The three-judge panel concluded with the following in relevant part: 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 “the normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.” Bartnicki v. Vopper (2001). “It 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 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.” 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.
The plaintiff could argue that the Court could take judicial notice of the decision involving the rabbis and kidnapping scheme. That, in conjunction, with the plaintiff and defendant’s testimony regarding the violence that the plaintiff’s father suffered for refusing a get, provide bases to affirm the lower court’s decision.
