# Petition for Writ of Certiorari — Lawson v. Murray > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0584%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1110 ## Text / 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. iV 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.............. 11 15 be A meee et tee ee ee ee eT 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 vi 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. e Petition For Writ Of Certiorari To The Supreme Court Of New Jersey o 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 3 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. 4 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 6 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. 8 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. 10 (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, 12 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.” © In sharp contrast with the present case, the trial court in Madsen “found 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). 14 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. 15 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. 16 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: 18 [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) oe 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). 20 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 21 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. 7 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 ae 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. 24 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). 26 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’). 27 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. 28 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). 29 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. 30 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 la 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 2a 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, 3a 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. I 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 4a 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. 5a 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. 6a 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 7a 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 8a 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 9a 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”). IV 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 publ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0584%3A2. Public record. Not legal advice.