# Petition for Writ of Certiorari — Lawson v. Murray > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1214%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 802 ## Text Supreme Court, U.S, i | L, k D . 94- 45 JUL -5 199% 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. iv 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 Vv 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 vi 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 e MICHAEL LAWSON and DAVID CRIST, Petitioners, V. ELRICK MURRAY and BELINDA MURRAY, Respondents. + Petition For Writ Of Certiorari To The Supreme Court Of New Jersey 6 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. 2 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 3 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. 4 “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 5 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.” 6 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 "7 / 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 8 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 9 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 10 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» 11 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 12 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). © A flagrant example of this appears in the decision of the 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 - 13 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. 14 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 15 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). 16 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 17 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. 18 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 19 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 20 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. 21 “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. 22 415 (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. 23 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 24 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 25 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. 26 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). aS a anh ww OTN) GRISEA k 27 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 28 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] Oe § 29 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. 30 CONCLUSION The decision of the Supreme Court of New Jersey is riddled with constitutional errors that represent a radical departure from the applicable decisions of this Court. In particular, the decision below is in direct conflict with this Court’s decision in Madsen v. Women’s Health Center, Inc. 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 la 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, V. 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 2a (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, 3a 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 da 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 6a 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, ean ete, Ai See aire + cee einen Oh, ne 7a 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 8a 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. i : ; : 3 4 ee os pe 9a 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. II 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 we se PE ee te eee ee Eee eae ert en ers Voc ee an heen ew Vt We Wee ee ee lla 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 ee ee ee. Oe ee ee a Vee ——eeeEEEe cS 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 ee ee ee eee Sn a ek ee eee IO hte ko dds Nhe nro 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. IV 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. ; q - 4 7 ; z 7 - 4 eae ee le ee SN Palade oe EE PF ee eT ee ‘ 27a V 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 I 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. II 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 Il 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 reside [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1214%3A1. Public record. Not legal advice.