

301 (Ct.App.1990), aff'd in part and rev'd in part, 853

S.W.2d 512 (1993). Although the trial court appropriately

looked for guidance to decisions of other courts consider-

ing similar issues, an injunction must be crafted on a fact-

specific basis. See Horizon Health Ctr. v. Felicissimo, 135

N.J. 126, 148, 638 A.2d 1260 (1994) (“Injunctions neces-

sarily require an individualized balancing of rights.”); cf.

R. 4:52-4 (1994) (requiring that injunctions contain speci-

fic terms and describe in detail acts sought to be

restrained).

The facts here lead us to the conclusion that a 300-

foot restriction is too broad. As became clear at oral

argument, if plaintiffs stayed within their residence or

even walked out into their yard, the picketers and their

placards would not likely be visible 300 feet away. Thus,

keeping defendants at such a great distance, thereby ren-

dering plaintiffs’ awareness of the picketing most

unlikely as a practical matter, is unnecessary to protect

plaintiffs’ residential-privacy interest. We have before us,

33a

however, enough facts to permit us to tailor the restric-

tions appropriately, and the trial court would not likely

be able to make any additional findings to aid in crafting

those restrictions. Moreover, this Court’s authority to

modify injunctions to make them conform to law is well

established. See Horizon Health Ctr., supra, 135 N.J. at 148,

638 A.2d 1260 (“When an injunction impermissibly

exceeds applicable legal standards, appellate courts can

modify or rewrite such an injunction to conform to those

standards.”); see also Northeast Women’s Ctr. v. McMonagle,

939 F.2d 57, 67 (3d Cir.1991) (“We of course have the

power to modify or even rewrite an iniunctive order that

exceeds permissible legal parameters.”); cf. New York

Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 728,

11 L.Ed.2d 686, 709 (1964) (“This Court's duty is not

limited to the elaboration of constitutional principles; we

must also in proper cases review the evidence to make

certain that those principles have been constitutionally

applied.”).

In redrafting the injunction, we will follow the

United States Supreme Court's invitation in Madsen to

impose “a limitation on the time, duration of picketing,

and number of pickets outside a smaller zone * * * [to]

accomplish| ] the desired result, protecting plaintiff's

residential privacy].” Id. at __, 114 U.S. at 2530, 129

L.Ed.2d at 614 (emphasis added). We note here that inas-

much as our modified injunction will impose a picket-free

zone, albeit a zone smaller than 300 feet, we have

declined to adopt defendants’ and ACLU’s position in

respect of whether the injunction should contain a dis-

tance limitation at all. Those parties would have this

Court require defendants to march a specific route (a loop

34a

from one end of the Murrays’ block to the other), with the

picketers walking a specified distance apart from each

other to provide for periods during which the space in

front of plaintiffs’ house is free from picketers. Defen-

dants and ACLU argue that no distance limitation, no

matter how small, is permissible, because no conduct-

based factors are present (e.g., prior violation of a judicial

order, or unlawful or disorderly conduct) to warrant such

relief. That view is inconsistent with our reading of Mad-

sen that a smaller picket-free zone is permissible, even in

the absence of such factors. Nowhere in their opinions

did the Florida Supreme Court or the United States

Supreme Court hinge their dispositions to the circum-

stance that the defendants in that case had engaged in

violent, disorderly, or otherwise unlawful conduct out-

side the residences of the owners, agents, staff, or

employees of the clinic. Moreover, a “free” zone here

would provide for easier enforcement than would a com-

plicated restriction of the type proposed by defendants

and ACLU, given the limited resources dedicated to such

matters and the need to ensure compliance with the

injunction’s terms.

Moving to the restriction itself, we do adopt many of

defendants’ and ACLU’s other suggestions in respect of

acceptable limitations on the number of picketers and the

time and duration of the picketing, as well as a notifica-

tion requirement. Thus, we replace the no-picketing-

within-300-feet restriction that the trial court imposed

and that we originally upheld under a less-stringent test

in Murray, 136 N.J. 32, 642 A.2d 338, with the following:

Defendants and all those in active concert

or participation with them:

‘

35a

(1) are prohibited at all times and on all

days from picketing in any form within 100 feet

of the property line of the Murray residence,

located at 917 Carlton Road, Westfield, New

Jersey;

(2) may picket in a group of no more than

ten persons outside the 100-foot zone around

the Murray residence for one hour every two

weeks;

(3) must notify the Westfield police

department at least twenty-four hours prior to

any intended instance of picketing pursuant to

this injunction of the number of picketers and of

the time and duration of the intended picketing.

Under our understanding of Madsen, we conclude

that the foregoing restrictions burden no more speech

than necessary to protect plaintiffs’ residential-privacy

interest. A buffer of 100 feet is required here because it

places the border of the zone approximately one-and-one-

half lots away from the Murray residence; the Murrays

will be free to enjoy their domestic tranquility inside their

house, but if they choose to go out into their yard, they

will see the picketers a mere lot-and-a-half away. Thus,

defendants will be able to get their message across (if

plaintiffs desire to look at it) but the modest buffer will

relieve plaintiffs of the feeling that they are prisoners

within their own home. Limiting the number of picketers

to ten will prevent plaintiffs from feeling besieged by

defendants, but will also assuage defendants’ concern

that if only a few picketers are allowed, the picketing will

not be taken seriously by those viewing it because they

would perceive the message to represent a marginal

36a

viewpoint. Further, the picketing-every-two-weeks lim-

itation allows defendants to demonstrate often enough to

communicate their message without subjecting the Mur-

rays to a constant barrage of picketing. Finally, the dura-

tion limitation gives defendants plenty of time in which

to convey their message each time they picket; in fact, at

oral argument defendants conceded that they would not

likely want to picket for more than one to one-and-one-

half hours at a time anyway.

Finally, we note that as ACLU stated at oral argu-

ment, although the original injunction technically

allowed more speech (it placed no limits on the number

of picketers, or on the time and duration of the picket-

ing), that speech was less effective because defendants

were so far away from plaintiffs. The modified restric-

tions allow defendants to communicate their message

much closer to where the object of their message would

likely become aware of it, thereby presumably making

that speech more effective.

The judgment of the Appellate Division, 264

N.J.Super. 17, 624 A.2d 3, affirming the Chancery Divi-

sion’s permanent injunction prohibiting defendants from

picketing within 300 feet of plaintiffs’ residence is mod-

ified as set forth in this opinion. As modified the judg-

ment Is

Affirmed.

37a

For modification and affirmanc’ — Chief Justice WIL-

ENTZ, and Justices CLIFFORD, HANDLER, O’HERN,

GARIBALDI and STEIN - 6.

Opposed —- None.

eine toy ~~»

38a

Belinda MURRAY and Elrick A. Murray,

M.D., Plaintiffs-Respondents,

Vv.

Michael Andrew LAWSON, David Crist,

Jane Doe (a fictitious name) and John Doe

(a fictitious name), Defendants-Appellants.

Virginia BOFFARD and Daryl! K. Boffard,

M.D., Plaintiffs-Respondents,

Vv.

Timothy BARNES, Dorothy Black, Carol

Ford, Barbara Carlstrom, Jane Doe (a

fictitious name) and John Doe (a fictitious

name), Defendants-Appellants.

Nos.A-42 SEPT. TERM 1993, A-65 SEPT.

TERM 1993.

Supreme Court of New Jersey

April 6, 1994

CLIFFORD

These cases, argued together before this Court,

require a balance between the free-speech rights of anti-

abortion protestors and the residential-privacy interest of

two doctors and their families. In Murray v. Lawson, the

Appellate Division upheld a permanent injunction by the

Chancery Division prohibiting defendants, anti-abortion

protestors, from picketing within 300 feet of plaintiffs’

residence. 264 N.].Super. 17 (1993). In Boffard v. Barnes, the

same panel of the Appellate Division upheld a Chancery

Division restriction forbidding defendants, anti-abortion

protestors, from picketing within the immediate vicinity

of plaintiffs’ residence. 264 N.J.Super. 11 (1993). Defen-

dants in both cases petitioned this Court. We granted

certification, 133 N.J. 445 (1993), and 133 NJ. 446

39a

(1993), to address the problems inherent in balancing free

speech with residential privacy.

We now affirm the Appellate Division’s judgment

upholding the Murray injunction. We modify the judg-

ment of the Appellate Division in Boffard and remand to

the Chancery Division for a clarification of the restric-

tions contained in its injunction.

A. Murray v. Lawson

The facts are as set forth in the Appellate Division

opinion, to which we make reference as necessary.

Plaintiff Dr. Elrick Murray is a New Jersey-licensed

obstetrician and gynecologist with a private practice in

Plainfield. Dr. Murray does not perform abortions at that

office. He does, however, perform abortions at the

Women’s Medical Center in Howell, and at hospitals in

Newark and in Watchung. 264 N.].Super. at 22. He also

performed abortions at the Medical Care Center in Wood-

bridge before that facility burned to the ground. Id. at 24.

Dr. Murray and his wife, plaintiff Belinda Murray, live

with their three children in Westfield in a suburban

neighborhood. In 1991 the children were ages six, eleven,

and fifteen. Id. at 22. Defendants regularly demonstrated

against abortion by picketing at the Howell Clinic for

about two years before January 1991. Id. at 23.

By engaging in some research in December 1990,

defendant Lawson uncovered Plainfield and Westfield

addresses for Dr. Murray. Lawson visited both addresses

to confirm that they were current. On December 14, 1990,

Pe aA PEs ns *4 ee, ——

40a

when he went to the Westfield address, Lawson was

surprised to find a residence and not an office. When

Lawson rang the doorbell, plaintiffs’ then-fourteen-year-

old son answered the door. After confirming that the

house was the Murray residence, Lawson told the boy to

relay a message to his father to stop doing abortions. Mrs.

Murray came to the door and told Lawson to leave and

not return. Lawson left immediately. Mrs. Murray testi-

fied that Lawson's visit had frightened and upset her.

Ibid.

About a month later, Lawson informed the Westfield

police that he and approximately fifty other people

planned to picket peacefully outside the Murray resi-

dence on Sunday, January 20, 1991. The administrator of

the Medical Care Center in Woodbridge warned Dr. Mur-

ray about the Sunday protest. On the advice of the West-

field police, Dr. Murray sent his family away for the day

but he remained inside the house himself. Ibid. Dr. Mur-

ray testified that he would have preferred to go to the

hospital that day instead because two of his patients were

in labor. Id. at 24.

On the afternoon of January 20 two police officers

met the fifty-seven picketers at a nearby school,

instructed them on basic picketing rules, and escorted

them to the sidewalk in front of the Murray residence. Id.

at 23. The picketers walked in a single-file loop on the

sidewalk in front of the Murray residence and in front of

about ten surrounding houses. Defendants walked gener-

ally two abreast but sometimes four or five abreast. Ibid.

The picketers carried placards that stated, among other

things, “Dr. Murray scars women and kills their unborn

children,” “Elrick Murray pre-born baby exterminator

4la

and nomad abortionist,” and they carried a placard that

showed a decapitated infant with the caption “Elrick

Murray, abortionist.” Id. at 23-24. The picketers spoke to

several neighbors including one teenager whom they

asked whether he knew that a killer lived in the neigh-

borhood. /d. at 23.

Plaintiffs testified that the demonstration had the

following effects: (1) it deprived the Murrays of their

usual Sunday family time; (2) it harmed Dr. Murray’s

ability to practice medicine because he was forced to

remain home to manage his patients in labor in lieu of

managing them at the hospital; (3) it caused Dr. Murray

to curtail his professional work because he felt compelled

to stay home more often; and (4) it caused Mrs. Murray to

suffer from nervousness and depression. Id. at 24.

In February 1991 plaintiffs filed suit in the Chancery

Division seeking damages and injunctive relief against

defendants, Lawson, Crist, and fictitiously-named others.

The five-count complaint charged Lawson with trespass

and charged all defendants with disruption of plaintiffs’

use and enjoyment of their property, intrusion on their

seclusion, damage to Dr. Murray’s professional reputa-

tion and pecuniary interests, and deprivation of the right

to privacy under the United States and the New Jersey

Constitutions. Id. at 21. On February 8, 1991, the first

scheduled hearing date of the case, defendants Lawson

and Crist picketed for about fifteen minutes on the side-

walk in front of plaintiffs’ residence and in front of other

residences on the block. Id. at 24.

42a

After a hearing on February 14, 1991, the Chancery

Division entered a temporary restraining order on Febru-

ary 22, restricting the picketers from using the words

“murderer” or “killer,” from referring to members of the

Murray family by name, from carrying the sign with the

decapitated fetus, and from hand-delivering written

material to residents of the neighborhood. In addition,

the order limited defendants’ demonstrating to picketing

by two persons, for one hour, every three weeks. Id. at 21

n.1.

No demonstrators picketed at the Murray residence

until May 4, 1991. In the interim, however, on April 22,

1991, Dr. Murray discovered on arriving for work at the

Medical Care Center in Woodbridge that the building had

burned to the ground. Police and fire officials concluded

that the fire had been the product of an arsonist. Ibid.

Defendant Lawson picketed at the Howell clinic and at

Dr. Murray’s Plainfield office once between April 22 and

May 4, 1991. On May 2, 1991, Howell Township police

received a telephone message threatening the bombing of

the Howell clinic, whereupon the police evacuated the

site. Id. at 24-25. Authorities never determined con-

clusively who was responsible for the fire at the Wood-

bridge clinic or for the bomb threat to the Howell clinic.

Two days after the bomb threat, on May 4, 1991,

Lawson and another picketer reappeared to protest in

front of the Murray residence. Dr. Murray called the

police. After they had arrived in response to his call, the

doctor went outside and exchanged words, some of them

heated, with the picketers. He returned to his house at

the urging of police, but then went outside again and

took a swing at Lawson. Although no evidence linked

43a

defendants to the arson or to the bomb threat, Dr. Murray

felt threatened by and fearful of defendants. Dr. Murray

was later convicted of simple assault in the Westfield

Municipal Court. Id. at 25.

After a final hearing, the Chancery Division entered a

permanent injunction in July 1991, prohibiting “defen-

dants and all persons in active concert or participation

with them * * * from picketing in any form including

parking, parading or demonstrating in any manner,

within 300 feet of the Murray residence * * * .” The

Chancery Division also made other rulings: it dismissed

the claim for interference with Dr. Murray’s profession; it

subsumed the claim for interference with use and enjoy-

ment of property under the tortious invasion of privacy

claim; it found Lawson’s trespass irrelevant to the picket-

ing; and it characterized plaintiffs’ tort claims as invasion

of privacy and intentional infliction of emotional distress,

but because of the insufficiency of the proofs on. those

claims did not award money damages for either. Id. at 26.

On appeal, defendants claimed that the injunction

violates separation-of-powers principles, is an impermis-

sible prior restraint, violates defendants’ free-speech

rights, and is unwarranted because of Dr. Murray’s

“unclean hands” resulting from the assault on Lawson.

Plaintiffs did not cross-appeal the Chancery Division’s

other rulings. Id. at 26-27.

The Appellate Division affirmed the 300-foot restric-

tion. First, the court discerned no separation-of-powers

problem, reasoning that the trial court has inherent equi-

table power to enforce a right to residential privacy, even

in the absence of a local ordinance. Id. at 27-31. Second,

44a

the Appellate Division found that the injunction survives

a free-speech challenge because it is a reasonable time,

place, and manner restriction. Id. at 31-36. Finally, the

Appellate Division concluded that the trial court had not

abused its discretion by failing to apply the “unclean

hands” doctrine to deny plaintiffs equitable relief inas-

much as Dr. Murray’s conduct had not been so egregious

as to preclude such relief altogether. Id. at 36-38.

B. Boffard v. Barnes

Again we turn to the Appellate Division’s reported

decision for the factual recital.

Like Dr. Murray, plaintiff Dr. Daryl Boffard is a New

Jersey-licensed obstetrician and gynecologist. 264 N.J.

Super. at 13. He practices with an Irvington medical group

that offers obstetrical and gynecological care, including

abortion services. Id. at 13-14. Defendants, anti-abortion

protestors, had been picketing the Irvington clinic for two

years before they picketed the Boffard residence. Dr.

Boffard lives in a house in Short Hills with his wife,

plaintiff Virginia Boffard, and three young children. The

Boffard residence is on a quiet cul-de-sac containing only

one other house, and the street is so narrow that only one

car at a time may traverse it. Because the Boffards do not

have a backyard, their children play in the front yard of

the house and on an adjoining lot. Id. at 14.

On September 8, 1990, approximately twenty picke-

ters gathered in front of the Boffard residence. The picke-

ters carried placards saying, among other things, “Dr.

Daryl Boffard Kills Babies” and “God Says Thou Shalt

45a

Not Kill.” Other signs had pictures; one showed a muti-

lated full-term baby, and another showed bloody fetal

parts with the caption “This is an abortion.” When Mrs.

Boffard approached the demonstrators, they refused to

move. One demonstrator said to her, “Your husband is a

murderer.” Another demonstrator gave a teenage neigh-

bor a bible and toid her, “The doctor who lives there is a

murderer.” Ibid.

Defendants characterized their protest as peaceful.

They claimed that only Mrs. Boffard had been disruptive

and confrontational. In fact, one protestor called the

police to report Mrs. Boffard’s alleged hostile conduct.

Two police officers arrived and instructed the protestors

to picket only on the adjoining street. The protest ended

after about one hour. Ibid.

Plaintiffs filed suit in the Chancery Division seeking

to enjoin the picketing. They alleged that defendants,

Barnes, Black, Ford, Carlstrom, and fictitiously-named

others, had deprived them of the use and enjoyment of

their property and that defendants had caused them men-

tal and emotional pain and anguish. Accordingly, on Sep-

tember 14, 1990, the court issued a temporary restraining

order, prohibiting defendants from picketing within 200

feet of the Short Hills cul-de-sac, from referring to Dr.

Boffard as a “murderer” or a “killer,” from depicting

fetuses on placards, and from publishing plaintiffs’

address. The order also limited to six the number of

demonstrators who could protest near plaintiffs’ resi-

dence. Id. at 14-15.

On April 8, 1991, the Chancery Division issued a

preliminary injunction against defendants. 248 N.].Super.

46a

501 (1991). Five months thereafter, the Chancery Division

made that preliminary injunction permanent. Both the

preliminary and the permanent injunction provided:

ORDERED that the defendants and all persons and orga-

nizations associated with or acting in concert or combina-

tion with them be ENJOINED and RESTRAINED as

follows: 1. From gathering, parading, patrolling for the

purpose of demonstrating or picketing within the imme-

diate vicinity of plaintiffs’ residence * * * . 2. Distributing

flyers to plaintiffs’ neighbors which contain references to

[Dr. Boffard] as being a murderer or killer or his practice

as involving murder or killing or which contains any

other inflammatory language or which sets forth the

plaintiffs’ home address. 3. Carrying placards which con-

tain depictions of a fetus * * * * [264 N.J.Super. at 13.]

On February 19, 1991, before the Chancery Division

issued its preliminary and permanent injunctions, the

Township Committee passed an ordinance, Section

15-1-28, stating: “It is unlawful for any person to engage

in picketing before or about the residence or dwelling of

an individual in Millburn Township.” No party has sug-

gested that the Chancery Division relied on that ordi-

nance in issuing the restrictions, and defendants do not

challenge that ordinance in these proceedings.

On April 12, 1993, the same panel of the Appellate

Division as upheld the Murray injunction upheld para-

graph one of the Boffard injunction, prohibiting defen-

dants from protesting “within the immediate vicinity” of

the Boffard residence. 264 N.J.Super. at 16. The Appellate

Division reasoned that the paragraph-one restriction is a

constitutional time, place, and manner restriction. Ibid.

The court struck down paragraphs two and three of the

47a

injunction, however, finding that those restrictions are

impermissibly content based. Ibid. On this appeal, there-

fore, we assess the validity of only the paragraph-one

restriction.

Defendants in both cases assert that in the absence of

violent conduct or conduct in violation of a statute or an

ordinance, the Chancery Division has no inherent author-

ity to impose injunctive restrictions on protected expres-

sion. Put differently, defendants argue that the judiciary

may not issue an equitable remedy without proof of

violence or legal liability. We do not agree.

In Horizon Health Center v. Felicissimo, 135 N.J. 126

(1994), decided today, we upheld the authority of the

Chancery Division to issue an injunction restricting the

expressive activities of anti-abortion protestors who had

demonstrated peacefully outside an abortion and family-

planning clinic. The defendants in that case mace the

same argument that defendants make here, namely, that

the Chancery Division could not enjoin their peaceful

expression. in Horizon Health Center we held that the

Chancery Division, a court of equity, does have the

authority to restrict peaceful expressive activity to

enforce the public policies of accessibility of medical ser-

vices and maintenance of medical standards, id. at 144-46

(slip op. at 21-24), protection of private property, id. at

146-47 (slip op. at 25), and public safety, id. at 147 (slip

op. at 26).

Here, the Chancery Division entered the injunction

against defendants to enforce a public policy favoring the

48a

protection of residential privacy. In Part III, B of this

opinion, we conclude that residential privacy represents a

sufficient public-policy interest to justify injunctive

restrictions and that it implicates a significant govern-

ment interest. We therefore conclude that the Chancery

Division had the power to enjoin the nonviolent, non-

criminal activity of defendants to protect plaintiffs’ resi-

dential privacy.

Decisions of other courts upholding injunctive

restrictions against peaceful picketers to protect residen-

tial privacy support our conclusion. See, e.g., Dayton

Women’s Health Center v. Enix, 589 N.E.2d 121, 127 (Ohio

Ct.App.) (affirming permanent injunction against peace-

ful picketing at residences of abortion-clinic personnel by

protestors who had engaged in tortious conduct at clinic

itself but not a residences of personnel), appeal dismissed,

583 N.E.2d 971 (Ohio 1991), cert. denied sub nom. Sorrell v.

Dayton Women’s Health Center, __ U.S. ___, 112 S.Ct. 3033,

120 L.Ed.2d 903 (1992); Klebanoff v. McMonagle, 552 A.2d

677, 678 (Pa.Super. Ct.1988) (upholding injunction against

peaceful antiabortion picketers outside residence of phy-

sician to protect residential privacy), appeal denied, 563

A.2d 888 (Pa.1989). But see Valenzuela v. Aquino, 853

S.W.2d 512, 513-14 (Tex.1993) (finding permanent injunc-

tion against selected residential picketing by anti-abor-

tion protestors improper because court had made no

determination of legal liability).

Our inquiry does not end with our determination

that the Chancery Division had the authority to issue the

injunctions, however. For the exercise of the Chancery

Division’s authority to be valid, the restrictions must

49a

balance defendants’ free-speech rights and plaintiffs’ resi-

dential-privacy interests. See Horizon Health Center, supra,

135 N.J. 139 (slip op. at 13). The issue is whether the

specific restrictions that the Chancery Division imposed

are permissible.

III

In Horizon Health Center we held that a Chancery

Division injunction prohibiting picketing outside an abor-

tion clinic “regulates expressive activity traditionally pro-

tected by the First Amendment.” 135 N.J. at 139 (slip op.

at 14). Because the injunctions in these cases regulate the

same activity — the Murray injunction prohibits “picketing

in any form,” and the Boffard injunction prohibits “gather-

ing, parading, patrolling for the purpose of demonstrat-

ing or picketing” - they also regulate First Amendment

expression and we must analyze them accordingly.

The injunctions here, restricting expressive activity

on public streets and sidewalks in residential neighbor-

hoods, regulate expressive activity in a traditional public

forum. In Horizon Health Center, we observed that public

streets and sidewalks are archetypical traditional public

forums. Id. at 140 (slip op. at 15). Moreover, as the

Supreme Court noted in Frisby v. Schultz, 487 U.S. 474,

480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 429 (1988), “a

public street does not lose its status as a traditional public

forum simply because it runs through a residential neigh-

borhood.”

Therefore, inasmuch as the injunctions proscribe pro-

tected activity in a traditional public forum, we evaluate

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them under the stringent standards the Supreme Court

has outlined for regulating speech in such forums.

“In these quintessential public for{ums], the

government may not prohibit all communicative

activity. For the State to enforce a content-based

exclusion it must show that its regulation is

necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that

end. * * * . The State may also enforce regula-

tions of the time, place, and manner of expres-

sion which are content-neutral, are narrowly

tailored to serve a significant government inter-

est, and leave open ample alternative channels

of communication.”

[Frisby, supra, 487 U.S. at 481, 108 S.Ct. at

2500-01, 101 L.Ed.2d at 429 (quoting Perry Educ.

Ass'n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 804 (1983).]

The threshold inquiry, then, is whether the injunctions

against defendants are content neutral.

A. Content Neutrality

A restriction is content neutral if it can be justified

without reference to the content of the regulated speech.

Horizon Health Ctr., supra, 135 N.J. at 141 (slip op. at 16). If

a restriction is imposed because of a disagreement with

the message the regulated speech conveys, however, it is

impermissibly content-based. Ibid. (slip op. at 16).

We conclude that the injunctions against defendants

are content neutral. They do not reflect a disagreement

with defendants’ respective messages, and we can justify

them without reference to the content of defendants’

5la

speech. The final injunctions in both cases do not refer in

any way to the content of defendants’ speech but merely

forbid them from picketing within a certain distance of

plaintiffs’ residences. The Chancery Division in each case

imposed the restrictions not because the court disagreed

with defendants’ viewpoint but to insure that defendants’

communication of that viewpoint does not impermissibly

interfere with plaintiffs’ residential privacy. In imposing

the injunctions, the Chancery Division focused not on the

effect of defendants’ message on plaintiffs but on defen-

dants’ sheer physical presence outside of plaintiffs’

homes.

We reject defendants’ argument that the injunctions

are content based merely because they restrain the

expressive activities only of anti-abortion picketers. As

we noted in Horizon Health Center. “Merely because an

injunction restricts only a specified group does not make

that injunction content based. Courts always tailor

injunctive relief to address the specific facts presented to

them.” 135 N.J. at 143 (slip op. at 20). Only these defen-

dants interfered with plaintiffs’ residential privacy.

Accordingly, the Chancery Division restrained only the

activities of only these defendants.

Defendants also argue that a Chancery Division

judge has unbridled discretion in determining whether to

issue injunctive relief. Therefore, the argument goes, any

injunctive relief a judge issues is content based because

that judge may impermissibly consider content in decid-

ing whether to grant relief. To support their argument,

defendants cite Forsyth County, Georgia v. Nationalist

Movement, __ US. — —~ 112 S.Ct. 2395, 2403-04, 120

L.Ed.2d 101, 109-10 (1992) (holding ordinance placing

52a

unfettered discretion with county administrator to assess

security needs for parade permit fees to be content

based). So strained is that analogy, however, that we

dwell on the point only long enough to reject it out of

hand. The differences between a county administrator's

discretion and the discretion imposed in a judicial officer,

whose flexibility in the exercise thereof is constrained by

well-recognized principles of law, are too obvious to war-

rant citation of authority.

Finally, the decisions of other courts analyzing simi-

lar injunctions against anti-abortion protesters outside

doctors’ residences support our conclusion that the

injunctions are content neutral. See, e.g. Kaplan v. Prolife

Action League, 431 S.E.2d 828, 843 (N.C. Ct.App.) (finding

restriction prohibiting picketing within zone near plain-

tiff’s residence content neutral because it “makes no men-

tion of abortion or any other substantive issue. It does not

flatly ban picketing * * * nor does it prohibit anti-

abortion picketing while permitting residential picketing

having other aims. * * * . [T]he trial court [focused not]

on the effect ** * of defendants’ message * * * , but

rather on defendants;’ physical presence * * * ”) (citations

omitted), review denied, 436 S.E.2d 379 (N.C.1993), petition

for cert. filed, No. 93-1159 (Jan. 18, 1994); see also Dayton

Women's Health Center, supra, 589 N.E.2d at 127 (finding

order prohibiting picketing only in front of certain resi-

dences to be content neutral because “[i]t does not pro-

hibit residential anti-abortion picketing while permitting

residential picketing having other aims”); Klebanoff, supra,

552 A.2d at 678-79 (finding injunction prohibiting picket-

ing in front of doctor’s house to be content neutral

because it does not “refer [] to the content or subject

53a

matter of the protest. The injunction contains no invita-

tion to subjective or discriminatory enforcement.”).

Having determined that the Chancery Division

imposed content-neutral restrictions, we turn now to the

question whether those restrictions are narrowly tailored

to serve significant government interests and whether

they leave open ample alternative channels of communi-

cation for defendants. See Frisby, supra, 487 U.S. 481, 108

S.Ct. at 2500-1, 101 L.Ed.2d at 429.

B. Significant Government Interests

Plaintiffs assert that they are entitled to residential

privacy, that defendants’ picketing interfered with that

privacy, and that the State has a significant interest

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