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Boffard v. Barnes

Decided: April 8, 1991.

VIRGINIA BOFFARD AND DARYL K. BOFFARD, M.D., PLAINTIFFS,
v.
TIMOTHY BARNES, DOROTHY BLACK, CAROL FORD, BARBARA CARLSTROM, JANE DOE (A FICTITIOUS NAME) AND JOHN DOE (A FICTITIOUS NAME), DEFENDANTS



Kimmelman, J.s.c.

Kimmelman

OPINION

BACKGROUND

A preliminary restraint is sought to bar anti-abortion picketing in front of a physician's private residence. Plaintiff, Dr.

Daryl Boffard, is a physician who performs legal abortions at the North Jersey Gynecological Center P.A. (Center) in Irvington, New Jersey. For approximately the past two years the Center has been the site of picketing by anti-abortionists.

The verified complaint alleges that on September 8, 1990 approximately 20 picketers gathered in front of the Short Hills home of Dr. Boffard, where he resides with his wife and three small children. It appears that plaintiffs' home is located on a quiet, narrow street which has only two residences, and room for only one car to drive through at a time. It was alleged that the picketers carried signs which referred to Dr. Boffard as a "baby killer", and that they also carried placards bearing graphic depictions of a mutilated, decapitated infant, which was portrayed to be abortion remains. Plaintiffs herein seek an injunction based upon common law tort: deprivation of the use and enjoyment of property, and mental and emotional pain and anguish.

By way of temporary restraint, the Court prohibited defendants from continuing picketing of the type described within 200 feet of plaintiffs' property. Upon the return date of the Order to Show Cause, plaintiffs, Dr. and Mrs. Boffard, contend that defendants' conduct amounts to nothing more than a depraved use of defendants' right of free speech which should not be permitted to lie against plaintiffs' countervailing right to privacy. Defendants, on the other hand, maintain that the right of free speech is guaranteed regardless of how intimidating, embarrassing, or shameful to recipients it may appear to be. Short of trespass or injury, defendants assert that the plaintiffs present no justifiable claim which would warrant a preliminary injunction. Defendants point out that while the picketers have been peaceful, it is the plaintiff, Mrs. Boffard, who has been confrontational. Plaintiffs have caused police incident reports to be filed but no property damages have been claimed.

DISCUSSION

There is squarely presented to this Court for resolution a clash between two principles fundamental to our society: one's right to privacy and the extent of one's right to express opinions and beliefs free from governmental interference. To apply the facts of this case to those principles, basic constitutional considerations must first be addressed.

The United States Supreme Court has established criteria for evaluating the appropriateness of and the atmosphere in which restraints on speech may be upheld. In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), quoting from Perry Ed. Assn. v. Perry Local Ed. Assn., 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983) the Court said:

To ascertain what limits, if any, may be placed on protected speech, we have often focused on the "place" of that speech . . . . Our cases have recognized that the standards by which limitations on speech must be evaluated 'differ depending on the character of ...


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