In what has been touted as a monumental victory for agunot in New Jersey, earlier this month, the Appellate Division released a decision stating that a video publicizing a husband’s get refusal is protected by First Amendment principles of freedom of speech.
In S.B.B. v. L.B.B., the Appellate Division sided with a Union County woman who was found liable under the Prevention of Domestic Violence Act for harassment, based on a video she created accusing the husband of get refusal.
The video at issue was created two years after the woman and her husband of 20 years separated and she beseeched the community to press the chief rabbi of Elizabeth to press her husband to unchain her. According to the decision, the video was disseminated using social media platforms.
The husband contended that in response, he was met with an onslaught of phone calls and other demands to “free” his wife and labeling him a “get refuser.”
As a result of the video, the husband sought a restraining order against his wife. The husband testified at the ensuing hearing that his wife’s video put him in fear for his physical well-being because he could be faced with kidnappings or a brutal beating, and that it also subjected him to harassing and alarming phone calls from third parties. He also testified that his own father had been imprisoned for his failure to grant his wife a get.
On the other hand, the wife argued that in creating and disseminating the video, she engaged in constitutionally protected speech and that her intentions were not to alarm the husband, but to compel him to grant her a get.
Following the hearing, the trial court granted the husband a restraining order based on a predicate finding of harassment, concluding that the video constituted incitement and an invasion of privacy. The judge determined that identification as a get refuser is inherently dangerous and the wife’s purpose in asking members of her community to “press” her husband to give her a get was to incite violence.
The judge barred the wife from further posts on social media concerning her husband’s conduct, and further prohibited the wife from contacting her husband. The wife was also ordered to pay damages in the amount of $10,035.
The wife thereafter filed a Motion for Reconsideration, wherein she submitted a certification by Rabbi Daniel Shevitz to explain to the Court the social implications of the decision. Rabbi Shevitz explained to the Court that the husband was not compliant in granting his wife a get because he had texted his wife that he would only grant her the get upon her signing a divorce settlement agreement. Rabbi Shevitz concluded that get refusal is a common form of abuse, and that it was being utilized in this case as a means to extort the wife.
The trial court denied the wife’s motion, and the wife appealed the decision.
In the precedential decision, approved for publication, the Appellate Division reversed the trial court’s findings and vacated the restraining order and damages awarded to the husband.
Not only did the Appellate Division find that the wife’s conduct did not fulfill the statutory criteria for harassment—because a defendant’s “mere awareness that someone might be alarmed or annoyed is insufficient”—but that the ruling transgressed First Amendment free speech principles.
The Appellate Division went through a litany of circumstances where, like here, speech was intended to exhort others to take action upon such speech, including examples from the Civil Rights Movement, Ku Klux Klan rallies, and a drug lord’s publication of a website with the putative goal of spreading awareness of his case and seeking information about individuals involved.
After a full analysis of free speech precedent, the Appellate Division concluded: “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 Appellate Division further rejected the trial court’s findings that “[t]he First Amendment cannot protect this type of communication to incite, which is clearly invasive of [plaintiff’s] safety and privacy” because an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render the wife’s video a true threat or an imminent danger to satisfy the incitement requirement.
To the contrary, as the Court found in the Epstein decision—the notorious case concerning brutality against get refusers—the purpose of disseminating the names of get refusers is “so that the reading public will hold them in disrepute,” and otherwise taking steps to ‘shun and embarrass a recalcitrant husband…’” As the Appellate Division further noted, 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.’”
The Appellate Division also astutely rejected the notion that get refusers—like the husband’s father—were at risk of imprisonment, finding that there was no support for such a finding in New Jersey’s penal code. Citing the recently released decision Satz v. Satz, the court stated that “[n]o 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.”
Several groups advocating against get refusal in the Orthodox Jewish community filed briefs in the case in favor of the wife, including Jewish Orthodox Feminist Alliance, the Shalom Task Force and the Organization for the Resolution of Agunot.
Many in the community celebrated the win for women’s liberties, viewing the videos such as the one made by the wife as a critical tool in the prevention of agunot, or chained women.
Eliana T. Baer is a partner in the family law practice group of Fox Rothschild LLP, representing clients statewide in divorce, asset distribution, support, custody, domestic violence, premarital agreements and Appellate Practice. Eliana has been selected to the Best Lawyers in America (2024), Super Lawyers-Rising Stars (2014-2023), New Leaders to the Bar by the New Jersey Law Journal (2018), “Top 10 Under 40” list by the National Academy of Family Law Attorneys (2017), and “Trailblazers” list in Divorce Law (2016). She appears in both civil and rabbinical courts. You can reach Eliana at (609) 895-3344, or [email protected].