S.B.B. v. L.B.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0305-21

S.B.B.,1

Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. September 6, 2023
APPELLATE DIVISION
L.B.B.,

Defendant-Appellant.
________________________

Argued April 17, 2023 – Decided September 6, 2023

Before Judges Gooden Brown, DeAlmeida and
Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County,
Docket No. FV-20-1159-21.

Jane J. Felton argued the cause for appellant (Skoloff
& Wolfe, PC, attorneys; Jane J. Felton, of counsel and
on the briefs; Michaela L. Cohen, Andrew J. Rhein
and Steven B. Gladis, on the briefs).

LisaBeth Klein argued the cause for respondent.

Shira Wisotsky argued the cause for amici curiae
The American Civil Liberties Union of New Jersey
1
We use initials to protect the parties' privacy and the confidentiality of the
proceedings in accordance with Rule 1:38-3(d)(10).
 Foundation, The American Civil Liberties Union
Foundation, The Jewish Orthodox Feminist Alliance,
Sanctuary for Families, and Unchained at Last
(The American Civil Liberties Union of New Jersey
Foundation, and Vera Eidelman (The American Civil
Liberties Union Foundation) of the New York and
California bars, admitted pro hac vice, attorneys; Shira
Wisotsky, Jeanne LoCicero, Sandra S. Park, and Vera
Eidelman, on the brief).

Karin Duchin Haber argued the cause for amici curiae
The Organization for the Resolution of Agunot, and
Shalom Task Force (Haber Silver & Simpson,
attorneys; Karin Duchin Haber, of counsel and on the
brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Defendant L.B.B. appeals from the entry of a final restraining order

(FRO) entered against her in favor of her estranged husband, plaintiff S.B.B.,

pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-

17 to -35. The FRO was based on the predicate act of harassment. The

communication underlying the trial judge's finding of harassment was defendant's

creation and dissemination of a video accusing her estranged husband of

improperly withholding a get, a Jewish bill of divorce, and asking community

members to "press" her husband to deliver the get. Because defendant's

communication constituted constitutionally protected free speech, we reverse.

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 I.

We glean these facts from the record. Following a twenty-year marriage

that produced four children, the parties, both practicing members of the

Orthodox Jewish faith, separated and have been in the process of obtaining a

divorce since mid-2019. The process has been contentious and acrimonious 2

and further complicated by a dispute over a get—a religious bill of divorce.

In the Orthodox Jewish tradition, a married
woman cannot obtain a religious divorce until her
husband provides her with a contract called a "get"
(pluralized as "gittin"), which must, in turn, be signed
by an "eid," or witness. A woman who attempts to
leave her husband without obtaining a get becomes an
"agunah" (pluralized as "agunot"), which subjects her
to severe social ostracism within the Orthodox Jewish
community. Agunot may seek relief in a "beth din," a
rabbinical court presided over by a panel of three
rabbis. The beth din may then issue "psak kefiah," or
contempt orders authorizing sanctions, which include,
but are not limited to, the use of force against a
husband to secure a get.

[United States v. Stimler, 864 F.3d 253, 259 (3d Cir.
2017), aff'g United States v. Epstein, 91 F. Supp. 3d
573, 582 (D.N.J. 2015), rev'd in part on other grounds
sub nom. United States v. Goldstein, 902 F.3d 411 (3d
Cir. 2018).]

2
In April 2020, defendant obtained a temporary restraining order (TRO)
against plaintiff. Following a protracted FRO hearing during the COVID-19
pandemic, the TRO was dismissed on March 11, 2021.

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 Sometime in March 2021, defendant made a video addressing the get

dispute. In the video, defendant asserted plaintiff had refused to give her a get

and asked anyone who could to "press" plaintiff to give her a get. On March

19, 2021, after the video was made, plaintiff obtained a TRO against defendant

based on a domestic violence complaint alleging harassment. To support the

complaint, plaintiff testified at an ex parte hearing that beginning around 3:00

p.m. on March 12, 2021, he received numerous phone calls from unknown

numbers, a photograph of himself identifying him as a get refuser and calling

on others to "tell him to free his wife," and, ultimately, the actual video

defendant had composed.

When plaintiff answered one of the incoming calls, the caller identified

himself as being "connected" to various protest "networks" and pressured

plaintiff to turn over the get. During his testimony, plaintiff explained his

belief that the Jewish community reacts violently to the withholding of a get

and that identifying him as a "get refuser" subjected him to kidnappings and

brutal beatings. Plaintiff denied withholding the get, claimed he had given the

get to the Chief Rabbi of Elizabeth in June 2020, and averred that he was

"terrified" of being "harm[ed]" by the "people . . . calling [him]" in respon se to

defendant's accusation and plea in the video. To further support his complaint,

plaintiff recounted a history of emotional abuse largely by name-calling

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throughout the course of the marriage. Subsequently, on March 25, 2021,

plaintiff amended the TRO to add cyber harassment as a predicate act.

Defendant moved to dismiss the TRO, arguing any alleged dissemination

by defendant was protected free speech. Relying on State v. Burkert, 231 N.J.

257 (2017), the trial judge denied the motion. On April 8, 2021, an FRO trial

was conducted via Zoom, during which plaintiff and defendant testified. Both

parties were represented by counsel.

During his testimony, plaintiff confirmed that he and defendant were

separated. He lived with his parents while defendant remained in the marital

home with their children. He testified that he received a call on Friday, March

12, 2021, around 3:00 p.m., on the FaceTime videoconferencing app. Plaintiff

did not answer, but was able to see that thirty separate phone numbers had

joined the call, none of which were familiar to him. The group attempted to

call back roughly ten more times before plaintiff put his phone in airplane

mode. About half an hour later, when he turned his reception back on, the

calls resumed. Initially, the calls seemed "weird," but then plaintiff became

"alarmed" by the calls. Plaintiff continued to ignore the calls and blocked the

associated numbers.

Two days later, on March 14, 2021, plaintiff received a message from

his sister in Israel. The message contained a photo of himself that he had

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posted as his "status" on the WhatsApp messaging app. Above the photo was

written:

This man has refused to give his wife a get. His name
is [S.B.B.]. He is holding his wife chained for over a
year and a half. He lives in Elizabeth NJ. If you see
him, tell him to free his wife. #FREE[L.B.B.].

In addition to his sister, plaintiff received the photo from one other person he

knew.

When plaintiff saw the photo, he was "shock[ed]," "embarrassed," and

"scared." Plaintiff explained that the photo would give community members

the impression that he was "a get refuser" which "[could] be dangerous for

[him]." Plaintiff testified that he had witnessed his father "[getting] beat[en]

up" because "he was a get refuser." Additionally, plaintiff denied the

accusation and was adamant that he was not a get refuser, having given the get

to the Chief Rabbi of Elizabeth. His "understanding" was that the get would

be provided to defendant "within [twenty-four] to [forty-eight] hours after the

civil divorce [was] done in court." He also suggested that the Chief Rabbi had

the discretion to give the get to defendant at any time. He explained his view

that only a "beth din" could declare someone a get refuser.

Between March 14 and 15, 2021, plaintiff received numerous

communications, including approximately ten "private or anonymous" calls,

none of which he answered. In addition to the anonymous calls, on the

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afternoon of March 14, 2021, plaintiff received a message on WhatsApp from

the Chief Rabbi's son. The message contained a video showing defendant

speaking to the camera, saying:

Hi. My name is [L.B.B.]. I'm a mother of four
children and I live in the United States without any
family for the last seventeen years. In August 2019,
my husband left the house and we're trying to get an
agreement. We still did not get any of that. I tried to
reach . . . the community Rabbi[] for help, and he said
he will, and he got the get from my husband, but he is
holding it for over a year now. The only way [the
Chief Rabbi] can give it to me is by my husband
permission. I'm seeking for help. I'm asking whoever
can, please help me. To press [the Chief Rabbi] to let
go of my get or to press my husband to give [the Chief
Rabbi] the proof to give me the get. To release the
get. Please, I really need this help. I want this get. I
want this nightmare to be behind me. Whoever gonna
help me, bracha [3] on his head.

Several friends also sent the video to plaintiff. Plaintiff believed

defendant posted the video "[b]ecause she wanted people to press [him] to give

her a get." When specifically asked what he thought his wife meant by asking

people to "press" him for the get, plaintiff answered:

It can be anything. If we go by Jewish rules, old
rules . . . . [y]ou take him, get him and beat him up
until he says I will give it, the get. That's the old
Jewish law about it. And people take action. Today it

3
Bracha translates to "blessing." Joyce Eisenberg & Ellen Scolnic,
Dictionary of Jewish Words 21 (2006).

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 starts with protesting and then it gets to harming
people that are get refusers.

At 10:21 p.m. on March 15, 2021, plaintiff received another call. This

time, thinking the phone number looked "familiar," he answered. Plaintiff

testified the caller introduced himself as "Hiam" and said he was "calling

about the get." He identified himself as someone who "[knew] a lot of people"

and was part of "different networks." According to plaintiff, Hiam told him if

he did not give his wife a get, they would "come and protest next to [his]

house." Hiam added "you know what happen[s] otherwise if you don't give a

get." After Hiam refused to explain how he obtained plaintiff's phone number,

plaintiff hung up. Plaintiff testified that, a moment later, Hiam called back,

screaming at plaintiff and telling plaintiff he wanted "to meet [him]." Plaintiff

hung up again. Plaintiff testified he felt threatened by Hiam's call, which, in

conjunction with the FaceTime calls, the photograph, and the video, made

plaintiff "very scared." Plaintiff specified that although he was not afraid of

defendant in her individual capacity, he was afraid of "others . . . influenced by

her."

Plaintiff also testified about a history of verbal abuse throughout the

twenty-year marriage. He recounted unspecified instances throughout the

marriage when defendant had stated during arguments that he was "nothing,"

A-0305-21
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"a zero," or "not good," all of which made him feel "like a worthless person."

According to plaintiff, the last such instance occurred "in 2019."

At the end of plaintiff's case in chief but before defendant testified,

defendant moved for a directed verdict. See R. 4:37-2(b). The judge denied

the motion. Thereafter, defendant testified through an interpreter that it was

not her intent to harass plaintiff. She testified that she did not create the

"#FREE[L.B.B.]" photo image and had no part in posting either the video or

the photo on social media. Additionally, she was not part of any of the calls to

plaintiff and did not know who made them. Defendant testified that the first

time she saw the "#FREE[L.B.B.]" photo image was when a friend sent it to

her, but acknowledged she was not concerned by the photo image. She also

admitted creating the video around March 6, 2021, at the request of a

rabbinical judge, and claimed she only sent the video to the rabbinical judge.

She explained that "under [the Jewish] religion [the rabbinical judges] are to

press on the husband to give the get."

On cross-examination, defendant acknowledged that she also sent the

video to a therapist "friend" but was reluctant to divulge the friend's name and

contact information for fear of "potential retribution." Defendant explained

she did not believe that accusing plaintiff of withholding a get in the video

would put him in danger of being threatened or hurt. When questioned about

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plaintiff's father's get refusal, defendant testified she was not aware of him

being attacked. Rather, it was her understanding that he had "sat in jail" as a

result of the refusal.

Following the trial, on April 22, 2021, the judge granted plaintiff an

FRO. Among other things, the FRO continued the restraints contained in the

TRO, which barred defendant from having "any oral, written, personal,

electronic, or other form of contact or communication with [p]laintiff," and

specifically ordered defendant to "remove any and all posts from all social

media platforms requesting the 'get'" and "cease and desist . . . creating and

posting on all social media platforms."

In an oral decision supporting the issuance of the FRO, the judge found

plaintiff credible and defendant not credible based on "demeanor," "body

language," and the content of the testimony. Specifically, the judge remarked

that plaintiff's "demeanor was straightforward," "[h]e didn't embellish" his

testimony, "[h]e didn't fidget" while testifying, and his "testimony ma[d e]

sense." Conversely, according to the judge, defendant's "testimony didn't

make much sense," particularly since she claimed she made the video for the

rabbinical judges but addressed the plea in the video to anyone who could help

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her. Additionally, the judge pointed out that during questioning, defendant

was "looking all over the room" and "there was a blank look in her face." 4

Based on her credibility assessment, the judge found defendant "created

the video" and "sent it to the community," rather than "the rabbi," in order "to

get the get." Applying the elements of subsection (a) of the harassment

statute, N.J.S.A. 2C:33-4(a), to her factual findings, in accordance with the

first prong of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the judge

concluded plaintiff "met [his] burden by a preponderance of the evidence" of

proving that defendant committed harassment. Specifically, the judge found

that "while the end result" of making the video and sending it out into the

community "might have been to get her get . . . , the way in which [defendant]

went about getting that get was with a purpose to press, harass, annoy, [and]

alarm [plaintiff]."

The judge also found that the communication was "invasive" of

plaintiff's privacy, as proscribed by N.J.S.A. 2C:33-4(a). See State v.

Hoffman, 149 N.J. 564, 583 (1997). Specifically, the judge found that because

the video was sent to "the Jewish community,"

4
At the outset, the judge noted that although she had previously denied
defendant's application for an FRO against plaintiff, the judge was not
influenced by her prior decision. In any event, there was no request for
recusal.

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 the purpose of that communication was to infringe
upon [plaintiff's] legitimate expectation of privacy not
to . . . hav[e] . . . phone calls or . . . people come to the
house or picket or call or threaten. But that was the
purpose because in that community, that's what
happened. You either go to jail, [or] you get beat
when you're a get refuser.

So putting that video and telling people to press her
husband, to press him for that get, under the totality of
the circumstances is a clear intrusion into []his
expectation of privacy and safety.

Critically, the judge rejected defendant's free speech claims, explaining

that "one cannot hide behind the First Amendment when that communication is

invasive of the recipient's privacy. The First Amendment cannot protect this

kind of communication to incite, which is clearly invasive of [plaintiff's]

safety and privacy." In assessing the threat to plaintiff's safety associ ated with

being labeled a get refuser, the judge noted:

Now there was no expert that came into this
court to explain what a get is or the realities of the get.
This [c]ourt is not taking judicial notice of . . . what a
get refuser is. But in listening to the testimony of both
parties it's clear that it is something serious in the
Jewish community. [Plaintiff] testified that he
watched his father be beaten because he was a get
refuser. And I believe . . . defendant testified . . . that
you can go to jail for being a get refuser.

So the [c]ourt does glean from the testimony
that being a get refuser in the Jewish community is a
very serious allegation with substantial consequences,
which is clear from the testimony under the totality of
this case.

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Because the judge found that plaintiff had proven the predicate act of

harassment based solely on the video, the judge elected not to address the

predicate act of cyber harassment.

Next, applying the second Silver prong and N.J.S.A. 2C:25-29(a), the

judge found that an FRO was "necessary to protect . . . plaintiff from this

continued behavior, . . . [and] from having . . . defendant incite the community

that her husband is a get refuser, which clearly puts him in a very dangerous

position." In her analysis, the judge once again relied on her understanding

that it "can incite violence when you call someone a get refuser." The judge

noted that "[t]he existence of immediate danger to person or property" was

"clear" because when "[y]ou tell the Jewish community that your husband is a

get refuser," then "he is subject to danger period or imprisonment."

The judge explained that although plaintiff stated he was "not

necessarily in fear of defendant herself," he was "in fear of th[e] continued

invasion of his privacy and his safety . . . at the hands of [defendant] by her

actions" and "people are entitled to feel safe" and "to be free of this continued

abuse." The judge also found that "[t]he best interest" of plaintiff and the

parties' children would be served by awarding the FRO because a third party

"acting on defendant's request while the children [were] present . . . would put

not only . . . plaintiff, but the children in danger." Although the judge did not

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find that the previous history of domestic violence over the years "shed[] much

light on the Silver decision," under "the totality of the factors," the judge

determined a restraining order was warranted.

Defendant moved for reconsideration. In support, defendant submitted a

May 11, 2021, certification from Rabbi Daniel Shevitz, "an expert trained in

the laws of Jewish divorce." Shevitz opined that defendant is an "agunah" or

"chained woman." He explained that:

In the Jewish tradition, once the marital bond has
failed and the couple is no longer living together as
husband and wife, the husband is obliged to write and
deliver a get. Until then, the wife is not free of her
marital responsibilities. . . . Any delay in granting the
get causes her to be "chained" to a marriage in form
only and is, in my opinion, a form of abuse.

He further explained that even rabbinical courts lack the power to force a

husband to grant a get and that as a result of the husband's unchecked

authority, some men use get withholding as a form of extortion. Referring to a

March 5, 2020, text message exchange between the parties, which showed

plaintiff telling defendant that he would only issue the get if she first signed a

divorce settlement agreement, Shevitz suggested that just such extortionist

behavior might be occurring in this case.

Shevitz stated that in the quest to obtain a get from an intractable

husband, "[f]or centuries, the only tool at the wife's disposal was invoking

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public sympathy and pleading her case to the broader community." He added

that in recent years, "agunot (the plural of 'agunah') have turned to social

media with messages asking for community support" in a "'social justice

movement' designed to liberate women . . . using one of the only tools they

have at their disposal—their voices." He opined that the video created by

defendant was "precisely" such an attempt and appended an article to his

certification supporting his opinion.

Defendant also submitted her own certification, in which she explained

that plaintiff has not authorized the Chief Rabbi "to deliver the get until [she]

agrees to his settlement demands" and "she felt [her] only reasonable recourse

was to seek public sympathy to obtain a get." She added that her

understanding, as someone whose first language was not English, was that

"'press' does not mean 'physically harm'" and she "never meant it that way."

She acknowledged that "there have been news reports and federal lawsuits"

about "those who do physically harm get-refusers," but stressed that she had

"never been a part of that."

Following oral argument, on August 27, 2021, the judge denied

defendant's motion as not meeting the standard for reconsideration. See

R. 4:49-2. In a written opinion, the judge pointed out that Shevitz's

certification could have been presented at the time of the initial hearing.

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Further, the judge found that whether defendant "is or is not an agunah under

Jewish law" and whether plaintiff "did or did not satisfy the giving of the

[g]et" were irrelevant. The judge also awarded plaintiff attorney's fees and

costs in the amount of $10,035 as compensatory damages. See N.J.S.A.

2C:25-29(b)(4).

In this ensuing appeal of the April 22, 2021 and August 27, 2021 orders,

defendant raises the following points for our consideration:

POINT ONE

THIS COURT MUST APPLY A HEIGHTENED
STANDARD OF REVIEW. (NOT RAISED
BELOW).

POINT TWO

THE FIRST AMENDMENT PROTECTED
DEFENDANT'S FREEDOM TO MAKE AND
DISSEMINATE THE VIDEO.

A. The Video Is Protected Speech Under
The First Amendment.

B. Nothing Defendant Said Or Did Is
Punishable As Incitement.

C. Affirming The Trial Court In This
Case Would Render The Harassment
Statu[te] Unconstitutionally Overbroad
And Vague.

D. The FRO Is An Impermissible Prior
Restraint On Defendant's Future Speech.

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 E. The FRO Violates Defendant's Right
To Freely Exercise Her Religion.

POINT THREE

INDEPENDENT OF CONSTITUTIONAL
CONCERNS, DEFENDANT'S VIDEO WAS NOT
HARASSMENT.

A. The Manner In Which Defendant
Communicated Did Not Violate The
Harassment Statute.

B. The Video Did Not Intrude Into
Plaintiff's Reasonable Expectation Of
Privacy, And The Trial Court's Finding To
The Contrary Was Based On An
Unsubstantiated, False, And Prejudicial
Characterization Of The Orthodox Jewish
Community.

C. The Trial Court Found That Defendant
Had A Legitimate Purpose In Making The
Video – i.e., To Get A Get.

D. The Trial Court Failed To Consider
The Totality Of The Circumstances, As
Our Law Requires.

E. The Trial Court Prejudicially Found
Defendant Had A "Purpose To Harass"
Before Even Hearing Defendant Testify.

F. The Trial Court Erred By Allowing
Plaintiff To Pursue A Defamation Claim
Artfully Pleaded As Harassment.

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 POINT FOUR

THE TRIAL COURT MISSTATED AND
MISAPPLIED THE SILVER TEST, AND THE
PREREQUISITES FOR AN FRO WERE NOT MET.

A. The Court Did Not Address The
N.J.S.A. 2C:25-29(a) Factors As The Law
Required.

B. The Trial Court Misapplied Silver By
Allowing Plaintiff's Alleged Subjective
Fear To Dictate Whether An FRO Was
Necessary.

C. The FRO Was Not Necessary To
Protect Plaintiff.

POINT FIVE

THE TRIAL COURT'S COUNSEL FEE AWARD
VIOLATED THE ENTIRE CONTROVERSY
DOCTRINE AND WAS AN ABUSE OF
DISCRETION.

We subsequently granted motions by seven organizations to appear as

amici curiae and participate in oral argument in support of defendant's

position. The organizations are: (1) the American Civil Liberties Union of

New Jersey; (2) the American Civil Liberties Union; (3) the Jewish Orthodox

Feminist Alliance; (4) Sanctuary for Families; (5) Unchained at Last; (6) the

Organization for the Resolution of Agunot; and (7) Shalom Task Force.

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 II.

Our scope of review in these matters is well-established. We generally

defer to the trial judge's findings of fact "when supported by adequate,

substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12

(1998). In particular, we "review the Family Part judge's findings in

accordance with a deferential standard of review, recognizing the court's

'special jurisdiction and expertise in family matters.'" Thieme v. Aucoin-

Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare, 154 N.J. at 413).

However, in cases implicating the First Amendment, we must "conduct

an independent examination of the record as a whole, without deference to the

trial court." Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of

Boston, Inc., 515 U.S. 557, 567 (1995) (citing Bose Corp. v. Consumers Union

of U.S., Inc., 466 U.S. 485, 499 (1984)); see also Ward v. Zelikovsky, 136 N.J.

516, 536-37 (1994) (applying the same rule in New Jersey). This obligation

springs from the reality that the ultimate constitutional decision before the

court is inextricably intertwined with the underlying facts, and so the court

cannot render a decision on the constitutional question without examining the

facts. Ibid. Thus, it is incumbent upon us to "'make an independent

examination of the whole record,' to ensure that 'the judgment does not

constitute a forbidden intrusion on the field of free expression.'" Ward, 136

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N.J. at 536-37 (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 17 (1990)); see

also State v. Carroll, 456 N.J. Super. 520, 532 (App. Div. 2018) (applying the

same standard to Facebook posts to determine "whether [the] defendant's

speech is protected by the First Amendment" in a cyber harassment and

witness retaliation prosecution); Rutgers 1000 Alumni Council v. Rutgers, 353

N.J. Super. 554, 567 (App. Div. 2002) ("Independent review of the record

below is required because this case involves a First Amendment question.").

While the presence of First Amendment issues diminishes a reviewing

court's deference to a trial court's general fact-finding, the specific deference

owed to the trial court's credibility findings remains unchanged. Hurley, 515

U.S. at 567 (citing Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S.

657, 688 (1989)). "Appellate courts owe deference to the trial court's

credibility determinations . . . because it has 'a better perspective than a

reviewing court in evaluating the veracity of a witness.'" C.R. v. M.T., 248

N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)).

However, "[a] more exacting standard governs our review of the trial court's

legal conclusions." Thieme, 227 N.J. at 283. Indeed, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Rowe v. Bell & Gossett Co.,

239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of

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Manalapan, 140 N.J. 366, 378 (1995)). "Accordingly, we review the trial

court's legal conclusions de novo." Thieme, 227 N.J. at 283.

In order to grant an FRO under the PDVA, a trial court must make

certain findings pursuant to a two-step analysis delineated in Silver, 387 N.J.

Super. at 125-27. First, the court "must determine whether the plaintiff has

proven, by a preponderance of the credible evidence, that one or more of the

predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125.

Harassment, N.J.S.A. 2C:33-4, is among the enumerated predicate offenses.

N.J.S.A. 2C:25-19(a)(13).

Second, if the court finds that the defendant has committed a predicate

act of domestic violence, the court must then determine whether it "should

enter a restraining order that provides protection for the victim." Silver, 387

N.J. Super. at 126. In making that determination, "the guiding standard is

whether a restraining order is necessary, upon an evaluation of the factors set

forth in [N.J.S.A. 2C:25-29(a)(1) to (6)], to protect the victim from an

immediate danger or to prevent further abuse." Id. at 127. The statutory

factors include "[t]he previous history of domestic violence . . . ;" "[t]he

existence of immediate danger to person or property;" "[t]he financial

circumstances of the [parties];" "[t]he best interests of the victim and any

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child;" and "[t]he existence of" an out-of-state restraining order.

N.J.S.A. 2C:25-29(a).

Here, the judge's finding of the predicate act of harassment in violation of

N.J.S.A. 2C:33-4(a) was based exclusively on defendant's creation and

dissemination of the video. A person commits harassment if, "with purpose to

harass another, he [or she] . . . [m]akes, or causes to be made, one or more

communications anonymously or at extremely inconvenient hours, or in

offensively coarse language, or any other manner likely to cause annoyance or

alarm." N.J.S.A. 2C:33-4(a).

A violation of subsection (a) requires the following
elements: (1) defendant made or caused to be made a
communication; (2) defendant's purpose in making or
causing the communication to be made was to harass
another person; and (3) the communication was in one
of the specified manners or any other manner similarly
likely to cause annoyance or alarm to its intended
recipient.

[Hoffman, 149 N.J. at 576.]

Our courts have decreed that N.J.S.A. 2C:33-4(a) "does not proscribe

mere speech, use of language, or other forms of expression." State v. L.C.,

283 N.J. Super. 441, 450 (App. Div. 1995) (citing State v. Fin. Am. Corp., 182

N.J. Super. 33, 36-38 (App. Div. 1981)). No statute could do so, as "[t]he First

Amendment to the federal Constitution permits regulation of conduct, not mere

expression." Ibid. (citing State v. Vawter, 136 N.J. 56, 65-67 (1994)); see,

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e.g., Murray v. Murray, 267 N.J. Super. 406, 410-11 (App. Div. 1993) (holding

that words alone, without "purposeful alarm or serious annoyance," were

insufficient to sustain a domestic violence restraining order for harassment).

Instead, "the substantive criminal offense proscribed by subsection (a) 'is

directed at the purpose behind and motivation for' making or causing the

communication to be made." Hoffman, 149 N.J. at 576 (quoting State v.

Mortimer, 135 N.J. 517, 528 (1994)). Thus, "purpose to harass is critical to

the constitutionality of the harassment offense." R.G. v. R.G., 449 N.J. Super.

208, 226 (App. Div. 2017) (quoting State v. Castagna, 387 N.J. Super. 598,

606 (App. Div. 2006)); see also D.C. v. T.H., 269 N.J. Super. 458, 461-62

(App. Div. 1994) (reversing an FRO issued against a father who made a threat

to beat up the mother's boyfriend because the defendant's purpose "was to

dissuade plaintiff's boyfriend from inflicting further corporal punishment upon

his child" rather than to harass the plaintiff).

"A person acts purposely with respect to the nature of his conduct or a

result thereof if it is his conscious object to engage in conduct of that nature or

to cause such a result." N.J.S.A. 2C:2-2(b)(1). A defendant's "mere awareness

that someone might be alarmed or annoyed is insufficient." J.D. v. M.D.F.,

207 N.J. 458, 487 (2011) (citing State v. Fuchs, 230 N.J. Super. 420, 428

(App. Div. 1989)). Likewise, a "victim's subjective reaction alone will not

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suffice; there must be evidence of the improper purpose." Ibid. (citing State v.

Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1998)); see Franklin v.

Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) (concluding that the

evidence established only a "dispute between a couple in the midst of a

breakup, disagreeing over the future of their unborn child" rather than intent to

harass). Still, "[a] finding of a purpose to harass may be inferred from the

evidence presented," and "[c]ommon sense and experience may inform that

determination." Hoffman, 149 N.J. at 577.

The judge found that by creating and disseminating the video, defendant

communicated in a manner proscribed by N.J.S.A. 2C:33-4(a) with a purpose to

harass plaintiff. Further, according to the judge, defendant's communication was

not protected by the First Amendment. The judge's holding was predicated on her

determination that being identified as a get refuser was inherently dangerous and

defendant's purpose in asking members of her community to "press" plaintiff to

give her a get was to incite violence. Conversely, defendant argues that in

creating and disseminating the video, she engaged in constitutionally protected

speech. She contends her speech did not rise to the level of incitement and

thus retained its constitutional protection under the First Amendment.

Subsection (a) of the harassment statute "is 'aimed, not at the content of

the offending statements but rather at the manner in which they were

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communicated.'" Id. at 583 (quoting Fin. Am. Corp., 182 N.J. Super. at 39-

40). Indeed, "[m]any forms of speech . . . are intended to annoy. Letters to the

editor of a newspaper are sometimes intended to annoy their subjects. We do

not criminalize such speech, even if intended to annoy, because the manner of

speech is non-intrusive." Ibid.

Here, the judge found that the manner of communication fell under the

so-called "catchall provision" of subsection (a) in that it was made in "any

other manner likely to cause annoyance or alarm." Id. at 581-83;

N.J.S.A. 2C:33-4(a). In order to protect against unconstitutional vagueness

and overbreadth in the statute, the phrase "any other manner likely to cause

annoyance or alarm" has been interpreted narrowly. Hoffman, 149 N.J. at 581-

83. In Hoffman, our Supreme Court explained that the three enumerated

modes of prohibited communication proscribed under the harassment statute—

anonymous, at extremely inconvenient hours, and in offensively coarse

language—each "can be classified as being invasive of the recipient's privacy."

Id. at 583. Likewise, the Court concluded that "the Legislature intended the

catchall provision of subsection (a) [to] encompass only those types of

communications that also are invasive of the recipient's privacy." Ibid. Thus,

in order to satisfy the catchall element, a communication must "intolerably

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interfere with a person's reasonable expectation of privacy." Burkert, 231 N.J.

at 283.

Critically, "[l]aws may 'not transgress the boundaries fixed by the

Constitution for freedom of expression.'" Id. at 275 (quoting Winters v. New

York, 333 U.S. 507, 515 (1948)). Thus, as with any speech-regulating statute,

the reach of N.J.S.A. 2C:33-4 is cabined by the federal and state constitutions.

The First Amendment to the United States Constitution provides in part that

"Congress shall make no law . . . abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble." Similarly, Article I,

Paragraph 6, of the New Jersey Constitution proclaims in part that "[e]very

person may freely speak, write and publish his sentiments on all subjects,

being responsible for the abuse of that right. No law shall be passed to restrain

or abridge the liberty of speech or of the press."

So greatly do we in New Jersey cherish our rights of
free speech that our Constitution provides even
broader protections than the familiar ones found in its
federal counterpart. In preserving and advancing
those broad constitutional commands, we have been
vigilant, jealously guarding the rights of the people to
exercise their right to "freely speak," although their
message may be one that is offensive to some, or even
to many, of us.

[Borough of Sayreville v. 35 Club L.L.C., 208 N.J.
491, 494 (2012) (citation omitted) (quoting N.J.
Const. art. I, ¶ 6).]

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 As such, "[t]here is no categorical 'harassment exception' to the First

Amendment's free speech clause." Burkert, 231 N.J. at 281 (quoting Saxe v.

State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)).

"Speech . . . cannot be transformed into criminal conduct merely because it

annoys, disturbs, or arouses contempt." Ibid. "The First Amendment protects

offensive discourse, hateful ideas, and crude language because freedom of

expression needs breathing room and in the long run leads to a more

enlightened society." Ibid. To that end, the right to free speech also includes

the right to exhort others to take action upon that speech. "It extends to more

than abstract discussion, unrelated to action." Thomas v. Collins, 323 U.S.

516, 537 (1945) ("'Free trade in ideas' means free trade in the opportunity to

persuade to action, not merely to describe facts."). In fact, "[t]he First

Amendment protects the right to coerce action by 'threats of vilification or

social ostracism.'" Carroll, 456 N.J. Super. at 537 (quoting NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 926 (1982)).

In Claiborne Hardware Co., Black activists in Claiborne County,

Mississippi, organized a boycott of white-owned businesses when local civic

and business leaders refused to assent to demands for equality and racial

justice. 458 U.S. at 899-900. "The boycott was supported by speeches and

nonviolent picketing." Id. at 907. Additionally, "store watchers" stood outside

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the targeted businesses and took down the names of those who violated the

boycott. Id. at 903-04. Those names were then "read at meetings of the

Claiborne County NAACP and published in a mimeographed paper entitled the

'Black Times.' . . . [T]hose persons were branded as traitors to the [B]lack

cause, called demeaning names, and socially ostracized." Ibid. In very public

speeches, an organizer stated that violators would be "disciplined," and

warned: "If we catch any of you going in any of them racist stores, we're

gonna break your damn neck." Id. at 902. The boycott went on for years,

during which several decentralized acts of violence occurred, including shots

fired into the homes of boycott violators, beatings, property damage, and

threatening phone calls. Id. at 904-06.

The Supreme Court ruled that the speech, both identifying and

castigating boycott violators and promising retribution, was protected by the

First Amendment. Id. at 915, 929. The Court explained that even speech

designed to prompt others to act through "social pressure and the 'threat' of

social ostracism . . . . does not lose its protected character . . . simply because

it may embarrass others or coerce them into action." Id. at 910. Even the

organizer's speech, which invoked the specter of violence and "might have

been understood as inviting an unlawful form of discipline or, at least, as

intending to create a fear of violence," was protected because "mere advocacy

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of the use of force or violence does not remove speech from the protection of

the First Amendment." Id. at 927-29. The Court noted that no actual violence

occurred directly following the statements, and there was "no evidence—apart

from the speeches themselves—that [the organizer] authorized, ratified, or

directly threatened acts of violence." Id. at 929. The Court cautioned that if

such acts of violence did occur, there might be a question of whether the

organizer was derivatively liable, but until then, the speech retained its

protected status. Id. at 928-29.

Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415,

415-16 (1971), the Court addressed "a racially-integrated community

organization['s]" actions "to 'stabilize' the racial ratio in the . . . area" by

influencing a real estate broker who allegedly engaged in "blockbusting" or

"panic peddling" tactics to scare white owners out of Chicago's Austin

neighborhood. Id. at 415-16. The broker acted as the fleeing sellers' agent to

profit from the transactions. Ibid. In an effort to curtail the practice, the

organization began a campaign against the broker. Id. at 417. The

organization traveled to the broker's hometown, some seven miles from

Austin, and began distributing leaflets that were critical of the broker's

practices. Id. at 415-17. Some leaflets "requested recipients to call [the

broker] at his home phone number and urge him" to sign an agreement to stop

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his real estate practices. Id. at 417. One leaflet promised to stop the campaign

once he signed the agreement. Ibid. The organization distributed the leaflets

at a shopping center, passed them to parishioners on their way home from the

broker's church, and left them at the homes of the broker's neighbors. Ibid.

Finding that the organization's activities were an "invasion of privacy,"

the state courts enjoined the organization from distributing the leaflets or

picketing in the broker's hometown. Ibid. The appellate court reasoned that

the activities were "coercive and intimidating, rather than informative and

therefore . . . not entitled to First Amendment protection." Id. at 418. The

Supreme Court reversed, concluding that the organization's activities were

protected by the First Amendment. Id. at 419-20. The Court emphasized that

the fact that the organization's intent was "to exercise a coercive impact on [the

broker] does not remove" the First Amendment's protections. Id. at 419.

Additionally, since the injunction was "not attempting to stop the flow of

information into [the broker's] household, but to the public," the invocation of

the broker's right to privacy was unavailing. Id. at 419-20.

In general, "[t]he mere tendency of speech to encourage unlawful acts is

not a sufficient reason for banning it." Ashcroft v. Free Speech Coal., 535

U.S. 234, 253 (2002). "The government may not prohibit speech because it

increases the chance an unlawful act will be committed 'at some indefinite

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future time.'" Ibid. (quoting Hess v. Indiana, 414 U.S. 105, 108 (1973)).

Thus, "[w]here a call to others to act neither conveys a plan to act nor is likely

to produce imminent danger, it may not be criminalized, despite its unsettling

message." Carroll, 456 N.J. Super. at 543. Although there is a narrow

exception for speech that is "directed to inciting or producing imminent

lawless action and is likely to incite or produce such action," Brandenburg v.

Ohio, 395 U.S. 444, 447 (1969), we have acknowledged that "[e]ven urging

others to violence is shielded unless the statement is designed and likely to

produce immediate action." Carroll, 456 N.J. Super. at 545.

In Brandenburg, the Supreme Court reversed the conviction of a Ku

Klux Klan leader for statements made at a rally. 395 U.S. at 444-45. At the

rally, a group of hooded Klansmen, several carrying firearms, gathered around

a burning cross. Id. at 445-47. Following a series of anti-Black and

antisemitic remarks and slurs from the group, a single individual began to

speak. Id. at 446. Among other things, he said: "[I]f our President, our

Congress, our Supreme Court, continues to suppress the white, Caucasian race,

it's possible that there might have to be some revengeance [sic] taken." Ibid.

He promised to march on Congress and elsewhere on July Fourth. Ibid.

The speaker was convicted of violating a statute which proscribed

"advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence,

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or unlawful methods of terrorism as a means of accomplishing industrial or

political reform." Id. at 445 (alteration in original). The Supreme Court

summarily invalidated the statute, explaining that the "constitutional

guarantees of free speech and free press do not permit a State to forbid or

proscribe advocacy of the use of force or of law violation except where such

advocacy is directed to inciting or producing imminent lawless action and is

likely to incite or produce such action." Id. at 447. "[C]onviction for mere

advocacy, unrelated to its tendency to produce forcible action," is

unconstitutional because it "intrudes upon the freedoms guaranteed by the First

and Fourteenth Amendments." Id. at 447 n.2, 448.

In United States v. Carmichael, 326 F. Supp. 2d 1267, 1285 (M.D. Ala.

2004), the court explained that a "general history" of violence was insufficient

to vitiate First Amendment protections. In that case, a criminal defendant

facing drug distribution charges published a website with the putative goal of

spreading awareness of his case and seeking information about individuals

involved. Id. at 1271-72. The website displayed names and photographs of

individuals labeled as "Agents" and "Informants" beneath a caption reading,

"Wanted," in large, red letters. Id. at 1272. The government sought a

protective order requiring the defendant to remove the website from the

internet on the ground that the website constituted harassment of the

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government's witnesses or served to intimidate or threaten the witnesses. Id. at

1274. At an evidentiary hearing, a witness called by the government testified

that the terms "wanted" and "informant" were "threatening" because the term

"informant" had a "bad connotation among criminals and is equivalent to

'snitch.'" Id. at 1275. The witness also suggested that "the website [was]

meant to encourage others to inflict harm" on informants and agents. Id. at

1286.

Specifically citing four cases decided by federal circuit courts in the

prior two years for context, the court acknowledged "numerous cases involving

the murder of informants in drug-conspiracy cases." Id. at 1284.

Nevertheless, the court explained that the proper focus of the inquiry was

defendant's website itself, "not whether the site calls to mind other cases in

which harm has come." Id. at 1285. Thus, while the court acknowledged that

the "broad social context ma[de] the case closer," the "background facts" relied

upon by the government were too "general" to rob the website of its First

Amendment protections, particularly since the court could not find that the

website served "no legitimate purpose" or "cross[ed] the line separating insults

from 'true threats.'" Id. at 1278, 1282.

As to the latter, the court acknowledged that "'true threats' are not

protected by the First Amendment." Id. at 1280 (quoting Virginia v. Black,

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538 U.S. 343, 359 (2003)); see also Watts v. United States, 394 U.S. 705, 707

(1969) (originating the true threats doctrine). "'True threats' encompass those

statements where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular individual or group

of individuals." Black, 538 U.S. at 359. "The 'prohibition on true threats

protects individuals from the fear of violence and from the disruption that fea r

engenders, in addition to protecting people from the possibility that the

threatened violence will occur.'" Carmichael, 326 F. Supp. 2d at 1280

(quoting Black, 538 U.S. at 360). However, "evidence of an atmosphere of

general intimidation is not enough to find . . . a 'true threat.'" Id. at 1285.

Applying these principles, we are convinced that the video, whether viewed

on its own or in the context in which it was disseminated, does not fall outside the

First Amendment's protection. The judge concluded that the video was not

protected by the First Amendment because members of the Jewish community

would respond violently to plaintiff being identified as a get refuser. The judge

stated that "[t]he First Amendment cannot protect this type of communication to

incite, which is clearly invasive of [plaintiff's] safety and privacy." However, such

an unspecified general history of violent treatment to which get refusers were

subjected was insufficient to render defendant's video a true threat or an imminent

danger to satisfy the incitement requirement. On the contrary, in Epstein, the

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court explained that disseminating the names of get refusers "so that the

reading public will hold them in disrepute," and otherwise taking steps to

"shun and embarrass a recalcitrant husband . . . do[es] not violate the criminal

laws of the United States." 91 F. Supp. 3d at 582.

Critically, the First Amendment "does not prohibit name[-]calling" and

"protects 'vehement, caustic, and sometimes unpleasantly sharp attacks' as well

as language that is 'vituperative, abusive, and inexact.'" Carmichael, 326 F.

Supp. 2d at 1282 (quoting Watts, 394 U.S. at 708). Similarly, "threats of

vilification or social ostracism" do not lose their protected status. Claiborne

Hardware Co., 458 U.S. at 910. If the literal threat "to break . . . necks" in

Claiborne, against a backdrop of actual acts of retaliation and violence committed

by boycott supporters against boycott violators, was not outside the First

Amendment's protection, it is hard to see how defendant's video, with, at most,

only nonspecific threatening connotations, could be unprotected. Id. at 902.

The judge's suggestion that plaintiff had a right to not be subjected to

anonymous phone calls, threats, or picketing at his house—especially absent

evidence that defendant made calls herself or distributed plaintiff's contact

information—is likewise insufficient to render defendant's speech unlawful. Only

the #FREE[L.B.B.] photo image, which the judge did not attribute to defendant,

identified plaintiff's hometown, not the video. Moreover, there was no direct

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35
evidence of a link between the creation of the video, the dissemination of the

video, and plaintiff's receipt of anonymous phone calls. In any event, the acts

of identifying an individual, encouraging others to call them and urge them to

change their behavior, and picketing in their hometown are protected activities

under Keefe, 402 U.S. at 417, 419.

Although the judge found that get refusers, like plaintiff's father, were at risk

of imprisonment, there is no such offense in our penal code. Israeli courts—where

marriage and divorce are governed exclusively by religious law—retain the power

to impose sanctions including fines or jail sentences for get refusal. Jodi M.

Solovy, Civil Enforcement of Jewish Marriage and Divorce: Constitutional

Accommodation of a Religious Mandate, 45 DePaul L. Rev. 493, 501 n.59 (1996).

"Israeli law gives rabbinical courts the authority to issue certain sanctions to

pressure a non-consenting spouse to give consent to a get." Ben-Haim v. Edri, 453

N.J. Super. 526, 530 (App. Div. 2018). No such risk exists in state courts, as it is a

fundamental principle that civil courts may not become entangled in religious

proceedings "if resolution requires the interpretation of religious doctrine." Ran-

Dav's Cnty. Kosher v. State, 129 N.J. 141, 162 (1992); see also Satz v. Satz, ___

N.J. Super. ___, ___ (App. Div. 2023) (slip op. at 16-18) (rejecting the ex-

husband's argument that the trial court violated his First Amendment rights by

enforcing the provisions of a marital settlement agreement, rather than a religious

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contract, in which the parties agreed to participate in a beth din proceeding to

obtain a get that the ex-wife sought).

Because calls to exhort social pressure on plaintiff would necessarily fall

under the aegis of First Amendment protection and the specter of imprisonment for

refusing a get is unrealistic, harassment must be found—if at all—in the threat of

violence. However, the judge's conclusion that such threats were real and

imminent is simply not supported by the record. First Amendment protections

cannot be vitiated on unsubstantiated findings of fact. The video itself, which

was not even directed to plaintiff, contained no overt call for or reference to

violence. See Carroll, 456 N.J. Super. at 539 (citing United States v.

Dinwiddie, 76 F. 3d 913, 925 (8th Cir. 1996)) (listing "whether the threat was

communicated directly to its victim" as among the indicia of a "true threat").

Even an overt invocation of violence, however, would be insufficient to strip

the statement of First Amendment protection. See Claiborne Hardware Co.,

458 U.S. at 902; Brandenburg, 395 U.S. at 446-47.

Instead, to qualify as incitement and lose First Amendment protection—

as the judge tacitly found—a communication must be both "directed to inciting

or producing imminent lawless action and . . . likely to incite or produce such

action." Brandenburg, 395 U.S. at 447. However, such is not the case on this

record. The difference between lawful and lawless action "may be identified

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easily by reference to its purpose." Claiborne Hardware Co., 458 U.S. at 933.

Defendant's ultimate objective was unquestionably legitimate—it was to get a

get. We are persuaded that under the circumstances of this case, the means

employed by defendant to achieve her goal is entitled to First Amendment

protection.

Of course, should plaintiff ever be subjected to the threat of violence at

the hands of a third party, he will not be without recourse. In Stimler, a small

group of rabbis were convicted of kidnapping-related charges when, ostensibly

on behalf of agunot, they "worked with 'tough guys' or 'muscle men' in

exchange for money to kidnap and torture husbands in order to coerce them to

sign . . . gittin." 864 F.3d at 259-60. Thus, as evidenced in Stimler, the

violent, unlawful pursuit of gittin can be prosecuted. 864 F.3d at 259. But

"[t]he normal method of deterring unlawful conduct is to impose an

appropriate punishment on the person who engages in it." Bartnicki v.

Vopper, 532 U.S. 514, 529 (2001). "[I]t would be quite remarkable to hold

that speech by a law-abiding [speaker] . . . can be suppressed in order to deter

conduct by a non-law-abiding third party." Id. at 529-30.

In sum, the judge's finding that the Jewish community was prone to

violence against get refusers—and the implicit holding that defendant was

aware of and intentionally availed herself of such violent tendencies—is not

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supported by the record. The video was intended to get a get. The video did

not threaten or menace plaintiff, and nothing in the record suggests that

plaintiff's safety or security was put at risk by the video. Neither plaintiff's

testimony that his father had been beaten for being a get refuser at an

unspecified time and place nor defendant's vague testimony that plaintiff's

father had been imprisoned for being a get refuser sufficed.

Without credible evidence that the video incited or produced imminent

lawless action or was likely to do so, defendant's speech does not fall within

the narrow category of incitement exempted from First Amendment protection.

Likewise, because the judge's finding of a privacy violation relied upon the

same factual finding, the record does not support the finding that the manner of

defendant's communication violated subsection (a) of the harassment statute.

As our Supreme Court explained, N.J.S.A. 2C:33-4 criminalizes only those

"private annoyances that are not entitled to constitutional protection." Hoffman,

149 N.J. at 576. Defendant's communication does not meet that criteria.

Therefore, we reverse the April 22, 2021, and August 27, 2021, orders. In

so doing, we vacate the FRO and the restraints contained therein as well as the

counsel fee award. In light of our disposition, the TRO should not be reinstated

and we need not address defendant's or amici curiae's remaining arguments.

Reversed. We do not retain jurisdiction.

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