MAJOR WIN FOR AGUNOS: APPELLATE COURT RULES THAT "GET ME A GET" VIDEOS ARE LEGAL

FIRST REPORT

In a very precedential decision, the New Jersey Appellate Division on Wednesday ruled that a woman's creation and dissemination of a video accusing her estranged husband of improperly withholding a get and asking community members to "press" her husband to deliver the get is protected free speech and not harassment.

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.

Sometime in March 2021, the wife made a video asserting that her estranged husband had refused to give her a get and asked anyone who could to "press" him to give her a get.

Immediately afterwards the husband began to receive many phone calls from people who called him a get refuser and told him to free his wife. One caller identified himself as being "connected" to various protest "networks" and pressured the man to turn over the get.

Additionally, the husband received a FaceTime videoconferencing call which was joined by thirty separate phone numbers, none of which were familiar to him. The group attempted to call back roughly ten more times before he put his phone in airplane mode. About half an hour later, when he turned his reception back on, the calls resumed.

Two days later, he received a message from his sister in Israel. The message contained a photo of himself and said:

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, the man also received the photo from one other person he knew.

Days later, the husband filed an application for a Temporary Restraining Order against his ex-wife based on a domestic violence complaint alleging harassment. After this was granted the husband filed for a Final Restraining Order.

During his testimony, the man said that initially, the calls seemed "weird," but then he became "alarmed" by the calls.

He stated that when he saw the photo, he was "shocked," "embarrassed," and "scared" as the photo would give community members the impression that he was "a get refuser" which "[could] be dangerous for [him]."

He averred that he was "terrified" of being "harm[ed]" by the "people . . . calling [him]" in response to her accusation and plea in the video. 

The man testified that he believed his ex-wife posted the video "because 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, he answered: 

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.

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.

He testified that he had witnessed his father "getting beaten up" because "he was a get refuser."

Importantly, he also denied withholding the get, claiming that he had given the get to the Chief Rabbi of Elizabeth in June 2020, with the understanding that the get would be released 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 release the get at any time.

The woman testified that it was not her intent to harass her ex-husband. She testified that she did not create the "#FREE[L.B.B.]" photo image and had no part in posting either the video or the photo on social media. Additionally, she was not part of any of the phone calls and did not know who made them. She also testified that the first time she saw the "#FREE[L.B.B.]" photo image was when a friend sent it to her, but acknowledged she was not concerned by the photo image. 

She also admitted creating the video around March 6, 2021, at the request of a rabbinical judge, and claimed she only sent the video to the rabbinical judge. She explained that "under [the Jewish] religion [the rabbinical judges] are to press on the husband to give the get."

On cross-examination, she acknowledged that she also sent the video to a therapist "friend" but was reluctant to divulge the friend's name and contact information for fear of "potential retribution." She explained she did not believe that accusing plaintiff of withholding a get in the video would put him in danger of being threatened or hurt. When questioned about his father's get refusal, she testified she was not aware of him being attacked. Rather, it was her understanding that he had "sat in jail" as a result of the refusal.

The wife argued that the TRO should be dismissed as any alleged dissemination by her was protected free speech.

The trial judge dismissed her motion and granted the husband the FRO, which barred the wife from having "any oral, written, personal, electronic, or other form of contact or communication with her ex-husband," and specifically ordered her to "remove any and all posts from all social media platforms requesting the 'get'" and "cease and desist . . . creating and posting on all social media platforms."

The judge stated that the wife's "testimony didn't make much sense," particularly since she claimed she made the video for the rabbinical judges but addressed the plea in the video to anyone who could help her. Additionally, the judge pointed out that during questioning, the woman was "looking all over the room" and "there was a blank look in her face."

 

Based on her credibility assessment, the judge found that she "created the video" and "sent it to the community," rather than "the rabbi," in order "to get the get." Applying the elements of the harassment statute to her factual findings, the judge concluded that the husband "met [his] burden by a preponderance of the evidence" of proving that she committed harassment. Specifically, the judge found that "while the end result" of making the video and sending it out into the community "might have been to get her get . . . , the way in which she went about getting that get was with a purpose to press, harass, annoy, [and] alarm him."

 

The judge also found that the communication was "invasive" of the husband's privacy, because the video was sent to "the Jewish community," saying: the purpose of that communication was to infringe upon his legitimate expectation of privacy not to . . . have . . . phone calls or . . . people come to the house or picket or call or threaten. But that was the purpose because in that community, that's what happened. You either go to jail, [or] you get beat when you're a get refuser. So putting that video and telling people to press her husband, to press him for that get, under the totality of the circumstances is a clear intrusion into his expectation of privacy and safety.

Critically, the judge rejected defendant's free speech claims, explaining that "one cannot hide behind the First Amendment when that communication is invasive of the recipient's privacy. The First Amendment cannot protect this kind of communication to incite, which is clearly invasive of his safety and privacy." In assessing the threat to plaintiff's safety associated with being labeled a get refuser, the judge noted:

There was no expert that came into this court to explain what a get is or the realities of the get. This court is not taking judicial notice of . . . what a get refuser is. But in listening to the testimony of both parties it's clear that it is something serious in the Jewish community. The husband testified that he watched his father be beaten because he was a get refuser. And I believe . . . he also testified . . . that you can go to jail for being a get refuser. 

So the court does glean from the testimony that being a get refuser in the Jewish community is a very serious allegation with substantial consequences, which is clear from the testimony under the totality of this case.

Next, the judge found that an FRO was "necessary to protect . . . the husband from this continued behavior, . . . [and] from having . . . his wife incite the community that her husband is a get refuser, which clearly puts him in a very dangerous position." In her analysis, the judge once again relied on her understanding that it "can incite violence when you call someone a get refuser." The judge noted that "the existence of immediate danger to person or property" was "clear" because when "you tell the Jewish community that your husband is a get refuser," then "he is subject to danger period or imprisonment."

The judge explained that although the husband stated he was "not necessarily in fear of the woman herself," he was "in fear of the continued invasion of his privacy and his safety . . . at the hands of her by her actions" and "people are entitled to feel safe" and "to be free of this continued abuse." The judge also found that "the best interest" of the husband and his children would be served by awarding the FRO because a third party "acting on defendant's request while the children were present . . . would put not only . . . him, but also the children in danger."

The judge denied the wife's subsequent motion for reconsideration, and awarded the husband attorney's fees and costs in the amount of $10,035 as compensatory damages.

The wife appealed to the Appellate Division.

Seven organizations appeared as amici curiae in support of her position; (1) the American Civil Liberties Union of New Jersey; (2) the American Civil Liberties Union; (3) the Jewish Orthodox Feminist Alliance; (4) Sanctuary for Families; (5) Unchained at Last; (6) the Organization for the Resolution of Agunot; and (7) Shalom Task Force.

In a published decision, Judges Gooden Brown, DeAlmeida and Mitterhoff agreed with the woman and vacated the restraining order, finding that "under the circumstances of this case, the means employed by the wife to achieve her goal is entitled to First Amendment protection."

The judges wrote:

The trial judge's finding of the predicate act of harassment was based exclusively on the wife's creation and dissemination of the video. A person commits harassment if, "with purpose to harass another, he [or she] . . . [m]akes, or causes to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a).

A violation of subsection (a) requires the following 

elements: (1) the wife made or caused to be made a communication; (2) the wife's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient. [Hoffman, 149 N.J. at 576.]

Our courts have decreed that N.J.S.A. 2C:33-4(a) "does not proscribe mere speech, use of language, or other forms of expression." State v. L.C. (App. Div. 1995). No statute could do so, as "the First Amendment to the federal Constitution permits regulation of conduct, not mere expression." State v. Vawter.

The judge found that by creating and disseminating the video, the wife communicated in a manner proscribed by N.J.S.A. 2C:33-4(a) with a purpose to 

harass him. Further, according to the judge, her communication was not protected by the First Amendment. The judge's holding was predicated on her determination that being identified as a get refuser was inherently dangerous and her purpose in asking members of her community to "press" plaintiff to give her a get was to incite violence. Conversely, the wife argues that in creating and disseminating the video, she engaged in constitutionally protected speech. She contends her speech did not rise to the level of incitement and thus retained its constitutional protection under the First Amendment.

Subsection (a) of the harassment statute is aimed, not at the content of the offending statements but rather at the manner in which they were communicated. Indeed, many forms of speech are intended to annoy. Letters to the editor of a newspaper are sometimes intended to annoy their subjects. We do not criminalize such speech, even if intended to annoy, because the manner of speech is non-intrusive. Here, the judge found that the manner of communication fell under the so-called "catchall provision" in that it was made in "any other manner likely to cause annoyance or alarm."

However, "evidence of an atmosphere of general intimidation is not enough to find . . . a 'true threat.'" Carmichael.

Applying these principles, we are convinced that the video, whether viewed on its own or in the context in which it was disseminated, does not fall outside the First Amendment's protection.

The judge concluded that the video was not protected by the First Amendment because members of the Jewish community would respond violently to plaintiff being identified as a get refuser. The judge stated that "the First Amendment cannot protect this type of communication to incite, which is clearly invasive of the man's safety and privacy." However, such an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render defendant's video a true threat or an imminent danger to satisfy the incitement requirement. On the contrary, in Epstein, the court explained that disseminating the names of get refusers "so that the reading public will hold them in disrepute," and otherwise taking steps to "shun and embarrass a recalcitrant husband . . . does not violate the criminal laws of the United States."

Critically, the First Amendment does not prohibit name calling and protects 'vehement, caustic, and sometimes unpleasantly sharp attacks' as well 

as language that is 'vituperative, abusive, and inexact. Similarly, "threats of vilification or social ostracism" do not lose their protected status. If the literal threat "to break . . . necks" in Claiborne, against a backdrop of actual acts of retaliation and violence committed by boycott supporters against boycott violators, was not outside the First Amendment's protection, it is hard to see how this woman's video, with, at most, only nonspecific threatening connotations, could be unprotected.

The judge's suggestion that the husband had a right to not be subjected to anonymous phone calls, threats, or picketing at his house—especially absent evidence that wife made calls herself or distributed his contact information—is likewise insufficient to render defendant's speech unlawful. Only the #FREE[L.B.B.] photo image, which the judge did not attribute to the wife, identified her husband's hometown, not the video. Moreover, there was no direct evidence of a link between the creation of the video, the dissemination of the video, and the husband's receipt of anonymous phone calls. In any event, the acts of identifying an individual, encouraging others to call them and urge them to change their behavior, and picketing in their hometown are protected activities under Keefe.

Although the judge found that get refusers, like plaintiff's father, were at risk of imprisonment, there is no such offense in our penal code. Israeli courts—where marriage and divorce are governed exclusively by religious law—retain the power to impose sanctions including fines or jail sentences for get refusal. However, no such risk exists in state courts, as it is a fundamental principle that civil courts may not become entangled in religious proceedings "if resolution requires the interpretation of religious doctrine." Ran-Dav's Cnty. Kosher v. State, see also Satz v. Satz rejecting the ex-husband's argument that the trial court violated his First Amendment rights by enforcing the provisions of a marital settlement agreement, rather than a religious contract, in which the parties agreed to participate in a beth din proceeding to obtain a get that the ex-wife sought.

Because calls to exhort social pressure on the husband would necessarily fall under the aegis of First Amendment protection and the specter of imprisonment for refusing a get is unrealistic, harassment must be found - if at all - in the threat of violence. However, the judge's conclusion that such threats were real and imminent is simply not supported by the record. First Amendment protections cannot be vitiated on unsubstantiated findings of fact. The video itself, which was not even directed to the husband, contained no overt call for or reference to violence.

Even an overt invocation of violence, however, would be insufficient to strip the statement of First Amendment protection. Instead, to qualify as incitement and lose First Amendment protection -as the judge tacitly found - a communication must be both "directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action." However, such is not the case on this record. The difference between lawful and lawless action "may be identified easily by reference to its purpose."

The wife's ultimate objective was unquestionably legitimate - it was to get a get. We are persuaded that under the circumstances of this case, the means employed by the wife to achieve her goal is entitled to First Amendment protection.

In sum, the judge's finding that the Jewish community was prone to violence against get refusers - and the implicit holding that the woman was aware of and intentionally availed herself of such violent tendencies - is not supported by the record. The video was intended to get a get. The video did not threaten or menace the husband, and nothing in the record suggests that his safety or security was put at risk by the video. Neither his testimony that his father had been beaten for being a get refuser at an unspecified time and place nor the wife's vague testimony that his father had been imprisoned for being a get refuser sufficed.

Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, the woman's speech does not fall within 

the narrow category of incitement exempted from First Amendment protection.

Likewise, because the judge's finding of a privacy violation relied upon the same factual finding, the record does not support the finding that the manner of defendant's communication violated the harassment statute. As our Supreme Court in Hofman explained, N.J.S.A. 2C:33-4 criminalizes only those "private annoyances that are not entitled to constitutional protection." The wife's communication does not meet that criteria, the Appellate panel concluded.

The winning attorneys are Jane J. Felton, Michaela L. Cohen, Andrew J. Rhein and Steven B. Gladis Esq. of Wolfe, PC.

Attorneys Shira Wisotsky, Jeanne LoCicero, Sandra S. Park, and Vera Eidelman Esq. 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.

Attorney Karin Duchin Haber Esq. of Haber Silver & Simpson argued the cause for amici curiae 

The Organization for the Resolution of Agunot, and 

Shalom Task Force.

For decades, the New Jersey judicial system has been shy of getting tangled up in get refusal disputes, saying that they lack any authority to order a husband to provide a Get to his wife.

However, this is now the second precedential ruling released - just weeks apart from each other - by the Appellate Division granting some relief to agunos.

Just weeks ago, as previously reported here on FAA News, the Appellate Division issued a published decision establishing that the judicial system can enforce a Marital Separation Agreement even when it includes an agreement by the husband to sign an arbitration agreement with the beis din, to participate in beis din proceedings, and to abide by the beis din ruling, whatever that might be.

In that ruling, the Court concluded that the Family Part judge did not violate the husband's First Amendment rights by ordering him to keep his word because the Family Part judge was asked to enforce the MSA which the parties entered into knowingly and voluntarily and is a civil contract, not a religious one.

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