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Original WP 5.1 Version
This case can also be found at 138 N.J. 206.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
NOTE: This is a companion case to Horizon Health Center v. Felicissimo.
Argued October 25, 1993 -- Decided April 6, 1994
CLIFFORD, J., writing for a unanimous Court.
In Murray v. Lawson, the Chancery Division permanently enjoined anti-abortion protestors from
picketing within 300 feet of Dr. Elrick Murray's residence. Dr. Murray, a New Jersey-licensed obstetrician
and gynecologist, maintains a private practice in Plainfield. He resides in Westfield with his wife and three
children. Dr. Murray performs abortions at the Women's Medical Center in Howell and other hospitals.
The defendants, Michael Andrew Lawson, David Crist and others regularly demonstrated against abortion by
picketing at the Howell clinic. In late 1990, Lawson discovered the Plainfield and Westfield addresses for Dr.
Lawson informed the Westfield police that on Sunday, January 20, 1991, he and approximately fifty
other people planned to picket peacefully outside the Murray residence. On the advice of the Westfield
police, Dr. Murray sent his family away for the day. He remained in his home, even though he had two
patients in labor at the hospital. On that afternoon, about fifty-seven picketers protested on the sidewalk in
front of the Murray residence and in front of about ten surrounding homes. The picketers carried placards
depicting mutilated fetuses and stating that Dr. Murray kills unborn children. The picketers also spoke to
several neighbors in respect of Dr. Murray's abortion activities.
In February 1991 the Murrays filed suit in the Chancery Division, seeking monetary damages and
injunctive relief against Lawson, Crist and fictitiously-named others. Among other things, the complaint
alleged a deprivation of the Murrays' constitutional right to privacy. On February 22, 1991, the Chancery
Division entered a temporary restraining order against the picketers, restricting them from using the words
"murderer" or "killer," from referring to members of the Murray family by name, from carrying any signs
depicting a decapitated fetus, and from hand-delivering written material to neighborhood residents. In
addition, the order limited defendants' demonstration to picketing by two persons, for one hour, every three
On April 22, when Dr. Murray arrived for work at the Medical Care Center in Woodbridge, he
learned that the building had been destroyed by an arsonist. On May 2, 1991, there was a bomb threat at
the Howell clinic. Two days after that bomb threat, Lawson and another picketer reappeared to protest in
front of the Murray residence. Although no evidence linked Lawson and the others to either the arson or
the bomb threat, Dr. Murray called the police because he felt threatened and fearful of the defendants. The
protesters and Dr. Murray exchanged heated words in front of the Murray home. Dr. Murray took a swing
at Lawson and was later convicted of simple assault in municipal court.
After a final hearing, the Chancery Division entered a permanent injunction in July 1991 prohibiting
defendants from picketing in any form within 300 feet of the Murray residence. In respect of the Murrays'
other monetary claims, the court found the proofs insufficient and, therefore, did not award damages.
On appeal, the defendants argued before the Appellate Division that the injunction violates separation-of-powers principles, is an impermissible prior restraint, violates free speech rights and is
unwarranted because of Dr. Murray's "unclean hands" resulting from the assault on Lawson. The Appellate
Division upheld the 300-foot restriction. The court found no violation of separation-of-powers principles,
reasoning that the trial court has inherent equitable power to enforce a right to residential privacy, even in
the absence of a local ordinance. The Appellate Division also found that the injunction survives a free-speech challenge because it is a reasonable time, place, and manner restriction. Finally, the court concluded
that the trial court had not abused its discretion by failing to apply the "unclean hands" doctrine to deny the
Murrays equitable relief.
In Boffard v. Barnes, the Chancery Division enjoined protesters from picketing in the immediate
vicinity of Dr. Daryl Bofford's residence. Dr. Boffard, a New Jersey-licensed obstetrician and gynecologist,
practices with an Irvington Medical Group that offers abortion services. Defendants, Timothy Barnes,
Dorothy Black, Carol Ford, and Barbara Carlstrom, anti-abortion protestors, picketed the Boffard residence
in Short Hills on September 8, 1990. On that date, approximately twenty protestors gathered in front of the
Boffard residence carrying placards stating that Dr. Boffard was a killer and showing bloody fetal parts and
mutilated fetuses. Two police officers arrived at the scene and instructed the protestors to picket on an
adjoining street; the protest ended after about one hour.
The Boffards filed suit in the Chancery Division, seeking to enjoin the picketing, alleging that the
defendants had deprived them of the use and enjoyment of their property and had caused them mental and
emotional pain and anguish. On September 14, 1990, the trial court issued a temporary restraining order
prohibiting defendants from picketing within 200 feet of the Short Hills residence, from referring to Dr.
Boffard as a "murderer" or a "killer," from depicting fetuses on the placards and from publishing the
Boffard's address. The order also limited to six the number of demonstrators who could protest near the
Boffard residence. Approximately one year later, the court issued a permanent injunction, enjoining and
restraining defendants from demonstrating or picketing within the immediate vicinity of the Boffard
residence, from distributing information to the Boffard's neighbors in respect of Dr. Boffard being a killer or
murderer, and from carrying placards showing mutilated fetuses.
On April 12, 1993, the same panel of the Appellate Division that upheld the Murray injunction
upheld that portion of the Boffard injunction that restricted picketing or protesting within the immediate
vicinity of the Boffard residence, reasoning that the restriction is a constitutional time, place and manner
restriction. The court struck down the two other paragraphs of the injunction, finding that those restrictions
were impermissibly content based.
The Supreme Court granted certification in Murray and Boffard to address the defendants'
argument that in the absence of violent conduct or conduct in violation of a statute or an ordinance, the trial
court has no inherent authority to impose injunctive restrictions on protected expression.
HELD: Residential privacy represents a sufficient public-policy interest to justify injunctive restrictions
and implicates a significant governmental interest. Therefore, the Chancery Division had the
power to enjoin the non-violent, non-criminal activity of defendant-protestors to protect
1. The Boffard and Murray injunctions restrict expressive activity in a traditional public forum.
Therefore, the restrictions must be content neutral, must be narrowly tailored to serve a significant
governmental interest, and must leave open ample alternative channels of communication. Here, the
injunctions are content neutral. The injunctions were not imposed because the trial court disagreed with
defendants' viewpoint, they were imposed to ensure that defendants' communication of that viewpoint did not
impermissibly interfere with residential privacy. (pp. 13-20)
2. New Jersey has a common-law public policy in favor of protecting residential privacy. Enforcement of that policy constitutes a significant governmental interest justifying the imposition of injunctive restrictions.
Because common-law public policy alone suffices to justify imposing restrictions on defendants, the Court
does not rely on a constitutionally-based residential-privacy right stemming from either the State or Federal
Constitutions to justify the imposition of restrictions. (pp. 20-25)
3. The Murray injunction's "place" restriction prohibiting defendants from picketing in any form within 300
feet of the Murray residence is narrowly tailored to protect the Murray's residential privacy. For the same
reasons, the complete ban of picketing outside the Boffard residence is also permissible. However, the
Chancery Division in the Boffard injunction should have more precisely defined the spatial scope of its ban.
The description "within the immediate vicinity" does not describe sufficiently the area in which the
injunction's prohibition applies. Thus, the matter must be remanded to the Chancery Division to set forth
more precisely the scope of the ban. (pp. 25-31)
4. The Murray injunction and the Boffard injunction, when modified, will prohibit picketing within a
certain distance from the Murray and Boffard residences. Thus, the injunctions will leave open ample
alternative channels of communication for the defendants. (pp. 31-32)
In Murray v. Lawson judgment of the Appellate Division is AFFIRMED. In Boffard v. Barnes the
judgment of the Appellate Division is MODIFIED and the matter is REMANDED to the Chancery 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 JUSTICE CLIFFORD's opinion.
SUPREME COURT OF NEW JERSEY
A-42/ 65 September Term 1993
BELINDA MURRAY and ELRICK A.
MICHAEL ANDREW LAWSON, DAVID
VIRGINIA BOFFARD AND DARYL K.
TIMOTHY BARNES, DOROTHY BLACK,
Argued October 25, 1993 -- Decided April 6, 1994
On certification to the Superior Court,
Appellate Division, whose opinions are
264 N.J. Super. 17 (1993)
Richard F. Collier argued the cause for
appellants Michael Andrew Lawson, David
Crist, Jane Doe and John Doe.
Michael Patrick Carroll argued the cause for
appellants Timothy Barnes, Dorothy Black,
Carol Ford, and Barbara Carlstrom (Mr.
Carroll and Richard J. Traynor, attorneys).
Pamela Mandel argued the cause for
respondents Belinda Murray and Elrick A.
Murray, M.D., Virginia Boffard and Daryl K.
Frank L. Corrado argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey in Murray v. Lawson and Boffard v.
Barnes (Barry & Corrado and Lisa Glick
Dara Klassel, a member of the New Jersey and
New York bars, argued the cause for amici
curiae Planned Parenthood Federation of
America and Planned Parenthood Affiliates of
New Jersey in Murray v. Lawson and Boffard v.
Barnes (Ansell, Zaro, Bennett and Grimm,
attorneys; Ms. Klassel and Richard B. Ansell,
on the brief).
Charles J. Walsh argued the cause for amicus
curiae The American College of Obstetricians
and Gynecologists in Murray v. Lawson and
Boffard v. Barnes (Sills, Cummis, Zuckerman,
Radin, Tischman, Epstein & Gross, attorneys;
Mr. Walsh and Steven R. Rowland, of counsel
and on the brief).
Andrea M. Silkowitz, Assistant Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (Fred DeVesa,
Acting Attorney General, attorney; Jack M.
Sabatino, Assistant Attorney General, of
The opinion of the Court was delivered by
These cases, argued together before this Court, require a balance between the free-speech rights of anti-abortion protestors and the residential-privacy interests 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.J. 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). Defendants in both cases petitioned this Court. We
granted certification, ___ N.J. ___ (1993), and ___ N.J. ___
(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 judgment of the Appellate
Division in Boffard and remand to the Chancery Division for a
clarification of the restrictions 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 Woodbridge before that facility burned
to the ground. Id. at 24. Dr. Murray and his wife, plaintiff
Belinda Murray, live with their three children in Westfield in a
suburban neighborhood. In 1991 the children were ages six,
eleven, and fifteen. Id. at 22. Defendants regularly
demonstrated against abortion by picketing at the Howell Clinic
for about two years before January 1991. Id. at 23.
By engaging in some research in December 1990, defendant
Lawson uncovered Plainfield and Westfield addresses for Dr.
Murray. Lawson visited both addresses to confirm that they were
current. On December 14, 1990, when he went to the Westfield
address, Lawson was surprised to find a residence and not an
office. When Lawson rang the doorbell, plaintiffs' then
fourteen-year-old son answered the door. After confirming that
the house was the Murray residence, Lawson told the boy to relay
a message to his father to stop doing abortions. Mrs. Murray
came to the door and told Lawson to leave and not return.
Lawson left immediately. Mrs. Murray testified 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 residence on Sunday, January 20,
1991. The administrator of the Medical Care Center in Woodbridge
warned Dr. Murray about the Sunday protest. On the advice of the
Westfield police, Dr. Murray sent his family away for the day but
he remained inside the house himself. Ibid. Dr. Murray
testified that he would have preferred to go to the hospital that
day instead because two of his patients were in labor. Id. at
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
generally two abreast but sometimes four or five abreast. Ibid.
The picketers carried placards that stated, among other things,
"Dr. Murray scars women and kills their unborn children," "Elrick
Murray pre-born baby exterminator and nomad abortionist," and
they carried a placard that showed a decapitated infant with the
caption "Elrick Murray, abortionist." Id. at 23-24. The
picketers spoke to several neighbors including one teenager whom
they asked whether he knew that a killer lived in the
neighborhood. 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 reputation 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 sidewalk 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 February 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. Id. 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. Ibid. 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 conclusively who was
responsible for the fire at the Woodbridge clinic or for the bomb
threat to the Howell clinic.
Two days after the bomb threat, on May 4, 1991, Lawson and
another picketer reappeared to protest in front of the Murray
residence. Dr. Murray called the police. After they had arrived
in response to his call, the doctor went outside and exchanged
words, some of them heated, with the picketers. He returned to
his house at the urging of police, but then went outside again
and took a swing at Lawson. Although no evidence linked
defendants to the arson or to the bomb threat, Dr. Murray felt
threatened by and fearful of defendants. Dr. Murray was later
convicted of simple assault in the Westfield Municipal Court.
Id. at 25.
After a final hearing, the Chancery Division entered a
permanent injunction in July 1991, prohibiting "defendants 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
enjoyment of property under the tortious invasion of privacy
claim; it found Lawson's trespass irrelevant to the picketing;
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 impermissible 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 restriction.
First, the court discerned no separation-of-powers problem,
reasoning that the trial court has inherent equitable power to
enforce a right to residential privacy, even in the absence of a
local ordinance. Id. at 27-31. Second, the Appellate Division
found that the injunction survives a free-speech challenge
because it is a reasonable time, place, and manner restriction.
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
inasmuch 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.J. 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 picketers
gathered in front of the Boffard residence. The picketers
carried placards saying, among other things, "Dr. Daryl Boffard
Kills Babies" and "God Says Thou Shalt Not Kill." Other signs
had pictures; one showed a mutilated 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 neighbor a bible
and told her, "The doctor who lives there is a murderer." Ibid.
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.
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 mental and emotional pain and anguish.
Accordingly, on September 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' residence. Id. at 14-15.
On April 8, 1991, the Chancery Division issued a preliminary
injunction against defendants.
248 N.J. Super. 501 (1991). Five
months thereafter, the Chancery Division made that preliminary
injunction permanent. Both the preliminary and the permanent
ORDERED that the defendants and all persons
and organizations associated with or acting
in concert or combination with them be
ENJOINED and RESTRAINED as follows:
3. Carrying placards which contain
depictions of a fetus * * *.
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 any individual in Millburn Township."
No party has suggested that the Chancery Division relied on that
ordinance 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 paragraph one of the
Boffard injunction, prohibiting defendants 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. Ibid. The court struck down paragraphs two
and three of the injunction, however, finding that those
restrictions are impermissibly content based. Ibid. On this
appeal, therefore, we assess the validity of only the paragraph-one restriction.
Defendants in both cases assert that in the absence of
violent conduct or conduct in violation of a statute or an
ordinance, the Chancery Division has no inherent authority to
impose injunctive restrictions on protected expression. 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, ___ N.J. ___
(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 services and maintenance of
medical standards, id. at ___-___ (slip op. at 21-24), protection
of private property, id. at ___-___ (slip op. at 25), and public
safety, id. at ___ (slip op. at 26).
Here, the Chancery Division entered the injunction against
defendants to enforce a public policy favoring the protection of
residential privacy. In Part III, 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 government interest. We therefore
conclude that the Chancery Division had the power to enjoin the
non-violent, non-criminal activity of defendants to protect
plaintiffs' residential privacy.
Decisions of other courts upholding injunctive restrictions against peaceful picketers to protect residential 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 peaceful picketing at residences of abortion-clinic personnel by protestors who had engaged in tortious conduct at clinic itself but not at 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 anti-abortion picketers outside residence of physician 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 injunction against selected residential picketing by anti-abortion protestors
improper because court had made no determination of legal
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 balance defendants' free-speech rights and plaintiffs' residential-privacy interests. See
Horizon Health Center, supra, ___ N.J. ___ (slip op. at 13). The
issue is whether the specific restrictions that the Chancery
Division imposed are permissible.
In Horizon Health Center we held that a Chancery Division
injunction prohibiting picketing outside an abortion clinic
"regulates expressive activity traditionally protected by the
First Amendment." ___ N.J. at ___ (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 "gathering, parading, patrolling for
the purpose of demonstrating 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 neighborhoods,
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 ___
(slip op. at 15). Moreover, as the Supreme Court noted in Frisby
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
Therefore, inasmuch as the injunctions proscribe protected
activity in a traditional public forum, we evaluate 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 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
[Frisby, supra, 487 U.S. at 481, 108 S. Ct.
The threshold inquiry, then, is whether the injunctions against
defendants are content neutral.
A restriction is content neutral if it can be justified
without reference to the content of the regulated speech.
Horizon Health Ctr., supra, ___ N.J. at ___ (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' 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
defendants' 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." ___ N.J. at ___ (slip op. at
20). Only these defendants 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 deciding 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 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 warrant citation of authority.
Finally, the decisions of other courts analyzing similar
injunctions against anti-abortion protestors 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 plaintiff's residence content neutral
because it "makes no mention of abortion or any other substantive
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),
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 residences to be
content neutral because "[i]t does not prohibit residential anti-abortion picketing while permitting residential picketing having
other aims"); Klebanoff, supra, 552 A.
2d at 678-79 (finding
injunction prohibiting picketing in front of doctor's house to be
content neutral because it does not "refer to the content or
subject matter of the protest. The injunction contains no
invitation to subjective or discriminatory enforcement.").
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 protection 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 residential-privacy right stemming from either the New
Jersey or the federal constitution to justify the imposition of
Courts look to a variety of sources, including judicial decisions, to find public policy. Pierce v. Ortho Pharmaceutical 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.
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
71 N.J. 206, 223 (1976) (quoting Village of Belle Terre
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 reasonably to be apprehended on account of strangers
filtering through the community." Borough of Collingswood v.
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 of 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 privacy. We are convinced as well that
enforcement of that policy constitutes a significant government
The United States Supreme Court decision in Frisby, supra,
supports our conclusion that protection of residential privacy
represents a significant government interest. In that case, the
Supreme Court upheld against a First Amendment challenge an
ordinance forbidding "'picketing 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 statement of
purpose: "'the protection and preservation of the home' 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
The Supreme Court found that the protection of residential 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 certainly 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, 125, 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.
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 within their own walls, which the State 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 privacy 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 defendants 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
132 N.J. 234, 240-41 (1993) (noting that courts should
not decide constitutional questions unless necessary to dispose
of litigation). Thus, to the extent the Appellate Division may
have relied on the New Jersey Constitution to impose restrictions
on defendants, see Murray, supra, 264 N.J. Super. at 30-31, we do
not adopt that court's reasoning.
Similarly, we do not base our decision in respect of the injunctions on a federal constitutional right to residential privacy. First, we need not reach that constitutional issue inasmuch as we can decide the cases before us on common-law principles. See O'Keefe, supra, 132 N.J. 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 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 residential 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 specific
restrictions imposed are narrowly tailored to serve the
significant government interest in protection of residential
privacy. That inquiry requires us to balance defendants'
constitutional right of free expression against plaintiffs'
common-law interest in residential privacy. See Crowe v. Di
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 government could not achieve as effectively without the regulation. Horizon Health Ctr., supra, ___ N.J. at ___ (slip op. at 26). "Yet, a regulation may not 'burden substantially more speech than is necessary to further government's legitimate interests.'" Id. at
___ (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
1. Murray v. Lawson
The Murray injunction is a "place" injunction that prohibits
defendants "from picketing in any form including parking,
parading or demonstrating in any manner, within 300 feet of the
Murray residence * * *." 264 N.J. Super. at 26. We conclude
that that restriction meets the requirements for narrow tailoring
of a "place" restriction.
In Frisby, supra, the Supreme Court found narrowly tailored
a municipal ordinance prohibiting "'picketing 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 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
The Court noted further that the First Amendment permits
restrictions to protect the captive listener and that the target
of focused residential picketing is indeed "captive" 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." Id. at 487, 108 S.
Ct. at 2504, 101 L. Ed.
2d at 433. Accordingly, the Court
concluded that a complete 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.
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, 939 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 restriction); 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 to be narrowly drawn); Dayton Women's Health Center, supra, 589 N.E. 2d at 127 (upholding
ban on picketing "within viewing distance" of residences of
abortion-clinic patients and staff); Klebanoff, supra, 552 A.
at 680-81 (finding permanent injunction prohibiting anti-abortion
protestors from picketing directly in front of doctor's house to
be narrowly 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"),
560 N.E.2d 780 (Ohio 1990).
We are satisfied that the 300-foot restriction against
defendants is narrowly tailored to protect plaintiffs'
residential privacy. Defendants directed their picketing
activity toward plaintiffs and not toward the public.
Defendants' demonstration spanned a length of approximately ten
houses, but plaintiffs' house was never free from picketers
during the protest. Even if some defendants 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 trespassed on 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 neighborhood. 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 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 Chancery
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 demonstrating
or picketing within the immediate vicinity of plaintiffs'
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 plaintiffs' 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 restriction 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 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' residence. "Vicinity" means "a surrounding area or
district: locality, neighborhood," Webster's Third New
International Dictionary, 2550 (1971), and "immediate" means
"characterized 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 Chancery Division to set forth more precisely the scope of the ban. When imposing the "within the immediate vicinity of" 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 Division may have to make additional findings. We are
mindful 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.
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' residence, leave open
ample alternative channels of communication for these defendants.
Defendants may communicate their message to the physicians, to
the physicians' families, and to the physicians' neighbors on any
residential street beyond the zone the injunctions establish.
They may also picket and protest outside the physicians' offices
and outside the clinics and hospitals where the physicians
perform medical procedures. Although defendants may not picket
within the zones the injunctions establish, they have ample other
opportunities to express their message to their target audience.
Defendants in Boffard claim that the permanent injunction
against them also violates their right of free expression under
article I, paragraph 6 of the New Jersey Constitution. That
provision provides in pertinent part: "Every person may freely
speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that right." For the same reasons
that we decided not to analyze Horizon Health Center, supra,
under the New Jersey Constitution, we similarly decline to
analyze Boffard under our State Constitution. See ___ N.J. at
___ (slip op. at 35-36). Thus, we confine our discussion to
those First Amendment principles we have outlined already.
In Murray v. Lawson we affirm the judgment of the Appellate
In Boffard v. Barnes we modify the judgment of the Appellate
Division. The cause is remanded to the Chancery 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.
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