Petition for Writ of Certiorari — Lawson v. Murray

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Supreme Court, U.S,

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ae te et ee:

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. Couwier, Jr.

580 Howard Avenue

Somerset, New Jersey 08873

(908) 560-7100

Attorney for Petitioners

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

OR CALL COLLBCT (402) 42.2831

et: wie Be a

QUESTIONS PRESENTED

After finding that petitioners had not committed any

crimes or torts, a state trial court nevertheless issued a

permanent injunction prohibiting petitioners from “pick-

eting in any form including parking, parading or demon-

strating in any manner, within 300 feet” of respondents’

home. The Supreme Court of New Jersey upheld the

injunction, holding that state courts have “inherent

authority” to restrain peaceful expressive activities in

residential neighborhoods, and that an injunction ban-

ning only pro-life demonstrations is a content-neutral

“place” restriction. Accordingly, the questions presented

are:

1. Should the decision of the court below be

reversed as directly inconsistent with the subsequent

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

Inc.?

2. Did the court below err by holding that state

courts have “inherent authority” to ban peaceful expres-

sive activities in residential neighborhoods?

3. Did the court below err by reviewing an injunc-

tion banning peaceful expressive activity under the test

for “time, place and manner” restrictions instead of the

doctrine of prior restraints?

4. Did the court below err by holding that an

injunction restricting only pro-life demonstrations is con-

tent-neutral?

QUESTIONS PRESENTED - Continued

5. Do the injunctive restrictions at issue violate peti-

tioners’ rights to freedom of speech and freedom of

assembly under the First and Fourteenth Amendments?

iii

PARTIES

in addition to the parties listed in the caption of this

petition, the following were listed as parties in the cap-

tion of the case in the court below: Jane Doe (a fictitious

name) and fohn Doe (a fictitious name).

Neither of the petitioners in this case is a corpora-

tion. See Rule 29.1.

TABLE OF CONTENTS

Page

CIR eRIee FIORE? cc ccccccenccessececesenns i

FURNES 0600s Wine e de tdvsdawsdedévess sekureeloees iii

TAS Ge RATE OURUS ED c cc cceeevecsvaccsdssreses vi

GTO IPE 6 obscVossdovébaccvVewsusiuneeses 1

ENN 6604 cacdab ceceedenenedsseceacearseeos 2

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

SEAT OECE GOP BEE GAG cc ccccccccntenscccvess 2

REASONS FOR GRANTING THE WRIT ........... 7

I. THE DECISION OF THE SUPREME COURT OF

NEW JERSEY DIRECTLY CONFLICTS WITH

THE DOCTRINE OF PRIOR RESTRAINTS..... 8

Il. THE DECISION OF THE SUPREME COURT OF

NEW JERSEY DIRECTLY CONFLICTS WITH

THE APPLICABLE DECISIONS OF THIS

COURT AND THE DECISIONS OF OTHER

STATE AND FEDERAL COURTS.............. 13

A. A Ban Applicable Only to Pro-Life Picketers

De CRIIO on vo censtensiodsvedveves 14

B. The “Standard” Adopted by the Courts

Below Fails to Meet the Standards Estab-

lished by the Decisions of This Court..... 20

C. Courts Cannot Create “Speech-Free Zones”

in Residential Neighborhoods............. 23

fifi THE DECISION OF THE SUPREME COURT

OF NEW JERSEY IS IN DIRECT CONFLICT

WITH THIS COURT'S DECISION IN MADSEN

v. WOMEN’S HEALTH CENTER, INC......... 28

CAPO UENEE 6c 4 Ubeddsspsdeeabeeaevucesenvaert 30

TABLE OF CONTENTS - Continued

Page

APPENDICES:

A. Opinion, Supreme Court of New Jersey (Apr.

Gp HG v5 646 is0tn ood reed ons ds eeatroeeaeeeues la

B. Opinion, Superior Court of New Jersey, Appel-

tate Division (Ape. 12, 1993). ....csccenscccees 28a

C. Oral opinion, Superior Court of New Jersey,

Chancery Division (July 25, 1991)............. 5la

D. Final Order for Permanent Injunction,

Superior Court of New Jersey, Chancery

EATON CONE BU BORN es ee vecexesiavecasyes 69a

E. Opinion, United States District Court for

the District of New Jersey (Apr. 24, 1991).... 71a

F. Order, United States Court of Appeals for

the Third Circuit (Apr. 5, 1991).............. 86a

TABLE OF AUTHORITIES

Page

Alexander v. United States, 113 S. Ct. 2766 (1993) .. 8, 9, 11

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482

UD. TOR (IGE) av ccccctccctcvcccesveveemunbeséeaes 25

Boos v. Barry, 485 U.S. 312 (1988) ............ 17, 18, 21

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 23

Carey v. Brown, 447 U.S. 455 (1980)........... 15, 17, 19

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

CEP + v0 ceces Vistacsvaveyenseenedeeeae 8, 11, 12

Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993) ...... 15

City of Houston v. Hill, 482 U.S. 451 (1987) .......... 21

City of Ladue v. Gilleo, 114 S. Ct. 2038 (1994) ........ 23

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

Tee DOP EEOOE so ccc cescncccesvenedneedscuseveueves 24

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

ti PPPETETET Teer Eee ery rer errr 18

Clark v. Community for Creative Non-Violence, 468

SF Be COMED 05 soceccncvescenstaudusudurncetenss 12

Community for Creative Non-Violence v. Turner, 893

ae Soe Card. CO Bieri ds casncecdvicescndeiees 24

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

Bae CROUEG h vin ccccaucedavesvuceknesaauss ai 17, 20, 21

Freedman v. Maryland, 380 U.S. 57 (1965) ............ 12

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

Grayned v. City of Rockford, 408 U.S. 104 (1972)...... 12

vii

TABLE OF AUTHORITIES — Continued

Page

Gregory v. City of Chicago, 394 U.S. 111 (1969) ....23, 26

| Lovell v. Griffin, 303 U.S. 444 (1938) ...............5. 12

| Madsen v. Women’s Health Ctr., Inc., 1994 WL

285847 (U.S. June 30, 1994)............. 7, 28, 29, 30

Martin v. Struthers, 319 U.S. 141 (1943).............. 23

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

(App. Div. 1993), aff'd, 62 U.S.L.W. 2647 (N.].

PaO: Oy FOO 6s ccc cctivevsdetedsccdvediesesess passim

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

(Pe Per err ry Pre Pore rt Pere er 22

National Socialist Party v. Village of Skokie, 432 U.S.

Ge Ge cadewndewaees cupvandendtrsuseses sek beens 12

Near v. Minnesota, 283 U.S. 697 (1931)............. 8, 11

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

New York Times Co. v. United States, 403 U.S. 713

og) PAP eee, Pe ee ene Pre errr Spe 12

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

Be 8 er re rr er tory passim

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

Go Ges Ge GEE vb aes ceeveccevedentssanvnices 10, 13

Police Dep't v. Mosley, 408 U.S. 92 (1972) ............ 15

R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) ..... 19

Ramsey v. Edgepark, Inc., 66 Ohio App. 3d 99, 583

N.E.2d 443 (Ct. App.), review dismissed, 53 Ohio

St. 36 712, S60 NW.EZd FOO (I9SG) «22 cr escccvccses 12

a ee me re

Vili

TABLE OF AUTHORITIES - Continued

Page

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

Nt Nddneieduhie ccna seas cebdvascene er caane ee 20

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

ee MEN va to 45h den eeabedided sebbnen teens 9, 20, 21

Thomason v. Jernigan, 770 F. Supp. 1195 (E.D. Mich.

LECT Cee TP Oe COLT CPT OT ee 16

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

POPE WAS sv ehe rec bewesed ee cous ck ee aeeesed verde bath 24

United States v. Eichman, 496 U.S. 310 (1990)......... 17

Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993)..... 24

Village of Schaumburg v. Citizens for a Better Envi-

ie i ee eo, 23

STATUTES

Sh MO ME Dh eS Neebedcdindceccsaedevesadeivis 2

ay SE SS cn is crwciarcodaakiasasecenaes 2

SP Ge TE RE hab eewhedbese en cdcdedeeernseiesws vm

MISCELLANEOUS

Laurence H. Tribe, American Constitutional Law (2d

ee - G irihns iG inns as acrid wae een ee oelind ve dike, 10

In The

Supreme Court of the United States

October Term, 1994

MICHAEL LAWSON and DAVID CRIST,

Petitioners,

ELRICK MURRAY and BELINDA MURRAY,

Respondents.

Petition For Writ Of Certiorari

To The Supreme Court Of New Jersey

PETITION FOR WRIT OF CERTIORARI

DECISIONS BELOW

The decision of the Supreme Court of New Jersey is

not yet reported. Belinda Murray, et al. v. Michael Andrew

Lawson, et al., No. A-42-93 (N.J., Apr. 6, 1994) (App. 1a).

The decision of the Appellate Division of the Superior

Court of New Jersey is reported at 264 N.J. Super. 17, 624

A.2d 3 (1993) (App. 28a). The opinion and the permanent

injunction of the Chancery Division of the Superior Court

of New Jersey (App. 51a, 69a) are unreported. The opin-

ion of the United States District Court for the District of

New Jersey (App. 71a) is unreported. The order of the

United States Court of Appeals for the Third Circuit

(App. 86a) is unreported.

JURISDICTION

The opinion and judgment of the Supreme Court of

New Jersey in this case was entered on April 6, 1994. This

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

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitu-

tion provides as follows:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

U.S. Const. amend. I.

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 privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

Like many of their fellow citizens, petitioners Mi-

chael Lawson and David Crist are strongly opposed to

abortion. In order to translate their deeply held convic-

tions into concrete action, petitioners regularly exercise

their constitutional right to communicate their views to

wuss ee

the public by means of peaceful demonstrations through-

out New Jersey. Respondent Elrick Murray is a physician

who performs abortions at various locations in the north-

ern half of New Jersey. One of his abortion clinics is

located in Howell, near the homes of petitioners. Peti-

tioners routinely participate in pro-life picketing outside

of the Howell clinic.

In January 1991, petitioners decided to participate in

a peaceful demonstration in the neighborhood of Dr.

Murray’s home in Westfield, 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 West-

field does not have any ordinances prohibiting or regulat-

ing picketing, 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

demonstrators 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 statements such as “Stop Abortion Now,”

| 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.

“Abortion Kills Children,” “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 example, “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 through-

out 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 peace-

ful. There was no violence, trespassing, loud noise,

obstruction of traffic, or any other 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 disturbed by the

picketing, Dr. Murray (who was home alone) watched a

football game on television, talked on the telephone with

several neighbors, and even supervised the delivery 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 demon-

stration, accusing petitioners of “annoying, disturbing,

disrupting, intimidating, molesting and otherwise inten-

tionally interfering with respondents’ privacy and quiet

enjoyment of their property.”? Respondents applied for

2 When asked to specify the conduct of petitioners that

gave rise to the allegations quoted in the text, Dr. Murray rep-

lied: “One, I think that they presented themselves in an over-

whelming number. Two, I think that they carried placards that

were blatantly ignorant in content. And three, they were consor-

~ ee

mast Malahat ©

lai te rie IE ee ete Li ee I

and obtained a Temporary Restraining Order censoring

petitioners’ signs, prohibiting petitioners from distribut-

ing 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 Tempor-

ary Restraining Order. Because the district judge refused

to grant or deny the motion, petitioners filed an inter-

locutory 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 determination as to whether

the Temporary Restraining Order had expired. (App. 86a)

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. 71a) 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

ting with my neighbors in a fashion that was curious.” Accord-

ing 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.”

3 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.”

respondents had failed to establish any of the tort causes

of action they had asserted. Nevertheless, the trial judge

went on to reject petitioners’ “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 par-

ties. Based solely on this “inherent equitable power,” the

trial judge entered a permanent injunction prohibiting

petitioners from “picketing in any form including park-

ing, parading or demonstrating in any manner, within

300 feet of the Murray residence.” (App. 51a, 69a)

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 is necessarily directed to a particular class of

speakers,” and that this injunction is a “300-foot restric-

tion 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. 28a)

The Supreme Court of New Jersey affirmed, agreeing

that state courts have “inherent authority” to enjoin

peaceful expressive activities in residential neighbor-

hoods. After recognizing 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 govern-

ment interest justifying the imposition of injunctive

restrictions” on peaceful First Amendment activities. The

LD cat

court concluded that the complete ban on pro-life demon-

strations within 300 feet of respondents’ home “meets the

requirements for narrow tailoring of a ‘place’ restriction.”

(App. la)

REASONS FOR GRANTING THE WRIT

[he decision of the Supreme Court of New Jersey in

this case is in direct conflict with the subsequent decision

of this Court in Madsen v. Women’s Health Center, Inc., and

other applicable decisions of this Court. The decision

below also conflicts in several important respects with

the decisions of other state appellate courts and federal

courts.

[he issues presented in this case are of considerable

national significance. Across the nation, physicians and

other employees of abortion businesses have used suits

for injunctive relief in an effort to restrain anti-abortion

activities in residential neighborhoods. Some courts ~ like

the court below -- have disregarded or distorted constitu-

tional principles in their result-oriented justifications for

enjoining peaceful picketing, leafletting and verbal com-

munication in traditional public fora such as public side-

walks. Unless this Court intervenes to reverse this

disturbing trend, 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 seek-

ing vindication of fundamental rights guaranteed by the

Constitution. 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 mes-

sage. This case presents an important opportunity for this

Court to reaffirm that the First Amendment 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 Amendment doctrine that is being used to justify the

suppression of free speech activities in residential neigh-

borhoods.

I. THE DECISION OF THE SUPREME COURT OF

NEW JERSEY 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 & cita-

tion omitted). Accord, Near v. Minnesota, 283 U.S. 697, 713

(1931).

“The term prior restraint is used to describe adminis-

trative and judicial orders forbidding certain communica-

tions when issued in advance of the time that such

communications are to occur.” Alexander v. United States,

113 S. Ct. 2766, 2771 (1993) (internal quotations 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 other-

wise lawful. Subsequent punishment schemes, by con-

tr. t, impose sanctions only after specific tortious or

criminal conduct has occurred. The “time-honored dis-

tinction between barring speech in the future and

penalizing past speech .. . is critical to our First Amend-

ment jurisprudence.” Id. 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 constitutional validity.” The presumption

against prior restraints is heavier —- and the

degree of protection broader — than that against

limits on expression imposed by criminal penal-

ties. Behind the distinction is a theory deeply

etched in our law: a free society prefers to pun-

ish the few who abuse rights of speech after they

break the law than to throttle them and ail

others beforehand. It is always difficult to know

in advance what an individual will say, and the

line between legitimate and illegitimate speech

is often so finely drawn that the risks of free-

wheeling censorship are formidable.

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

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

The decision of the Supreme Court of New Jersey in

the present case strikes at the heart of the doctrine of

prior restraints. The courts below recognized that peti-

tioners had not engaged in any criminal or tortious con-

duct. 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 treated the injunction as if it were a municipal

ordinance subject to the time, place and manner test for

regulations on speech.4 This represents a fundamental

jurisprudential error. Anti-speech injunctions trigger the

doctrine of prior restraints, not the more deferential test

for time, place and manner regulations. Under the doc-

trine of prior restraints, the injunction at issue is pre-

sumptively 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

policy” in favor of residential privacy cannot overcome

the presumption of unconstitutionality.

The Supreme Court has spoken of constitu-

tionally permissible prior restraints as “excep-

tional cases.” This impression has been

reinforced by the Court’s decisions refusing to

perceive threats to . . . a homeowner's privacy

as sufficiently exceptional 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”).

4 The time, place and manner test provides that in public

fora, government may “enforce regulations of the time, place,

and manner of expression which are content-neutral, are nar-

rowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication.”

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45

(1983). Petitioners believe the challenged injunction fails the

time, place and manner test. Nevertheless, reaffirmation of the

prior restraint doctrine is crucial as a jurisprudential matter, as

explained herein, in light of the recent doctrinal confusion

among lower courts.

tices aetrenatenrintatertin»

The decision below attempts to distinguish between

speech restrictions that are issued by judges and those

that are issued by other government officials. However,

the mere fact that the source of the restriction is a judge is

irrelevant to the doctrine of prior restraints. “Temporary

restraining orders and permanent injunctions — i.e., court

orders that actually forbid speech activities — are classic

examples of prior restraints.” Alexander v. United States,

113 S. Ct. 2766, 2771 (1993) (citations omitted).

Furthermore, contrary to the suggestion of the court

below, an injunction need not restrict the content of the

enjoined expression in 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, leaflets or literature of

any kind, and from picketing,” calling the injunction a

“prior restraint.” Id. 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.” Id. at 177 n.3. Again, the Court analyzed the

injunction as a prior restraint. Jd. at 181. Indeed, the

seminal prior restraint case of Near v. Minnesota invali-

dated a court order which forbade all future publication

of a newspaper. 283 U.S. at 713.

The basic, categorical error of the court below consis-

ted in applying the wrong standard — the time, place and

manner test — to the injunction at issue. This categorical

error permeates recent lower court decisions reviewing

anti-speech injunctions. This Court has never examined an

anti-speech injunction under the time, place and manner

standard. While statutes, ordinances and regulations

restricting speech are subject to the traditional time, place

and manner analysis, e.g., Grayned v. City of Rockford, 408

U.S. 104 (1972) (statute); Frisby v. Schultz, 487 U.S. 474

(1988) (ordinance); Clark v. Community for Creative Non-

Violence, 468 ‘U.S. 288 (1984) (regulations), injunctions

trigger the much stricter doctrine of prior restraints, e.g.,

National Socialist Party v. Village of Skokie, 432 U.S. 43

(1977) (per curiam) (injunction against marches, distribu-

tion of pamphlets, and display of materials); Organization

for a Better Austin v. Keefe, 402 U.S. 415 (1971) (injunction

against distribution of literature); Carroll v. President of

Princess Anne, 393 U.S. 175 (1968) (court order restraining

public rallies and meetings); New York Times Co. v. United

States, 403 U.S. 713 (1971) (per curiam) (injunction against

publication of classified government documents). Nev-

ertheless, lower courts have sought to justify their depar-

ture from the prior restraint doctrine either by ipse dixit

(i.e., no citation of authority)® or by citation of non-

*° The reference here is to laws setting forth substantive

norms for conduct. Advance permit or licensing schemes, by

contrast, even when enacted as ordinances or regulations, con-

stitute classic prior restraints. E.g., Freedman v. Maryland, 380

U.S. 57 (1965) (license for exhibition of motion pictures); Lovell v.

Griffin, 303 U.S. 444 (1938) (permit for literature distribution).

Appellate Division of the Superior Court of New Jersey in the

present case, where the court made the following astonishing

declaration, without citing any authority whatsoever: “neither

the United States Supreme Court, nor our [New Jersey]

Supreme Court, have [sic] ever suggested that regulation of

protected speech by injunction, rather than by legislation, must

be judged under a different, stricter standard.” 264 N.J. Super. at

35, 624 A.2d at 13. To the same effect is the following unsup-

ported assertion in Ramsey v. Edgepark, Inc., 66 Ohio App 3d 99,

eee . -

ee ee -

injunction cases (i.e., misappropriation of inapposite

cases). The New Jersey Supreme Court followed the same

routine, citing Frisby v. Schultz, 487 U.S. 474 (1988) and

Perry Educ. Ass‘n v. Perry Local Educators’ Ass’n, 460 US.

37 (1983), despite the fact that these were not injunction

cases.

The need to affirm the applicability of the prior

restraint doctrine to injunctions is particularly important

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 deci-

sion below is the latest and mest egregious example of

this disturbing 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.

Il. THE DECISION OF THE SUPREME COURT OF

NEW JERSEY 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

109, 583 N.E.2d 443, 450 (Ct. App.), review dismissed, 53 Ohio St.

3d 712, 560 N.E.2d 780 (1990): “While the case before us does not

arise in the context of a legislative ban on targeted picketing, but

arises in the context of whether a court may protect a residence

from targeted picketing in the interest of protecting the right to

privacy, the underlying rationale remains the same.”

7 Curiously, these cases always seem to arise in the context

of anti-abortion demonstrations, raising the question whether a

result-oriented mentality might not be at work.

with the applicable decisions of this Court and the deci-

sions of other state and federal courts.

A. A Ban Applicable Only to Pro-Life Picketers Is

Content-Based.

Instead of analyzing the injunction at issue as a prior

restraint, the Supreme Court of New Jersey treated the

injunction as if it were a municipal ordinance regulating

speech. Although this basic assumption represents consti-

tutional error, see Point I supra, the court below correctly

articulated the test applicable to municipal ordinances:

[I]Jnasmuch as the injunctions proscribe pro-

tected activity in a traditional public forum, we

evaluate them under the stringent standards the

Supreme Court has outlined for regulating i

speech in such forums. |

“In these quintessential public for[ums], the

government may not prohibit all communi-

cative activity. For the State to enforce a

content-based exclusion it must show that

its regulation is necessary to serve a com-

pelling state interest and that it is narrowly

drawn to achieve that end. * * * . The State

may also enforce regulations of the time,

place and manner of expression which are

content-neutral, are narrowly tailored to

serve a significant government interest, and

leave open ample alternative channels of

communication.”

The threshold inquiry, then, is whether the

injunctions against [petitioners] are content neu-

tral.

+ + 7

A restriction is content neutral if it can be

justified without reference to the content of the

regulated speech. If a restriction is imposed

because of a disagreement with the message the

regulated speech conveys, however, it is imper-

missibly content-based.

(App. 12a-13a) (citations omitted).

In applying this test, however, the court below once

again committed serious constitutional error by conclud-

ing 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 injunc-

tion at issue here is a “300-foot restriction on expression

of a particular viewpoint.” 264 N.J. Super. at 34, 35, 624

A.2d at 12, 13. 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.” Id. at 35, 624 A.2d at 13. The

Supreme Court of New Jersey agreed that the injunction

“restrain[s] the expressive activities only of anti-abortion

picketers.” (App. 14a).

Given these findings by the courts below, it is impos-

sible 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.* Under these circumstances,

it is impossible to conclude that the injunction is content-

neutral.

In Cheffer v. McGregor, 6 F.3d 705 (11th Cir. 1993), an

almost identical injunction was held to be content-based.

® Such discrimination violates not only the First Amend-

ment but also the equal protection clause of the Fourteenth

Amendment. See Carey v. Brown, 447 U.S. 455 (1980); Police Dep't

v. Mosley, 408 U.S. 92 (1972).

That the speech restrictions at issue here are

viewpoint-based cannot seriousiy be doubted.

she order enjoins

Operation Rescue, Operation Rescue Amer-

ica, Operation Goliath, their officers, agents,

members, employees and servants, and Ed

Martin, Bruce Cadle, Pat Mahoney, Randall

Terry, Judy Madsen, and Shirley Hobbs, and

all persons acting in concert or participation

with them or on their behalf... .

Such a restriction is no more viewpoint-neutral

than one restricting the speech of “the Republi-

can Party, the State Republican Party, George

Bush, Bob Dole, Jack Kemp and all persons act-

ing in concert or participation with them or on

their behalf.” The practical effect of this section

of the injunction was to assure that while “pro-

life” speakers would be arrested, “pro-choice”

demonstrators would not.

Id. at 710-11 (footnotes omitted). See Thomason v. Jernigan,

770 F. Supp. 1195, 1201 (E.D. Mich. 1991) (city action

“clearly aimed at” pro-life demonstrations and justified

only by reference to prior pro-life protests is not content-

neutral).

The courts below attempted to rationalize their con-

clusion by arguing that the injunction does not mention

the content of petitioners’ message but “merely forbid[s]

them from picketing within a certain distance of [respon-

dents’] residence,” in order to prevent “the intimidating

effect of the bodily presence of picketers on the residents

of the home.” App. 14a; 264 N.J. Super. at 36, 624 A.2d at

13. 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

~ e

courts below would foreclose all advocacy in any neigh-

borhood where even a single opponent (or neutral citi-

zen) claimed to feel “intimidated.” Furthermore,

picketing, leafletting, marching and door-to-door can-

vassing cannot be accomplished without “bodily pres-

ence,” sO as a practical matter the rationale of the courts

below would proscribe forms of expression that are

clearly permissible in residential neighborhoods.’

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 justification renders the restrictions content-based. “Lis-

teners’ reaction 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 Bous v. Barry, 485 U.S. 312 (1988), this Court invali-

dated a 500-foot restriction on displaying signs near for-

eign embassies, even though the restriction was neutral

° “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 that peaceful

pro-life picketing in the residential neighborhood of a physician

who performs abortions is an activity that lies “at the core of the

First Amendment.” Frisby v. Schultz, 487 U.S. 474, 479 (1988).

Because peaceful picketing in a residential neighborhood is a

constitutionally protected activity, the state courts simply can-

not treat such picketing as if it were wrongful in itself. See

Organization for a Better Austin v. Keefe, 492 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.

on its face. In doing so, this Court clearly held that

arguments based on psychological damage (such as an

“intimidating effect”) supposedly resulting from picket-

ing 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 exampie factually close to

Renton, if the ordinance there was justified by

the city’s desire to prevent the psychological

damage it felt was associated with viewing

adult movies, then analysis of the measure as a

content-based statute would have been appro-

priate. The hypothetical regulation targets the

direct impact of a particular category of speech,

not a secondary feature that happens to be asso-

ciated with that type of speech.

oa * +

[Respondents] rely on the need to protect the

dignity of foreign diplomatic personnel by

shielding them from speech that is critical of

their governments. This justification focuses

only on the content of the speech and the direct

impact that speech has on its listeners. The emo-

tive 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 con-

tent-based.

Id. at 321 (emphasis in original).

In Boos v. Barry, this Court was merely articulating

the obvious: the audience is claiming psychological dam-

age in response to a particular message, not in response

to all messages. Consequently, the reaction of the audi-

ence is necessarily content-based. In the present case,

si< ~s ella

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. Therefore, 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 protesta-

tions to the contrary. As a result, the injunction is plainly

content-based.

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 withstand scrutiny under the higher standard

applicable to content-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 compelling state interest can jus-

tify a content-based restriction. Frisby v. Schultz, 487 US.

474, 481 (1988). Residential privacy is 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 v. Keefe, 402 U.S. 415

(1971), as New Jersey’s Appellate Division recognized in

this case, 264 N.J. Super. at 34, 624 A.2d at 12. Neverthe-

less, residential 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 iden-

tify a state interest sufficient to overcome the presump-

tive unconstitutionality of the injunction.

As noted by the New Jersey Supreme Court, its deci-

sion is the latest in a growing trend of state court opin-

ions holding that “injunctions against anti-abortion

protestors outside doctors’ residences . . . are content

neutral.”'° (App. 15a) Thus, the issues presented in this

case are of considerable national importance. Conse-

quently, this Court should grant the petition for a writ of

certiorari and clarify that injunctions banning peaceful

residential picketing by a particular group of speakers are

content-based and therefore unconstitutional.

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 expression, it must constrain the discretion of the

official with “narrow, objective, and definite standards.”

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

2401-03 (1992), quoting 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

authority 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 distaste of a free people -

is deep-written in our law.

According to the decisions 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. However, a feeling of

10 See note 7 supra.

“intimidation” on the part of a homeowner is an “inher-

ently subjective” standard, and this Court has repeatedly

rejected such standards. E.g., Boos v. Barry, 485 U.S. 312,

322 (1988). The “intimidating effect” standard provides

courts with unfettered discretion to proscribe expressive

activities that annoy or offend a homeowner - or a judge.

Because the “intimidating effect” standard “is susceptible

of regular 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.

The Supreme Court of New Jersey asserts that its

system of banning speech in residential neighborhoods

passes constitutional muster because the decision-maker

is a judge, whose discretion is “constrained by well-

recognized principles of law.” (App. 15a) However, the

mere fact that the decision-maker is a judge does not cure

the fundamental defect in New Jersey’s system of ban-

ning residential picketing. As shown in Point I, judicial

censorship is entitled to no more deference than legisla-

tive or executive censorship. Dressing up the description

of the decision-making procedure in highfalutin terms

such as “balancing” does not mean that the discretion of

the judge is bounded by narrow, objective and definite

standards, 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 formation of an opinion,” which schemes have

been repeatedly condemned by this Court. E.g., Forsyth

County v. Nationalist Movement, 112 S. Ct. at 2401; South-

eastern Promotions, Ltd. v. Conrad, 420 U.S. at 554. Further-

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

415 (1971), this Court invalidated an injunction against

residential expressive activities despite findings by state

trial and appellate courts that the activities were “coer-

cive and intimidating” and invaded the plaintiff's pri-

vacy. The fact that the state courts 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 affording constitutional protection to advocacy

designed to “intimidate” the audience. For example, in

Organization for a Better Austin v. Keefe, this Court held:

“The claim that the expressions were intended to exercise

a coercive impact . . . does not remove them from the

reach of the First Amendment.” Id. at 419. Similarly, in

NAACP v. 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 established

by the decisions below, “coercive” speech loses its consti-

tutional 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 ineffec-

tive 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 pick-

eting in residential neighborhoods.

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

Residentia! Neighborhoods.

The Supreme Court of New Jersey upheld the injunc-

tive creation of a speech-free zone surrounding the resi-

dence of respondents. Petitioners may not set foot within

300 feet of respondents’ home.

This decision conflicts with the precedents of this

Court governing expressive activities in residential areas.

These precedents have long recognized constitutional

protection for a variety of methods of expression in resi-

dential settings. See, e.g., Organization for a Better Austin v.

Keefe, 402 U.S. 415 (1971) (residential leafletting); Martin

v. Struthers, 319 U.S. 141 (1943) (door-to-door literature

distribution); Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980) (door-to-door solicita-

tion); Cantwell v. Connecticut, 310 U.S. 296 (1940) (reli-

gious advocacy door-to-door and on residential ways);

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

around residential block). See also City of Ladue v. Gilleo,

114 S. Ct. 2038 (1994). In Frisby v. Schultz, 487 U.S. 474

(1988), this Court held that residential picketing operates

at the core of the First Amendment. While a municipality

may forbid “focused picketing taking place solely in front

of a particular residence,” id. at 483, more sweeping bans

are unconstitutional, id. at 486.

The present injunction exceeds Frisby — and thus runs

counter to this Court’s established precedents — in at least

two respects. First, by pushing demonstrators 300 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 marching, leaflet-

ting, and door-to-door canvassing. Frisby does not permit

municipalities to erect impenetrable speech-free zones.

The state supreme courts of Rhode Island and Kansas

have followed the teaching of Frisby. In order to avoid

constitutional difficulties, these courts construed ordi-

nances forbidding residential picketing to ban only pick-

eting 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 pick-

eting, is not per se unlawful. Id. at 513-14.

In sharp contrast, the decision of the New Jersey

Supreme Court upholds an injunction forbidding peti-

tioners from picketing or otherwise setting foot —- even for

purposes of peaceful leafletting, door-to-door canvassing

or soliciting, or merely passing through on an extended

march route — within 300 feet of respondents’ residence.!?

'! See also Community for Creative Non-Vioience 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”).

'2 Thus, the court below erred in concluding that the

injunction left petitioners with ample alternative channels of

communicating their message in respondents’ neighborhood.

This error compounded the more fundamental errors that led

ELM Aad nto

An entire neighborhood has been turned into a speech-

free zone — but only for speech uttered by petitioners.

In reaching this result, the decision below relies

extensively on Frisby. However, far from supporting the

New Jersey Supreme Court’s view that picketers can be

banned from an entire neighborhood, Frisby says just the

opposite. The holding in Frisby is explicitly limited to a

ban against picketing targeted at a single residence. This

Court carefully distinguished between “focused picketing

taking place solely in front of a particular residence” and

“Igleneral marching through residential neighborhoods,

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

houses.” 487 U.S. at 483. The Court also noted: “Protes-

tors have not been barred from the residential neighbor-

hoods. They may enter such neighborhoods, alone or in

groups, even marching.” Id. 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). Thus, it is impossible to read Frisby as

authorizing a blanket ban on all expressive activities in

an entire residential neighborhood. The First Amendment

will not tolerate the creation of “speech-free zones.” See

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569

(1987).

In the present case, petitioners did precisely what

Frisby said they could do - picket in front of an entire

the court below to examine the issue of alternative channels,

because such an examination is relevant only if the restriction

under review is content-neutral. See Frisby v. Schultz, 487 U.S. at

481. For the reasons set forth in Points I and II(A), the standard

of review applicable to the injunction in this case does not

include any inquiry into alternative channels.

block of houses.'* It is plain error to prohibit them from

doing so. The opinion below rips out of context Frisby’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

neighborhood-wide ban embodied in the injunction here

clearly cannot pass muster under Frisby. Respondents’

privacy terests are limited to the borders of their own

property and do not extend to the public streets and

sidewalks of the entire neighborhood. 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 attempting to stop the

flow of information into his own household, but to the

public”).

'S The New Jersey Supreme Court conceded that the picket-

ing 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. 23a) This equation of single-residence picketing with gen-

eral neighborhood picketing is transparently result-oriented.

The New Jersey Supreme Court's expansion of the “targeting”

concept conveniently nullifies Frisby’s distinction between sin-

gle-residence picketing and “walking a route in front of an

entire block of houses.” 487 U.S. at 483. 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).

a anh ww OTN) GRISEA k

The fatal flaw in the opinion below is its exaltation of

a homeowner's right to privacy to the point where picke-

ters must bear the burden of advancing a compelling

reason for their presence in a residential neighborhood.

This approach is a direct inversion of the presumptions

established in the decisions of this Court. These decisions

stand for the fundamental proposition that a public street

in a residential neighborhood is a traditional public

forum for the exercise of First Amendment rights. Thus,

the starting point of any analysis must be the fact that

petitioners have the right to picket in respondents’ resi-

dential neighborhood. This right of residential picketing

cannot be extinguished or restricted unless it is abused by

criminal or tortious conduct on the part of petitioners.

It is difficult to imagine any residential picketing that

would survive the free-wheeling and purely subjective

“balancing” test adopted by the court below. This test

completely ignores the strong presumption in favor of

residential picketing 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 Con-

stitution accords to free speech in residential areas (or,

worse still, because it disagrees with petitioners’ mes-

sage).

This is why the starting point of analysis — the pre-

sumptive constitutionality of peaceful residential picket-

ing — is so important in this case. Once one accepts this

starting point, it follows that the mere act of peaceful

residential picketing cannot be deemed wrongful, no mat-

ter 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 orderly at all

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

restricting petitioners’ right to picket in respondents’

neighborhood.

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

its jurisdiction and to issue a significant decision on this

constitutional issue of major national importance, in

order to clarify that peaceful citizens cannot be denied

the right to express themselves in residential neighbor-

hoods. Censorship of residential picketing is completely

alien to our system of government and should be resoun-

dingly 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 sup-

pressed under the guise of solicitude for residential pri-

vacy.

Ill. THE DECISION OF THE SUPREME COURT OF

NEW JERSEY IS IN DIRECT CONFLICT WITH

THIS COURT’S DECISION IN MADSEN wv.

WOMEN’S HEALTH CENTER, INC.

After the body of this petition had been written and

set in type, this Court issued its decision in Madsen v.

Women’s Health Center, Inc., 1994 WL 285847 (U.S. June 30,

1994), which controls the present case. In Madsen, this

Court struck down a Florida injunction which was identi-

cal to the injunction in the present case. The Florida court

prohibited the defendants “[a]t all times on all days, from

approaching, congregating, picketing, patrolling, [or]

demonstrating . . . within [300] feet of the residence of

any of the [respondents].” This Court held that the 300-

foot ban on expressive activities in a residential neighbor-

hood is unconstitutional:

[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 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 jus-

tification 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.

7 . .

We strike down as unconstitutional . . . the 300-

foot buffer zone around the residences, because

[it] sweep[s] more broadly than necessary to

accomplish the permissible goals of the injunc-

tion.

The same result must obtain in the present case,

which involves an identical 300-foot ban on residential

picketing. The decision of the New Jersey Supreme Court

is in direct conflict with the holding in Madsen. Accord-

ingly, this Court shou'd grant the petition for a writ of

certiorari and reverse the decision below.

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. Therefore, this Court should grant the petition for a

writ of certiorari and reverse the decision below.

Respectfully submitted,

RicHary F. Cottier, Jr.

580 Howard Avenue

Somerset, New Jersey 08873

(908) 560-7100

Attorney for Petitioners

July 5, 1994

Belinda MURRAY and Elrick A. Murray,

M.D., Plaintiffs-Respondents,

Vv.

Michael Andrew LAWSON, David Crist,

Jane Doe (a fictitious name) and John Doe

(a fictitious name), Defendants-Appellants.

Virginia BOFFARD and Daryl K. Boffard,

M.D., Plaintiffs-Respondents,

Timothy BARNES, Dorothy Black, Carol

Ford, Barbara Carlstrom, Jane Doe (a

fictitious name) and John Doe (a fictitious

name), Defendants-Appellants.

Nos.A-42 SEPT. TERM 1993, A-65 SEPT.

TERM 1993.

Supreme Court of New Jersey.

April 6, 1994.

CLIFFORD

These cases, argued together before this Court,

require a balance between the free-speech rights of anti-

abortion protestors and the residential-privacy interest of

two doctors and their families. In Murray v. Lawson, the

Appellate Division upheld a permanent injunction by the

Chancery Division prohibiting defendants, anti-abortion

protestors, from picketing within 300 feet of plaintiffs’

residence. 264 N.].Super. 17 (1993). In Boffard v. Barnes, the

same panel of the Appellate Division upheld a Chancery

Division restriction forbidding defendants, anti-abortion

protestors, from picketing within the immediate vicinity

of plaintiffs’ residence. 264 N.j.Super. 11 (1993). Defen-

dants in both cases petitioned this Court. We granted

certification, 133 N.J. 445 (1993), and 133 N.J. 446

(1993), to address the problems inherent in balancing free

speech with residential privacy.

We now affirm the Appellate Division’s judgment

upholding the Murray injunction. We modify the judg-

ment of the Appellate Division in Boffard and remand to

the Chancery Division for a clarification of the restric-

tions contained in its injunction.

A. Murray v. Lawson

The facts are as set forth in the Appellate Division

opinion, to which we make reference as necessary.

Plaintiff Dr. Elrick Murray is a New Jersey-licensed

obstetrician and gynecologist with a private practice in

Plainfield. Dr. Murray does not perform abortions at that

office. He does, however, perform abortions at the

Women’s Medical Center in Howell, and at hospitals in

Newark and in Watchung. 264 N.J.Super. at 22. He also

performed abortions at the Medical Care Center in Wood-

bridge before that facility burned to the ground. Id. at 24.

Dr. Murray and his wife, plaintiff Belinda Murray, live

with their three children in Westfield in a suburban

neighborhood. In 1991 the children were ages six, eleven,

and fifteen. Id. at 22. Defendants regularly demonstrated

against abortion by picketing at the Howell Clinic for

about two years before January 1991. Id. at 23.

By engaging in some research in December 1990,

defendant Lawson uncovered Plainfield and Westfield

addresses for Dr. Murray. Lawson visited both addresses

to confirm that they were current. On December 14, 1990,

when he went to the Westfield address, Lawson was

surprised to find a residence and not an office. When

Lawson rang the doorbell, plaintiffs’ then-fourteen-year-

old son answered the door. After confirming that the

house was the Murray residence, Lawson told the boy to

relay a message to his father to stop doing abortions. Mrs.

Murray came to the door and told Lawson to leave and

not return. Lawson left immediately. Mrs. Murray testi-

fied that Lawson’s visit had frightened and upset her.

Ibid.

About a month later, Lawson informed the Westfield

police that he and approximately fifty other people

planned to picket peacefully outside the Murray resi-

dence on Sunday, January 20, 1991. The administrator of

the Medical Care Center in Woodbridge warned Dr. Mur-

ray about the Sunday protest. On the advice of the West-

field police, Dr. Murray sent his family away for the day

but he remained inside the house himself. Ibid. Dr. Mur-

ray testified that he would have preferred to go to the

hospital that day instead because two of his patients were

in labor. Id. at 24.

On the afternoon of January 20 two police officers

met the fifty-seven picketers at a nearby school,

instructed them on basic picketing rules, and escorted

them to the sidewalk in front of the Murray residence. Id.

at 23. The picketers walked in a single-file loop on the

sidewalk in front of the Murray residence and in front of

about ten surrounding houses. Defendants walked gener-

ally two abreast but sometimes four or five abreast. [bid.

The picketers carried placards that stated, among other

things, “Dr. Murray scars women and kills their unborn

children,” “Elrick Murray pre-born baby exterminator

and nomad abortionist,” and they carried a placard that

showed a decapitated infant with the caption “Elrick

Murray, abortionist.” Id. at 23-24. The picketers spoke to

several neighbors including one teenager whom they

asked whether he knew that a killer lived in the neigh-

borhood. Id. at 23.

Plaintiffs testified that the demonstration had the

following effects: (1) it deprived the Murrays of their

usual Sunday family time; (2) it harmed Dr. Murray’s

ability to practice medicine because he was forced to

remain home to manage his patients in labor in lieu of

managing them at the hospital; (3) it caused Dr. Murray

to curtail his professional work because he felt compelled

to stay home more often; and (4) it caused Mrs. Murray to

suffer from nervousness and depression. Id. at 24.

In February 1991 plaintiffs filed suit in the Chancery

Division seeking damages and injunctive relief against

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

The five-count complaint charged Lawson with trespass

and charged all defendants with disruption of plaintiffs’

use and enjoyment of their property, intrusion on their

seclusion, damage to Dr. Murray’s professional reputa-

tion and pecuniary interests, and deprivation of the right

to privacy under the United States and the New Jersey

Constitutions. Id. at 21. On February 8, 1991, the first

scheduled hearing date of the case, defendants Lawson

and Crist picketed for about fifteen minutes on the side-

walk in front of plaintiffs’ residence and in front of other

residences on the block. Id. at 24.

After a hearing on February 14, 1991, the Chancery

Division entered a temporary restraining order on Febru-

ary 22, restricting the picketers from using the words

“murderer” or “killer,” from referring to members of the

Murray family by name, from carrying the sign with the

decapitated fetus, and from hand-delivering written

material to residents of the neighborhood. In addition,

the order limited defendants’ demonstrating to picketing

by two persons, for one hour, every three weeks. /d. at 21

n.1.

No demonstrators picketed at the Murray residence

until May 4, 1991. In the interim, however, on April 22

1991, Dr. Murray discovered on arriving for work at the

Medical Care Center in Woodbridge that the building had

burned to the ground. Police and fire officials concluded

that the fire had been the product of an arsonist. [bid.

Defendant Lawson picketed at the Howell clinic and at

Dr. Murray’s Plainfield office once between April 22 and

May 4, 1991. On May 2, 1991, Howell Township police

received a telephone message threatening the bombing of

the Howell clinic, whereupon the police evacuated the

site. Id. at 24-25. Authorities never determined con-

clusively who was responsible for the fire at the Wood-

bridge clinic or for the bomb threat to the Howell clinic.

Two days after the bomb threat, on May 4, 1991,

Lawson and another picketer reappeared to protest in

front of the Murray residence. Dr. Murray called the

police. After they had arrived in response to his call, the

doctor went outside and exchanged words, some of them

heated, with the picketers. He returned to his house at

the urging of police, but then went outside again and

took a swing at Lawson. Although no evidence linked

defendants to the arson or to the bomb threat, Dr. Murray

felt threatened by and fearful of defendants. Dr. Murray

was later convicted of simple assault in the Westfield

Municipal Court. Id. at 25.

After a final hearing, the Chancery Division entered a

permanent injunction in July 1991, prohibiting “defen-

dants and all persons in active concert or participation

with them * * * from picketing in any form including

parking, parading or demonstrating in any manner,

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

Chancery Division also made other rulings: it dismissed

the claim for interference with Dr. Murray’s profession; it

subsumed the claim for interference with use and enjoy-

ment of property under the tortious invasion of privacy

claim; it found Lawson’s trespass irrelevant to the picket-

ing; and it characterized plaintiffs’ tort claims as invasion

of privacy and intentional infliction of emotional distress,

but because of the insufficiency of the proofs on those

claims did not award money damages for either. Id. at 26.

On appeal, defendants claimed that the injunction

violates separation-of-powers principles, is an impermis-

sible prior restraint, violates defendants’ free-speech

rights, and is unwarranted because of Dr. Murray’s

“unclean hands” resulting from the assault on Lawson.

Plaintiffs did not cross-appeal the Chancery Division's

other rulings. Id. at 26-27.

The Appellate Division affirmed the 300-foot restric-

tion. First, the court discerned no separation-of-powers

problem, reasoning that the trial court has inherent equi-

table power to enforce a right to residential privacy, even

in the absence of a loca’ ordinance. Id. at 27-31. Second,

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the Appellate Division found that the injunction survives

a free-speech challenge because it is a reasonable time,

place, and manner resiriction. Id. at 31-36. Finally, the

Appellate Division concluded that the trial court had not

abused its discretion by failing to apply the “unclean

hands” doctrine to deny plaintiffs equitable relief inas-

much as Dr. Murray’s conduct had not been so egregious

as to preclude such relief altogether. Id. at 36-38.

B. Boffard v. Barnes

Again we turn to the Appellate Division’s reported

decision for the factual recital.

Like Dr. Murray, plaintiff Dr. Daryl Boffard is a New

Jersey-licensed obstetrician and gynecologist. 264 N./.

Super. at 13. He practices with an Irvington medical group

that offers obstetrical and gynecological care, including

abortion services. Id. at 13-14. Defendants, anti-abortion

protestors, had been picketing the Irvington clinic for two

years before they picketed the Boffard residence. Dr.

Boffard lives in a house in Short Hills with his wife,

plaintiff Virginia Boffard, and three young children. The

Boffard residence is on a quiet cul-de-sac containing only

one other house, and the street is so narrow that only one

car at a time may traverse it. Because the Boffards do not

have a backyard, their children play in the front yard of

the house and on an adjoining lot. Id. at 14.

On September 8, 1990, approximately twenty picke-

ters gathered in front of the Boffard residence. The picke-

ters carried placards saying, among other things, “Dr.

Daryl Boffard Kills Babies” and “God Says Thou Shalt

Not Kill.” Other signs had pictures; one showed a muti-

lated full-term baby, and another showed bloody fetal

parts with the caption “This is an abortion.” When Mrs.

Boffard approached the demonstrators, they refused to

move. One demonstrator said to her, “Your husband is a

murderer.” Another demonstrator gave a teenage neigh-

bor a bible and told her, “The doctor who lives there is a

murderer.” [bid.

Defendants characterized their protest as peaceful.

They claimed that only Mrs. Boffard had been disruptive

and confrontational. In fact, one protestor called the

police to report Mrs. Boffard’s alleged hostile conduct.

Two police officers arrived and instructed the protestors

to picket only on the adjoining street. The protest ended

after about one hour. Ibid.

Plaintiffs filed suit in the Chancery Division seeking

to enjoin the picketing. They alleged that defendants,

Barnes, Black, Ford, Carlstrom, and fictitiously-named

others, had deprived them of the use and enjoyment of

their property and that defendants had caused them men-

tal and emotional pain and anguish. Accordingly, on Sep-

tember 14, 1990, the court issued a temporary restraining

order, prohibiting defendants from picketing within 200

feet of the Short Hills cul-de-sac, from referring to Dr.

Boffard as a “murderer” or a “killer,” from depicting

fetuses on placards, and from publishing plaintiffs’

address. The order also limited to six the number of

demonstrators who could protest near plaintiffs’ resi-

dence. Id. at 14-15.

On April 8, 1991, the Chancery Division issued a

preliminary injunction against defendants. 248 N.J.Super.

;

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501 (1991). Five months thereafter, the Chancery Division

made that preliminary injunction permanent. Both the

preliminary and the permanent injunction provided:

ORDERED that the defendants and all persons and orga-

nizations associated with or acting in concert or combina-

tion with them be ENJOINED and RESTRAINED as

follows: 1. From gathering, parading, patrolling for the

purpose of demonstrating or picketing within the imme-

diate vicinity of plaintiffs’ residence * * * . 2. Distributing

flyers to plaintiffs’ neighbors which contain references to

{Dr. Boffard] as being a murderer or killer or his practice

as involving murder or killing or which contains any

other inflammatory language or which sets forth the

plaintiffs’ home address. 3. Carrying placards which con-

tain depictions of a fetus * * * * [264 N.J.Super. at 13.]

On February 19, 1991, before the Chancery Division

issued its preliminary and permanent injunctions, the

Township Committee passed an ordinance, Section

15-1-28, stating: “It is unlawful for any person to engage

in picketing before or about the residence or dwelling of

an individual in Millburn Township.” No party has sug-

gested that the Chancery Division relied on that ordi-

nance in issuing the restrictions, and defendants do not

challenge that ordinance in these proceedings.

On April 12, 1993, the same panel of the Appellate

Division as upheld the Murray injunction upheld para-

graph one of the Boffard injunction, prohibiting defen-

dants from protesting “within the immediate vicinity” of

the Boffard residence. 264 N.J.Super. at 16. The Appellate

Division reasoned that the paragraph-one restriction is a

constitutional time, place, and manner restriction. [bid.

The court struck down paragraphs two and three of the

10a

injunction, however, finding that those restrictions are

impermissibly content based. Ibid. On this appeal, there-

fore, we assess the validity of only the paragraph-one

restriction.

Defendants in both cases assert that in the absence of

violent conduct or conduct in violation of a statute or an

ordinance, the Chancery Division has no inherent author-

ity to impose injunctive restrictions on protected expres-

sion. Put differently, defendants argue that the judiciary

may not issue an equitable remedy without proof of

violence or legal liability. We do not agree.

In Horizon Health Center v. Felicissimo, 135 N.J. 126

(1994), decided today, we upheld the authority of the

Chancery Division to issue an injunction restricting the

expressive activities of anti-abortion protestors who had

demonstrated peacefully outside an abortion and family-

planning clinic. The defendants in that case made the

same argument that defendants make here, namely, that

the Chancery Division could not enjoin their peaceful

expression. In Horizon Health Center we held that the

Chancery Division, a court of equity, does have the

authority to restrict peaceful expressive activity to

enforce the public policies of accessibility of medical ser-

vices and maintenance of medical standards, id. at 144-46

(slip op. at 21-24), protection of private property, id. at

146-47 (slip op. at 25), and public safety, id. at 147 (slip

op. at 26).

Here, the Chancery Division entered the injunction

against defendants to enforce a public policy favoring the

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protection of residential privacy. In Part II, B of this

opinion, we conclude that residential privacy represents a

sufficient public-policy interest to justify injunctive

restrictions and that it implicates a significant govern-

ment interest. We therefore conclude that the Chancery

Division had the power to enjoin the nonviolent, non-

criminal activity of defendants to protect plaintiffs’ resi-

dential privacy.

Decisions of other courts upholding injunctive

restrictions against peaceful picketers to protect residen-

tial privacy support our conclusion. See, e.g., Dayton

Women’s Health Center v. Enix, 589 N.E.2d 121, 127 (Ohio

Ct.App.) (affirming permanent injunction against peace-

ful picketing at residences of abortion-clinic personnel by

protestors who had engaged in tortious conduct at clinic

itself but not a residences of personnel), appeal dismissed,

583 N.E.2d 971 (Ohio 1991), cert. denied sub nom. Sorrell v.

Dayton Women’s Health Center, __ U.S. ___, 112 S.Ct. 3033,

120 L.Ed.2d 903 (1992); Klebanoff v. McMonagle, 552 A.2d

677, 678 (Pa.Super. Ct.1988) (upholding injunction against

peaceful antiabortion picketers outside residence of phy-

sician to protect residential privacy), appeal denied, 563

A.2d 888 (Pa.1989). But see Valenzuela v. Aquino, 853

S.W.2d 512, 513-14 (Tex.1993) (finding permanent injunc-

tion against selected residential picketing by anti-abor-

tion protestors improper because court nad made no

determination of legal liability).

Our inquiry does not end with our determination

that the Chancery Division had the authority to issue the

injunctions, however. For the exercise of the Chancery

Division’s authority to be valid, the restrictions must

12a

balance defendants’ free-speech rights and plaintiffs’ resi-

dential-privacy interests. See Horizon Health Center, supra,

135 N.J. 139 (slip op. at 13). The issue is whether the

specific restrictions that the Chancery Division imposed

are permissible.

II]

In Horizon Health Center we held that a Chancery

Division injunction prohibiting picketing outside an abor-

tion clinic “regulates expressive activity traditionally pro-

tected by the First Amendment.” 135 N.j. at 139 (slip op.

at 14). Because the injunctions in these cases regulate the

same activity — the Murray injunction prohibits “picketing

in any form,” and the Boffard injunction prohibits “gather-

ing, parading, patrolling for the purpose of demonstrat-

ing or picketing” — they also regulate First Amendment

expression and we must analyze them accordingly.

The injunctions here, restricting expressive activity

on public streets and sidewalks in residential neighbor-

hoods, regulate expressive activity in a traditional public

forum. In Horizon Health Center, we observed that public

streets and sidewalks are archetypical traditional public

forums. Id. at 140 (slip op. at 15). Moreover, as the

Supreme Court noted in Frisby v. Schultz, 487 U.S. 474,

480, 108 S.Ct. 2495, 2500, 101 L.Ed.2d 420, 429 (1988), “a

public street does not lose its status as a traditional public

forum simply because it runs through a residential neigh-

borhood.”

Therefore, inasmuch as the injunctions proscribe pro-

tected activity in a traditional public forum, we evaluate

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13a

them under the stringent standards the Supreme Court

has outlined for regulating speech in such forums.

“In these quintessential public for[ums], the

government may not prohibit all communicative

activity. For the State to enforce a content-based

exclusion it must show that its regulation is

necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that

end. * * * . The State may also enforce regula-

tions of the time, place, and manner of expres-

sion which are content-neutral, are narrowly

tailored to serve a significant government inter-

est, and leave open ample alternative channels

of communication.”

[Frisby, supra, 487 U.S. at 481, 108 S.Ct. at

2500-01, 101 L.Ed.2d at 429 (quoting Perry Educ.

Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37,

45, 103 S.Ct. 948, 955, 74 L.Ed.2d 794, 804 (1983).]

The threshold inquiry, then, is whether the injunctions

against defendants are content neutral.

A. Content Neutrality

A restriction is content neutral if it can be justified

without reference to the content of the regulated speech.

Horizon Health Ctr., supra, 135 N.J. at 141 (slip op. at 16). If

a restriction is imposed because of a disagreement with

the message the regulated speech conveys, however, it is

impermissibly content-based. Ibid. (slip op. at 16).

We conclude that the injunctions against defendants

are content neutral. They do not reflect a disagreement

with defendants’ respective messages, and we can justify

them without reference to the content of defendants’

l4a

speech. The final injunctions in both cases do not refer in

any way to the content of defendants’ speech but merely

forbid them from picketing within a certain distance of

plaintiffs’ residences. The Chancery Division in each case

imposed the restrictions not because the court disagreed

with defendants’ viewpoint but to insure that defendants’

communication of that viewpoint does not impermissibly

interfere with plaintiffs’ residential privacy. In imposing

the injunctions, the Chancery Division focused not on the

effect of defendants’ message on plaintiffs but on defen-

dants’ sheer physical presence outside of plaintiffs’

homes.

We reject defendants’ argument that the injunctions

are content based merely because they restrain the

expressive activities only of anti-abortion picketers. As

we noted in Horizon Health Center, “Merely because an

injunction restricts only a specified group does not make

that injunction content based. Courts always tailor

injunctive relief to address the specific facts presented to

them.” 135 N.j. at 143 (slip op. at 20). Only these defen-

dants interfered with plaintiffs’ residential privacy.

Accordingly, the Chancery Division restrained only the

activities of only these defendants.

Defendants also argue that a Chancery Division

judge has unbridled discretion in determining whether to

issue injunctive relief. Therefore, the argument goes, any

injunctive relief a judge issues is content based because

that judge may impermissibly consider content in decid-

ing whether to grant relief. To support their argument,

defendants cite Forsyth County, Georgia v. Nationalist

Movement, ___ U.S. __, __, 112 S.Ct. 2395, 2403-04, 120

L.Ed.2d 101, 109-10 (1992) (holding ordinance placing

15a

unfettered discretion with county administrator to assess

security needs for parade permit fees to be content

based). So strained is that analogy, however, that we

dwell on the point only long enough to reject it out of

hand. The differences between a county administrator's

discretion and the discretion imposed in a judicial officer,

whose flexibility in the exercise thereof is constrained by

well-recognized principles of law, are too obvious to war-

rant citation of authority.

Finally, the decisions of other courts analyzing simi-

lar injunctions against anti-abortion protesters outside

doctors’ residences support our conclusion that the

injunctions are content neutral. See, e.g. Kaplan v. Prolife

Action League, 431 S.E.2d 828, 843 (N.C. Ct.App.) (finding

restriction prohibiting picketing within zone near plain-

tiff’s residence content neutral because it “makes no men-

tion of abortion or any other subs.antive issue. It does not

flatly ban picketing * * * nor does it prohibit anti-

abortion picketing while permitting residential picketing

having other aims. * * * . [T]he trial court [focused not]

on the effect ** * of defendants’ message * * * , but

rather on defendants;’ physical presence * * * ”) (citations

omitted), review denied, 436 S.E.2d 379 (N.C.1993), petition

for cert. filed, No. 93-1159 (Jan. 18, 1994); see also Dayton

Women's Health Center, supra, 589 N.E.2d at 127 (finding

order prohibiting picketing only in front of certain resi-

dences to be content neutral because “[i]t does not pro-

hibit residential anti-abortion picketing while permitting

residential picketing having other aims”); Klebanoff, supra,

552 A.2d at 678-79 (finding injunction prohibiting picket-

ing in front of doctor’s house to be content neutral

because it does not “refer [|] to the content or subject

l6a

matter of the protest. The injunction contains no invita-

tion to subjective or discriminatory enforcement.”).

Having determined that the Chancery Division

imposed content-neutral restrictions, we turn now to the

question whether those restrictions are narrowly tailored

to serve significant government interests and whether

they leave open ample alternative channels of communi-

cation for defendants. See Frisby, supra, 487 U.S. 481, 108

S.Ct. at 2500-1, 101 L.Ed.2d at 429.

B. Significant Government Interests

Plaintiffs assert that they are entitled to residential

privacy, that defendants’ picketing interfered with that

privacy, and that the State has a significant interest in

protecting their privacy. We agree with plaintiffs and

hold that a common-law public policy in favor of protec-

tion of residential privacy exists and that that policy

implicates a significant government interest justifying the

imposition of injunctive restrictions. We therefore need

not, and do not, rely on a constitutionally-based residen-

tial-privacy right stemming from either the New Jersey or

the federal constitutional to justify the imposition of

restrictions.

Courts look to a variety of sources, including judicial

decisions, to find public policy. Pierce v. Ortho Phar-

maceutical Corp., 84 N.J. 58, 72 (1980) (stating “The sources

of public policy include legislation; administrative rules,

regulations or decisions; and judicial decisions”). The

decisions of this Court support a conclusion that New

Jersey has a public policy in favor of protecting the

residential privacy of its citizens.

17a

For example, we have upheld the authority of a

municipality to use its zoning power “to secure and

maintain ‘the blessings of quiet seclusion’ and to make

available to its inhabitants the refreshment of repose and

the tranquility of solitude.” Berger v. State, 71 N.J. 206, 223

(1976) (quoting Village of Belle Terre v. Boraas, 416 U.S. 1,9,

94 S.Ct. 1536, 1541, 39 L.Ed.2d 797, 804 (1974)); see State v.

Baker, 81 N.J. 99, 106 (1979) (same). Moreover, this Court

has recognized that the State has an interest in protecting

its citizens “against a sense of unease and dangers rea-

sonably to be apprehended on account of strangers filter-

ing through the community.” Borough of Collingswood v.

Ringgold, 66 N.J. 350, 357 (1975), appeal dismissed, 426 U.S.

901, 96 S.Ct. 2220, 48 L.Ed.2d 826 (1976). Finally, we have

noted that even when an intrusion on residential privacy

takes the form constitutionally-protected expression, “the

right of the [State] to protect its homeowners against

*** untoward invasions of privacy *** deserves some

weight.” Id. at 369. We find in the cited authorities a

public policy favoring the protection of residential pri-

vacy. We are convinced as well that enforcement of that

policy constitutes a significant government interest.

The United States Supreme Court decision in Frisby,

supra, supports our conclusion that protection of residen-

tial privacy represents a significant government interest.

In that case, the Supreme Court upheld against a First

Amendment challenge an ordinance forbidding “ ‘picket-

ing before or about the residence or dwelling of any

individual *** .’” 487 U.S. at 477, 108 S.Ct. at 2498, 101

L.Ed.2d at 426-27 (quoting municipal ordinance). The

ordinance itself contained the following statements of

purpose: “ ‘the protection and preservation of the home’

18a

through assurance ‘that members of the community enjoy

in their homes and dwellings a feeling of well-being,

tranquility, and privacy.’ ” Id. at 477, 108 S.Ct. at 2498, 101

L.Ed.2d at 427 (quoting municipal ordinance).

The Supreme Court found that the protection of resi-

dential privacy is a significant government interest. Id. at

484, 108 S.Ct. at 2502, 101 L.Ed.2d at 431. Although failing

to identify the source of the State’s interest, the Court

reasoned that “ ‘[t]he State’s interest in protecting the

well-being, tranquility and privacy of the home is cer-

tainly of the highest order.’” Ibid. (quoting Carey v.

Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2296, 65 L.Ed.2d

263, 276 (1980)). The Court described the home as ” ‘the

last citadel of the tired, the weary, and the sick,” ’ ibid.

quoting Gregory v. Chicago, 394 U.S. 111, 126, 89 S.Ct. 946,

953, 22 L.Ed.2d 134, 144 (1969) (Black, J., concurring)),

concluding that “ ‘preserving the sanctity of the home

*** is surely an important value.’ ” Ibid. (quoting Carey,

supra, 447 U.S. at 471, 100 S.Ct. at 2295, 65 L.Ed.2d at

276)).

The Supreme Court also pointed out that “protection

of the unwilling listener” is an important component of

residential privacy because citizens can become captive

listeners in their own homes. Id. at 484, 108 S.Ct. at 2502,

101 L.Ed.2d at 431; see also Hazel A. Landwehr, Note,

Unfriendly Persuasion: Enjoining Residential 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”). The Supreme Court concluded

that “a special benefit of the privacy all citizens enjoy

19a

within their own walls, which the Sate may legislate to

protect, is an ability to avoid intrusions.” Id. at 484, 108

S.Ct. at 2502, 101 L.Ed.2d at 432.

In sum, we conclude that New Jersey has a common-

law public policy in favor of protecting residential pri-

vacy and that enforcement of that policy constitutes a

significant government interest. We therefore accept the

reasoning of the Appellate Division to the extent that it

based its justification of the restrictions against defen-

dants on common-law notions.

Because common-law public policy alone suffices to

justify imposing restrictions on defendants, we decline to

decide whether article 1, paragraph 1 of the New Jersey

Constitution provides a basis for injunctive relief. See

O'Keefe v. Passaic Valley Water Comm'n, 132 N.]. 234, 240-41

(1993) (noting that courts should not decide constitu-

tional questions unless necessary to dispose of litigation).

Thus, to the extent the Appellate Division may have

relied on the New Jersey Constitution to impose restric-

tions on Gefendants, see Murray, supra, 264 N.J.Super. at

30-31, we do not adopt that court’s reasoning.

Similarly, we do not base our decisicn in respect of

the injunctions on a federal constitutional right to resi-

dential privacy. First, we need not reach that constitu-

tional issue inasmuch as we can decide the cases before

us On common-law principles. See O'Keefe, supra, 132 N.].

at 240-41. Second, in upholding the injunctions, the

Appellate Division did not appear to rely on any federal

constitutional right to residential privacy. Third, no such

federal right to residential privacy appears to exist:

although the Supreme Court justified an ordinance

20a

against selected residential picketing on the protection of

residential privacy, Frisby, supra, 487 U.S. at 484-85, 108

S.Ct. at 2502-03, 101 L.Ed.2d at 431-32, the Court did not

establish explicitly a federal constitutional right to resi-

dential privacy. Moreover, even if the Supreme Court had

established such a right, the State could not protect that

right against private interference. See Bray v. Alexandria

Women’s Health Clinic, ___ U.S. __, __, 113 S.Ct. 753, 771,

122 L.Ed.2d 34, 52 (1993) (noting that general federal

constitutional right of privacy is not protected against

private interference).

We therefore come to the question whether the speci-

fic restrictions imposed are narrowly tailored to serve the

significant government interest in protection of residen-

tial privacy. That inquiry requires us to balance defen-

dants’ constitutional right of free expression against

plaintiffs’ common-law interest in residential privacy. See

Crowe v. Di Giota, 90 N.J. 126, 134 (1982) (outlining

requirements to issue injunctive relief); cf. In re Farber, 78

N.J. 259, 268 (noting balance between non-constitutional

interest of press in protecting confidentiality of sources

and criminal defendant's constitutional right to fair trial),

cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670

(1978).

C. Narrow Tailoring

A regulation is narrowly tailored if it promotes a

significant government interest that the govermment

could not achieve as effectively without the regulation.

Horizon Health Ctr., supra, 135 N.J. at 148 (slip op. at 26).

“Yet, a regulation may not ‘burden substantially more

21a

speech than is necessary to further government's legiti-

mate interests.’ ” Id. at 148 (slip op. at 27) (quoting Ward

v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746,

2758, 105 L.Ed.2d 661, 680 (1989)).

1. Murray v. Lawson

The Murray injunction is a “place” injunction that

prohibits defendants “from picketing-in any form includ-

ing parking, parading or demonstrating in any manner,

within 300 feet of the Murray residence * * * .” 264

N.].Super. at 26. We conclude that that restriction meets

the requirements for narrow tailoring of a “place” restric-

tion.

In Frisby, supra, the Supreme Court found narrowly

tailored a municipal ordinance prohibiting “ ‘picketing

before or about the residence or dwelling of any individ-

ual *** .” ’ 487 U.S. at 477, 108 S.Ct. at 2498, 101 L.Ed.2d

at 426-27 (quoting the ordinance). The Supreme Court

reasoned that

the picketing [prohibited by the ordinance] is

narrowly directed at the household, not at the

public. The type of picketers banned *** do

not seek to disseminate a message to the general

public, but to intrude upon the targeted resident

* * * | Moreover, even if some such picketers

have a broader communicative purpose, their

activity nonetheless inherently and offensively

intrudes on residential privacy.

[Id. at 486, 108 S.Ct. at 2503, 101 L.Ed.2d at

433.|

22a

The Court noted further that the First Amendment per-

mits restrictions to protect the captive listener and that

the target of focused residential picketing is indeed “cap-

tive” because “[t]he resident is figuratively, and perhaps

literally, trapped within the home, and because *** [the

resident] is left with no ready means of avoiding the

unwanted speech.” /d. at 487, 108 S.Ct. at 2504, 101 L. Ed.

2d at 433. Accordingly, the Court concluded that a com-

plete ban of focused residential picketing is narrowly

drawn to serve the interest of protection of residential

privacy. Id. at 487-88, 108 S. Ct. at 2504, 101 L. Ed. 2d at

434.

Moreover, the decisions of other courts, upholding

total bans on focused picketing within a certain distance

of a target’s residence, support a conclusion that a 300-

foot ban restriction on picketing is permissible. See, e.g.,

Northeast Women’s Center v. McMonagle, 393 F.2d 57, 67 (3d

Cir. 1993) (imposing 500-foot restriction on anti-abortion

picketers outside residences of clinic staff and remanding

to determine if circumstances require even greater restric-

tion); State v. Castellano, 506 N.W.2d 641, 647 (Minn. Ct.

App. 1993) (finding ordinance prohibiting picketing

“focused on or taking place in front of a particular single

residential dwelling” to be narrowly tailored); Kaplan,

supra, 431 S.E.2d at 844-47 (finding 300-foot restriction

against residential anti-abortion protestors [sic] to be nar-

rowly drawn); Dayton Women’s Health Center, supra, 589

N.E.2d at 127 (upholding ban on picketing “within view-

ing distance” of residences of abortion-clinic patients and

staff); Klebanoff, supra, 552 A.2d at 680-81 (finding perma-

nent injunction prohibiting anti-abortion protestors from

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23a

picketing directly in front of doctor’s house to be nar-

rowly tailored). But see Ramsey v. Edgepark, Inc., 583

N.E.2d 443. 452 (Ohio Ct. App.) (reversing 200-yard zone

of protection, finding that picketers “have a right to

picket in the neighborhood, block or street where [targets

of picket} live”), appeal dismissed, 560 N.E.2d 780 (Ohio

1990).

We are satisfied that the 300-foot restriction against

defendants is narrowly tailored to protect plaintiffs’ resi-

dential privacy. Defendants directed their picketing activ-

ity toward plaintiffs and not toward the public.

Defendants’ demonstration spanned a length of approx-

imately ten houses, but plaintiffs’ house was never free

frorn picketers during the protest. Even if some defen-

dants did have a broader communicative purpose, their

activity inherently and offensively intruded on plaintiffs’

residential privacy. Of particular concern to the Chancery

Division was the effect of the picketing on plaintiffs’

three children: the trial court determined that plaintiffs

had become captive listeners within their own home, a

circumstance that required a total ban on picketing. We

agree.

Nor will we disturb the Chancery Division's finding

that the spatial scope of the total ban should be 300 feet.

The record discloses that one of the demonstrators tres-

passed cn a neighbor’s lawn, that other children live in

the neighborhood, and that a demonstrator warned a

young neighborhood boy that a killer lived in the neigh-

borhood. The Chancery Division made specific findings,

from which it concluded that a 300-foot restriction was

appropriate. “While the court could possibly achieve its

goal with a narrower [speech-] free zone, we decline to

24a

entertain quibbling over a few feet.” Portland Feminist

Women’s Health Ctr. v. Advocates for Life, inc., 859 F.2d 681,

686 (9th Cir. 1988). We likewise will not disturb the Chan-

cery Division’s imposition of a 300-foot zone.

2. Boffard v. Barnes ”

The Boffard injunction prohibits defendants “[f]rom

gathering, parading, patrolling for the purpose of demon-

strating or picketing within the immediate vicinity of plain-

tiffs’ residence * * * .” 264 N.J. Super. at 13 (emphasis

added). For the same reasons that we find a complete ban

on focused residential picketing permissible in Murray,

we find that a complete ban on picketing outside the

Boffard residence is permissible as well. However,

because we conclude that the Chancery Division could

have more precisely defined the spatial scope of its ban,

we remand to that court.

Injunctions are supposed to “be specific in terms;

[and] describe in reasonable detail * * * the act or acts

sought to be restrained * ** .” R. 4:52-4. The description

“within the immediate vicinity of” contained in the

Boffard injunction is neither specific nor reasonably

detailed. Although defendants do not argue that the

restriction is unconstitutionally vague, we are sure that

neither the parties nor the police can determine with any

certainty how close to piaintiffs’ residence “within the

immediate vicinity of” can legitimately take one. We

could limit that language to preclude picketing “before or

about the residence or dwelling of” plaintiffs — a restric-

tion that the Supreme Court upheld in Frisby, supra, 487

U.S. at 482, 108 S.Ct. at 2501, 101 L. Ed. 2d at 430, by

25a

interpreting it to “prohibit only picketing focused on, and

taking place in front of, a particular residence.” But

“within the immediate vicinity of” seems to prohibit

more than picketing only “in front of” plaintiffs’ resi-

dence. “Vicinity” means “a surrounding area or district:

locality, neighborhood,” Webster's Third New International

Dictionary, 2550 (1971), and “immediate” means “charac-

terized by contiguity: existing without intervening space

or substance: being near or at hand: not far apart or

distant.” Id. at 1129.

Thus, because “within the immediate vicinity of”

does not describe sufficiently the area in which the

injunction’s prohibition applies, we remand to the Chan-

cery Division to set forth more precisely the scope of the

ban. When imposing the “within the immediate vicinity

ot” restriction, the Chancery Division may have had a

particular area in mind. If so, the court could easily

clarify that restriction. We recognize, however, that if it is

to impose a more specific restriction, the Chancery Divi-

sion may have to make additional findings. We are mind-

ful as well that the Chancery Division has great flexibility

in defining the scope of the ban; the court could, for

example, preclude picketing on plaintiffs’ street, or could

prohibit that activity within a specific number of feet

from, within sight distance of, or in front of plaintiffs’s

residence. We leave that determination to the Chancery

Division.

26a

D. Alternative Channels of Communication

We are convinced that the Murray injunction and the

Boffard injunction, which, on modification, will prohibit

picketing within a certain distance from plaintiffs’ resi-

dence, leave open ample alternative channels of commu-

nication for these defendants. Defendants may

communicate their message to the physicians, to the phy-

sicians’ families, and to the physicians’ neighbors on any

residential street beyond the zone the injunctions estab-

lish. They may also picket and protest outside the physi-

cians’ offices and outside the clinics and hospitals where

the physicians perform medical procedures. Although

defendants may not picket within the zones the injunc-

tions establish, they have ample other opportunities to

express their message to their target audience.

Defendants in Boffard claim that the permanent

injunction against them also violates their right of free

expression under article I, paragraph 6 of the New Jersey

Constitution. That provision provides in pertinent part:

“Every person may freely speak, write and publish his

sentiments on all subjects, being responsible for the abuse

of that right.” For the same reasons that we decided not

to analyze Horizon Health Center, supra, under the New

Jersey Constitution, we similarly decline to analyze

Boffard under our State Constitution. See 135 N.J. at 154

(slip op at 35-36). Thus, we confine our discussion to

those First Amendment principles we have outlined

already.

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27a

In Murray v. Lawson we affirm the judgment of the

Appellate Division.

In Boffard v. Barnes we modify the judgment of the

Appellate Division. The cause is remanded to the Chan-

cery Division for further proceedings consistent with this

opinion. As so modified the judgment is affirmed.

Chief Justice Wilentz and Justices Handler, Pollock,

O’Hern, Garibaldi, and Stein join in this opinion.

28a

624 A.2d 3

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.

Superior Court of New Jersey

Appellate Division

Submitted February 18, 1993 -

Decided April 12, 1993

Before Judges KING, BRODY and LANDAU.

Richard F. Collier, Jr., attorney for appellants (Mr. Col-

lier, on the brief).

Pamela Mandel, attorney for respondents (Ms. Mandel,

on the brief).

The opinion of the court was delivered by

KING, P.J.A.D.

In this case plaintiffs sought damages and injunctive

relief against defendants for picketing in an harassing

manner in front of their home in Westfield on January 20,

1991. Plaintiff Elrick A. Murray, M.D., is a physician who

performs abortions. Defendants are anti-abortionists. The

Chancery Division judge dismissed the damages claim

but entered a permanent injunction against pickets or

demonstrations by defendants and their cohorts within

300 feet of plaintiffs’ residence. Defendants appeal from

the injunctive order. We affirm.

29a

The verified complaint filed in February 1991, by Dr.

Murray and his wife against Michael Andrew Lawson,

David Crist, and the fictitiously-named defendants,

alleged: (1) trespass, (2) disruption of use and enjoyment

of property, (3) intrusion on seciusion, (4) damage to Dr.

Murray’s professional reputation and pecuniary interests,

and (5) deprivation of the right to privacy guaranteed by

the federal and State constitutions. After a hearing on

February 14, 1991 Judge Boyle entered a temporary order

sharply restricting picketing near plaintiffs’ home.!

' The temporary order of February 22, 1991 stated:

ORDERED that the defendants and all persons and organi-

zations associated with or acting in concert or combinations

with them be enjoined and restrained from using the word killer

or murderer or from referring to Dr. Murray and members of his

family by name. This restriction applies to both the spoken and

the written word; and it is further [ordered:]

1. Defendant may picket for not more than one (1) hour

every third week commencing the week of February 18, 1991.

There is to be no picketing until that time;

2. That no more than two (2) demonstrators may be pre-

sent at the plaintiffs’ residence until further Order of the Court

3. Should any additional demonstrator be present in the

adjacent area to the plaintiffs’ residence, they may not congre-

gate near the plaintiffs’ house but must walk throughout the

entire neighborhood to include at least the distance to Central

Avenue;

4. The sign which was present on January 20, 1991 of the

decapitated person which purported to be a fetus is prohibited

and it is further

ORDERED that the defendants and all persons and organi-

zations associated with or acting in concert or combination with

them be enjoined and restrained from hand delivering written

material to the plaintiffs or their neighbors. . . .

30a

Defendants removed the case to federal court in February

26, 1991. Federal Judge Barry returned the matter to State

court because of lack of federal jurisdiction. We then

denied defendants’ request for interlocutory review on

April 26, 1991.

Judge Boyle held a fina! hearing on May 21, 31 and

July 25, 1991. He dismissed the damages claims but on

July 26, 1991 permanently enjoined picketing within 300

feet of plaintiffs’ residence.

The finai hearing presented this factual picture. Dr.

Murray is an obstetrician and gynecologist with a private

practice in Plainfield. He also serves at several area

clinics, including the Women’s Medical Center in Howell,

where he and other doctors perform abortions. He does

not perform abortions at his Plainfield office. He lives in

a typical suburban residential neighborhood in Westfield.

He maintains no office and treats no patients there. He

lives there with his wife, plaintiff Belinda Murray, and

three children, who in 1991 were age six, eleven and

fifteen. Defendants, who live near the Howell Clinic,

regularly demonstrated against abortion by picketing at

the Howell Clinic for about two years before January

1991.

Defendant Lawson discovered the Plainfield and

Westfield addresses of Dr. Murray. He visited the West-

field home address on about December 14, 1990 and was

surprised to see a residence rather than an office. He rang

the doorbell, which was answered by plaintiffs’ son, then

3la

age fourteen, and on confirming it was the Murray resi-

dence, told the lad to tell his father to stop doing abor-

tions. Mrs. Murray then appeared at the door and told

Lawson not to talk to her children, to leave and not to

come back. He immediately left. Mrs. Murray was upset

and frightened by this visit.

Defendants then planned a demonstration at the

Murray residence for January 20, 1991, a Sunday. On

January 18 Lawson informed the Westfield police that a

peaceful protest picket was planned by about fifty peo-

ple. In the afternoon of January 20 two policemen met the

fifty-seven picketers at the nearby Edison School,

instructed them on basic picketing rules, and escorted

them to the sidewalk in front of plaintiffs’ house and

about ten surrounding homes. They walked in a single-

file loop on the sidewalk past plaintiffs’ house, usually

two abreast but sometimes four or five abreast.

Dr. Murray had been warned of the impending dem-

onstration by the administrator of the Medical Care Cen-

ter in Woodbridge, another clinic where he served.

Westfield police had confirmed this and advised Dr. Mur-

ray to send his family away for the day and remain inside

the house himself. Mrs. Murray and the children spent

the day at her sister’s home. Dr. Murray observed the

pickets from his windows. He heard singing, shouting

and chanting; he saw several neighbors, including two

teenage boys, converse with the picketers. One of the

boys videotaped a short portion, in which picketers

loudly questioned whether the boy knew there was a

killer in the neighborhood. Picketers carried placards

describing Dr. Murray as: a vagabond abortionist, a killer

of unborn babies who scars women, and child murderer.

32a

One sign stated that if Dr. Murray got out of Howell, the

picketers would get out of Westfield. Another placard

showed a decapitated infant labeled “Elrick Murray,

abortionist.”

The plaintiffs said the demonstration deprived them

of their usual Sunday family time and threatened Dr.

Murray’s practice by forcing him to remain home out of

fear for his property while two of his patients were in

labor. Since the picketing, Mrs. Murray has been nervous

and depressed; Dr. Murray has felt compelled to curtail

his professional work so he can be at home more often.

In response to the January 20 demonstration, plain-

tiffs filed this suit. On the day of the first scheduled

hearing date, February 8, defendants Lawson and Crist

picketed on the sidewalk in front of plaintiffs’ residence,

and along the block,’ for about fifteen minutes.

On February 26 defendants removed the case to fed-

eral district court based on the assertion of a federal

constitutional claim of deprivation of privacy rights.

After several motions in that court, Federal Judge Barry

remanded to State court for lack of federal jurisdiction on

April 24, 1991. Jurisdiction was declined when Judge

Barry dismissed that portion of count five alleging viola-

tion of a right to privacy guaranteed by the United States

Constitution because the requisite state action was

absent. She found that, because of Fed.R.Civ.P. 65(b),

Judge Boyle’s temporary restraining order had expired on

March 12, 1991, ten days after the February 26 removal.

On April 26, 1991 Judge Boyle reimposed the earlier

temporary restraints.

33a

There was no further residential picketing until May

4, 1991. In the interim, Dr. Murray’s apprehension about

the conduct of anti-abortionists heightened. On April 22

Dr. Murray discovered, on arriving at work at the Medi-

cal Care Center in Woodbridge, that the building had

been burned. The police chief and fire marshall attributed

the fire to arson. Sometime between April 22 and May 4

Lawson picketed at the Howell clinic, and later that same

day picketed at Dr. Murray’s Plainfield office. On May 2

the Howell police received a telephone bomb threat to the

Howell clinic.

On the morning of May 4 Lawson and Edith Tucker

began to picket in front of Plaintiffs’ home. Dr. Murray

was annoyed by the timing, both because this came on

the heels of the Woodbridge clinic arson and because he

had misinterpreted the preliminary injunction to mean

that defendants could picket only the third week of every

month, as opposed to every three weeks. He called the

police, who reminded him of the injunction permitting

such picketing and came to the scene. After the police

arrived, Dr. Murray went out to confront Lawson,

expressed certain “expletives,” and asked why he was

there. Lawson replied that he would continue to come to

the doctor’s home as long as the doctor continued to go

to che Howell clinic.

According to Dr. Murray, he returned to his house at

the urging of police, who told him shortly afterwards that

the picketers’ hour was up. This was in error; the picke-

ters actually had a few minutes left before their nour was

up. Dr. Murray rushed out and “took a swing” at Lawson,

but a police officer reacted quickly to intercept it. Dr.

Murray and a neighbor also attempted to remove a sign

34a

strapped to Tucker. Although Dr. Murray had no proof

linking defendants with the arson or bomb threat, he was

scared by those events; he found defendants’ presence

threatening, and feared the demonstrators and their col-

leagues.

According to Lawson, Dr. Murray talked to him for

about ten minutes before the police arrived, and also

yelled, cursed and told him to leave. He grabbed and tore

Lawson's “Stop Abortion Now” sign. After police

arrived, one officer ushered Dr. Murray away from the

picketers. When Dr. Murray returned to the sidewalk

accompanied by an officer, Lawson felt a punch to the

back of his head. After picketing a bit longer, Lawson told

the police that he wanted Dr. Murray arrested, and was

advised to file a omplaint. He later did so and Dr.

Murray was convicted of simple assault in the Westfield

Municipal Court and fined $100.

At the conclusion of the February 14, 1991 plenary

hearing, Judge Boyle enjoined defendants from picketing

within 300 feet of plaintiffs’ residence. He dismissed the

claim for interference with Dr. Murray’s profession,

which he interpreted as a claim for interference with

contractual relations, based on lack of evidence of the

required malice or intent. He subsumed the claim for

interference with use and enjoyment of the home under

the claim for tortious invasion of privacy. He found the

December 14, 1990 trespass by defendant Lawson to have

occurred “before this case was instituted,” presumably

meaning that it was not relevant to the picketing. He

characterized plaintiffs’ common-law tort claims as an

invasion of privacy and intentional infliction of emotional

distress. He found insufficient evidence to justify money

35a

damages for either. Plaintiffs do not cross-appeal from

these adjudications.

Judge Boyle found that plaintiffs had a privacy inter-

est in their home, independent of any tort claim, and that

a court of equity could intervene to protect that right

even if no legal remedy for tort damages was available.

He engaged in a balancing test between plaintiffs’ pri-

vacy interest and defendants’ First Amendment rights.

He found that under Frisby v. Schultz, 487 U.S. 474, 108

S.Ct. 2495, 101 L.Ed.2d 420 (1988), targeted or focused

residential picketing was subject to judicial regulation,

even absent trespass or disturbance of the peace. He

found the Frisby analysis appropriate even though in that

case an ordinance, rather than an injunction, was chal-

lenged and upheld.

The judge dissolved the prior temporary injunction

and ordered “that the defendants and all persons in active

concert or participation with them be enjoined and

restrained from picketing in any form including parking,

parading or demonstrating in any manrier, within 300 feet

of the Murray residence at . . . Westfield, New Jersey... . ”

Defendants contend on this appeal that the injunc-

tion: (1) violates the separation of powers doctrine, (2)

was an unconstitutional prior restraint, (3) violated

defendants’ free speech rights, and (4) was unwarranted

because Dr. Murray came to the court of equity with

“unclean hands.”

36a

Defendants first contend that the judge had no power

to issue an injunction absent a finding that they had

committed a crime or tort. Plaintiffs respond that the

judge had inherent equitable power to enforce a right to

residential privacy as recognized by the United States

Supreme Court in Frisby, supra, 487 U.S. 474, 108 S.Ct.

2495, 101 L.Ed.2d 420. We agree with plaintiffs.

Substantive law-making belongs in the legislative

domain, State v. Leonardis, 73 N.J. 360, 369, 374, 375 A.2d

607 (1977), and the judicial branch of government is con-

stitutionally prohibited from exercising powers properly

belonging to another branch. N.J. Const. art. Hl, { 1.2

Under their concept of the doctrine of separation of

powers, defendants assert that no legal right worthy of

judicial protection was established and that there can be

no equitable remedy without proof of “legal liability.”

The irreparable harm necessary for equitable relief

frequently is identified by the inadequacy of money dam-

ages. Crowe v. De Gioia, 90 N.J. 126, 133, 447 A.2d 173

(1982). Nonetheless, defendants insist that their peaceful,

residentially-focused picketing cannot be enjoined

because they violated no positive laws and committed no

civil wrongs and because the court of equity lacks power

to enjoin conduct subject to neither criminal nor civil

2 N.j. Const. art. Ill, ¥ 1 states:

The powers of the government shall be divided among

three distinct branches, the legislative, executive, and judicial.

No person or persons belonging to or constituting one branch

shall exercise any of the powers properly belonging to either of

the others, except as expressly provided in this Constitution.

37a

penalty. We reject this as too crabbed a view of the scope

of equitable relief in this circumstance.

Equity follows the law, and ordinarily equity will not

divest legal rights. Dunkin’ Donuts of America, Inc. v.

Middletown Donut Corp. 100 N.J. 166, 183-84, 495 A.2d 66

(1985). However, equity is sometimes obliged to acknowl-

edge rights not recognized at law, and “equity will never

suffer a wrong without a remedy.” Orland Properties, Inc.

v. Broderick, 94 N.J.Super. 307, 313-14, 228 A.2d 95

(Ch.Div.1967).

Defendants contend not only that plaintiffs had no

protectable right, but also that any remedy in favor of

plaintiffs, deprives them of their constitutional right to

free expression. Defendants also rely on the Supremacy

Clause, contending that First Amendment rights must

perforce outweigh any State constitutional right to pri-

vacy asserted by plaintiffs. We agree that the validity of

the injunction depends on the balancing of First Amend-

ment considerations.

We perceive no separation of powers problem here

arising from the Chancery judge’s exercise of inherent

equitable power. Contrary to defendants’ contention,

Judge Boyle did not “roam around righting ‘wrongs’ at

will,” but granted equitable relief to vindicate a right to

residential privacy in a context explicitly recognized by

the United States Supreme Court in Frisby, supra, 487 U.S.

474 108 S.Ct. 2495, 101 L.Ed.2d 420.

In Frisby, Justice O’Connor described a right to avoid

being an unwilling, or “captive” listener in one’s own

home. Id. at 484-85, 108 S.Ct. at 2502, 101 L.Ed.2d at

38a

431-32. The right is not described by her as a constitu-

tional right to be protected against state action only, but

as a personal right to residential privacy in whose protec-

tion there is a significant governmental interest. [bid.

Based on the right to residential privacy described in

Frisby, we recently upheld restraints against peaceful

union picketing at the residence of the president of a

corporation. K-T Marine, Inc. v. Dockbuilders Local Union

1456, 251 N.J.Super. 153, 597 A.2d 563 (Ch.Div.1990), aff'd,

251 N.J.Super. 107, 597 A.2d 540 (App.Div.1991). The pres-

ident-homeowner did not allege trespass or disruptive

behavior; he only alleged that his family was made

apprehensive. The Third Circuit also recently upheld

restraints based on so-called Frisby rights, enjoining pick-

eting within 500 feet of the residence of an abortion clinic

employee. Northeast Women’s Ctr., Inc. v. McMonagle, 939

F.2d 57, 65 (3d Cir.1991). The restriction on home picket-

ing was found reasonable in light of prior demonstrations

considered harassment by the court, which had resulted

in resignations of two intimidated employees, a blocked

driveway preventing an employee from going to work,

and frightened children. That injunction restrainea not

only harassment or trespass, but all picketing at

employees’ homes, even peaceful, otherwise legal, picket-

ing.

In Frisby, the United States Supreme Court upheld a

Bloomfield, Wisconsin ordinance that banned picketing

“before or about” any residence. The Court construed

“the ban to be limited one; only focused picketing taking

place solely in front of a particular residence is prohib-

ited.” 487 U.S. at 483, 108 S.Ct. at 2502, 101 L.Ed.2d at 431.

The Court relied on the exercise of the general police

39a

power by state and local government rather than on any

federal constitutional right to privacy. The Court found

that the enforcement of the Brookfield, Wisconsin ordi-

nance preserved ample alternative channels of communi-

cation to the anti-abortion activities while it served “a

significant government interest”: “the protection of resi-

dential privacy.” Id. at 484, 108 S.Ct. at 2502, 101 L.Ed. at

431.

Defendants urge us to hold, under the guise of obei-

sance to the doctrine of separation of powers, that only a

municipal ordinance, or some form of positive law, can

protect this right of residential privacy — that a court of

equity has no such power absent a local ordinance.

Defendants urge that if a court of equity so acts in the

absence of a local ordinance, it becomes akin to the

odious court of Star Chamber or the Inquisition. We reject

the contention.

We conclude that a court of equity has inherent

power to protect this significant right to residential pri-

vacy, under either State or federal concepts of the police

power, even if the absence of a local ordinance. Justice

O’Connor reviewed at length the judicial history of the

protection of residential privacy in Frisby and we burden

this opinion with her very pertinent observations:

“The State’s interest in protecting the well-

being, tranquility, and privacy of the home is

certainly of the highest order in a free and civi-

lized society.” Carey v. Brown, 447 U.S. [455] at

471, 65 L.Ed.2d 263, 100 S.Ct. 2286 [2296 (1980)].

Our prior decisions have often remarked on the

unique nature of the home, “the last citadel of

the tired, the weary, and the sick,” Gregory v.

40a

Chicago, 394 U.S. 111, 125, 22 L.Ed. 2d 134, 89

S.Ct. 946 [953] (1969) (Black, J., concurring), and

have recognized that “[p]reserving the sanctity

of the home, the one retreat to which men and

women can repair to escape from the tribula-

tions of their daily pursuits, is surely an impor-

tant value.” Carey, supra, [447 U.S.] at 471, 65,

L.Ed. 2d 263, 100 S.Ct. 2286 [2296].

One important aspect of residential privacy

is protection of the unwilling listener. Although

in may locations, we expect individuals simply

to avoid speech they do not want to hear, cf,

Erznoznik v. City of Jacksonville, supra, [422 ULS.

205] at 210-211, 45 L.Ed. 2d 125, 95 S.Ct. 2268

[2273 (1975)]; Cohen v. California, 403 U.S. 15,

21-22, 29 L.Ed. 2d 284, 91 S.Ct. 1780 [1786]

(1971), the home is different. “That we are often

‘captives’ outside the sanctuary of the home and

subject to objectionable speech . . . does not

mean we must be captives everywhere.” Rowan

v. Post Office Dept, 397 U.S. 728, 738, 25 L.Ed. 2d

736, 90 S.Ct. 1484 [1491] (1970). Instead, a spe-

cial benefit of the privacy all citizens enjoy

within their own walls, which the State may

legislate to protect, is an ability to avoid intru-

sions. Thus, we have repeatedly held that indi-

viduals .*. not required to welcome unwanted

speech into their own homes and that the gov-

ernment may protect this freedom. [487 U.S. at

484-85, 108 S.Ct. at 2502, 101 L.Ed. 2d at 431-32.]

* om ‘

Here, in contrast, the picketing is narrowly

directed at the household, not the public. The

type of picketers banned by the Brookfield ordi-

nance generally do not seek to disseminate a

message to the general public, but to intrude

a al

— eee

4la

upon the targeted resident, and to do so in an

especially offensive way. Moreover, even if some

such picketers have a broader communicative

purpose, their activity, nonetheless inherently

and offensively intrudes on residential privacy.

The devastating effect of targeted picketing on

the quiet enjoyment of the home is beyond

doubt. ... [487 U.S. at 486, 108 S.Ct. at 2503, 101

L.Ed. 2d at 433.]

As Justice O’Connor observed, “The resident is figu-

ratively, and perhaps literally, trapped within the home,

and because of the unique and subtle impact of such

picketing is left with no ready means of avoiding the

unwanted speech.” Id. at 487, 108 S.Ct. at 2504, 101

L.Ed.2d at 433.

We also stress on this point that our State Supreme

Court has recognized a State constitutional right of pri-

vacy under Article I, paragraph 1 of the New Jersey

Constitution.* Hennessey v. Coastal Eagle Point Oil Co., 129

N.J. 81, 95-96, 609 A.2d 11 (1992). This right has been

recognized in many contexts, including: marital and

familial association, refusal of medical treatment, consen-

sual adult sexual relations, disclosure of personal infor-

mation, and procreative rights. Id. at 96, 609 A.2d 11. See

Robert F. Williams, The New Jersey State Constitution 30-31

(1990). The right to residential privacy is similarly inher-

ent in human concerns. The State right to privacy has

+ N.J.Const. art. 1, J 1 states: “All persons are by nature free

and independent, and have certain natural and unalienable

rights, among which are those of enjoying and defending life

and liberty, of acquiring, possessing, and protecting property,

and of pursuing and obtaining safety and happiness.”

42a

been called the common-law right to solitude or seclusion

in private affairs. Hennessey, supra, 129 N.J. at 94-95, 609

A.2d 11. We reject the notion that courts are powerless to

protect residential privacy simply because there is no

local ordinance regulating focused or targeted residential

picketing. “It has been recognized that the State Constitu-

tion, as a well spring of individual rights and liberties,

may be directly enforceable, its protections net depen-

dent even upon implementing legislation.” State v.

Schmid, 84 N.J. 535, 559, 423 A.2d 615 (1980), appeal dis-

missed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982).

We uphold the power of the court of equity to act in these

circumstances.

We next consider defendants’ claim that the injunc-

tion is both a prior or unreasonable restraint in violation

of their First Amendment rights of speech and expres-

sion. Plaintiffs claim that the injunction is a valid restraint

because it: (1) is a content-neutral time, place and manner

restriction, (2) is narrowly tailored to serve a significant

governmental interest, and (3) leaves open ample alterna-

tive channels of communication. We agree with plaintiffs.

The First Amendment to the United States Constitu-

tion provides in relevant part, “Congress shall make no

law .. . abridging the freedom of speech. . . . ” Picketing

plainly involves expressive conduct within its protection.

Police Dep’t v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292,

33 L.Ed.2d 212, 218 (1972); Pebble Brook, Inc. v. Smith, 140

N.J.Super, 273, 276, 356 A.2d 48 (Ch.Div.1976).

43a

Public streets and sidewalks in residential neighbor-

hoods are traditional public forum. Carey v. Brown, 447

U.S. 455, 460, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 264, 269

(1980). In a public forum, government restrictions on

speech-related activity such as picketing are subject to

careful scrutiny. Id. at 461-62, 100 S.Ct at 2291, 65 L.Ed.2d

at 270. This contrasts with non-public fora, where speech

restrictions must satisfy only a reasonableness standard.

International Soc’y for Krishna Consciousness, Inc. v. Lee, 505

U.S., __, ___, 112 S.Ct. 2701, 2706, 120 L.Ed.2d 541, 550

(1992).

Under the First Amendment, applicable to states

through the Fourteenth Amendment, government may

not prohibit all communicative activity in a public forum.

Horizon Health Center v. Felicissimo, 263 N.J.Super. 200, 622

A.2d 891 (App.Div.1993); see Perry Educ. Ass'n v. Perry

Local Educators’ Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 955,

74 L.Ed.2d 794, 804 (1983). Content-based restrictions are

permitted only where necessary to serve a compelling

state interest and where narrowly drawn to achieve that

end. Ibid. Content-neutra! regulations of time, place and

manner of expression are permitted only if they are nar-

rowly tailored to serve a significant government interest

and if they leave open ample alternative channels of

communication. [bid.

Hence, peaceful picketing is protected by the First

Amendment. Thornhill v. Alabama, 310 U.S. 88, 104, 60

S.Ct. 736, 745, 84 L.Ed. 1093, 1103 (1940). However, peace-

ful residential picketing is not “beyond the reach of uni-

form and nondiscriminatory regulation.” Carey v. Brown,

supra, 447 U.S. at 470, 100 S.Ct. at 2295, 65 L.Ed.2d at 275.

Moreover, as we have seen, the state may regulate “to

44a

protect the public from the kind of boisterous and threat-

ening conduct that disturbs the tranquility of spots selec-

ted... for homes. ...” Id. at 470-71, 100 S.Ct. at 2295, 65

L.Ed.2d at 276 (quoting Gregory v. Chicago, 394 U.S. 111,

118, 89 S.Ct. 946, 950, 22 L.Ed.2d 134, 140 (1969) (Black, J.,

concurring)). As discussed in point III, the United States

Supreme Court, in Frisby, found valid a Brookfield, Wis-

consin ordinance banning all residential picketing. The

ordinance stated: “It is unlawful for any person to engage

in picketing before or about the residence or dwelling of

any individual in the Town of Brookfield.” Frisby, supra,

487 U.S. at 477, 108 S.Ct. at 2498, 101 L.Ed.2d at 426-27.

The ordinance was enacted in response to peaceful pick-

eting at the home of a doctor who performed abortions at

clinics in neighboring towns. The Court construed the

ordinance to prohibit not all picketing in residential

areas, but only picketing focused on and taking place in

front of a particular residence, thus preserving ample

alternative channels of communication, even within the

same residential neighborhood. Id. at 482-84, 108 S.Ct. at

2501-02, 101 L.Ed.2d at 430-31.

The Court found the ordinance narrowly tailored to

protect unwilling recipients of the communications

because it targeted no more than the problem it sought to

remedy. Id. at 485, 108 S.Ct. at 2502, 101 L.Ed.2d at 432.

The ordinance banned picketing directed not to the pub-

lic, but to a specific household, and the ban of the result-

ing intrusion was permissible even if the picketers had a

broader communicative purpose id. at 486, 108 S.Ct. at

2503, 101 L.Ed.2d at 433. The Court found picketing out-

side a residence, whatever the size of the group, unques-

tionably offensive and disturbing. Id. at 487, 108 S.Ct. at

45a

2504, 101 L.Ed.2d at 433. The problem, the unavoidable

presence of an unwelcome visitor at the home, is created

by the medium of expression itself, the picketing. [bid.

487 U.S. at 488, 108 S.Ct. at 2505, 101 L.Ed.2d at 434.

The injunction in the case before us must be sub-

jected to the same analysis. The injunction here is facially

content-neutral. Nevertheless, an injunction is necessarily

directed to a particular class of speakers. Defendants

argue it is therefore both content-specific and viewpoint-

specific. The Third Circuit recently rejected this argu-

ment, explaining that limitation of the restraint to those

who had already picketed did not create a focus on

content, but rather reflected a tailoring of the remedy to

its legitimate purpose. Northeast Women’s Ctr. Inc. v.

McMonagle, supra, 939 F.2d 57; Id. at 62-63, 66. We agree.

Horizon Health Center, supra, 263 N.J.Super. at 214, 622

A.2d 891.

Content-based or viewpoint restrictions on speech

are presumptively invalid. R.A.V. v. City of St. Paul, 505

U.S. ___, __, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305, 317

(1992). They are almost always impermissible in a public

torum. Police Dep’t v. Mosley, supra, 408 U.S. at 96, 92 S.Ct.

at 2290, 33 L.Ed.2d at 217. Residential privacy is not such

a compelling interest that it will permit content-based

restrictions. Carey v. Brown, supra, 447 U.S. at 465, 100

S.Ct. at 2292, 65 L.Ed.2d at 272. However, incidentally

differential treatment of speech based on content is per-

mitted where the injunctive relief targets conduct based

on an activity other than its expressive content. R.A.V. v.

City of St. Paul, supra, 505 U.S. at __, 112 S.Ct. at 2546-47,

120 L.Ed.2d at 321-22.

46a

A Texas appellate court recently relied on Frisby

when concluding that an injunction, which prohibited

picketing within 400 feet of a physician’s residence by

anti-abortion protestors [sic], conformed to First Amend-

ment standards. Vallenzuela v. Aquino, 800 S.W.2d 301

(Tex.Ct.App.1990), error granted, May 1, 1991. The Texas

court found no violation of the content-neutrality require-

ment because the injunction was directed to and pro-

scribed the secondary effects of the picketing, not the

content of the speech. Id. at 305. The court noted that a

regulation may satisfy content-neutral review standards,

despite a discriminatory impact on content, as long as its

purpose was content-neutral. Ibid. (citing City of Renton v.

Playtime Theaters, Inc., 475 U.S. 41, 48-49, 106 S.Ct. 925, 89

L.Ed.2d 29, 38-39 (1986) (prohibition of adult movie thea-

ters within 1,000 feet of residential property held content-

neutral where purpose to protect residences from second-

ary effects of such theaters)); see Medlin v. Palmer, 874 F.2d

1085, 1090 (5th Cir.1989) (ordinance prohibiting loud-

speaker within 150 feet of abortion clinic held content-

neutral despite practical effect of limiting publication of

anti-abortionists’ speech). Other recent cases upholding

injunctions restricting picketing of a doctor’s residence

include Dayton Women’s Health Ctr. v. Enix, 68 Ohio App.3d

579, 589 N.E.2d 121, 124, 127 (1991), appeal dismissed, 62

Ohio St.3d 1500, 583 N.E.2d 971 (Ohio), cert. denied, __

U.S. __, 112 S.Ct. 3033, 120 L.Ed.2d 903 (1992) (the court,

relying on Frisby, rejected a First Amendment challenge

to an injunction banning picketing at or within viewing

distance of the homes of patients, employees, staff or

volunteers of an abortion clinic) and Klebanoff v.

McMonagle, 380 Pa.Super. 545, 552 A.2d 677 (1988), appeal

47a

denied, 522 Pa. 620, 563 A.2d 888 (1989) (the court, also

relying on Frisby, upheld an injunction banning pro-life

movement members from demonstrating outside the

home of an abortion doctor). No local ordinance or state

statute against focused or targeted picketing was

involved in these Ohio, Texas and Pennsylvania cases.

In our view, the injunction here is content-neutral in

intent, and a proper regulation because there is a signifi-

cant government interest at stake, despite the 300-foot

restriction on expression of a particular viewpoint. To

hold otherwise would limit injunctive relief of residential

picketing to circumstances of “compelling” state interest

only, a higher burden not met here. Since the injunction

here is content-neutral, the higher standard need not be

met. Moreover, neither the United States Supreme Court,

nor our Supreme Court, have ever suggested that regula-

tion of protected speech by injunction, rather than by

legislation, must be judged under a different, stricter

standard. The effect here may be to disallow in this

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

anti-abortion picketing only, but that is the effect of

defendants’ viewpoint, not any intent to censor on the

part of the State.

As in Frisby, a restriction by location only, here pro-

hibiting pickets within 300 feet of plaintiffs’ home, clearly

preserves ample alternative channels of communication

both at the clinics where Dr. Murray performs abortions,

at his office, and even generally within his own residen-

tial neighborhood or community. Finally, the ban is nar-

rowly tailored because the problem to be remedied,

intrusion into residential tranquility, is created by the

48a

picketing itself. And it properly binds only noticed par-

ties, their agents, and those acting in concert with them.

R. 4:52-4.

We agree with defendants that any coercive or intim-

idating intent on their part can in no way limit their right

to free expression. Organization for a Better Austin v. Keefe,

402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1, 5

(1971). However, the coercive or intimidating effects of

the picketing may be considered in tailoring restraints

that fall within First Amendment limitations, because

those effects constitute part of the residential intrusion,

the significant governmental interest at stake.

Contrary to defendants’ contention, we find that

Judge Boyle did not focus on the effect of the content of

the picketers’ message on listeners, and therefore imper-

missibly on the content itself. Boos v. Barry, 485 U.S. 312,

321, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333, 344-45 (1988). In

contrast, we find he focused on the intimidating effect of

the bodily presence of picketers on the residents of the

home.

Finally, defendants contend that equitable relief is

precluded by plaintiffs’ “unclean hands,” because Dr.

Murray’s assault on Lawson and both plaintiffs’ hostile

remarks to picketers should result in forfeit of any claim

to relief plaintiffs might otherwise have. Use of the

unciean hands doctrine is within the court’s just discre-

tion. Untermann v. Untermann, 19 N.J. 507, 518, 117 A.2d

599 (1955). We review the judge’s decision only for abuse

of discretion, unless there was a misapplication of law.

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49a

Kavanaugh v. Quigley, 63 N.J.Super. 153, 158, 164 A.2d 179

(App.Div.1960).

The doctrine of unclean hands expresses the princi-

ple that a court should not grant equitable relief to one

who is a wrongdoer with respect to the subject matter of

the suit. Faustin v. Lewis, 85 N.J. 507, 511, 427 A.2d 1105

(1981). It calls for the exercise of just discretion in deny-

ing remedies where the suitor is guilty of bad faith, fraud

or unconscionable acts in the underlying transaction.

Untermann, supra, 19 N.J. at 517-18, 117 A.2d 599. How-

ever, the doctrine “does not repel all sinners from courts

of equity, nor does it apply to every unconscientious act

or inequitable conduct” of a complainant. Goodwin Motor

Corp. v. Mercedes-Benz of North Am., Inc., 172 N.J.Super,

263, 271, 411 A.2d 1144 (App.Div.1980) (quoting Neubeck

v. Neubeck, 94 N.J.Eq. 167, 170, 119 A.26 (E. & A.1922)).

The doctrine may be relaxed in the interest of fairness.

Johnson v. Johnson, 212 N.].Super. 368, 384, 515 A.2d 255

(Ch.Div.1986).

The bad conduct here alleged is plaintiffs’ hostile

behavior toward defendants during the picketing on May

4, 1991, which defendants claim demonstrated plaintiffs’

desire to quell their right to free expression. Defendants

argue that plaintiffs’ angry remarks and Dr. Murray’s

assault on Lawson, for which he was convicted and fined

in municipal court, should not be rewarded.

Plaintiffs do not respond specifically to this argument

in their brief, but their counsel argued at trial that the

April 22 fire at the Woodbridge clinic, and the May 2 bomb

threat at the Howell clinic, though presumably attributable

to other anti-abortionists, and not to defendants, made Dr.

Murray “edgy” on May 4. Counsel also argued that the

50a

timing of Lawson’s unprecedentec picketing of Dr. Mur-

ray’s Plainfield office shortly after the Woodbridge fire,

and the surprise of the May 4 picket after more than a two-

month picketing hiatus, made plaintiffs’ fear, anger, and

hostile conduct understandable.

No fraud or unconscionable act is alleged. The issue is

whether plaintiffs’ admittedly improper self-help response

to the May 4 picketers constituted a level of bad faith

sufficient to preclude an equitable remedy. In our view, it

did not. Defendants’ argument that the bad acts demon-

strate plaintiffs’ malevolent intent to destroy their First

Amendment rights does not resolve the question of the

scope of those rights. Plaintiffs’ transgressions themselves

are not so egregious as to compel forfeiture of relief. Their

outrage was fueled by other events which, though unre-

lated to these defendants, heightened the perceived threat.

Also, Dr. Murray’s assault was punished in the appropri-

ate forum, municipal court.

A judge’s discretionary decision not to invoke the

unclean hands doctrine is justified where the conduct was

“not the kind of conduct which a court must punish in

order to vindicate its authority.” Schwartzman v. Schwartz-

man, 248 N.J.Super. 73, 79-80, 590 A.2d 246 (App.Div.),

certif. denied, 126 N.J. 341, 598 A.2d 897 (1991). Judge Boyle

ruled that Dr. Murray’s admitted “swing” at Lawson

reflected the emotionally charged issues involved and that

he would focus on balancing the rights of the parties, not

on the misguided assault. In our view he did not abuse his

discretion or misapply the law in so deciding.

Affirmed.

5la

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION: UNION COUNTY

DOCKET NO. C-30-91

APP. DIV. NO. A-175-91T2

BELINDA MURRAY, et als., : TRANSCRIPT OF

ii ee : PROCEEDINGS

Plaintiff,

v. é : DECISION

MICHAEL ANDREW LAWSON,

July 25, 1991

Defendant.

BEFORE: John M. Boyle, PJ.Ch.

ORDERED BY: RICHARD COLLIER, ESQ.

APPEARANCES:

PAMELA MANDEL, ESQ.,

Attorney for the Plaintiff.

RICHARD COLLIER, ESQ.,

Attorneys for the Defendant.

Prepared by:

COLLEEN ANNE PLATT, C.S.R.

Certificate No. X101275

+ + *

[p. 45] THE COURT: This case involves the

competing interests of plaintiff’s righi to be free from

tortious conduct and defendant's constitutional right of

free speech.

Plaintiffs, Elrick A. Murray, M.D. and his wife

Belinda, preside [sic] at 917 Carlton Road in Westfield,

New Jersey. Their home is a one-family dwelling, set back

52a

approximately 25 feet from the public sidewalk. It is

located on a block approximately 600 yards long, 33 yards

wide. ’

How do I know that? I looked at the tax map in

Westfield.

Defendants, Michael Andrew Lawson, David Krist

[sic], and other John Doe defendants, are individuals

opposed to abortions who picket in front of the plaintiffs’

[p. 46] home to protest Dr. Murray’s performance of

abortions. This court temporarily enjoined the defendant

from on mass [sic] picketing before the Murray residence

and limited the frequency, time, number of picketers and

precluded inciting conduct.

Defendants removed the matter to the Federal Dis-

trict Court, to the District of New Jersey. While pending

there the restraints expired. Jurisdiction was not returned

and the case was remanded to this state court.

Footnote number one, before remanding the case, the

Honorable Maryann Trump Barry dismissed plaintiffs’

fifth count which alleged a violation of their constitu-

tional right to privacy.

Continuing with the text of the opinion.

Upon its remand, restraints were reimposed and a

plenary hearing followed.

The evidence adduced at trial — strike that.

Parenthetically I may also say, but not a footnote, that

this is a final hearing by conser: of all parties, therefore

there will be no subsequent trial. We are talking bore

53a

about whether a permanerit injunction should issue or

not.

Continuing with the opinion, the evidence adduced

at trial reveals that Dr. Murray performs abortions in

hospitals and clinics located in Howell Township, [p. 47]

Watchung, Newark and Plainfield and Woodbridge, New

Jersey.

Defendants have picketed at the Howell Township

clinic over a period of several years and decided to do so

at Dr. Murray’s home. On January 20, 1991, approx-

imately 55 people began picketing on Carlton Road near

Dr. Murray’s house after advising the Westfield Police of

their intention to do so.

Footnote number two. Dr. Murray testified that 6 or 7

police officers were surveying the picket. Continuing. The

pickets walked single file or two abreast up and down the

street past the Murray home. They carried various signs,

including one which declared, “abortion is Killing,” dis-

played photos of alleged aborted fetuses, referred to

abortion as murder and used Dr. Murray’s name. No

instances of trespass, violence or disorderly conduct were

reported.

Food [sic] note number three. On a prior occasion

defendant Michael Lawson had approached Dr. Murray’s

home, rang his doorbell and instructed his son to, “Tell

your father to stop doing abortions.” He was alone, not

picketing at the time.

Mrs. Murray testified that this appearance made her

upset, livid and frightened.

Continuing with the opinion.

54a

The picketing lasted approximately one hour. [p. 48]

During that time Mrs. Murray left and went to her sis-

ter’s home with her children aged 15, 10 and 6. Dr.

Murray was home, and during that time was, among

other things, watching a football game, managing a

patient over the telephone and speaking on the phone.

On May 4, 1991 the picketers returned to the Murray

residence, after this Court’s limited injunctive order, after

advising the Westfield Police, only four individuals

appeared, two of whom walked in front of the residence

and two of whom observed. At that time Dr. Murray

allegedly struck defendant Lawson on the head from

behind.

Footnote number 4. Defendant Lawson filed a munic-

ipal complaint against Dr. Murray for assault and harass-

ment.

Continuing with the opinion.

He also attempted to remove a sign reading, “Stop

abortion now,” from another picketer and a neighbor, and

he attempted to remove defendant Lawson’s sign which

read, “God says thou shalt not kill.” Ne evidence sug-

gests that defendants incited or aroused this action.

The Woodbridge Center was burned to the ground on

April 22, 1991 and a bomb threat was received by the

police concerning the Howell Township Center on May 2,

1991. No evidence exists as to who was responsible for

the [p. 49] arson or the threat.

The Murrays testified that they are frightened of

having picketers in their neighborhood. They assert that

their presence is harasment [sic] and unnecessary and

55a

inconvenient. Dr. Murray testified that he did not make

his routine hospital visit on January 20, 1991 due to his

fear. He further testified that he attends fewer medical

staff meetings in order to be at home more often.

Mrs. Murray testified she is very nervous about the

well-being of her children and neighbors with the pres-

ence of these picketers. She asserts that she feels violated

by the picketers harassing her family in front of her

home. Mrs. Murray also testified that she was very upset

upon hearing a description of the picketing activity from

her husband and neighbors.

Based upon this testimony, plaintiffs claim that

defendants’ activity is tantamount to the tort of invasion

of privacy, interference with the use and enjoyment of

their home, interference with Dr. Murray’s profession,

harassment, and infliction of emotional distress. These

grounds are urged to outweigh defendants’ right to

picket their residence.

Defendants maintain they have a constitutionally

protected right to peaceably picketing in front of Dr.

Murray’s home.

[p. 50] To determine whether a permanent injunction

should issue, the Court must be satisfied that plaintiffs

have presented a cause of action. Ciba Geigy v. Bolar

Pharmaceuticals, F.2d 844, 850, 3d Circuit 1984, cert.

denied, 471 U.S. 1137, 1984.

We now turn to the plaintiffs’ claims. The tort of

invasion of privacy involves an intrusion, “physical or

otherwise, upon the solitude or seclusion of another or as

private affairs or concerns — [where] the intrusion is

56a

highly offensive to a reasonable person.” Bisbee v. John C.

Conover Agency, 186 N.J. Super., 335, 339, (App. Div. 1982)

(Quoting Restatement, Torts 2d, Sec. 652B at 378, (1977)).

Our equity court recognizes this right to involve a

freedom “from unwarranted publicity . . . from any

wrongful intrusion into [an individual’s] private life

which would outrage or cause mental suffering, shame or

humiliation to a person of ordinary sensibilities.”

McGovern v. Van Riper, 137 N.J. Eq. 24, (1945), (quoting 41

Am.Jur., Privacy, Sec. 2; 54, C.J., Privacy, Sec. 1).

There are 4 distinct invasions of privacy which

include (1) intrusion upon seclusion, (2) appropriation of

name or likeness, (3) publicity given to private life, and

(4) publicity placing a person in a false iight. Id., (citing 3

Restatement, Torts 2d, 625A at 376, [p. 51] (1977). Lia-

bility attaches where such invasions are objectionable to a

reasonable person of ordinary sensibilities. Jd. at three 41,

footnote 5.

“This tort is distinct from a constitutional right to

privacy which has been interpreted to prevent govern-

mental invasion into the “zone of privacy . . . in the

penumbra emanating from the fundamental guarantees

of the Ist, 4th, 5th and 9th amendments . . . [which are]

made applicable to the individual states by the 14th

amendment.” Mills v. Atlantic City Department of Vital

Statistics, 148 N.J. Super., 302, 309, (Ch. Div. 1977), (quot-

ing Griswold v. Connecticut, 381 U.S. 479, (1965)).

Plaintiffs — that’s a plural possessive —- plaintiffs’

constitutional claim was dismissed for lack of govern-

mental action in an order dated April 24, 1991 by the

Federal District Court for the District of New Jersey. See

57a

State v. Pohle, 166 N.J. Super. 504, 513, (App. Div. 1979),

certif. denied. 81 N.J. 328, (1979.)

Continuing with the text of my opinion.

Plaintiff’s [sic] claim for harassment and interference

with use and enjoyment of the residence can be sub-

sumed under their privacy claim. Footnote number 6.

“The claim that defendants interfered with Dr. Mur-

ray’s profession is tantamount to a claim for interference

with contractual relations. This requires [p. 52] proof that

defendants maliciously or intentionally jepordized [sic]

the contractual relation between Dr. Murray and his

patients. Sustick v. Slatina, 48 N.J. Super. 134, (App. Div.

1951). Since plaintiffs produce no evidence that such

interference occurred, this court will dismiss that ground

for relief.

Continuing with the text of the opinion.

Thus plaintiffs [sic] actions involve the common law

torts of invasion of privacy and infliction of emotional

distress.

Intentional infliction of emotional distress involves

proofs of “intentional and outrageous conduct by the

defendant, proximate cause, and distress that is severe.”

Buckley v. Trenton Savings Fund Society, 111, N.J. 355, 366,

(1988).

Liability attaches where this conduct, which goes

beyond the scope of decency, is intended to effect distress

or with a high degree of probability result in distress. Id.

58a

A claim for negligent infliction of emotional distress

requires tortious conduct that results in clear and unmis-

takable genuine distress, Strachan v. John F. Kennedy

Memorial Hospital, 109 N.J. 523, 537 (1988).

Based upon the proofs, this court is not fully satisfied

that either claim has been completely [p. 53] established.

Although defendants brought attention to Dr. Murray’s

professional life, they have not intruded into his seclu-

sion, disclosed otherwise private information concerning

Dr. Murray or depicted him in a false light, which causes

me to go to footnote 7, 8 and 9.

7. This court recognizes the trespass by defendant

Lawscn on December 14, 1990 before this case was insti-

tuted.

8. Dr. Murray’s performance of abortions is not a

private fact. His profession is known to the community.

He works in an area of that profession which continually

comes under public scrutiny, thus Dr. Murray cannot

maintain that defendants have invaded any private

affairs. Bisbee, supra, 340.

And lastly, footnote 9, defendants’ characterization of

Dr. Murray as a killer or murderer constitute their beliefs

regarding abortion. Dairy Stores, Inc. v. Sentinel Publishing

Co. 104 N.J., 125, 147 (1986).

Any claims that such are falsities would be properly

addressed in a libel suit for damages in the Law Division.

Continuing with the text.

In addition, the defendants’ conduct cannot be classi-

fied as highly offensive to a reasonable person of ordi-

nary sensibilities.

59a

[p. 54] Cibenko v. Worth Publishers, Inc., 510, F. Supp.,

761 (D.N.J. 1981). Footnote 10.

It should be noted that the Court is assessing

whether defendants have intruded into plaintiffs’ pri-

vacy, not whether plaintiffs are disgruntled by what

defendants are expressing.

The impact of speech, whether coersive [sic] or unset-

tling, does not remove it from the First Amendment pro-

tection. See Officials [sic] for a Better Austin v. Keefe, 402

U.S. 415, 419, (1971). However, it could be classified as

harassing.

Subsection 11, which reads, Dr. Murray testified that

one of defendants’ signs declared that they would get out

of Westfield as soon as Dr. Murray got out of Howell.

This message does not disemanate [sic] information or

ideas, but aims to harass the plaintiff.

Continuing with the text of the opinion.

As to plaintifis’ emotional distress claim, no evidence

suggests that Dr. or Mrs. Murray suffered measureable

[sic] harm. Such a claim must be substantiated through

medical testimony to avoid the Court engaging in conjec-

ture or speculation as to the effect of defendants’ conduct

upon plaintiffs.

Portee v. Jaffee, 84 N.J. 88, 93, (1980).

Here only plaintiffs testified to their [p. 55] concern,

inconvenience and displeasure at having the picketers

present.

This court might say parenthetically as well that the

Court fully appreciates the fact that some people are

60a

more frightened than others. Some people’s perception

[sic] are different than others.

Continuing with the text of this opinion.

In addition to these claims, this court must also con-

sider equitable principles when determining the appro-

priateness of injunctive relief. Ciba Geigy, supra, at 850.

Plaintiffs have a privacy interest irrespective of their

potential tort claim. That interest involves, “preserving

the sanctity of the home, the one retreat to which men

and women can repair to escape from the tribulations of

their daily pursuits.” Carey, supra, at 47.

It can operate to limit First Amendment rights, even

where the intrusion is not tresspatory [sic] or otherwise

obstructed. Frisby v. Schultz, 487 U.S. 474, 486, (1988).

The Court of equity has the inherent authority to

balance that interest against First Amendment rights.

Sears Roebuck and Co., supra.

In other words, this court does not accept [p. 56]

defendants’ position that no injunction can issue unless a

crime or an expressed tort has been committed. These

constitutional rights previously referred to in this opinion

will now be addressed.

Peaceful picketing is a constitutionally protected

method of expression. Thornhill v. Alabama, 310 U.S. 88,

106, (1940).

The right to use traditional public fora for communi-

cation of ideas is protected so long as “in consentientes

Se eR ey

6la

(phonetic) with peace and good order.” Hague v. Commis-

sion for Industrial Organization, 307 U.S. 4496, 515 and 516,

(1939).

A traditional public forum includes streets which run

through residential neighborhoods. Frisby v. Schultz, 487

U.S. 474, 480, 1988.

Picketing is not, however, a pure form of speech and

enjoys limited First Amendment protection. Cox v. Louisi-

ana, 379 U.S. 536. 563, 1965.

It can be regulated through time, place and manner

restrictions which are content neutral, narrowly tailored

to serve a significant government interest and leave open

ample alternative methods of communication. Perry Edu-

cation Association v. Perry Local Educational Association, 460

U.S. 37, 45 (1983). Footnote 12.

Where regulations designating time period for [p. 57]

pickets have been upheld, banning picketing from one

area completely have not. Community for Creative Non-

Violence v. Turner, 893 F.2d 1397, 1393, (D.C. Cir. 1990);

Clark v. Community For Creative Non-Violence, 468 U.S. 295,

298. And footnote number 8 (1984): Rock v. Racism, 491,

U.S. 78, 791, (1989).

Continuing with the text of the opinion.

Residential picketing has been upheld in the face of

governmental regulations on First Amendment grounds.

Where citizens march peacefully from city hail to a

mayor’s residence in protestation of a segregated public

school system, the Supreme Court upheld the picketers’

First Amendment rights, even though onlookers

62a

numerous and unruly [sic]. Gregory v. Chicago, 394 U.S.

111, 112, (1969).

Similarly, a civil rights orgaruzation’s peaceful picket

before a mayor’s residence in support of a racial integra-

tion bussing policy was protected on First Amendment

grounds. Carey v. Brown 447 U.S. 9455 [sic], 459 through

462, (1980).

In addition, pro life demonstrators were permitted to

walk peaceably though a neighborhood of a doctor who

performed abortions. Frisby, supra.

While the Supreme Court recognized the [p. 58] resi-

dents’ private interest, this was not elevated above the

picketers’ first amendment rights, rather that interest

served as a basis for limiting the picketers’ activity.

The circuit and district courts have also upheld pick-

eters’ rights challenged on privacy grounds. The second

circuit allowed a group opposed to the Russian treatment

of Jews to picket outside the Russian Mission in a resi-

dential area so long as peaceable. See Concerned Jewish

Youth v. McGuire, 471 F.2d 473 (1973) certif. denied, 1980.

The Seventh Circuit allowed 13 members of the Com-

mittee Against Racism to picket in front of the Chicago

mayor’s home in protestation of a school bussing policy.

Brown v. Scott, 602, F.2d. 791, 792, Seventh Circuit, (1979).

In addition, the Eastern District of Pennsylvania’s

District Court allowed a pro life group to “enter any

neighborh

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