Another look at freedom of Speech in Teaneck – Part II

Once again, I enjoyed reading Joseph Kaplan’s second column on free speech (“Freedom of Speech and Assembly – Part II,” 3/20/25) and agree with a number of things he wrote.  Yet I feel compelled to write this second column and provide some further thoughts and a different perspective.  I should note at the outset that I appreciate Joseph’s kind words about my previous rejoinder, and I will endeavor to continue the civil manner in which we (strongly) disagree about this subject.

1. State protection of free speech and standards used in proposed ordinance. To be sure, Joseph is correct that the New Jersey Constitution grants broader protection with regard to free speech than that provided by the United States Constitution.  But while that is true, New Jersey courts have held — just like the federal courts discussing the federal Constitution’s protection of free speech — that government may impose content-neutral, time, place, and manner restrictions on free speech when they are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.

Indeed, New York courts have held that the New York Constitution also grants broader protection with regard to free speech than that provided by the U.S. Constitution.  Notwithstanding this fact, there is a statute in New York that makes it a crime — a class A misdemeanor, which carries a potential sentence of up to a year in jail — when someone “makes unreasonable noise or disturbance while at a lawfully assembled religious service … or within three hundred feet thereof, with intent to cause annoyance or alarm or recklessly creating a risk thereof.”  The constitutionality of this statute has been upheld in New York courts.

Get The Jewish Standard Newsletter by email and never miss our top stories Free Sign Up

Joseph contends that the proposed ordinance that was discussed at the February 25, 2025, Teaneck Council meeting is both “vague” and “overbroad.”  The vagueness complaint is that the language “disruptive” used with regard to picketing in front of a private residence or near a house of worship is not defined.  It is purportedly “overbroad” because with regard to houses of worship it provides a 300-foot buffer zone, which Joseph contends is too wide in light of New Jersey’s “heightened freedom of speech rights.”

But neither complaint seems to have bothered Albany, despite New York State’s heightened freedom of speech rights, which, as set forth above, passed a law making it a crime in New York State to make an “unreasonable” “disturbance” “within three hundred feet” of a “religious service.”  Moreover, the same New Jersey case cited by Joseph, Murray v. Lawson, upheld an injunction prohibiting any picketing within three hundred feet of a particular private residence.  Also, as I wrote in my previous column, federal appellate courts upheld ordinances that prohibited picketing directed at and taking place within 300 feet of funerals, including when held in a house of worship when such activity was disruptive or undertaken to disrupt.

2. Demonstrations directed at events in private residences and houses of worship. Joseph writes that he has a “conceptual problem” with the proposed ordinance that was discussed at the February 25 Teaneck Council meeting because it “focus[es] solely on the picketers’ speech, without taking into consideration that it is a reaction to the homeowners’ or the houses of worship’s exercise of their speech.”  Thus, he contends, it is different than the “abortion doctor cases” where “the protests weren’t directed at, say, Planned Parenthood meetings in the doctors’ homes,” but rather “targeted the home in order to cause the doctors anxiety, and to harass them where they live with their families.”  In Bergenfield, however, Joseph notes that it was the “real estate event” and not the “home or its owners” that was the “target” of the demonstration.

I believe this distinction would create a dangerous slippery slope.  More importantly, it is a distinction that does not appear to be recognized by courts (including the U.S. Supreme Court) that have addressed these issues. The purpose for ordinances prohibiting residential picketing is not to merely protect someone who is, for example, eating or sleeping in his or her home.  Rather, as the U.S. Supreme Court has held, government’s “interest in protecting the wellbeing, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.”

I believe it would be dangerous for government to get involved in distinguishing between what types of activities should and should not be protected in the privacy of one’s home.  When someone invites people to attend an event or meeting in his or her house, it is well within reason for government to protect the tranquility and privacy of the homeowner and his or her family.  Moreover, courts have upheld similar statutes that ban residential picketing in front of a particular homeowner’s residence, regardless of the purpose of the demonstration.

Joseph posits that the two houses of worship demonstrations were “not directed at a single of one of the thousands of religious services held annually in Teaneck’s many synagogues.  Rather, they targeted specific events (real estate and Zaka programs) that … were an exercise of the synagogue’s freedom of speech and not of its freedom of religion.” I respectfully disagree.

Had a synagogue hosted a forum on time shares available in Puerto Rico or southern France, that may well be regarded as a secular “real estate” event that just “happens” to be taking place in a synagogue.  But programs concerning purchasing land in Israel or the efforts of those collecting body parts and blood for proper Jewish burial are inextricably linked to the synagogue’s function as a religious institution.  Indeed, that is why such events are taking place in the synagogue.

More importantly, it is not for the government (and certainly not the press) or even the courts to decide what program is or is not a “religious” program.  Under the church autonomy doctrine, rooted in the First Amendment’s religion clauses, religious organizations are protected from government interference in their internal governance, including matters of doctrine and faith. Church autonomy protects the right of religious institutions to decide for themselves, free from state interference, matters of faith and doctrine.  While daily prayers may well be the quintessential religious “service,” synagogues and (I believe) all other houses of worship provide a host of other programing that is of a religious nature and constitutes a core element of their religious mission.

3. The need for an ordinance. Joseph contends that the current situation is not “as dire as some make it seem” and that “two synagogue demonstrations, one Bergenfield home picket, and several unruly car rallies in 17 months do not support claims of harassment, intimidation, threats, and fear.”  Joseph relates that he attends daily services and other programs in synagogues and other religious institutions without feeling an “ounce of harassment, intimidation, or fear.” Accordingly, he concludes that “overstating the problem and imposing regulations that will cause more difficulties is not the answer.” I believe that my disagreement with Joseph is greatest with respect to this position.

To be sure, there are people who feel like Joseph, but as Deputy Mayor Karen Orgen said at the Teaneck Council meeting on February 25, two of the council’s most important jobs are to protect Teaneck residents’ safety and their feeling of being safe. While Joseph may feel safe, there certainly are many Teaneck residents who do not, and that feeling of not being safe is certainly understandable and reasonable. I do not believe anyone can argue that it is unreasonable to feel unsafe in Teaneck (even before the occurrence of yet another synagogue demonstration several days ago) when you hear people scream in the streets here — “there is only one solution, intifada revolution” and other things showing demonstrators’ sympathies for Hamas, an internationally recognized terrorist organization.  Accordingly, I believe it is incumbent upon the Township Council to do what it can to return the feeling of safety to all of Teaneck’s residents.

In conclusion, I hope the Township Council promptly passes a content-neutral time, place, and manner ordinance that can both help restore the feeling of safety to Teaneck’s residents and, if needed, withstand a challenge in court based on existing precedent. Finally, I am hoping that Joseph’s next column discusses another subject (and with the arrival of spring, may I suggest a column about the Mets’ prospects this year (but please — not the Yankees’).

Elliot Berman is an attorney who has lived in Teaneck for nearly 30 years.