On remand from the Supreme Court of the United States, whose order is reported at U.S. (1994).
The opinion of the Court was delivered by Clifford, J. Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, and Stein join in this opinion. Justice Pollock did not participate.
The opinion of the Court was delivered by
In Murray v. Lawson, 136 N.J. 32, 642 A.2d 338 (1994), this Court upheld an injunction prohibiting defendants, anti-abortion protestors, from picketing within 300 feet of the residence of plaintiffs, a physician who performs abortions and the physician's wife. We concluded that the injunction was a permissible time, place, and manner restriction on defendants' speech. Thereafter, the United States Supreme Court announced its decision in Madsen v. Women's Health Center, Inc., 512 U.S. , 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994), which held impermissible under a stricter constitutional standard an injunction prohibiting anti-abortion protestors from picketing within 300 feet of the residence of any owner, agent, staff member, or employee of the defendant in that case, a clinic at which abortions are performed.
The Murray defendants petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court granted certiorari, vacated our earlier judgment, and remanded the cause to this Court "for further consideration in light of Madsen. " U.S. , , 115 S. Ct. 44, 44, L. Ed. 2d (1994). Having revisited our earlier decision, we are persuaded that the 300-foot restriction we upheld in Murray cannot remain in place and that we must alter the terms of the injunction.
The facts are set forth in detail in Murray, supra, 136 N.J. at 36-40. We repeat here only those facts that are relevant to the remand from the United States Supreme Court.
Plaintiff Dr. Elrick Murray is a licensed obstetrician and gynecologist with a private practice in Plainfield. Dr. Murray performs abortions at several hospitals and clinics in New Jersey. He and his wife, plaintiff Belinda Murray, live with their three children in a suburban neighborhood of Westfield. In 1991 the children were ages six, eleven, and fifteen. For about two years before January 1991, defendants regularly demonstrated against abortion by picketing at one of the clinics where Dr. Murray performs abortions.
On December 14, 1990, defendant Lawson, having discovered Dr. Murray's Westfield address, went to that address to determine whether it was current. Lawson was surprised to find a residence instead of an office. Lawson rang the doorbell and plaintiffs' then-fourteen-year-old son answered the door. After confirming that the house was the Murray residence, Lawson told the boy to tell his father to stop doing abortions. Mrs. Murray came to the door and told Lawson to leave and not to return. He left immediately. Mrs. Murray testified that the visit frightened and upset her.
About a month later, Lawson informed the Westfield police that approximately fifty people planned to picket peacefully outside the Murray residence on Sunday, January 20, 1991. The administrator of one of the clinics at which Dr. Murray worked warned him about the protest. On the advice of the Westfield police, Dr. Murray sent his family away for the day but he remained at home.
On 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. 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, walking generally two abreast but sometimes four or five abreast, carried signs that stated variously, "Dr. Murray scars women and kills their unborn children," "Elrick Murray pre-born baby exterminator and nomad abortionist," and they exhibited a placard that showed a decapitated infant with the
caption "Elrick Murray, abortionist." Defendants also spoke to several neighbors including one teenager whom they asked whether he knew that a killer lived in the neighborhood.
In February 1991 plaintiffs filed suit in the Chancery Division seeking damages and injunctive relief against defendants, Lawson, Crist, and fictitiously-named others. The 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 State and federal constitutions. 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.
After a hearing on February 14 and 22, 1991, the Chancery Division entered a temporary restraining order 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. The order also limited defendants' picketing to two persons, for one hour, every three weeks.
No demonstrators picketed at the Murray residence until May 4, 1991. On April 22, 1991, however, one of the clinics at which Dr. Murray performed abortions burned to the ground under circumstances that persuaded police and fire officials that the fire had been the work of an arsonist. Between April 22 and May 4, 1991, defendant Lawson picketed at another clinic and at Dr. Murray's office. On May 2, 1991, another clinic at which Dr. Murray performed abortions received a bomb threat, causing the police to evacuate the site. Authorities never determined who was responsible for the fire or for the bomb threat. Although no evidence linked defendants to the arson or to the warning of a bomb, the doctor felt threatened by and fearful of defendants.
On May 4, 1991, two days after the bomb threat, defendant Lawson and another picketer reappeared to picket in front of the Murray residence. Dr. Murray called the police. After the police arrived, the doctor came out of his house and engaged in a heated verbal exchange with the picketers. At the urging of the police, Dr. Murray returned to his house, but then emerged again and took a swing at Lawson. Dr. Murray was later convicted of simple assault in the Westfield Municipal Court.
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 court dismissed the claim of interference with Dr. Murray's profession, considered the claim for interference with use and enjoyment of property as subsumed under the tortious-invasion-of-privacy claim, found Lawson's trespass irrelevant to the picketing, and declined to award money damages for plaintiffs' invasion-of-privacy and intentional-inflictionof-emotional-distress claims.
Defendants appealed the trial court's issuance of the injunction. Plaintiffs did not cross-appeal the court's other rulings. In a published opinion, the Appellate Division upheld the 300-foot restriction, 264 N.J. Super. 17 (1993), finding that the trial court had the authority to issue the injunction and that the restrictions contained therein survived defendants' free-speech challenge.
We granted defendants' petition for certification, 133 N.J. 445 (1993), and thereafter affirmed the Appellate Division's judgment upholding the injunction. We determined that the Chancery Division did have the authority to issue the injunction and that the 300-foot restriction contained therein was a permissible time, place, and manner restriction on defendants' speech. Murray, supra, 136 N.J. 32.
First, we concluded that the injunction was content neutral. We reasoned that although the injunction restricted the speech of only anti-abortion protestors, the Chancery Division had imposed it not because of the protestors' viewpoint but rather only because defendants' conduct had interfered with plaintiffs' residential privacy. Id. at 45-46. Next, we decided that protection of residential privacy constitutes a significant government interest justifying the imposition of injunctive restrictions. Id. at 47-49. To support that proposition we relied on our common law and on the United States Supreme Court decision in Frisby v. Schultz, 487 U.S. 474, 484, 108 S. Ct. 2495, 2502, 101 L. Ed. 2d 420, 431 (1988) (concluding that protection of residential privacy is significant government interest). Finally, we found that the 300-foot ban had been narrowly tailored to promote that significant government interest in the protection of residential privacy. Id. at 51-53.
As ordered by the United States Supreme Court, we now reconsider the foregoing holdings in light of Madsen, supra, 512 U.S. , 114 S. Ct. 2516, 129 L. Ed. 2d 593.
Because Madsen necessarily determines the outcome here, we outline the Court's opinion in that case in some detail. In Madsen, the respondents operated abortion clinics throughout central Florida, including one such clinic on a highway called "Dixie Way" in Melbourne. The petitioners, anti-abortion protestors, picketed and demonstrated outside the clinic. 512 U.S. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603. In September 1992 a Florida state court issued a permanent injunction prohibiting the protestors "from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving the clinic." Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603. Six months later, the clinic sought to expand the restrictions. Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603. The trial court made additional findings of fact and issued a broader injunction, which
the Florida Supreme Court upheld and which eventually became the subject of the United States Supreme Court's ruling in Madsen.
In respect of the protestors' continued activities at the clinic despite the existence of the earlier injunction, the trial court found that the protestors had "continued to impede access to the clinic by congregating on the paved portion of the street -- Dixie Way -- leading up to the clinic, and by marching in front of the clinic's driveways." Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603. Vehicles attempting to enter the clinic's parking lots had to reduce speed to allow the protestors to move out of the way, and as they slowed, sidewalk counselors would approach the vehicles and attempt to give the occupants antiabortion literature, and would urge them not to use the clinic's services. Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603. The people outside the clinic, whose number varied from a mere handful to a throng of 400, would sing, chant, and use loudspeakers and bullhorns. Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603.
The trial court also found that the protestors' activities had affected the health of the clinic's patients. The difficulty in gaining access to the clinic had made the patients more anxious and tense, thereby requiring that they receive more sedation before undergoing surgical procedures, which in turn increased the risk of such procedures. Moreover, patients inside the clinic could hear the noise from the protests, a circumstance that caused more stress during the procedures and during recovery. Finally, for those patients who chose not to enter the clinic because of the crowd, the risks to their health were increased by the delay. Id. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 603.
The trial court also made findings related to the protestors' activities at the residences of the clinic's staff. The Florida Supreme Court appended to its own opinion the trial court's specific factual findings:
G. On other occasions since the entry of the injunction * * *, the respondent * * * and others in concert with him approached the private residences or
temporary lodging places of clinic employees. These approaches included not only direct communication with the occupants (sometimes the 'home alone', minor children of the occupants), but also carrying signs, walking up and down on the sidewalk or street in front of the residence, shouting at passersby, contacting (ringing doorbells of) neighbors, and providing literature identifying the clinic employee as a 'baby killer'.
H. On one occasion the respondent * * * with others went to the vicinity of the motel where a staff physician was temporarily staying and demonstrated. While respondent * * * remained outside just off the premises of the motel, others went upon the premises of the motel, some entering the motel lobby, yelling 'child murderer' and 'baby killer'. The doctor testified that as a result of such activity his departure for the clinic was delayed by one-half hour.
[626 So. 2d 664, 677-78 (1993).]
Based on those findings, the trial court determined that the restraints imposed by its initial injunction were insufficient. See Madsen, supra, 512 U.S. at , 114 S. Ct. at 2521, 129 L. Ed. 2d at 604. Accordingly, the trial court expanded the injunction on activities at the clinic by providing that the protestors were prohibited from entering the clinic's premises; from blocking access to the clinic; from picketing within thirty-six feet of the clinic's property line; from making sounds or showing images that could be heard or seen inside the clinic; from approaching physically, within 300 feet of the clinic, any person seeking to use the clinic's services (unless such person indicates a desire to speak to the protestors); and from assaulting owners, staff, or patients of the clinic. Id. at , 114 S. Ct. at 2521-22, 129 L. Ed. 2d at 604-05.
The trial court's expanded injunction also included restrictions protecting the clinic's owners, agents, staff, and employees at their homes. It prohibited the protestors
at all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within three-hundred (300) feet of the residence of any of the [clinic's] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [clinic's] employees, staff, owners or agents. The [protestors] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, ...