S.B.B. v. L.B.B.

476 N.J.Super. 575

302 A.3d 574

S.B.B., ¹ Plaintiff-Respondent, v. L.B.B., Defendant-Appellant.

DOCKET NO. A-0305-21

Superior Court of New Jersey, Appellate Division.

Argued April 17, 2023

Decided September 6, 2023

Jane J. Felton argued the cause for appellant (Skoloff & Wolfe, PC, attorneys; Jane J. Felton, Livingston, of counsel and on the briefs; Michaela L. Cohen, Andrew J. Rhein and Steven B. Gladis, on the briefs).

LisaBeth Klein argued the cause for respondent.

Shira Wisotsky argued the cause for amici curiae The American Civil Liberties Union of New Jersey Foundation, The American Civil Liberties Union Foundation, The Jewish Orthodox Feminist Alliance, Sanctuary for Families, and Unchained at Last (The American Civil Liberties Union of New Jersey Foundation, and Vera Eidelman (The American Civil Liberties Union Foundation) of the New York and California bars, admitted pro hac vice, attorneys; Shira Wisotsky, Jeanne LoCicero, Sandra S. Park, and Vera Eidelman, on the brief).

Karin Duchin Haber, Florham Park, argued the cause for amici curiae The Organization for the Resolution of Agunot, and Shalom Task Force (Haber Silver & Simpson, attorneys; Karin Duchin Haber, of counsel and on the brief).

Before Judges Gooden Brown, DeAlmeida and Mitterhoff.

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.

Defendant L.B.B. appeals from the entry of a final restraining order (FRO) entered against her in favor of her estranged husband, plaintiff S.B.B., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassment was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protected free speech, we reverse.

I.

We glean these facts from the record. Following a twenty-year marriage that produced four children, the parties, both practicing members of the Orthodox Jewish faith, separated and have been in the process of obtaining a divorce since mid-2019. The process has been contentious and acrimonious ² and further complicated by a dispute over a get—a religious bill of divorce.

In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a " get" (pluralized as " gittin"), which must, in turn, be signed by an " eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an " agunah" (pluralized as " agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a " beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue " psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.

[ United States v. Stimler, 864 F.3d 253, 259 (3d Cir. 2017), aff'gUnited States v. Epstein, 91 F. Supp. 3d 573, 582 (D.N.J. 2015), rev'd in part on other grounds sub nom.United States v. Goldstein, 902 F.3d 411 (3d Cir. 2018).]

Sometime in March 2021, defendant made a video addressing the get dispute. In the video, defendant asserted plaintiff had refused to give her a get and asked anyone who could to "press" plaintiff to give her a get. On March 19, 2021, after the video was made, plaintiff obtained a TRO against defendant based on a domestic violence complaint alleging harassment. To support the complaint, plaintiff testified at an ex parte hearing that beginning around 3:00 p.m. on March 12, 2021, he received numerous phone calls from unknown numbers, a photograph of himself identifying him as a get refuser and calling on others to "tell him to free his wife," and, ultimately, the actual video defendant had composed.

When plaintiff answered one of the incoming calls, the caller identified himself as being "connected" to various protest "networks" and pressured plaintiff to turn over the get. During his testimony, plaintiff explained his belief that the Jewish community reacts violently to the withholding of a get and that identifying him as a " get refuser" subjected him to kidnappings and brutal beatings. Plaintiff denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020, and averred that he was "terrified" of being "harm[ed]" by the "people ... calling [him]" in response to defendant's accusation and plea in the video. To further support his complaint, plaintiff recounted a history of emotional abuse largely by name-calling throughout the course of the marriage. Subsequently, on March 25, 2021, plaintiff amended the TRO to add cyber harassment as a predicate act.

Defendant moved to dismiss the TRO, arguing any alleged dissemination by defendant was protected free speech. Relying on State v. Burkert, 231 N.J. 257, 174 A.3d 987 (2017), the trial judge denied the motion. On April 8, 2021, an FRO trial was conducted via Zoom, during which plaintiff and defendant testified. Both parties were represented by counsel.

During his testimony, plaintiff confirmed that he and defendant were separated. He lived with his parents while defendant remained in the marital home with their children. He testified that he received a call on Friday, March 12, 2021, around 3:00 p.m., on the FaceTime videoconferencing app. Plaintiff did not answer, but was able to see that thirty separate phone numbers had joined the call, none of which were familiar to him. The group attempted to call back roughly ten more times before plaintiff put his phone in airplane mode. About half an hour later, when he turned his reception back on, the calls resumed. Initially, the calls seemed "weird," but then plaintiff became "alarmed" by the calls. Plaintiff continued to ignore the calls and blocked the associated numbers.

Two days later, on March 14, 2021, plaintiff received a message from his sister in Israel. The message contained a photo of himself that he had posted as his "status" on the WhatsApp messaging app. Above the photo was written:

This man has refused to give his wife a get. His name is [S.B.B.]. He is holding his wife chained for over a year and a half. He lives in Elizabeth NJ. If you see him, tell him to free his wife. #FREE[L.B.B.].

In addition to his sister, plaintiff received the photo from one other person he knew.

When plaintiff saw the photo, he was "shock[ed]," "embarrassed," and "scared." Plaintiff explained that the photo would give community members the impression that he was "a get refuser" which "[could] be dangerous for [him]." Plaintiff testified that he had witnessed his father "[getting] beat[en] up" because "he was a get refuser." Additionally, plaintiff denied the accusation and was adamant that he was not a get refuser, having given the get to the Chief Rabbi of Elizabeth. His "understanding" was that the get would be provided to defendant "within [twenty-four] to [forty-eight] hours after the civil divorce [was] done in court." He also suggested that the Chief Rabbi had the discretion to give the get to defendant at any time. He explained his view that only a " beth din" could declare someone a get refuser.

Between March 14 and 15, 2021, plaintiff received numerous communications, including approximately ten "private or anonymous" calls, none of which he answered. In addition to the anonymous calls, on the afternoon of March 14, 2021, plaintiff received a message on WhatsApp from the Chief Rabbi's son. The message contained a video showing defendant speaking to the camera, saying:

Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach ... the community Rabbi[ ] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha^{[ 3 ]} on his head.

Several friends also sent the video to plaintiff. Plaintiff believed defendant posted the video "[b]ecause she wanted people to press [him] to give her a get." When specifically asked what he thought his wife meant by asking people to "press" him for the get, plaintiff answered:

It can be anything. If we go by Jewish rules, old rules .... [y]ou take him, get him and beat him up until he says I will give it, the get. That's the old Jewish law about it. And people take action. Today it starts with protesting and then it gets to harming people that are get refusers.

At 10:21 p.m. on March 15, 2021, plaintiff received another call. This time, thinking the phone number looked "familiar," he answered. Plaintiff testified the caller introduced himself as "Hiam" and said he was "calling about the get." He identified himself as someone who "[knew] a lot of people" and was part of "different networks." According to plaintiff, Hiam told him if he did not give his wife a get, they would "come and protest next to [his] house." Hiam added "you know what happen[s] otherwise if you don't give a get." After Hiam refused to explain how he obtained plaintiff's phone number, plaintiff hung up. Plaintiff testified that, a moment later, Hiam called back, screaming at plaintiff and telling plaintiff he wanted "to meet [him]." Plaintiff hung...