Rotenberg Meril Solomon Bertiger and Guttilla, P.C. v. Stop Huntingdon Animal Cruelty, et al./C17226

The following is the wikification of the brief filed in the Rotenberg Meril Solomon Bertiger & Guttilla, P.C. v. Stop Huntingdon Animal Cruelty, et al. case:

---

December 13, 2007

Via UPS Overnight

The Honorable Peter E. Doyne, J.S.C.
Bergen County Superior Court
Bergen County Justice Center
10 Main Street, Room 323
Hackensack, NJ 07601

RE: Rotenberg Meril Solomon Bertiger & Guttilla, P.C. v. Stop Huntingdon Animal Cruelty, et al.

Docket No.: BER-C-337-07

Our File No.: C17226

Dear Judge Doyne:

   Please accept the following letter brief in lieu of a more formal reply to defendants Pulgrano, Cariello, Perlstein and Bellard’s (together “Moving Defendants”) opposition to plaintiff’s application for a preliminary injunction. Plaintiff’s request for preliminary injunctive relief is scheduled to be heard by this Court on December 21, 2007.
   Moving Defendants, through counsel, have objected to two aspects of plaintiff’s proposed preliminary injunction. Their first objection is to the requested prohibition of the wearing of masks or bandanas during demonstrations. Their second objection is to the requested prohibition against demonstrating at the homes of plaintiff’s principals on Saturdays (except from noon to 4:00 pm), Sundays and national holidays. As set forth below, plaintiff submits that the arguments made by the Moving Defendants as to each of these issues is misplaced, and that this Court should sign the preliminary injunction as proposed.

THE PROPOSED PROHIBITION AGAINST THE WEARING OF MASKS,
BANDANAS OR OTHER FACE COVERINGS DOES NOT RESTRICT
SPEECH OR EXPRESSIVE CONDUCT

   The United States Supreme Court has “long recognized that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” City of Dayton v. Esrati, 125 Ohip App. 3d 60, 66 (1997), quoting Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533 (1989) (internal citations omitted). The Supreme Court has cautioned, however, “we cannot accept the view that an apparently limitless variety of conduct can be labeled as ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Church of the American Knights of the Ku Klux Klan v. The City of New York, 356 F.3d. 197, 205 (2nd Cir. 2004), quoting United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673 (1968). Thus, to determine whether particular conduct is sufficiently expressive to implicate the right to free speech, the Court must determine whether “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Id., see also Church of the American Knights of the Ku Klux Klan v. City of Erie, 99 F. Supp.2d 583, 587 (W.D.Pa. 2000), quoting Texas v. Johnson, 491 U.S. at 404. “The party asserting that its conduct is expressive bears the burden of demonstrating that the First Amendment applies, and that party must advance more than a mere ‘plausible contention’ that its conduct is expressive.” Church of the American Knights of the Ku Klux Klan v. The City of New York, 356 F.3d. at 205, citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065 (1984); see also Hernandez v. Superintendent, 800 F. Supp. 1344, 1350 (E.D. Va. 1992).
Here, the Moving Defendants allege that the prohibition against wearing masks, bandanas or other face coverings violates the First Amendment to the United States Constitution as well as Article I, Paragraph 6 of the New Jersey Constitution because it interferes with the well-established right to anonymously exercise one’s rights to free speech and expression. See, e.g. Dendrite International, Inc. v. Doe, 342 N.J. Super. 134 (App. Div. 2001) (“It is well-established that rights afforded by the First Amendment remain protected even when engaged in anonymously.”) However, as the Moving Defendants clearly admit in the certifications of Matthew Pulgrano and Tara Cariello, they had no intention of conveying a particular message when donning facial coverings. Indeed, they further admit that the reason for facial coverings is to avoid the media publicity surrounding their demonstrations:

I have worn a bandana when I have picketed in front of a partner’s home because at other demonstrations strangers have come around to photograph the protests. I do not want to be photographed because I do not want my face published on the Internet or in the press.

Certification of Matthew Pulgrano at ¶ 2; Certification of Tara Cariello at ¶ 2.1 Since the Moving Defendants are not covering their faces in an attempt to convey a particular message, a prohibition against wearing masks, bandanas or other face coverings would not interfere with the Moving Defendants’ rights to free speech and expression.
In Church of the American Knights of the Ku Klux Klan v. The City of New York, 356 F.3d. 197 (2nd Cir. 2004), the United States Court of Appeals for the Second Circuit addressed the validity of a penal law prohibiting facial coverings in public places. The City of New York (“City”) appealed from the District Court’s grant of summary judgment for the plaintiff. Id. at 199. The District Court held that the New York penal law violated the rights of free speech and expression because the Ku Klux Klan (“KKK”) masks donned by members of plaintiff organization were deemed to be a form of expressive conduct protected by the First Amendment. Id. at 202. The Court of Appeals reversed the decision of the District Court and remanded the matter with instructions to enter summary judgment in favor of the City. Id. at 211. The Court of Appeals found that THE masks worn by members of the KKK did not convey a message independent of the KKK robe and hood. Id. at 206. Since the robe and the hood alone clearly served to identify the members of plaintiff organization with the KKK, the court concluded that the mask did not communicate any message that the robe and hood did not, therefore, the expressive force of the mask was redundant. Id. Moreover, the Court rejected the KKK’s argument that “the First Amendment is implicated every time a law makes someone less willing to exercise his or her free speech rights.” Id. at 209. As the Court stated,
While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous. Because ‘every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,’ a conduct-regulating statute of general applicability that impose an incidental burden on the exercise of free speech rights does not implicate the First Amendment.

Id., quoting Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 106 S. Ct. 3172 (1986). (Emphasis added.)
The United States District Court for the Eastern District of Virginia has also addressed the validity of a state statute that prohibited mask wearing in Hernandez v. Superintendent, 800 F. Supp. 1344 (E.D. Va. 1992). That plaintiff appealed his state court conviction for violation of a Virginia statute that prohibited facial covering that concealed the wearer’s identity on the grounds that the statute violated his free speech rights guaranteed by the First and Fourteenth Amendments. Id. at 1345. The court held the plaintiff’s facial covering did not constitute expressive conduct entitled to the protection of the First Amendment because it did not convey a particularized message. Id. at 1351. As stated by the Court, “the mask contribute[d] nothing to the message already conveyed by the remainder of the costume, nor [did] it convey any independent message. Thus… petitioner’s mask-wearing did not constitute expressive conduct entitled to First Amendment protection because it did not convey a particularized message.” Id. Moreover, the court found that plaintiff’s equal protection claim was also without merit because the statute did not distinguish between political and non-political mask wearing and plaintiff’s arrest was not politically motivated. Id. at 1352.
   Similarly, the Moving Defendants’ right to anonymous speech is not implicated in the present matter. They admit in their own certifications that they were not intending to convey a particular message when donning bandanas at the protests held at the homes of plaintiff’s employees and shareholders. Rather, they were attempting to avoid the media publicity surrounding these demonstrations. Id. As a result, the facial coverings donned by the Moving Defendants do not constitute expressive conduct entitled to First Amendment protection. Even assuming, arguendo, that the prohibition against facial coverings makes some of the defendants less willing to participate in demonstrations, the First Amendment simply guarantees the right to free speech and expression, not the ideal conditions for exercising these rights. Church of the American Knights of the Ku Klux Klan v. The City of New York, 356 F.3d. at 209. The prohibition against facial coverings request by the plaintiff allows the Moving Defendants to express their viewpoints, just simply without the ability to hide their identities or to intimidate plaintiff’s families by wearing masks, bandanas and other facial coverings.
   Since the masks and bandanas worn by the Moving Defendants do not constitute expressive conduct entitled to First Amendment protection, the free speech and expression analysis properly ends here. Hernandez v. Superintendent, 800 F. Supp. at 1351. Thus, the Court does not need to examine whether the prohibition against facial coverings impermissibly restricts free speech. Id. at 1350.

THE LIMITATIONS ON THE DAYS AND HOURS OF THE PROTESTS AND DEMONSTRATIONS ARE NOT UNREASONABLE TIME RESTRICTIONS

The courts have long recognized that public speech may be subject to limitation under the constitutional principal that a State may impose regulation so long as such regulation as to time, place and manner of expression is content‑neutral. See, e.g. N.J. Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 378 (1994); Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 143 (1994). Injunctive relief to regulate such time, place and manner of speech is within the discretion of the equity courts. Horizon Health Ctr. v. Felicissimo, 135 N.J. at 137. The injunction must be narrowly tailored to serve a significant government interest and the injunction must leave open ample alternative channels of communication. Murray v. Lawson, 136 N.J. 32, vacated and remanded, 115 S.Ct. 44, mod. 138 N.J. 206 (1994); Horizon Health Ctr., 135 N.J. at 143.
Here, the Moving Defendants allege that the time, place and manner restrictions enjoining them from demonstrating on Sundays, state and federal holidays and on Saturdays, except between the hours of noon and 4 p.m. are unreasonable. The Moving Defendants’ only argument is that the four hours allotted on Saturdays is not enough time for them to travel to the homes of Lawrence Meril in Upper Saddle River, Barry Bertiger in Marlboro and Leslie Solomon in Wayne, New Jersey for demonstrations at all the homes on the same day. However, the convenience of the defendants in engaging in protests at all three locations on the same day is not the proper standard for determining whether the restrictions are valid. Rather, the Court must examine whether the injunction is narrowly tailored to serve a significant government interest and whether it leaves open ample alternative channels of communication. See Murray v. Lawson, 136 N.J. 32, vacated and remanded, 115 S.Ct. 44, mod., 138 N.J. 206 (1994); Horizon Health Ctr., 135 N.J. at 143.
There are two governmental interests that are served by restraining the defendants’ access to the plaintiff’s business and residence premises: (1) protection of private property and (2) public safety. By protecting the plaintiff’s businesses and employees, the injunction would protect the plaintiff’s ability to conduct business as well as provide the plaintiff’s employees with the ability to enjoy the tranquility and privacy of their homes.
As a general principle a “state is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.” Springfield, Bayside Corp v. Hochman, 44 Misc.2d 882, 885-86, 255 N.Y.S.2d 140, 144-45 (Sup. Ct. Queens Co. 1964). Specificially, the courts have been inclined to restrain picketing and demonstrations conducted at private, family homes. See, e.g. Trojan Elec. & Mach. Co., Inc. v. Heusinger, 162 A.D.2d 859, 860, 557 N.Y.S.2d 756 (N.Y.A.D. 1990) (The trial court restrained the defendants from picketing at one of the plaintiff’s home because “the devastating effect of targeted picketing on the quiet enjoyment of a home [was] beyond doubt and such offensive speech may be resisted when it intrude[d] upon a captive audience.”); Walinsky v. Kennedy, 94 Misc.2d 121, 129-130, 404 N.Y.S.2d 491, 497 (N.Y.Sup. 1977) (The court granted a broad permanent injunction prohibiting any and all picketing at residences by the defendants because picketing “at the family home is fraught with danger and threatens the peace and tranquility of the entire neighborhood. It subjects not only one’s family but also his neighbors to the harassment of the picketers.”) “The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 775 (1994); quoting, Frisby v. Schultz, 487 U.S. 474, 484, 108 S. Ct. 2495 (1988); see also Trojan Elec. & Mach. Co., Inc. v. Heusinger, 162 A.D.2d at 860; Walinsky v. Kennedy, 94 Misc.2d 121, 129-130. After all, the home is “the last citadel of the tired, the weary, and the sick.” Id.
Here, the defendants’ conduct has been particularly harassing on the weekends and holidays. Throughout the summer and autumn of 2007, the defendants held numerous demonstrations at the homes of plaintiff’s employees and shareholders on weekends and holidays, often in violation of the permanent restraining orders previously entered by this Court. See Certification of Leslie Solomon at Paragraphs 7, 9-10; Certification of Lawrence Meril at Paragraphs 8-10, 17-19; Certification of Barry Bertiger at Paragraphs 12-17; Certification of John Guttilla at Paragraphs 2, 8-13. These demonstrations disturbed not only the shareholders and their families but also their friends and neighbors. Id. As a result of their prior conduct, the defendants must be limited as to the time, place and manner of their protests so that the plaintiff, its employees and their families can enjoy the peace, sanctity and tranquility of their homes.
Moreover, the time, place and manner restrictions sought by the plaintiff are narrowly tailored to serve the government’s significant interests and leave open ample alternative channels of communication. The Moving Defendants complain that these restrictions interfere with their ability to engage in same-day demonstrations on the same day at the homes of three targeted shareholders of plaintiff due to the long distance between each location. However, the First Amendment does not guarantee the “ideal conditions” for expressing one’s point of view. Church of the American Knights of the Ku Klux Klan v. The City of New York, 356 F.3d. at 209. Thus, the defendants’ ability to engage in protests at various locations across the State on the same day does not have to be guaranteed so long as the defendants’ general ability to conduct their demonstrations is maintained.
Furthermore, the time, place and manner restrictions sought by the plaintiff offer the defendants’ sufficient time and methods to conduct their demonstrations. For instance, the defendants are still permitted to conduct their demonstrations during the week at the business premises and private homes of the plaintiff and its employees. Nor is there anything sacred or critical in defendants’ desire to conduct all demonstrations in one day. They may demonstrate on weekdays; they may demonstrate at two locations on one Saturday and another on the following Saturday; they may demonstrate on consecutive days. There must exist some time when the families of plaintiff’s principals and employees can enjoy time with their families in a peaceful and tranquil environment. It is eminently reasonable that Saturday mornings and evenings, Sundays and national holidays be such times.
Based on all of the foregoing reasons, it is respectfully submitted that the Moving Defendants’ arguments in opposition to the prohibitions against facial coverings and the time, place and manner restrictions on the protests and demonstrations at the businesses and homes of the plaintiff and employees are without merit and, therefore, should be dismissed by this Court. Thus, this Court should enter the prohibitions against facial coverings and the time, place and manner restrictions as requested by the plaintiff.

Respectfully submitted,

David P. Wadyka

Cc: RMSB&G (via UPS Overnight) Attached Service List