Opposition Brief — Lawson v. Murray

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Susseme Court, US

hme * +)

JUN 4 1998

No. 97-1790

TTP RK |

In The

Suprene Court of the United States

October Term, 1997

MICHAEL LAWSON and EDIE TUCKER,

Petitioners,

Vs.

ELRICK MURRAY and BELINDA MURRAY,

Respondents.

On Petition for Writ of Certiorari to the

Superior Court of New Jersey, Appellate Division

RESPONDENTS’ BRIEF IN OPPOSITION

PAMELA MANDEL

Attorney for Respondents

The Common-Suite 206

225 Millburn Avenue

Millburn, New Jersey 07041

(973) 376-3888

” utz

146718 (800) 274-3321 * (800) 359-6859 L tate

A DIVISION OF COUNSEL PRESS ervices, inc

TABLE OF CONTENTS

Statement of the Case

Reasons for Denying the Writ

I. The Injunction At Issue In This Case Is Not A

Prior Restraint.

The Petitioners Engaged In Targeted Picketing

And, Thus, The Injunction Entered Was Proper

To Protect The Respondents’ Residential Privacy.

Ill. The Terms Of The Permanent Injunction Do Not

Burden More Speech Than Is Necessary. ..... 17

Conclusion

TABLE OF CITATIONS

Cases Cited:

City of Prairie Village v. Hogan, 855 P.2d 949 (Kan.

City of San Jose v. Superior Court of Santa Clara County,

38 Cal. Rptr. 2d 205-212 (Ca. Ct. App. 6th Dist. 1995)

City of Seven Hills v. Aryan Nations, 667 N.E. 2d 942

(Ohio 1996)

Contents

Page

Copper v. City of Fargo, 905 F. Supp. 680 (D.N.D. 1994)

Pi ee ke teh eeekh bike bodes ibens 13

Cox v. New Hampshire, 312 U.S. 569 (1941) ....... 18

Douglas v. Brownell, 88 F.3d 1511 (8th Cir. 1996)... 12, 13

Frisby v. Schultz, 487 U.S. 474 (1988) .......... 6, 8, 11, 12

Hanzo v. deParrie, 152 Or. App. 525 (1998) ........ 11

Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996) ..... 12

Lucero v. Trosch, 121 F.3d 591 (11th Cir. 1997) ..... ll

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

SE woutobenwunes ¢ 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17

Operation Rescue v. Planned Parenthood, 937 S.W. 2d.

60 (Tex. App. - Houston [14th Dist.] 1996), Rehearing

SY EE BOSE cence cvccnnevuseccer 15

People v. Holman, 630 N.E. 2d 154 (Ill. App. Ct. 1994)

ee den eek Wh wed weeded WEG bbeONd ORC CA ewes x

Planned Parenthood Ass'n v. Operation Rescue, 50 Cal.

App. 4th 290, 57 Cal. Rptr. 2d 736 (1996) ....... 13

Rosen v. Port of Portland, 641 F.2d 1243 (9th Cir. 1981)

Contents

Page

State of Arizona v. Baldwin, 908 P.2d 483 (Ct. of App.

SED -n win bch achviiev ehh badass cece teen 7,8

Tompkins v. Cyr, 1998 W.L. 21650 (N.D. Tex., January

i ED. . dM ed cua eee teks eran dats onal ce 15, 16

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

DL MD sheodhcevatedeeenvuctiwacbeebecet 9, 10, 11

United States Constitution Cited:

Pe nn ocnevctdehennetevedysdehen dueac 18

STATEMENT OF THE CASE

The procedural history of this matter through this Court's

denial of certiorari, 515 U.S. 1110 (1995) is set forth in

petitioners’ submission. In June, 1995, Dr. & Mrs. Murray

moved from Westfield, New Jersey, to 11 Thistle Lane, Warren,

New Jersey. They attempted to make this move without alerting

the picketers. No signs were placed on the house in Westfield

and it was listed in the wife’s maiden name. The plaintiffs told

neither their neighbors in Westfield, nor the Westfield Police

where they were moving. Despite their best efforts to keep the

location of their new residence private, Dr. Murray was certain

that his vehicle was followed home from his private office in

Plainfield late on a Monday night at the end of October. Two

weeks after that incident, the picketers did arrive at the Murrays’

new home in Warren.

Prior to being followed from his Plainfield office and

subsequent to the Westfield litigation, posters with Dr. Murray's

picture were placed on telephone poles in towns throughout

New Jersey and postcards were sent anonymously to neighbors

with Dr. Murray’s face, his addresses and words identifying

him as an “abortionist”. The poster resembled a “wanted” poster.

These incidents caused Dr. Murray concern about his safety

and the safety of his family. Petitioner Lawson acknowledged

that he ordered and sent the postcards and ordered and placed

the posters.

On Sunday, November 19, 1995, the respondents and their

family were at an auction when Dr. Murray received a call

through his beeper to contact the Warren Police. It was in that

setting that respondent was informed that the picketers were

going to be picketing at his new home in Warren. Dr. Murray

was confident that the Injunction entered in Westfield was

applicable to his present residence as well. The respondents left

: 2

the auction immediately to return home, but did not arrive until

the picketers were leaving.

According to Officer Kingsland, the Supervisor on duty

on November 19, 1995, he received a telephone call at around

noon from Michael Lawson, who advised that he was coming

to Warren to picket at Dr. Murray's house. Mr. Lawson did not

know Dr. Murray's precise address when questioned by Officer

Kingsland. The Department had been alerted to the fact that Dr.

Murray had moved to town and that he had experienced

problems with picketers in Westfield. Therefore, Officer

Kingsland contacted the Westfield Police Department and

received a fax of the Injunction. Officer Kingsland confirmed

that he also reached out to notify Dr. Murray of the impending

picketing activity. Officer Kingsland communicated with

Assistant Prosecutor Cirichella regarding the Injunction who

advised that, at least for the day, the Injunction would be

enforced. Officer Kingsland met petitioner Lawson as he arrived

on the scene of Thistle and Rockage and informed him of this

enforcement decision. While petitioner Lawson indicated his

disagreement with the position, he agreed to comply with the

100 foot buffer zone. Officer Kingsland overlooked the fact

that there were between 15 and 20 picketers present on that

date.

The picketers next appeared on December 17. The

respondents were surprised by their presence. The family had

just returned from church and they were going to Harlem to

attend a play when they first saw the picketers. The family drove

to Broadway, the street behind Thistle Lane, to observe the

picketing activity. Mrs. Murray was anxious for the children to

leave when they observed the picketers but the family did not

continue into New York, the picketing “... messed up our

plans”.

On January 28, 1996, the picketers reappeared. The Murrays

had been informed of the impending picketing and Mrs. Murray

~S.

and the children left the home while Dr. Murray remained

behind. Mrs. Murray explained that the stress associated with

the picketing has increased since the initial picketing in 1991.

Starting on Fridays, she is anxious waiting to see if there will

be a call that the picketers are going to come on Sunday. In

addition, given the continued activities of defendant Lawson,

she worries that he is unstable and feels that he is a threat to the

safety of her husband and her children. There is almost some

relief when they do come because then she knows she has almost

two weeks before she begins to worry about their appearing

again. The larger the number of picketers the greater the impact

according to Mrs. Murray but it is defendant Lawson that causes

her the most stress, “But you know if just Michael Lawson was

out in front of our home, it would be the same as if 10 or 15

were there. Because I just feel threatened by him being there.”

Dr. Murray is also concerned about the number of picketers

and their proximity to his home. “I think one defendant is

sufficiently threatening and then you multiply it by 15. I think

we have good reason to be concerned.” He would be fearful for

his children, ages 11 and 15, who continue to live at home, to

be in their front yard when the picketers are there, “We are

afraid for our children ... I think anyone physically at my

home uninvited is a threat.”

Michael Lawson, age 34, resides in Freehold, NJ, at the

home of Edie Tucker. He has resided that for 11 years. For the

last six years, he has been employed at A&P on the night crew

stocking shelves. Petitioner Lawson has been involved in anti-

abortion activities for the last 6 years. While Mr. Lawson claimed

to have picketed at clinics other than the one in Howell and at

doctors’ residences other than that of Dr. Murray, he

acknowledged that in the last year, he has not appeared at any

other clinic and that within the last year, he has not appeared

more than 2 or 3 times at any other doctor’s residence. Lawson

also admitted that he personally arranged to have the postcards

printed with Dr. Murray's face, addresses and description as an

abortionist and that he alone addressed the postcards. He further

acknowledged that he never had postcards prepared for any of

the other doctors whose homes he had picketed. He

acknowledged that he arranged to have the posters in neon

bright pink printed with Dr. Murray’s picture and he further

admitted that he alone put up the posters and that he did not

have posters prepared with any other doctor's picture.

Lawson explained that when learning that the Murrays no

longer lived in Westfield, he stopped picketing there and

undertook efforts to discover where Dr. Murray lived. It was

after discovering his new address that he organized the

demonstration for his new residential neighborhood in Warren.

At the hearing, the petitioners indicated that if an injunction

had not been issued, they would be able to bring many more

picketers since the neighborhood can accommodate large

numbers of people. The trial judge found that the only reasons

the respondents were not under siege in Warren was due to an

injunction being in place. Pa at 19a-20a. The trial judge

conducted an extensive comparative analysis of the Murrays’

residence in Westfield, NJ, with their new residence in Warren

Township. Pa at 21a-23a. Based upon that comparison and an

analysis of the New Jersey Supreme Court decision in Murray

v. Lawson, the trial judge crafted restrictions that burden no

more speech than is necessary to protect the Murrays’ residential

privacy interests. Those restrictions varied from the Westfield

restrictions in terms of the buffer zone itself and the number of

picketers permitted. In Westfield, there was a buffer zone

extending 100 feet from the boundary of the Murray property.

In the instant case, picketers were prohibited from picketing

within a buffer zone coterminous with the sidelines of the

Murray residence. In Westfield, the number of picketers was

limited to ten; in the instant case the number was expanded to

fifteen.

ee es :

REASONS FOR DENYING THE WRIT

Contrary to petitioners’ histrionics and hyperbole, the New

Jersey court decisions do not conflict with decisions of lower

federal courts or of this Court. The decision below faithfully

applies this Court’s decision in Madsen v. Women's Health

Center, Inc., 114 S. Ct. 2516 (1994), to facts set forth in a

comprehensive record developed by the trial court. It carefully

adjusted the free speech rights of petitioners, and the state's and

respondents’ interests in residential privacy, so as to “burden

no more speech than necessary” to protect those interests. The

writ, therefore, should be denied.

THE INJUNCTION AT ISSUE IN THIS CASE IS NOT

A PRIOR RESTRAINT.

Petitioners argue, as they have in previous petitions to this

Court, that the injunction at issue here is unconstitutional as a

“prior restraint”. This Court’s decision in Madsen, however,

categorically rejected this argument.

In reviewing the propriety of an injunction creating a 36-

foot no-picketing “buffer zone” around a Florida abortion clinic,

this Court said the injunction was not a prior restraint for two

reasons, both of which apply here. First, unlike valid time, place

and manner regulations, prior restraints absolutely ban a message

in advance of publication. In contrast, the “petitioners [in

Madsen) are not prevented from expressing their message in

any one of several ways; they are simply prohibited from

expressing it within the 36-foot buffer zone.” Madsen, 114 S.

Ct. at 2524 n.2. Similarly, here petitioners are simply prohibited

from expressing their message within a buffer zone coterminous

with the sidelines of the respondents’ residence. Outside that

zone, they are free to display any message they please. Moreover,

under the terms of the present injunction, that message is in full

sight of all who care to view it, even the Murrays, should they

look out their window or step outside their home.

Second, this Court said in Madsen that “the injunction was

issued not because of the content of petitioners’ expression . . .

but because of their prior unlawful conduct.” Jd. The same

analysis applies here. The New Jersey Chancery Court issued

the injunction, not to quash respondents’ message, but to prevent

a method of expression that this Court has acknowledged

“inherently and offensively” intrudes on residential privacy.

Frisby, 487 U.S. at 486.

Petitioners misconstrue this last statement from Madsen to

mean that a finding of prior unlawful conduct is a precondition

to a finding that an injunction aimed at picketing is not a prior

restraint. The New Jersey Supreme Court correctly rejected this

argument. The correct constitutional inquiry, as stated in

Madsen, is whether the restraint can be justified other than by

reference to the content of the message. Nothing in Madsen or

any other case suggests that prevention of unlawful conduct is

the only non-content-based rationale that takes an injunction

out of the category of prior restraints. Indeed, in Madsen, this

Court did not find the trial court's injunction a prior restraint,

despite the fact that no crime or tort had been committed by the

demonstrators in relation to that activity.

THE PETITIONERS ENGAGED IN TARGETED

PICKETING AND, THUS, THE INJUNCTION ENTERED

WAS PROPER TO PROTECT THE RESPONDENTS’

RESIDENTIAL PRIVACY.

Petitioners present the novel argument that the picketing

in the instant case was not “targeted picketing” and that the trial

judge erred in designating the picketing as targeted based upon

plaintiff's identity on the signs. To suggest that the injunction

is content-based, as petitioner does in paragraph III of their

petition because the “content” of the sign is relied upon to

designate that the picketing is targeted, is absurd. Moreover,

respondents did not rely exclusively on the signs as evidence

of targeted picketing. The trial judge considered the prior

conduct of the petitioners as well 2s the conduct in Warren before

determining that the petitioners engaged in targeted picketing.

Petitioner Lawson testified that upon learning that the Murrays

no longer lived in Westfield, he stopped picketing there and he

investigated property records to discover where they had moved.

He notified the Warren police that he was coming to picket in

Warren at Dr. Murray's residence. Within the year prior to the

trial, petitioner Lawson's anti-abortion activities have been

consumed with Dr. Murray.

Petitioners would have the Court operate under the fiction

that this case began on November 19, 1995 and ignore the

history between the parties. It is entirely appropriate and, in

fact, necessary that the Court consider the history between the

parties commencing on January 20, 1991. PA at 18a. With that

background, any suggestion that the petitioners did not intend

to engage in targeted picketing with the Murrays being the target

belies logic and must be rejected. This specious position offered

by petitioners has been rejected in State of Arizona v. Baldwin,

908 P.2d 483 (Ct. of App. Arizona 1995). In that case, the

court upheld a residential picketing statute in the conviction of

an abortion protester despite the defendant's claim that he was

not engaged in “targeting picketing”. Despite the protester’s

claim that he was not targeting the doctor because he walked

the entire length of the street, the court found targeting on the

basis of the protester’s statement to the doctor that he “was going

to hell for killing babies”. Also of note in that court's decision

is the discussion of the captive nature of the residential listener

when faced with even an unobtrusive lone picketer. /d. at 488.

People v. Holman, 630 N.E. 2d 154 (Ill. App. Ct. 1994)

does not compel a different result. In this Illinois case, defendant

was arrested for violating the statute prohibiting residential

picketing. The issue on appeal was whether evidence of prior

picketing should be admitted at trial. The ruling that this

evidence should be precluded as being extremely prejudicial in

a criminal case does not support petitioners’ argument that they

were not engaged in targeted picketing in the context of this

case.

Petitioners’ feeble attempt to limit targeted picketing to

focused picketing taking place solely in front of a particular

residence is not supported by the caselaw despite their desperate

reliance on Justice Scalia’s dissent at 115 S. Ct. 264-65. Both

the Madsen Court and the Murray Court rejected the narrow

reading of Frizby espoused by petitioners herein which would

permit a prohibition on picketing which occurred only directly

in front of the target’s residence. In Madsen, this Court ruled

that while the record before it did not justify a 300 foot picket-

free zone around the homes of staff members of a Florida health

clinic, “It appear{ed] that a limitation on the time, duration of

picketing, and a number of pickets outside a smaller zone could

have accomplished the desired result.” Madsen, 114 S. Ct. at

2530 (emphasis added). This Court plainly contemplates small

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picket-free zones as permissible means of serving the state

interest in residential privacy. The New Jersey courts did not

err in creating such a zone. Madsen did not establish how large

the smaller zones should be, leaving that task to trial judges to

determine, based on the facts of the individual case, keeping in

mind the new standard that the injunction should burden no

more speech than necessary to serve the state's significant

interests.

Despite petitioners’ assertion that New Jersey is the only

court that has not limited its definition of targeted picketing to

maintaining a physical presence directly in front of a specific

residence and nowhere else, the cases cited by petitioner are

either consistent with the within ruling or distinguishable from

it in a factual context.

The dissenting opinion of Judge Boyce F. Martin, Jr. in

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

1995) provides a persuasive discussion of this issue.

Thus, I believe that the picketers may be prevented

from engaging in targeted picketing, even when their

method of targeting includes slow marching, if their

method of picketing continues to infringe on the

privacy interests mentioned above, when, for

example, the picketers create a situation where the

target of the picket is a captive audience or whose

residence is under siege. Merely because the plaintiffs

chose to march slowly by other residences, as well

as the targeted residence, does not insulate their

activity from regulation. The targeted homeowner

is as much a captive audience when picketers

repeatedly march in front of a home as when they

are standing still. The psychological injury and

disturbance to the tranquility of the home are not

reduced because the picketers are marching slowly.

Id. at 1111.

In Vittitow, anti-abortion picketers filed suit claiming a town

ordinance that prohibited picketing “before or about” any

residence was unconstitutional. The trial court issued an

injunction that attempted to narrow the scope of the ordinance

to the area in front of a targeted residence or “the two homes on

either side” of the targeted residence. The Sixth Circuit stated

that the narrowing injunction was unconstitutional because it

created a no-picketing zone beyond the area “solely in front of

a particular residence.” 43 F.3d at 1105 (citing Madsen, 114

S. Ct. at 2530). Appellants claim this holding conflicts with the

decision of the New Jersey Supreme Court creating a no-

picketing buffer zone of 100 feet on either side of the Murrays’

residence.

The Vittitow injunction, however, interprets a statute of

general applicability, unlike the injunction in this case, which

adjusts the rights of private parties based on the facts of an

individual case. As the Sixth Circuit recognized,

This is not a case where the target of the picketing

has come to court seeking an injunction. In such a

case, the trial judge rightfully undertakes to define

the rights of the parties in an appropriately worded

injunction, if au injunction is called for. Here,

however, an ordinance was at issue.

43 F.3d at 1107. An injunction interpreting an ordinance to

place demonstrators two houses away from their target

throughout an entire town will have varying effects on speech

depending on the neighborhood where the picketing is taking

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place. Such an injunction may well therefore burden more speech

than necessary to serve the interests of residential privacy. It is

such a “one-size-fits-all” injunction that the Sixth Circuit held

to be beyond the scope of this Court’s decisions in Frisby v.

Schultz, 487 U.S. 474 (1988), and in Madsen. Vittitow, 43 F.3d

at 1107.

In contrast, in this case “the target of the picketing has

come to court seeking an injunction” and the court has “define[d]

the rights of the parties in an appropriately worded injunction.”

43 F.3d at 1107. That injunction, pursuant to the dictates of

Madsen, has been crafted to burden no more speech than

necessary, in light of the facts of the case, to serve the state’s

interest in residential —rivacy.

It is respectfully submitted that if Vittitow does interpret

Madsen to forbid no-picketing zones larger than the frontage

of a residence when private parties seek relief in a particular

case, Vittitow is wrong.' The Supreme Court in Madsen struck

an injunction providing a 300 foot no-picketing zone because

it was “much larger” than the zone provided for in the ordinance

approved in Frisby and it appeared that a smaller zone could

have accomplished the desired result. 114 S. Ct. at 2530.

1. In like manner, to the extent that Hanzo v. deParrie, 152 Or. App.

§25 (1998) and Lucero v. Trosch, 121 F.3d 591 (11th Cir. 1997) stand for

this narrow interpretation, they are also inconsistent with Madsen. The factual

settings in these two cases also distinguish them from the case under review.

In Hanzo, the court was dealing with an anti-abortion appeal of a permanent

civil Stalking Protection Order, SPO, obtained by an abortion provider. The

court found that the “contacts” were insufficient to support the SPO. In

Lucero, the court was faced with a blanket 200-foot buffer zone injunction

that protected the residences of all the clinics’ staff members. The ruling that

this injunction was too broad has little relevance to the within injunction

which protects one individual who has been the target of anti-abortion activity

since 1992.

In like manner, the petitioners’ reliance on Kirkeby v.

Furness, 92 F.3d 655 (8th Cir. 1996) is misplaced. The court

in Kirkeby recognized that its decision was fact sensitive and

cautioned against extending the ruling to other factual settings

as it referred approvingly to Douglas v. Brownell, 88 F.3d 1511

(8th Cir. 1996) where it upheld a three house zone in a

residential picketing case. Douglas involves a challenge by anti-

abortion picketers to two ordinances enacted by the City of

Clive, lowa. The decision is particularly noteworthy in the

instant review since the court grapples with the same cases that

must determine the outcome of this case.

The Douglas court rejected the proposition that Frisby and

Madsen allow an absolute ban on picketing only in the area

directly in front of the targeted residence.

We do not read Frisby as establishing a bright-line

rule authorizing a limit on picketing only in the area

directly in front of the targeted residence. The

Court's concern in Frisby was not so much the size

of the prohibited zone, but the impact the ban had

on protected activity. The Court stressed that the

ordinance applied to picketing “focused on” and

“directed at” a particular residence. /d. at 482-83,

108 S. Ct. at 2501-02. The Court found residential

picketing different from other forms of

communicative activities, such as door-to-door

solicitation and the distribution of handbills, because

the targeted resident cannot avoid the picketers. The

Court emphasized: “[t)]here simply is no right to

force speech into the home of an unwilling listener.”

Id. at 485, 108 S. Ct. at 2503. Although the Court

in Madsen repeated the language that Frisby

prohibited only “focused picketing taking place

solely in front of a particular residence,” the Court

ee hE et a le

considered an injunction, not an ordinance, and a

300-foot buffer zone, not an area covering the

particular residence and the two adjacent houses .. .

Obviously, there is a direct relationship between the

size of the prohibited zone and the impact on

protected speech. Nevertheless, we do not read

Frisby as requiring us to strike down the ordinance

as not narrowly tailored simply because the ordinance

extends beyond the area solely in fro.at of the targeted

residence.

Id. at 1519-1520.

The Eighth Circuit upheld the ordinance recognizing that

it preserved ample alternative channels of communication for

the picketers.

it would appear that Copper v. City of Fargo, 905 F. Supp.

680 (D.N.D. 1994) is overruled by Douglas to the extent that

it holds that an ordinance will only pass constitutional muster

if it is construed to prohibit only focused picketing taking place

solely in front of a particular residence. Therefore, appellants’

reliance on that case herein is misdirected.

In like manner, the factual setting of Planned Parenthood

Ass'n v. Operation Rescue, 50 Cal. App. 4th 290, 57 Cal. Rptr.

2d 736 (1996) differs so from the instant case that its holding

has little relevance herein. The expectation of privacy when

residing in an apartment building cannot be compared to the

tranquility sought by the Murrays when they moved to Warren,

NJ. It is noteworthy, however, that in referring the matter back

to the trial court to determine what is appropriate, the Court of

Appeals suggested limitations regarding the number of picketers,

the time of picketing and the days of picketing and also

Suggested an advance notice requirement citing approvingly

Murray v. Lawson. Id. at 743.

In similar fashion, petitioners’ reliance on City of Seven

Hills v. Aryan Nations, 667 N.E. 2d 942 (Ohio 1996) is

misguided in view of the striking dissimilarities between the

cases. That case involved an injunction against simultaneous

picketing by a Jewish group engaged in residential picketing in

front of the target whose conviction for Nazi war crimes had

been reversed by the Israeli Supreme Court and by members of

the KKK. The single issue addressed by the court was whether

a permanent injunction prohibiting simultaneous picketing by

groups with opposing viewpoints violated the Constitution. The

findings in this content-based permanent injunction case are

simply inapplicable to the case under review.

In City of San Jose v. Superior Court of Santa Clara

County, 38 Cal. Rptr. 2d 205-212 (Ca. Ct. App. 6th Dist. 1995),

the Court in a post-Madsen case approved a legislative judgment

that

... Picketers assembled at or near to the borders of

a home create virtually the same invasion of

residential privacy for its occupants and instill

identical feelings of captivity, fear and intimidation

.. . a8 do picketers directly in front of the residence.

Petitioners’ reliance on City of Prairie Village v. Hogan,

855 P.2d 949 (Kan. 1993) is understandable, but superficial.

Defendant in that case was prosecuted under an ordinance that

bans picketing “before or about a Church”. Defendant carried

anti-abortion signs on a three block route that included the

Village Presbyterian Church. He chose that area to picket because

of the probability of a high concentration of “Christians”. The

Supreme Court of Kansas narrowly interpreted the ordinance

to prohibit only focused picketing taking place solely in front

of a particular Church. The court pointed out that the defendant

was not protesting the Church, its teaching or its members and,

therefore, concluded that he was not picketing a Church within

the meaning of the ordinance. It is respectfully submitted that it

does not follow by analogy that the petitioners herein are not

engaged in focused picketing because they choose to walk

beyond the Murray residence. In City of Prairie Village, the

Church was not the target of the picketing while in the instant

case, the Murrays’ residence is the target of the picketing.

A post-Madsen case decided by the Texas Appellate Court

is relevant and instructive as to the issues considered herein. In

that matter, Operation Rescue v. Planned Parenthood, 937 S.W.

2d. 60 (Tex. App. - Houston [14th Dist.] 1996), Rehearing

Overruled January 23, 1997, an action was brought by doctors

who perform abortions and ten women’s clinics. The trial judge

initially entered a temporary restraining order establishing a 1 00-

foot buffer zone of clinics and homes. The Texas Supreme Court

ruled that this was not the “least restrictive” means to protect

significant governmental interests and the matter was referred

back to the trial court. Following a six week jury trial, a

Judgment was entered awarding damages and permanently

enjoining anti-abortion picket groups from demonstrating within

a specific zone for each clinic ranging from 15 to 32 feet and,

more importantly for our purposes, a 13-foot buffer zone was

established from the property line of each physicians’ residence.

This residential buffer zone was discussed and upheld by the

Appellate Court. /d. at 81 and 82. It is respectfully submitted

that in similar fashion, the well-reasoned decision of Judge

Diana, which erected a less restrictive zone of privacy than the

Texas Court, should be upheld.

Petitioners’ reliance on Tompkins v. Cyr, 1998 W.L. 21650

(N.D. Tex., January 7, 1998) is misguided. While the case did

involve an injunction against anti-abortion picketers, the decision

is substantially devoted to an analysis of the 8.5 million dollar

jury verdict against 11 abortion protesters on the basis of tort

liability. What is significant for our purposes is the fact that the

court held that focussed residential picketing is outrageous per

se. at 15. In addition, the Tompkins court interpreted Madsen

to approve the creation of a smaller “buffer zone” in a residential

picketing case, at 22, as did the New Jersey Supreme Court in

the original Murray v. Lawson and the lower courts in the

Murray case presently under review. While it is true that the

Tompkins court found that two of the picketers did not engage

in “targeted picketing”, it must be emphasized that the finding

was made in the context of assessing tort liability, not an

injunction. In addition, the finding was based on the absence

of facts to establish targeted picketing as to those two individuals.

In the instant case, the petitioners never attempted to establish

separate defenses to a finding of targeted picketing. Moreover,

the record established both individual and group conduct to

warrant the finding.

Finally, while it is true that no buffer zone was erected by

the Tompkins court, that ruling was based on the peculiar factual

setting of the case wherein the plaintiff and his family had moved

from the house where the picketing took place and they did not

offer any evidence regarding the location or parameters of their

current residence. at 22. In the instant case, the location and

parameters of the Murray residence in Warren were carefully

examined and a buffer zone was tailored so as to burden no

more speech than is necessary to serve the Murrays’ residential

privacy, a significant government interest.’

Despite petitioners’ colorful, barbed attacks on the

restrictions crafted by the trial judge, it is quite apparent that

2. Itis noteworthy that petitioners failed to address the fact that the

Tompkins court limited the number of picketers, the duration of the picketing

and the ume of day of the demonstrations. See Pont III below.

Judge Diana carefully reviewed this Court's analysis in Madsen

and the New Jersey Supreme Court ruling in Murray v. Lawson

which interprets that decision, and after careful consideration

of the differences in the properties, crafted a new set of

restrictions. In view of the greater setback in Warren, the Judge

restricted the petitioners from picketing within the property line

of the respondents. While this may place the picketers the same

distance from the Murray home as the Westfield injunction, it

deprives the respondents of the use of their front yard to a greater

extent than the Westfield injunction. This specific tailoring of

the buffer zone is yet further evidence that the injunction burdens

no more speech than necessary to protect the Murrays’ privacy

and it should be upheld.

Finally, petitioners’ provocative, yet unsupported statement

that New Jersey courts discriminate against pro-life picketers

must be addressed. Petitioners contrived this theory after a

permanent injunction was entered and in reliance upon

unpublished interim court proceedings in unrelated factual

settings. Petitioners’ effort to sully the impeccable record below

is spurious and claims of discrimination against pro-life picketers

should be rejected.

II.

THE TERMS OF THE PERMANENT INJUNCTION

DO NOT BURDEN MORE SPEECH THAN IS

NECESSARY.

Petitioners grossly exaggerate the impact of the limited

buffer zone established by the trial judge in this case. In

comparing the respondents’ previous residence and

neighborhood with the present setting, the trial judge reduced

the buffer zone from an area within 100 feet of the property

line of the Murrays’ residence to an area coterminous with the

sidelines of the Murrays’ residence.’ Petitioners’ concern that the

Murray house cuts this lane in two and, thus, prevents picketing

on both sides of the Murray residence can easily be cured by simply

having half of the picketers on one side of the residence and half

on the other side. As an alternative, one half of the time can be

spent with all of the picketers on one side of the residence and one

half of the time can be spent with all of the picketers on the other

side. The minimal time spent driving around the block is not

significant since petitioners admitted in testimony that they do not

remain in the area for the entire designated hour.

Petitioners also argue that the requirement that they notify the

- police twenty-four hours in advance of a demonstration violates

the First Amendment. This argument ignores the Supreme Court's

holdings that even requirements for parade permits are permissible

when the official’s decisions on whether to grant or deny the permit

are based on “narrow and definite” criteria that do not allow

discriminatory administration because the official disagrees with

the content of the speech. Cox v. New Hampshire, 312 U.S. 569

(1941). Such a permit system “giv(es] . . . public authorities notice

in advance so as to afford opportunity for proper policing.” /d. at

576. Here, of course, only notice is required; the police have no

authority to prevent petitioners from picketing.*

Despite petitioners’ reliance on Rosen v. Port of Portland, 641

F.2d 1243 (9th Cir. 1981), that case does not compel a different

result herein. Rosen involved an ordinance that was enforced against

3. Itis noteworthy that in Petitioners’ prior petition to this Court, they

stated, “Respondents’ privacy interests are limited to the borders of their

own property.” Pet. Brf. at 28. It is fascinating how that espoused position

changed once that precise position was adopted in a new setting.

4. Ironically, appellants have voluntarily notified the police prior to

their demonstrations both before the New Jersey Supreme Court's ruling

and in other residential picketing incidents.

an individual seeking to distribute literature at an airport as a

member of “Jews for Jesus”. While holding that the ordinance

swept too wide in its regulation of the individual, the court

distinguished this case from one it had earlier decided where an

advance notice requirement was upheld in an injunction where

the need for notice was demonstrated. Fooinote 9 /d. at 1248.

In the instant case, Officer Kingsland explained in a

convincing manner that it was necessary for the police

department to be forewarned of the picketing activity so as to

assure proper staffing. The trial judge found that testimony to

be convincing and held,

According to the testimony of Officer Kingsland,

in order to ensure that there is adequate staffing

available, the Warren Police needs proper notification

of the demonstration. Therefore, the twenty-four

hour requirement is necessary to protect public

safety.

Relying on the New Jersey Supreme Court decision and

the testimony presented, Judge Diana concluded,

With regard to the limitation as to time and hours,

again quoting from Murray, 138 N.J. at 235,

(further, the picketing every two weeks

limitation allows defendants to

demonstrate often enough to communicate

their message without subjecting the

Murrays to a constant barrage of picketing

[, and] the duration limitation gives

defendants plenty of time in which to

convey their message each time they

picket.

It is respectfully submitted that the reasonable limitation as

to number, time and hours together with the advance notice

requirement permit petitioners a strong enough showing,

consistent with the residential nature of the neighborhood and

the Murrays’ privacy, that their message does not seem

marginalized. It is noteworthy that the trial judge in this action

expanded the number of picketers that the New Jersey Supreme

Court permitted in Murray v. Lawson from ten to fifteen in

consideration of the differences in the neighborhoods. In short,

the trial judge’s careful consideration of the neighborhood and

his tailoring of the time, place and manner restrictions should

serve to completely thwart petitioners’ attempts to revisit the

restrictions imposed.

CONCLUSION

The New Jersey courts faithfully applied this Court's

precedents to craft an injunction that burdens no more speech

than necessary to serve the state’s significant interest in protecting

residential privacy. The petition for certiorari should be denied.

Respectfully submitted,