On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, whose decision is reported at 248 N.J. Super. 501, 591 A.2d 699 (Ch. Div. 1991).
King, Brody and Landau. The opinion of the court was delivered by King, P.J.A.D.
Defendants appeal from a permanent restraining order entered on September 3, 1991 limiting the place and manner of antiabortion residential picketing by defendants. The Chancery Judge had entered a temporary restraining order several months earlier on April 8, 1991. See Boffard v. Barnes, 248 N.J. Super. 501, 591 A.2d 699 (Ch.Div.1991). The restraining orders were based on a written record and oral argument but without live testimony.
Both the temporary and the final restraining order stated:
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:
1. From gathering, parading, patrolling for the purpose of demonstrating or picketing within the immediate vicinity of the plaintiffs' residence . . . .
2. Distributing flyers to plaintiffs' neighbors which contain references to plaintiff as being a murderer or killer or his practice as involving murder or killing or which contains any other inflammatory language or which sets forth the plaintiffs' home address.
3. Carrying placards which contain depictions of a fetus . . . .
Defendants attack the orders as violative of their First Amendment rights. Defendants claim that the restrictions on place, manner and content are unconstitutional. We affirm paragraph one of the order as a valid place and manner restraint against targeted or focused residential picketing. Paragraphs two and three of the order improperly attempt to control the content of defendants' message and prohibit publication of their viewpoint. We reverse as to paragraphs two and three.
On September 8, 1990 defendants and others conducted antiabortion pickets in front of plaintiffs' residence in Short Hills, Millburn Township. Defendants are persons opposed to abortion and plaintiff Daryl K. Boffard, M.D., is an obstetrician and gynecologist associated with an Irvington medical group which offers
abortion services as well as obstetrical and gynecological care. Defendants had been picketing at Dr. Boffard's Irvington clinic for two years before they picketed the doctor's home, where he resides with his wife and three young children. The doctor's home is located on a narrow street with only two houses and room for only one car to traverse at a time. Because the house has no backyard, the children play in the front yard and on an adjoining lot.
According to Virginia Boffard, the doctor's wife, the presence of about twenty picketers prevented her from taking her children outside to play. Picketers carried signs saying "Dr. Daryl Boffard Kills," "Dr. Boffard Kills Babies," and "God Says Thou Shalt Not Kill." One sign showed a mutilated full-term baby, and another showed fetal parts in blood with the caption, "This is an abortion." When Virginia Boffard approached the demonstrators, defendant Dorothy Black said, "Your husband is a murderer." ...