On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County.
King, Brody and Landau. The opinion of the court was delivered by King, P.J.A.D.
This appeal arises from the grant of a permanent injunction which restrained to an extent the manner and place in which anti-abortion demonstrators could protest on the public ways outside of an abortion clinic and health care center in Jersey City. We uphold the injunction in substantial part but modify its language to avoid an interpretation authorizing a restraint upon the content of the demonstrators' expression.
On October 19, 1991 plaintiff filed a verified complaint and an order to show cause in the Chancery Division seeking to restrain defendants from demonstrating "within 30 feet" of their clinic property on Bergen Avenue in Jersey City. After an ex parte hearing on that date, Judge Schaeffer issued a temporary restraining order. A plenary hearing on the restraint commenced on October 25 and concluded on October 29. On November 4 the Judge issued a written opinion and order making the temporary restraint permanent. Defendant Felicissimo moved to modify the order and for a further hearing. His application was denied and defendants appeal.
Plaintiff is a non-profit corporation located in three connected buildings at 706-714 Bergen Avenue in a commercial and retail area of Jersey City. Plaintiff's clinical services include family planning, prenatal care, well-baby care, support and education groups and first trimester pregnancy terminations. An average of 24 to 28 abortions are performed at the clinic on Saturday mornings. On Saturdays, plaintiff also provides prenatal testing to women in the third trimester of pregnancy, including glucose tolerance tests to detect gestational diabetes, and other blood work. These patients enter through the same
door as the patients coming for abortions. The clinic is known as "Choices."
According to Marilyn Bennett, the clinic's executive director, about eight to ten anti-abortion activists regularly stood near the door on Saturdays, handing out pamphlets and urging patrons not to have abortions. Defendant Felicissimo was usually among them. At 8:15 a.m. on Saturday, October 19, 1991, only two or three people were handing out pamphlets. However, Bennett had been informed earlier that police barricades were being set up in anticipation of a large demonstration.
Defendants acknowledge that a group of eight to fifteen people had been active at 706-714 Bergen Avenue for over a year or since the Fall of 1990, gathering for prayer, supplication and sidewalk counselling in front of the clinic with the intent of preventing abortions. Before that time, the demonstrators had gathered across Bergen Street in front of a parking lot and did not approach the clinic entrance. "Sidewalk counselling" was described by Felicissimo as approaching a woman entering the clinic to gently inform her of alternatives to abortion and the potential bad effects of abortion in an effort to change her mind. According to Bennett, however, demonstrators would hand the women pamphlets containing dire warnings and bloody pictures of dismembered fetuses and cry: "Don't murder your baby"; "There are murderers in there"; and "They tear the arms and legs off your babies." Clinic manager Juana Melendez said they would also urge staff members, "Stop killing those babies." One staffer, Raven Galloway, was touched physically by a picketer who thrust a pamphlet at her. Bennett and Melendez said that in the past a sole picketer had occasionally entered the clinic and distributed the same pamphlets but had been escorted out by staff. One such person entered on October 18, the day before the large demonstration. This picketer was not identified as under defendants' control. Felicissimo denied knowing her.
The defendant Helpers of God's Precious Infants (Helpers) is an anti-abortion prayer and counselling group coordinated by defendant Felicissimo. The Helpers scheduled a "prayer vigil" at 706-714 Bergen Avenue for October 19, 1991. On October 14 they sought a marching or parade permit and a police escort. Apparently, no official permit was required or issued but a police escort was provided. The Helpers attended Mass at St. Aedan's, a Roman Catholic Church, and were then led by Auxiliary Bishop David Arias of the Newark archdiocese in a ten-block walk to plaintiff's clinic under police escort.
At the clinic, police had set up marked police barricades which bisected the sidewalk along the frontage of the three clinic buildings, which comprises most of the short block between Duncan and Fairmount Avenues, leaving about a five-foot width between the barriers and the buildings, and a five-foot width between the barriers and the curb. The 120 to 140 demonstrators stood behind the barricade, some on the sidewalk and some overflowing five deep into the street, requiring the police to close the northbound lane of Bergen Avenue to all traffic except buses which were guided around the demonstrators. They held a large wooden crucifix and placards saying "Babies Killed at 710 Bergen Avenue" and "Abortion Kills Children."
Led by Bishop Arias and others whose voices were electronically amplified, the demonstrators recited the rosary and sang hymns. Bishop Arias characterized the group as "calm, peaceful and prayerful." Felicissimo described the amplified voices as "not loud" and only sometimes clear. However, Bennett described the speaking as repetitive chanting, so loud that it was audible inside the clinic and in adjacent buildings even with all the doors and windows closed. During the group prayers, sidewalk counselling within the barricade allegedly was suspended but did continue at the ends of the barricade.
Plaintiff sought to limit future demonstrations to a site across Bergen Street from the clinic, generally on the sidewalk
in front of a parking lot, asserting that defendants' presence in front of the clinic prevented or deterred some patients from receiving abortions or other medical care. According to Nancy Mascio, a clinic volunteer who arrived on October 19 at about 8:30 a.m., two picketers stood on the sidewalk on the building side of the police barricades and distributed literature and spoke to patients and passersby. Four or five clinic staff and volunteers identified by special shirts and "Escort" labels, escorted patients to the door. Because of the dense group of protestors in front of the clinic, arriving patients had no clear path from the street to the door.
Mascio said that at least one patient became discouraged and left. Some patients called the clinic complaining that they could not gain entry or to request help getting inside. According to Clinic Manager Melendez, only twenty-five of the forty-five women who had scheduled abortions kept their appointments that day. Amparo Rodriguez, a laboratory technician who oversees blood testing for baby care, prenatal care and abortion patients on Saturdays, said that three of her five scheduled patients did not come in that morning. She telephoned one high-risk patient who did not appear and instructed her to go to the hospital for the diabetic testing she urgently needed. One blood-test patient who managed to gain entry appeared upset by the demonstrators' presence.
Bennett said that patients inside the clinic looked anxious. They moved away from a window, which allowed a view of the demonstrators, to a windowless room. Clinic staffer Raven Galloway, who had volunteered to facilitate operations that day, said that patients were distressed by the window view as well as by the sounds of chanting and singing outside. She moved about ten or fifteen patients to a back room with no windows. Although there was less noise, the noise from demonstrators could still be heard over the sound from a television set playing in the windowless room.
Monsignor Reilly, a participant in the October 19 demonstration, described the crowd as "totally peaceful and prayerful." He said that clinic patients had no difficulty at all entering and that near the edge of the group, he could hardly hear the amplified speakers. Another priest, Father Quackenbush, explained that the demonstration was part of a countrywide "prolife" movement toward public prayer at abortion clinics. As part of that movement, defendants began to demonstrate across the street from plaintiff's clinic in April 1990 and continued on most Saturdays until the Fall of 1990, when they moved directly in front of the clinic and added sidewalk counselling to the prayer support.
Felicissimo testified that plaintiff had filed no formal complaints against the Helpers during the prior year, although police were sometimes present at Saturday demonstrations and did reiterate picketing rules, supposedly in response to plaintiff's complaints. According to Bennett, she had complained to police on numerous occasions when picketers interfered with access to the clinic door.
On October 19, Sergeant Donald Kelton, the officer in charge at the scene, refused Bennett's request to provide documents he had identifying the protestors or authorizing the demonstration. He referred her to the Erie Street office of the chief of police, although ostensibly aware that this office, over a mile from the clinic, was closed.
Plaintiff then immediately sought to judicially restrain further demonstrations of this character. Because plaintiff did not know the identity of the demonstrators, an ex parte hearing was held that morning. Through the testimony of Sergeant Kelton, plaintiff discovered the identities of defendants, Felicissimo and the congregate Helpers. From the testimony of Sergeant Kelton, Jose Gonzalez, another officer on the scene, and Bennett, Judge Schaeffer concluded that the demonstrators were interfering unduly with patients' access. He also found interference with traffic. He entered the temporary order on
October 19, restraining trespass at 704-716 Bergen Avenue or any gathering so as to disrupt, intimidate or harass staff or patrons, making obscene or abusive comments or loud accusations, or intentionally interfering with traffic into or out of the clinic. Pickets were limited to the sidewalk across Bergen Avenue, which is about 36-feet-wide at that point.
After a three-day plenary contested hearing on October 25, 28 and 29, 1991, Judge Schaeffer made the temporary restraints permanent. He found that the graphic and explicit literature distributed and placards displayed were overwhelming to patients and that defendants' conduct harassed and intimidated patients who sought to enter the clinic. He found that the intense din of the amplified prayer of the large group created a disturbance within the clinic, and harassed both staff and patients. He also found that defendants had trespassed by entering the clinic to leave literature, and that the interference with street traffic constituted an inherent hazard or public nuisance.
Judge Schaeffer partly relied on a videotape recorded by one of the demonstrators to determine that the group formed a "solid mass" obstructing ingress and egress. He found that sidewalk counsellors operated in front of police barricades before the arrival of the large group of demonstrators and also at the barriers' extremities. He concluded that despite the orderliness of the demonstration and the absence of violence, clients of the clinic were effectively prevented from rightful access to abortions and other health care. The Judge made these very specific findings:
The witnesses for the Center testified that the number of demonstrators who gathered in an arch or "half moon" around the entrance to the Center was sufficient to deter its patients from entering the premises. Additionally, it was elicited by witnesses that those patients who did enter the premises for the most part were met by the Center's volunteers in the street or other designated places to assist and comfort them as they walked through or passed the demonstrators. There was additional testimony and pictures . . . which indicated that one of the demonstrators was immediately in front of the Center's entrance in an effort to deter patients from entering the premises. This
occurred during the morning of October 19, prior to the main body of demonstrators arriving at the Center's door.
Viewing the videotape . . ., which was taken on October 19, 1991, indicated that this was not a continuous taping of the entire proceeding in front of the Center, but the taping was done in an "on-and-off" fashion by one of the demonstrators who was within the barricade constructed by the Jersey City Police Department. However, it is obvious from this tape that the demonstrators were a solid mass of people arched in front of the entrance to the Center with no ingress except through the picketers or in the walkway established by the police barricade which divided the sidewalk between the Center and the demonstrators. Moreover, Monsignor Reilly and Mr. Felicissimo testified that ...