Freedom of speech versus freedom to feel safe
Teaneck Township Council members spar over ordinance setting up guidelines
At the February 25 Teaneck township council meeting, a proposal to amend an ordinance regulating protests and other gatherings on public property by setting guidelines and certain time, place and manner restrictions failed to secure enough support among council members to allow it to be introduced and put on the agenda for consideration at a future meeting.
Teaneck has a two-step process for enacting legislation; at least four members of the seven-member council must support the introduction of a proposed ordinance, and at least four members must support its adoption at another meeting.
Council member Karen Orgen, one of the town’s two deputy mayors, made the proposal to introduce the amendment, which, she noted, had been discussed in closed council sessions. “This ordinance is meant to protect First Amendment rights,” Ms. Orgen said when she made the proposal. “The right to worship freely, the right to exercise freedom of speech, it’s meant to be protective and it’s not meant to be restrictive.”
Over the past year, the township has “experienced an increase in large gatherings proceeding along a public street, sidewalk, or other public right-of-way … that have raised concerns over the public health, safety, and welfare of the residents of the township,” Ms. Orgen read from the proposed ordinance’s introductory paragraphs. The mayor and council “seek to protect the right of its residents to participate in peaceful marches, demonstrations, and other expressive activity that are protected by the United States and New Jersey constitutions,” she continued. “Certain sections of the Township Code can and should be clarified to provide for additional guidance as to the rights of those participating in such gatherings as well as township officials in enforcing the Township Code” with the intent to protect the “health, safety, and welfare of the citizens of Teaneck.
“My feeling is that, as elected officials, we have many jobs,” Ms. Orgen continued. “But the two most important are to protect the safety of our residents and the feeling of our residents that they are safe here, and I think we have not been able to do that fully over the last year.”
While Teaneck law currently requires permits for protests and other large gatherings on public property and allows the township to place conditions on permits that are “reasonably calculated” to minimize dangers to public health, safety, or welfare, it does not provide specific guidance on what constitutes a danger. The proposed amendment provides that guidance by regulating or restricting certain activities, including impeding the flow of traffic or access to buildings, using sound amplification equipment in residential neighborhoods during specified nighttime hours, protesting at a private residence, and protesting within 300 feet of a house of worship.
“It applies equally to every group in town,” Ms. Orgen added. “Everybody should be free to worship, and everybody should feel protected. The other thing this ordinance does is it gives clarity. It gives clear direction to the police department so that they now have something they can work with to protect us.”
Some council members asked the township’s attorney, Scott D. Salmon, questions about the proposed language.
Council member Hillary Goldberg asked whether he had drafted the ordinance. Mr. Salmon replied that when he had been asked by several council members, about a year ago, to draft an ordinance related to protests, he had done so based on an ordinance that Hackensack had enacted.
“They had done research into this, so I prepared a draft based on that,” Mr. Salmon said. Over the last few months, “a number of council members and some other individuals asked for changes to be made to the ordinance, which are reflected in this version. I have obviously reviewed all of it, and as the council is aware, I’ve provided legal guidance to the council on this version.” He also noted that only the last section of the proposed ordinance was new — the first eight sections are already in the township code.
Ms. Goldberg then asked how the proposed amendment would affect spontaneous protests, and Mr. Salmon replied that Supreme Court precedent allows towns to require permits, and ultimately it is the protesters’ choice whether or not to request one. “What we are allowed to do depends on whether they obtained a permit,” he said. The police generally have more ability to act if protesters hadn’t requested a permit, he explained. “If someone doesn’t apply for a permit and they are completely blocking the street or blocking the right of way, the police have more authority to move the protest along or force it in a different direction.”
In response to a question by council member Mark Schwartz, the township’s mayor, about the proposal’s effect on the municipal green, which Mr. Schwartz described as “traditionally a place where we’ve had protests,” Mr. Salmon explained that the proposed language ensures “an absolute right to protest in traditional public forums — public parks, plazas, streets and sidewalks.”
Council member Michael Pagan asked whether the proposed ordinance was constitutional and whether the township had hired a constitutional attorney. Mr. Salmon replied that the township did not hire a specific constitutional attorney but declined to discuss constitutionality. “I can’t waive attorney-client privilege” by discussing it publicly, he said, “but I know I’ve expressed my opinions on that, I think, to all of you at this point.”
Ultimately, only Ms. Orgen, Mr. Schwartz, and Elie Y. Katz voted to introduce the measure. Mr. Pagan voted not to.
Ms. Goldberg, who abstained, along with two others, immediately made a motion to hire an independent constitutional attorney to review the proposed ordinance and advise the council on “how we handle these complicated constitutional issues.” Mr. Salmon said he would find attorneys to recommend, and the council would need to vote to hire a specific attorney at a future meeting. Ms. Goldberg’s motion was unanimously approved.
Mr. Katz voted for the ordinance “to protect our law enforcement by giving them defined tools to do their job effectively, to protect our community, their property, and their quality of life, and to give any protesters the protections and their right to free speech with clear delineation of what can and can’t be done in Teaneck,” he wrote in an email. “Unfortunately, this ordinance is being attached to recent protests and car parades in Teaneck as a result of the Middle East conflict, and while these organizers didn’t invent protests in Teaneck, we have certainly been educated from the recent events and refined the ordinance from lessons learned.”
Ms. Goldberg abstained because she was concerned about the constitutionality of some of the language in the proposed ordinance, she said in a telephone interview last week. “I reached out to the Lawfare Project, a Jewish organization, and to two other organizations with legal expertise — one Jewish, one not Jewish — for legal help and guidance,” she said. “They gave me guidance strictly in an educational capacity, and they all separately provided the same advice regarding the constitutionality as is.” She brought her concerns to her fellow council members, Ms. Goldberg added. “If we’re going to do something, it has to work.”
She feels that Mr. Salmon’s original draft, the one he based on the Hackensack law, is fine, but that the township should retain an attorney with expertise in constitutional law to review the other provisions, mainly those that regulate the use of amplification devices and protests at homes or near houses of worship. She said she understands that some of the language relating to those provisions was suggested to Mr. Salmon by Akiva Shapiro of Bergenfield, a partner at the law firm of Gibson Dunn and a member of the firm’s constitutional and appellate practice group.
“I asked Akiva Shapiro who he represents, because we didn’t retain him, and he mentioned a shul in Teaneck. I think that it’s perfectly fine for a shul to have representation — they need it — and any lawyer has to represent their client’s interest. The township has a separate interest, so we need our own attorney.”
When the council has needed guidance in specialized areas of law, it has retained an attorney with that expertise, Ms. Goldberg continued. “We have a cannabis attorney, we have a redevelopment attorney, we have a tax attorney, we have a labor attorney. These are all specialized things.” She expects the council to hire one at its March 11 meeting.
“We’re acting responsibly,” she added. “I’m not against this — I’m just against doing it in a way that could be counterproductive. My hope is that we can work together to find the right language that will be enforceable, legal, and protect everybody.”
The other four council members did not respond to requests for comment before we went to press.
In Bergenfield, the borough’s attorney, John L. Schettino, said publicly at the borough council’s February 18 meeting that he did not have any issues with the constitutionality of a proposed ordinance with similar language. The proposed ordinance received the unanimous support of the Borough Council to be introduced.
There are differences between the two proposals; for example, the Bergenfield language prohibits protests within 50 feet of a synagogue while the Teaneck language requires a 300-foot buffer, and the Bergenfield language contains an exception for funeral processions while the Teaneck language does not. Of course, whether the differences impact on constitutionality is a question for Mr. Salmon, with the input of an attorney with expertise in this area if he feels that is necessary.
Mr. Shapiro provided some suggested language to Teaneck’s attorney for the proposed ordinance, he said over the phone last week, some of which Mr. Salmon appears to have accepted and some of which he appears not to have accepted. But he was not hired by the township or retained on a pro bono basis. His understanding is that Mr. Salmon “spoke to a number of different people and looked at different sources and decided what to include and not to include in the final proposed ordinance,” Mr. Shapiro said.
When asked for his thoughts on the constitutionality of the proposed ordinance, Mr. Shapiro said that in his opinion, it “complies with case law and is an appropriate time, manner and place regulation.” He also referred me to an op-ed he had just published in the March 6, 2025 Jewish Link. There, he wrote that “in the absence of appropriate regulations for large gatherings, various protests over the last year and a half have devolved into threatening, harassing and intimidating spectacles targeting houses of worship and private residences in Teaneck and nearby towns.
“There is no one more concerned than I am about upholding the Constitution and carefully protecting our fundamental liberties,” Mr. Shapiro continued. “I regularly bring litigation to hold the government to account . . . and to ensure that government officials don’t exceed their constitutional limitations.”
He went on to address “some of the false claims” made at the council meeting about the ordinance that “in large part appear to be driven by a disinformation campaign” that was “unwittingly spread” by “well-meaning individuals” and “seeded by a threatening cease-and-desist letter” sent to the council by PAL Commission, a group backing the Palestinian side, “which virtually every objecting speaker at the council meeting read from.
“This is not a serious organization, and its objections are not serious,” Mr. Shapiro said. “They are fronts and covers for antisemitism and intimidation of the Jewish community.”
He addressed a number of claims, including one that the ordinance is “an unconstitutional, content-based restriction on speech.
“The ordinance is a reasonable, content-neutral, time, manner and place regulation of events occurring on the public streets and sidewalks,” he wrote. “Virtually every city and town in the country already has time, manner and place regulations covering such events,” and the proposed ordinance just updates existing law “to address recent events. The Supreme Court has made clear that such time, manner and place regulations are appropriate and constitutional, and in fact the only way to protect everyone’s rights.”
Mr. Shapiro argued that the “specific objections that have been raised are largely based on misreadings of the ordinance” — that it would restrict activities on private property, for instance – “or an apparent ignorance of the relevant case law.”
Many speakers at the meeting “referenced the PAL Commission letter’s citation to Reed v. Town of Gilbert, a case about when towns can and can’t impose content-based restrictions on signage — specifically, stricter limits on signs advertising religious services than those displaying political messages,” he wrote. But that case would not invalidate the proposed ordinance, he explained, because the proposal “was carefully drafted so as to apply equally to all special events, regardless of their content or message.”
Mr. Shapiro cited cases that provide legal authority for the proposed ordinance, including Frisby v Shultz (in which “the Supreme Court upheld a town ordinance banning picketing directed at a particular private residence”), and Phelps-Roper v. Strickland (6th Cir. 2008) and Phelps-Roper v. City of Manchester (8th Cir. 2012), (which “rejected constitutional challenges to a 300-foot buffer around funerals, including specifically where held in a church or synagogue, where the activity was disruptive or undertaken to disrupt”).
Mr. Shapiro also addressed the claim that the town “needs to hire an ‘independent’ constitutional lawyer to review the ordinance.
“Teaneck has a lawyer whose fiduciary and ethical responsibility is to the Township,” he wrote. “[H]e is responsible for reviewing all proposed ordinances. If the Township were to hire separate lawyers to review every proposed ordinance, it would be prohibitively (and unnecessarily) expensive. The township attorney can, of course, consult with outside counsel if he believes it would aid him to do so. That’s what he did here, including consulting with me as an outside constitutional lawyer.
“I worked pro bono, giving the Township the benefit of an outside expert without having to spend taxpayer dollars on another lawyer,” he continued. “My only interest throughout was to help Teaneck craft an ordinance that protected the rights of all citizens — residents and protesters alike — while providing clear rules of the road for all involved, including law enforcement. In that, I believe the Township, the Jewish and non-Jewish community, and Jewish communal institutions in Teaneck — including ones I’ve represented pro bono — are completely aligned.
“The Township attorney conducted himself admirably in the face of inappropriate questioning from certain council members who put him on the spot in a public meeting and asked him questions that would have forced him to break attorney-client privilege,” Mr. Shapiro added. “While he appropriately did not answer the questions in public, I am confident that he would not permit an ordinance to be voted on for introduction if he did not believe it was constitutional.”
Elliot Berman, an attorney and longtime Teaneck resident, spoke at the meeting. “Almost a year ago, on March 19, 2024, I spoke at a township council meeting,” he began. “I said then, ‘I think you will all agree with me that something has to change. Teaneck should not be exposed to what it was subjected to on Sunday, March 10’” — a reference to the antisemitic protest that took place outside a township synagogue — “‘and the threat that anything like that will continue in our residential neighborhoods and outside houses of worship.’
“As I am sure you also know, shortly thereafter, on April 1, 2024, there was another antisemitic protest held outside another synagogue in Teaneck,” Mr. Berman continued. “On March 19, 2024, I said that I recognize that in America we must make sacrifices for the freedom of speech and that uninformed, senseless, hurtful, and even vile speech is also protected. But I respectfully asked the council, over 11 months ago, to ‘call upon the township’s attorney to find a way to return peace to the residential streets and houses of worship in Teaneck.’
“I said then that the Supreme Court has repeatedly stated that the government may impose time, place, and manner restrictions on speech in a public forum. Of course the restrictions need to be content-neutral, such that Teaneck could not prevent demonstrations that do not incite violence that support the KKK, Hamas, or other organizations deemed by the United States and other countries around the world to be terrorist organizations.
“Residential neighborhoods and outside houses of worship are not the places for demonstrations,” Mr. Berman added. “The town green and other public spaces could be used. I said then that the Supreme Court has said that noise, traffic control and public safety are all content-neutral reasons to impose restrictions on where speech may occur.
“As the Third Circuit, the federal appellate court that covers New Jersey, has stated, ‘the right of free speech does not encompass the right to cause disruption.’ I now see today that an ordinance was discussed that imposes well accepted time, place, and manner restrictions for marches, protests and other large gatherings on Teaneck’s public streets and sidewalks, specifically protecting houses of worship and private residences from being targeted and harassed. So I came here to say it’s a little late, but better late than never, and urge the council to unanimously advance this ordinance to a final vote as soon as possible.”
Mr. Berman has looked at the proposed ordinance and at a number of the cases, he said in a telephone interview last week, but his expertise is not in constitutional law, and he is not in a position to opine on the constitutionality of the language. But the town has its own counsel, he said. “If he needs assistance, he should get assistance.” Mr. Berman’s understanding, based on what he heard at the meeting, is that the ordinance has been under discussion for a while, and that Mr. Salmon actually did get assistance pro bono from an expert — Mr. Shapiro. “Anyone can look at his bio and see that he has expertise in this area.”
He’s not sure why hiring another attorney is necessary or why, if it is necessary, it was not done yet. But what’s important is for the town counsel to be comfortable in giving guidance to the town, Mr. Berman said. “If he feels that somebody who’s giving their pro bono assistance but has not been officially retained is not sufficient even though that person is an expert, if he feels he needs to retain somebody else, that’s fine. If that means they’re going to have to spend more money, that’s fine also. I’m not sure who they’re going to get that’s going to be more qualified than who they already had, but whatever they need to become comfortable is good.
“I don’t think he needs more than that and I don’t think he ever said he needed more than that,” Mr. Berman added. “One would’ve thought if it’s been worked on for two months, it already had a certain endorsement by the town counsel that it was okay.”
And he does think it’s terrible that nothing has been enacted so far, Mr. Berman said. “I’m afraid that as the deputy mayor mentioned, the town council has an obligation, has a responsibility, to keep people safe and to keep people feeling that they’re safe, and right now there are a lot of people who don’t feel safe. I don’t want this to be kicking the can down the road until heaven forbid something happens that could have been prevented if the town council had acted more promptly.”
He hopes the council moves forward at the next meeting. “Time, place, and manner restrictions have been around for a while, they’re constitutional, this is clearly a content-neutral ordinance, it serves a significant government interest, it’s narrowly tailored, people who want to protest have a lot of other ample opportunities to express their protest,” he said. “I just hope it gets done as quickly as possible.”
Like Mr. Berman, Emma Horowitz of Teaneck, president of the Bergen County Jewish Action Committee, is concerned about the possibility of kicking the can down the road. “It is often said that the best way to kill a piece of legislation is to agree to study it,” Ms. Horowitz said on the phone last week. “And I hope that’s not the intention here. It is my profound hope that the council can work together to make themselves comfortable with this legislation and to pass it for the benefit of the entire township.”
At its March 11 meeting, the council voted unanimously to hire the law firm of Scarinci Hollenbeck to provide “independent legal guidance on issues of importance to the township” for a term extending through December 31, 2025.
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