### RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 0305

- 21 S.B.B., 1 Plaintiff-Respondent,

v. L.B.B., Defendant-Appellant.

________________________

Argued April 17, 2023

– Decided September 6, 2023 Before Judges Gooden Brown, DeAlmeida and Mitterhoff. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV- 20

- 1159

- 21. Jane J. Felton argued the cause for appellant (Skol off & Wolfe, PC, attorneys; Jane J. Felton, of counsel and on the briefs; Michaela L. Cohen, Andrew J. Rhein and Steven B. Gladis, on the briefs). LisaBeth Klein argued the cause for respondent. Shira Wisotsky argued the cause for amici curiae The American Civil Liberties Union of New Jersey

1 We use initials to protect the parties' privacy and the confidentiality of the proceedings in accordance with Rule 1:38 -3(d)(10). APPROVED FOR PUBLICATION September 6, 2023 APPELLATE DIVISIONA- 0305

- 21 2 Foundation, The American Civil Liberties Union Foundation, The Jewish Orthodox Feminist Alliance, Sanctuary for Families, and Unchained at Last (The American Civil Liberties Union of New Jersey Foundation, and Vera Eidelman (The American Civil Liberties Union Foundation) of the New York and California bars, admitted pro hac vice, attorneys; Shira Wisotsky, Jeanne LoCicero, Sandra S. Park, and Vera Eidelman, on the brief). Karin Duchin Haber argued the cause for amici curia e The Organization for the Resolution of Agunot, and Shalom Task Force (Haber Silver & Simpson, attorneys; Karin Duchin Haber, of counsel and on th e brief). The opinion of the court was delivered by GOODEN BROWN, J. A.D. Defendant L.B.B. appeals from the entry of a final restraining order (FRO) entered against her in favor of her estranged husband, plaintiff S.B.B., pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25- 17 to -35. The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassmen t was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divo rce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protecte d free speech, we reverse.A- 0305

- 21 3 I. We glean these facts from the record. Following a twenty-year marriage that produced four children, the parties, both prac ticing members of the Orthodox Jewish faith, separated and have been in t he process of obtaining a divorce since mid-2019. The process has been conte ntious and acrimonious 2 and further complicated by a dispute over a get

— a religious bill of divorce.

In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get " (pluralized as " gittin "), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes a n "agunah" (pluralized as "agunot"), which subjects h er to severe social ostracism within the Orthodox Jewi sh community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which includ e, but are not limited to, the use of force against a husband to secure a get. [United States v. Stimler, 864 F.3d 253, 259 (3d Ci r. 2017) , aff'g United States v. Epstein, 91 F. Supp. 3d 573, 582 (D.N.J. 2015) , rev'd in part on other grounds sub nom. United States v. Goldstein, 902 F.3d 411 ( 3d Cir. 2018) .]

2 In April 2020, defendant obtained a temporary restr aining order (TRO) against plaintiff. Following a protracted FRO he aring during the COVID-19 pandemic, the TRO was dismissed on March 11, 2021.A- 0305

- 21 4 Sometime in March 2021, defendant made a video addr essing the get dispute. In the video, defendant asserted plaintif f had refused to give her a get and asked anyone who could to "press" plaintiff to give her a get. On March 19, 2021, after the video was made, plaintiff obtai ned a TRO against defendant based on a domestic violence complaint alleging har assment. To support the complaint, plaintiff testified at an ex parte heari ng that beginning around 3:00 p.m. on March 12, 2021, he received numerous phone calls from unknown numbers, a photograph of himself identifying him as a get refuser and calling on others to "tell him to free his wife," and, ulti mately, the actual video defendant had composed. When plaintiff answered one of the incoming calls, the caller identified himself as being "connected" to various protest "ne tworks" and pressured plaintiff to turn over the get. During his testimo ny, plaintiff explained his belief that the Jewish community reacts violently t o the withholding of a get and that identifying him as a "get refuser" subject ed him to kidnappings and brutal beatings. Plaintiff denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020, a nd averred that he was "terrified" of being "harm[ed]" by the "people . . . calling [him]" in response to defendant's accusation and plea in the video. To f urther support his complaint, plaintiff recounted a history of emotional abuse la rgely by name-callingA- 0305

- 21 5 throughout the course of the marriage. Subsequentl y, on March 25, 2021, plaintiff amended the TRO to add cyber harassment a s a predicate act. Defendant moved to dismiss the TRO, arguing any all eged dissemination by defendant was protected free speech. Relying on State v. Burkert, 231 N.J. 257 (2017), the trial judge denied the motion. On April 8, 2021, an FRO trial was conducted via Zoom, during which plaintiff and defendant testified. Both parties were represented by counsel. During his testimony, plaintiff confirmed that he a nd defendant were separated. He lived with his parents while defenda nt remained in the marital home with their children. He testified that he rec eived a call on Friday, March 12, 2021, around 3:00 p.m., on the FaceTime videoco nferencing app. Plaintiff did not answer, but was able to see that thirty sep arate phone numbers had joined the call, none of which were familiar to him . The group attempted to call back roughly ten more times before plaintiff p ut his phone in airplane mode. About half an hour later, when he turned his reception back on, the calls resumed. Initially, the calls seemed "weird, " but then plaintiff became "alarmed" by the calls. Plaintiff continued to ign ore the calls and blocked the associated numbers. Two days later, on March 14, 2021, plaintiff recei ved a message from his sister in Israel. The message contained a phot o of himself that he hadA- 0305

- 21 6 posted as his "status" on the WhatsApp messaging ap p. Above the photo was written: This man has refused to give his wife a get. His n ame

is [S.B.B.]. He is holding his wife chained for ov er 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, plaintiff received the p hoto from one other person he knew. When plaintiff saw the photo, he was "shock[ed]," " embarrassed," and "scared." Plaintiff explained that the photo would give community members the impression that he was "a get refuser" which "[ could] be dangerous for [him]." Plaintiff testified that he had witnessed his father "[getting] beat[en] up" because "he was a get refuser." Additionally, plaintiff denied the accusation and was adamant that he was not a get re fuser, having given the get to the Chief Rabbi of Elizabeth. His "understandin g" was that the get would be provided to defendant "within [twenty-four] to [ forty-eight] hours after the civil divorce [was] done in court." He also sugges ted that the Chief Rabbi had the discretion to give the get to defendant at any time. He explained his view th at only a "beth din" could declare someone a get re fuser. Between March 14 and 15, 2021, plaintiff received n umerous communications, including approximately ten "privat e or anonymous" calls, none of which he answered. In addition to the anon ymous calls, on theA- 0305

- 21 7 afternoon of March 14, 2021, plaintiff received a m essage on WhatsApp from the Chief Rabbi's son. The message contained a vid eo showing defendant speaking to the camera, saying:

Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without an y family for the last seventeen years. In August 201 9, my husband left the house and we're trying to get a n agreement. We still did not get any of that. I tr ied to reach . . . the community Rabbi[] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoe ver can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Ch ief Rabbi] the proof to give me the get. To release th e get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [3] on his head. Several friends also sent the video to plaintiff. Plaintiff believed defendant posted the video "[b]ecause she wanted pe ople to press [him] to give her a get." When specifically asked what he though t his wife meant by asking people to "press" him for the get, plaintiff answer ed:

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. Toda y it

3 Bracha translates to "blessing." Joyce Eisenberg & Ellen Scolnic, Dictionary of Jewish Words 21 (2006).A- 0305

- 21 8 starts with protesting and then it gets to harming people that are get refusers. At 10:21 p.m. on March 15, 2021, plaintiff receive d another call. This time, thinking the phone number looked "familiar," he answered. Plaintiff testified the caller introduced himself as "Hiam" a nd said he was "calling about the get." He identified himself as someone w ho "[knew] a lot of people" and was part of "different networks." According to plaintiff, Hiam told him if he did not give his wife a get, they would "come an d protest next to [his] house." Hiam added "you know what happen[s] otherw ise if you don't give a get." After Hiam refused to explain how he obtaine d plaintiff's phone number, plaintiff hung up. Plaintiff testified that, a mom ent later, Hiam called back, screaming at plaintiff and telling plaintiff he wan ted "to meet [him]." Plaintiff hung up again. Plaintiff testified he felt threate ned by Hiam's call, which, in conjunction with the FaceTime calls, the photograph , and the video, made plaintiff "very scared." Plaintiff specified that although he was not afraid of defendant in her individual capacity, he was afraid of "others . . . influenced by her." Plaintiff also testified about a history of verbal abuse throughout the twenty-year marriage. He recounted unspecified ins tances throughout the marriage when defendant had stated during arguments that he was "nothing,"A- 0305

- 21 9 "a zero," or "not good," all of which made him feel "like a worthless person." According to plaintiff, the last such instance occu rred "in 2019." At the end of plaintiff's case in chief but before defendant testified, defendant moved for a directed verdict. See R. 4:37 -2(b). The judge denied the motion. Thereafter, defendant testified through a n interpreter that it was not her intent to harass plaintiff. She testified that she did not create the "#FREE[L.B.B.]" photo image and had no part in post ing either the video or the photo on social media. Additionally, she was n ot part of any of the calls to plaintiff and did not know who made them. Defendan t testified that the first time she saw the "#FREE[L.B.B.]" photo image was wh en 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, a t the request of a rabbinical judge, and claimed she only sent the vid eo to the rabbinical judge. She explained that "under [the Jewish] religion [th e rabbinical judges] are to press on the husband to give the get." On cross-examination, defendant acknowledged that s he also sent the video to a therapist "friend" but was reluctant to divulge the friend's name and contact information for fear of "potential retribut ion." Defendant explained she did not believe that accusing plaintiff of with holding a get in the video would put him in danger of being threatened or hurt . When questioned aboutA- 0305

- 21 10 plaintiff's father's get refusal, defendant testifi ed she was not aware of him being attacked. Rather, it was her understanding t hat he had "sat in jail" as a result of the refusal. Following the trial, on April 22, 2021, the judge g ranted plaintiff an FRO. Among other things, the FRO continued the res traints contained in the TRO, which barred defendant from having "any oral, written, personal, electronic, or other form of contact or communicati on with [p]laintiff," and specifically ordered defendant to "remove any and a ll posts from all social media platforms requesting the 'get'" and "cease an d desist . . . creating and posting on all social media platforms." In an oral decision supporting the issuance of the FRO, the judge found plaintiff credible and defendant not credible based on "demeanor," "body language," and the content of the testimony. Speci fically, the judge remarked that plaintiff's "demeanor was straightforward," "[ h]e didn't embellish" his testimony, "[h]e didn't fidget" while testifying, a nd his "testimony ma[d e] sense." Conversely, according to the judge, defend ant's "testimony didn't make much sense," particularly since she claimed sh e made the video for the rabbinical judges but addressed the plea in the vid eo to anyone who could helpA- 0305

- 21 11 her. Additionally, the judge pointed out that duri ng questioning, defendant was "looking all over the room" and "there was a bl ank look in her face." 4 Based on her credibility assessment, the judge foun d defendant "created the video" and "sent it to the community," rather t han "the rabbi," in order "to get the get." Applying the elements of subsection (a) of the harassment statute, N.J.S.A. 2C:33-4(a), to her factual findin gs, in accordance with the first prong of Silver v. Silver, 387 N.J. Super. 11 2 (App. Div. 2006), the judge concluded plaintiff "met [his] burden by a preponde rance of the evidence" of proving that defendant committed harassment. Speci fically, 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 . . . , t he way in which [defendant] went about getting that get was with a purpose to p ress, harass, annoy, [and] alarm [plaintiff]." The judge also found that the communication was "in vasive" of plaintiff's privacy, as proscribed by N.J.S.A. 2C:3 3-4(a). See State v. Hoffman, 149 N.J. 564, 583 (1997). Specifically, t he judge found that because the video was sent to "the Jewish community, "

4 At the outset, the judge noted that although she ha d previously denied defendant's application for an FRO against plaintif f, the judge was not influenced by her prior decision. In any event, th ere was no request for recusal.A- 0305

- 21 12 the purpose of that communication was to infringe upon [plaintiff's] legitimate expectation of privac y not to . . . hav[e] . . . phone calls or . . . people c ome 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 h er husband, to press him for that get, under the total ity of the circumstances is a clear intrusion into []his expectation of privacy and safety. Critically, the judge rejected defendant's free spe ech claims, explaining that "one cannot hide behind the First Amendment wh en that communication is invasive of the recipient's privacy. The First Ame ndment cannot protect this kind of communication to incite, which is clearly i nvasive of [plaintiff's] safety and privacy." In assessing the threat to pl aintiff's safety associated with being labeled a get refuser, the judge noted:

Now there was no expert that came into this court to explain what a get is or the realities of the get. This [c]ourt 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. [Plaintiff] testified that he watched his father be beaten because he was a get refuser. And I believe . . . defendant testified . . . that you can go to jail for being a get refuser. So the [c]ourt does glean from the testimony that being a get refuser in the Jewish community is a very serious allegation with substantial consequenc es, which is clear from the testimony under the totalit y of this case.A- 0305

- 21 13 Because the judge found that plaintiff had proven t he predicate act of harassment based solely on the video, the judge ele cted not to address the predicate act of cyber harassment. Next, applying the second Silver prong and N.J.S.A. 2C:25-29(a), the judge found that an FRO was "necessary to protect . . . plaintiff from this continued behavior, . . . [and] from having . . . d efendant incite the community that her husband is a get refuser, which clearly pu ts 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 "[t]he existence of immediate danger to person or property" was "clear" because when "[y]ou tell the Jewish communi ty that your husband is a get refuser," then "he is subject to danger period or imprisonment." The judge explained that although plaintiff stated he was "not necessarily in fear of defendant herself," he was " in fear of th[e] continued invasion of his privacy and his safety . . . at the hands of [defendant] by her actions" and "people are entitled to feel safe" and "to be free of this continued abuse." The judge also found that "[t]he best inte rest" of plaintiff and the parties' children would be served by awarding the F RO because a third party "acting on defendant's request while the children [ were] present . . . would put not only . . . plaintiff, but the children in dange r." Although the judge did notA- 0305

- 21 14 find that the previous history of domestic violence over the years "shed[] much light on the Silver decision," under "the totality of the factors," the judge determined a restraining order was warranted. Defendant moved for reconsideration. In support, d efendant submitted a May 11, 2021, certification from Rabbi Daniel Shevi tz, "an expert trained in the laws of Jewish divorce." Shevitz opined that d efendant is an "agunah" or "chained woman." He explained that:

In the Jewish tradition, once the marital bond has failed and the couple is no longer living together as husband and wife, the husband is obliged to write a nd deliver a get. Until then, the wife is not free of her marital responsibilities. . . . Any delay in grant ing the get causes her to be "chained" to a marriage in for m only and is, in my opinion, a form of abuse. He further explained that even rabbinical courts la ck the power to force a husband to grant a get and that as a result of the husband's unchecked authority, some men use get withholding as a form of extortion. Referring to a March 5, 2020, text message exchange between the pa rties, which showed plaintiff telling defendant that he would only issu e the get if she first signed a divorce settlement agreement, Shevitz suggested tha t just such extortionist behavior might be occurring in this case. Shevitz stated that in the quest to obtain a get fr om an intractable husband, "[f]or centuries, the only tool at the wif e's disposal was invokingA- 0305

- 21 15 public sympathy and pleading her case to the broade r community." He added that in recent years, "agunot (the plural of 'aguna h ') have turned to social media with messages asking for community support" i n a "'social justice movement' designed to liberate women . . . using on e of the only tools they have at their disposal

— their voices." He opined that the video created by defendant was "precisely" such an attempt and appen ded an article to his certification supporting his opinion. Defendant also submitted her own certification, in which she explained that plaintiff has not authorized the Chief Rabbi " to deliver the get until [she] agrees to his settlement demands" and "she felt [he r] only reasonable recourse was to seek public sympathy to obtain a get." She added that her understanding, as someone whose first language was not English, was that "'press' does not mean 'physically harm'" and she " never meant it that way." She acknowledged that "there have been news reports and federal lawsuits" about "those who do physically harm get-refusers," but stressed that she had "never been a part of that." Following oral argument, on August 27, 2021, the ju dge denied defendant's motion as not meeting the standard for reconsideration. See
R. 4:49 -2. In a written opinion, the judge pointed out th at Shevitz's certification could have been presented at the time of the initial hearing.A- 0305

- 21 16 Further, the judge found that whether defendant "is or is not an agunah under Jewish law" and whether plaintiff "did or did not s atisfy the giving of the [g]et" were irrelevant. The judge also awarded pla intiff attorney's fees and costs in the amount of $10,035 as compensatory dama ges. See N.J.S.A. 2C:25-29(b)(4). In this ensuing appeal of the April 22, 2021 and Au gust 27, 2021 orders, defendant raises the following points for our consi deration:

POINT ONE THIS COURT MUST APPLY A HEIGHTENED STANDARD OF REVIEW. (NOT RAISED BELOW). POINT TWO THE FIRST AMENDMENT PROTECTED DEFENDANT'S FREEDOM TO MAKE AND DISSEMINATE THE VIDEO. A. The Video Is Protected Speech Under The First Amendment. B. Nothing Defendant Said Or Did Is Punishable As Incitement. C. Affirming The Trial Court In This Case Would Render The Harassment Statu[te] Unconstitutionally Overbroad And Vague. D. The FRO Is An Impermissible Prior Restraint On Defendant's Future Speech.A- 0305

- 21 17 E. The FRO Violates Defendant's Right To Freely Exercise Her Religion.
POINT THREE
INDEPENDENT OF CONSTITUTIONAL CONCERNS, DEFENDANT'S VIDEO WAS NOT HARASSMENT. A. The Manner In Which Defendant Communicated Did Not Violate The Harassment Statute. B. The Video Did Not Intrude Into Plaintiff's Reasonable Expectation Of Privacy, And The Trial Court's Finding To The Contrary Was Based On An Unsubstantiated, False, And Prejudicial Characterization Of The Orthodox Jewish Community. C. The Trial Court Found That Defendant Had A Legitimate Purpose In Making The Video

– i.e., To Get A Get. D. The Trial Court Failed To Consider The Totality Of The Circumstances, As Our Law Requires. E. The Trial Court Prejudicially Found Defendant Had A "Purpose To Harass" Before Even Hearing Defendant Testify. F. The Trial Court Erred By Allowing Plaintiff To Pursue A Defamation Claim Artfully Pleaded As Harassment.A- 0305

- 21 18 POINT FOUR THE TRIAL COURT MISSTATED AND MISAPPLIED THE SILVER TEST, AND THE PREREQUISITES FOR AN FRO WERE NOT MET. A. The Court Did Not Address The N.J.S.A. 2C:25-29(a) Factors As The Law Required. B. The Trial Court Misapplied Silver By Allowing Plaintiff's All eged Subjective Fear To Dictate Whether An FRO Was Necessary. C. The FRO Was Not Necessary To Protect Plaintiff.
POINT FIVE THE TRIAL COURT'S COUNSEL FEE AWARD VIOLATED THE ENTIRE CONTROVERSY DOCTRINE AND WAS AN ABUSE OF DISCRETION. We subsequently granted motions by seven organizati ons to appear as amici curiae and participate in oral argument in su pport of defendant's position. The organizations are: (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.A- 0305

- 21 19 II. Our scope of review in these matters is well-establ ished. We generally defer to the trial judge's findings of fact "when s upported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). In particular, we "review the Family Part judge's findings in accordance with a deferential standard of review, r ecognizing the court's 'special jurisdiction and expertise in family matte rs.'" Thieme v. AucoinThieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare , 154 N.J. at 413). However, in cases implicating the First Amendment, we must "conduct an independent examination of the record as a whole , without deference to the trial court." Hurley v. Irish-American Gay, Lesbia n & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 567 (1995) (citing Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)); see also Ward v. Zelikovsky, 136 N.J. 516, 536-37 (1994) (applying the same rule in New J ersey). This obligation springs from the reality that the ultimate constitu tional decision before the court is inextricably intertwined with the underlyi ng facts, and so the court cannot render a decision on the constitutional ques tion without examining the facts. Ibid. Thus, it is incumbent upon us to "'make an independ ent examination of the whole record,' to ensure that 't he judgment does not constitute a forbidden intrusion on the field of fr ee expression.'" Ward, 136A- 0305

- 21 20 N.J. at 536-37 (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 17 (1990)); see also State v. Carroll, 456 N.J. Super. 520, 532 (Ap p. Div. 2018) (applying the same standard to Facebook posts to determine "wheth er [the] defendant's speech is protected by the First Amendment" in a cy ber harassment and witness retaliation prosecution); Rutgers 1000 Alum ni Council v. Rutgers , 353 N.J. Super. 554, 567 (App. Div. 2002) ("Independent review of the record below is required because this case involves a Firs t Amendment question."). While the presence of First Amendment issues dimini shes a reviewing court's deference to a trial court's general fact-f inding, the specific deference owed to the trial court's credibility findings rema ins unchanged. Hurley, 515 U.S. at 567 (citing Harte-Hanks Commc'ns, Inc. v. C onnaughton, 491 U.S. 657, 688 (1989)). "Appellate courts owe deference to the trial court's credibility determinations . . . because it has 'a better perspective than a reviewing court in evaluating the veracity of a wit ness.'" C.R. v. M.T., 248 N.J. 428, 440 (2021) (quoting Gnall v. Gnall, 222 N .J. 414, 428 (2015)). However, "[a] more exacting standard governs our re view of the trial court's legal conclusions." Thieme, 227 N.J. at 283. Inde ed, "[a] trial court's interpretation of the law and the legal consequence s that flow from established facts are not entitled to any special deference." Rowe v. Bell & Gossett Co. , 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. ofA- 0305

- 21 21 Manalapan, 140 N.J. 366, 378 (1995)). "Accordingly , we review the trial court's legal conclusions de novo." Thieme, 227 N. J. at 283. In order to grant an FRO under the PDVA, a trial co urt must make certain findings pursuant to a two-step analysis de lineated in Silver, 387 N.J. Super. at 125-27. First, the court "must determine whether the plaintiff has proven, by a preponderance of the credible evidence , that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) ha s occurred." Id. at 125. Harassment, N.J.S.A. 2C:33-4, is among the enumerat ed predicate offenses. N.J.S.A. 2C:25-19(a)(13). Second, if the court finds that the defendant has c ommitted a predicate act of domestic violence, the court must then deter mine whether it "should enter a restraining order that provides protection for the victim." Silver, 387 N.J. Super. at 126. In making that determination, "the guiding standard is whether a restraining order is necessary, upon an e valuation of the factors set forth in [N.J.S.A. 2C:25-29(a)(1) to (6)], to prote ct the victim from an immediate danger or to prevent further abuse." Id. at 127. The statutory factors include "[t]he previous history of domestic violence . . . ;" "[t]he existence of immediate danger to person or property ;" "[t]he financial circumstances of the [parties];" "[t]he best intere sts of the victim and anyA- 0305

- 21 22 child;" and "[t]he existence of" an out- of -state restraining order. N.J.S.A. 2C:25-29(a). Here, the judge's finding of the predicate act of harassment in violation of N.J.S.A. 2C:33-4(a) was based exclusively on defendant's creation and dissemination of the video. A person commits harassment if, "with purpose to harass another, he [or she] . . . [m]akes, or cause s to be made, one or more communications anonymously or at extremely inconven ient hours, or in offensively coarse language, or any other manner li kely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a).

A violation of subsection (a) requires the followin g elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to haras s another person; and (3) the communication was in on e of the specified manners or any other manner simila rly 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) "d oes not proscribe mere speech, use of language, or other forms of exp ression." State v. L.C. , 283 N.J. Super. 441, 450 (App. Div. 1995) (citing S tate v. Fin. Am. Corp., 182 N.J. Super. 33, 36-38 (App. Div. 1981)). No statut e could do so, as "[t]he First Amendment to the federal Constitution permits regul ation of conduct, not mere expression." Ibid. (citing State v. Vawter, 136 N. J. 56, 65-67 (1994)); see,A- 0305

- 21 23 e.g. , Murray v. Murray, 267 N.J. Super. 406, 410-11 (App. Div. 1993) (holding that words alone, without "purposeful alarm or seri ous annoyance," were insufficient to sustain a domestic violence restrai ning order for harassment). Instead, "the substantive criminal offense proscrib ed by subsection (a) 'is directed at the purpose behind and motivation for' making or causing the communication to be made." Hoffman, 149 N.J. at 57 6 (quoting State v. Mortimer, 135 N.J. 517, 528 (1994)). Thus, "purpos e to harass is critical to the constitutionality of the harassment offense." R.G. v. R.G., 449 N.J. Super. 208, 226 (App. Div. 2017) (quoting State v. Castagn a, 387 N.J. Super. 598, 606 (App. Div. 2006)); see also D.C. v. T.H., 269 N .J. Super. 458, 461- 62 (App. Div. 1994) (reversing an FRO issued against a father who made a threat to beat up the mother's boyfriend because the defen dant's purpose "was to dissuade plaintiff's boyfriend from inflicting furt her corporal punishment upon his child" rather than to harass the plaintiff). "A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to eng age in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2(b)(1). A defendant's "mere awareness that someone might be alarmed or annoyed is insuffi cient." J.D. v. M.D.F. , 207 N.J. 458, 487 (2011) (citing State v. Fuchs, 23 0 N.J. Super. 420, 428 (App. Div. 1989)). Likewise, a "victim's subjectiv e reaction alone will notA- 0305

- 21 24 suffice; there must be evidence of the improper pur pose." Ibid. (citing State v

. Washington, 319 N.J. Super. 681, 691-92 (Law Div. 1 998)); see Franklin v. Sloskey, 385 N.J. Super. 534, 544 (App. Div. 2006) (concluding that the evidence established only a "dispute between a coup le in the midst of a breakup, disagreeing over the future of their unbor n child" rather than intent to harass). Still, "[a] finding of a purpose to haras s may be inferred from the evidence presented," and "[c]ommon sense and experi ence may inform that determination." Hoffman, 149 N.J. at 577. The judge found that by creating and disseminating the vide o, defendant communicated in a manner proscribed by N.J.S.A. 2C:33-4(a) wit h a purpose to harass plaintiff. Further, according to the judge, defendant's comm unication was not protected by the First Amendment. The judge's holding was predicated on her determination that being identified as a get refuser was inh erently dangerous and defendant's purpose in asking members of her community to "press" plai ntiff to give her a get was to incite violence. Conversely, defendant argu es that in creating and disseminating the video, she engaged i n constitutionally protected speech. She contends her speech did not rise to th e level of incitement and thus retained its constitutional protection under t he First Amendment. Subsection (a) of the harassment statute "is 'aimed , not at the content of the offending statements but rather at the manner i n which they wereA- 0305

- 21 25 communicated.'" Id. at 583 (quoting Fin. Am. Corp. , 182 N.J. Super. at 39- 40). Indeed, "[m]any forms of speech . . . are int ended to annoy. Letters to the editor of a newspaper are sometimes intended to ann oy their subjects. We do not criminalize such speech, even if intended to an noy, because the manner of speech is non-intrusive." Ibid. Here, the judge found that the manner of communicat ion fell under the

so -called "catchall provision" of subsection (a) in t hat it was made in "any other manner likely to cause annoyance or alarm." Id. at 581-83; N.J.S.A. 2C:33-4(a). In order to protect against u nconstitutional vagueness and overbreadth in the statute, the phrase "any oth er manner likely to cause annoyance or alarm" has been interpreted narrowly. Hoffman, 149 N.J. at 5 81

- 83. In Hoffman, our Supreme Court explained that t he three enumerated modes of prohibited communication proscribed under the harassment statute

— anonymous, at extremely inconvenient hours, and in offensively coarse language

— each "can be classified as being invasive of the re cipient's privacy." Id. at 583. Likewise, the Court concluded that "th e Legislature intended the catchall provision of subsection (a) [to] encompass only those types of communications that also are invasive of the recipi ent's privacy." Ibid. Thus, in order to satisfy the catchall element, a communi cation must "intolerablyA- 0305

- 21 26 interfere with a person's reasonable expectation of privacy." Burkert, 231 N.J.
at 283. Critically, "[l]aws may 'not transgress the bounda ries fixed by the
Cons titution for freedom of expression.'" Id. at 275 (quoting Winters v. New York, 333 U.S. 507, 515 (1948)). Thus, as with any speech-regulating statute, the reach of N.J.S.A. 2C:33-4 is cabined by the fed eral and state constitutions. The First Amendment to the United States Constituti on provides in part that "Congress shall make no law . . . abridging the fre edom of speech, or of the press; or the right of the people peaceably to asse mble." Similarly, Article I, Paragraph 6, of the New Jersey Constitution proclai ms in part that "[e]very person may freely speak, write and publish his sent iments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press."

So greatly do we in New Jersey cherish our rights o f free speech that our Constitution provides even broader protections than the familiar ones found in its federal counterpart. In preserving and advancing those broad constitutional commands, we have been vigilant, jealously guarding the rights of the peop le to exercise their right to "freely speak," although th eir message may be one that is offensive to some, or ev en to many, of us. [Borough of Sayreville v. 35 Club L.L.C., 208 N.J. 491, 494 (2012) (citation omitted) (quoting N.J. Const. art. I, ¶ 6).]A- 0305

- 21 27 As such, "[t]here is no categorical 'harassment exc eption' to the First Amendment's free speech clause." Burkert, 231 N.J. at 281 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001)). "Speech . . . cannot be transformed into criminal c onduct merely because it annoys, disturbs, or arouses contempt." Ibid. "The First Amendment protects offensive discourse, hateful ideas, and crude langu age because freedom of expression needs breathing room and in the long run leads to a more enlightened society." Ibid. To that end, the right to free speech also includes the right to exhort others to take action upon that speech. "It extends to more than abstract discussion, unrelated to action." Th omas v. Collins, 323 U.S. 516, 537 (1945) ("'Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts.") . In fact, "[t]he First Amendment protects the right to coerce action by 't hreats of vilification or social ostracism.'" Carroll, 456 N.J. Super. at 53 7 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926 (1982)). In Claiborne Hardware Co., Black activists in Claib orne County, Mississippi, organized a boycott of white-owned bus inesses when local civic and business leaders refused to assent to demands f or equality and racial justice. 458 U.S. at 899- 900

. "The boycott was supported by speeches and nonviolent picketing." Id. at 907. Additionally, "store watchers" stood o utsideA- 0305

- 21 28 the targeted businesses and took down the names of those who violated the boycott. Id. at 903-04. Those names were then "re ad at meetings of the Claiborne County NAACP and published in a mimeograp hed paper entitled the 'Black Times.' . . . [T]hose persons were branded as traitors to the [B] lack cause, called demeaning names, and socially ostraci zed." Ibid. In very public speeches, an organizer stated that violators would be "disciplined," and warned: "If we catch any of you going in any of th em racist stores, we're gonna break your damn neck." Id. at 902. The boyc ott went on for years, during which several decentralized acts of violence occurred, including shots fired into the homes of boycott violators, beatings , property damage, and threatening phone calls. Id. at 904-06. The Supreme Court ruled that the speech, both iden tifying and castigating boycott violators and promising retribu tion, was protected by the First Amendment. Id. at 915, 929. The Court expla ined that even speech designed to prompt others to act through "social pr essure and the 'threat' of social ostracism . . . . does not lose its protecte d character . . . simply because it may embarrass others or coerce them into action. " Id. at 910. Even the organizer's speech, which invoked the specter of vi olence and "might have been understood as inviting an unlawful form of dis cipline or, at least, as intending to create a fear of violence," was protec ted because "mere advocacyA- 0305

- 21 29 of the use of force or violence does not remove spe ech from the protection of the First Amendment." Id. at 927-29. The Court no ted that no actual violence occurred directly following the statements, and the re was "no evidence

— apart from the speeches themselves

— that [the organizer] authorized, ratified, or directly threatened acts of violence." Id. at 929. The Court cautioned that if such acts of violence did occur, there might be a q uestion of whether the organizer was derivatively liable, but until then, the speech retained its protected status. Id. at 928- 29. Similarly, in Organization for a Better Austin v. Keefe, 402 U.S. 415, 415 -16 (1971), the Court addressed "a racially-integra ted community organization['s]" actions "to 'stabilize' the racia l ratio in the . . . area" by influencing a real estate broker who allegedly enga ged in "blockbusting" or "panic peddling" tactics to scare white owners out of Chicago's Austin neighborhood. Id . at 415-16. The broker acted as the fleeing selle rs' agent to profit from the transactions. Ibid. In an effort to curtail the practice, the organization began a campaign against the broker. Id. at 417. The organization traveled to the broker's hometown, som e seven miles from Austin, and began distributing leaflets that were c ritical of the broker's practices. Id. at 415-17. Some leaflets "requeste d recipients to call [the broker] at his home phone number and urge him" to s ign an agreement to stopA- 0305

- 21 30 hi s real estate practices. Id. at 417. One leaflet promised to stop the campaign once he signed the agreement. Ibid. The organization distributed the leaflets at a shopping center, passed them to parishioners o n their way home from the broker's church, and left them at the homes of the broker's neighbors. Ibid. Finding that the organization's activities were an "invasion of privacy," the state courts enjoined the organization from dis tributing the leaflets or picketing in the broker's hometown. Ibid. The appellate court reasoned that the activities were "coercive and intimidating, rat her than informative and therefore . . . not entitled to First Amendment pro tection." Id. at 418. The Supreme Court reversed, concluding that the organiz ation's activities were protected by the First Amendment. Id. at 419-20. The Court emphasized that the fact that the organization's intent was "to exe rcise a coercive impact on [the broker] does not remove" the First Amendment's prot ections. Id. at 419. Additionally , since the injunction was "not attempting to stop the flow of information into [the broker's] household, but to t he public," the invocation of the broker's right to privacy was unavailing. Id. at 419- 20. In general, "[t]he mere tendency of speech to encou rage unlawful acts is not a sufficient reason for banning it." Ashcroft v. Free Speech Coal., 535 U.S. 234, 253 (2002). "The government may not proh ibit speech because it increases the chance an unlawful act will be commit ted 'at some indefiniteA- 0305

- 21 31 future time.'" Ibid. (quoting Hess v. Indiana, 414 U.S. 105, 108 (1973)). Thus, "[w]here a call to others to act neither conv eys a plan to act nor is likely to produce imminent danger, it may not be criminali zed, despite its unsettling message." Carroll, 456 N.J. Super. at 543. Althou gh there is a narrow exception for speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce s uch action," Brandenburg v. Ohio , 395 U.S. 444, 447 (1969), we have acknowledged th at "[e]ven urging others to violence is shielded unless the statement is designed and likely to produce immediate action." Carroll, 456 N.J. Super . at 545. In Brandenburg, the Supreme Court reversed the conv iction of a Ku Klux Klan leader for statements made at a rally. 3 95 U.S. at 444-45. At the rally, a group of hooded Klansmen, several carrying firearms, gathered around a burning cross. Id. at 445-47. Following a serie s of anti-Black and antisemitic remarks and slurs from the group, a sin gle individual began to speak. Id. at 446. Among other things, he said: "[I]f our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some reve ngeance [sic] taken." Ibid. He promised to march on Congress and elsewhere on J uly Fourth. Ibid. The speaker was convicted of violating a statute wh ich proscribed "advocat[ing] . . . the duty, necessity, or proprie ty of crime, sabotage, violence,A- 0305

- 21 32 or unlawful methods of terrorism as a means of acco mplishing industrial or political reform." Id. at 445 (alteration in origi nal). The Supreme Court summarily invalidated the statute, explaining that the "constitutional guarantees of free speech and free press do not per mit a State to forbid or
pr oscribe advocacy of the use of force or of law viol ation except where such advocacy is directed to inciting or producing immin ent lawless action and is likely to incite or produce such action." Id. at 4 47. "[C]onviction for mere advocacy, unrelated to its tendency to produce forc ible action," is unconstitutional because it "intrudes upon the free doms guaranteed by the First and Fourteenth Amendments." Id. at 447 n.2, 448. In United States v. Carmichael, 326 F. Supp. 2d 126 7, 1285 (M.D. Ala. 2004), the court explained that a "general history" of violence was insufficient to vitiate First Amendment protections. In that ca se, a criminal defendant facing drug distribution charges published a websit e with the putative goal of spreading awareness of his case and seeking informa tion about individuals involved. Id. at 1271-72. The website displayed n ames and photographs of individuals labeled as "Agents" and "Informants" beneath a caption reading , "Wanted," in large, red letters. Id. at 1272. The government sought a protective order requiring the defendant to remove the website from the internet on the ground that the website constituted harassment of theA- 0305

- 21 33 government's witnesses or served to intimidate or t hreaten the witnesses. Id. at 1274. At an evidentiary hearing, a witness called by the government testified that the terms "wanted" and "informant" were "threa tening" because the term "informant" had a "bad connotation among criminals and is equivalent to 'snitch.'" Id. at 1275. The witness also suggeste d that "the website [was] meant to encourage others to inflict harm" on infor mants and agents. Id. at 1286. Specifically citing four cases decided by federal c ircuit courts in the prior two years for context, the court acknowledged "numerous cases involving the murder of informants in drug-conspiracy cases." Id. at 1284. Nevertheless, the court explained that the proper f ocus of the inquiry was defendant's website itself, "not whether the site c alls to mind other cases in which harm has come." Id. at 1285. Thus, while th e court acknowledged that the "broad social context ma[de] the case closer," the "background facts" relied upon by the government were too "general" to rob th e website of its First Amendment protections, particularly since the court could not find that the website served "no legitimate purpose" or "cross[ed ] the line separating insults from 'true threats.'" Id. at 1278, 1282. As to the latter, the court acknowledged that "'tru e threats' are not protected by the First Amendment." I d. at 1280 (quoting Virginia v. Black ,A- 0305

- 21 34 538 U.S. 343, 359 (2003)); see also Watts v. United States, 394 U.S. 705, 707 (1969) (originating the true threats doctrine). "' True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a p articular individual or group of individuals." Black, 538 U.S. at 359. "The 'pr ohibition on true threats protects individuals from the fear of violence and from the disruption that fea r engenders, in addition to protecting people from th e possibility that the threatened violence will occur.'" Carmichael, 326 F. Supp. 2d at 1280 (quoting Black, 538 U.S. at 360). However, "eviden ce of an atmosphere of general intimidation is not enough to find . . . a 'true threat.'" Id. at 1285. Applying these principles, we are convinced that the video, w hether viewed on its own or in the context in which it was dissemina ted, does not fall outside the First Amendment's protection. The judge concluded that the vi deo was not protected by the First Amendment because members of the Jewish c ommunity would respond violently to plaintiff being identified as a get refuser. The judge stated that "[t]he First Amendment cannot protect this type of communication to incite, which is clearly invasive of [plaintiff's] safety and p rivacy." However, such an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render defendant's video a true t hreat or an imminent da nger to satisfy the incitement requirement. On the contrary, in Epstein, theA- 0305

- 21 35 court explained that disseminating the names of get refusers "so that the reading public will hold them in disrepute," and ot herwise taking steps to "shun and embarrass a recalcitrant husband . . . do [es] not violate the criminal laws of the United States." 91 F. Supp. 3d at 582. Critically, the First Amendment "does not prohibit name[-]calling" and "protects 'vehement, caustic, and sometimes unpleas antly sharp attacks' as well as language that is 'vituperative, abusive, and ine xact.'" Carmichael, 326 F. Supp. 2d at 1282 (quoting Watts, 394 U.S. at 708). Similarly, "threats of vilification or social ostracism" do not lose their protected s tatus. Claiborne Hardware Co., 458 U.S. at 910. If the literal threat "to break . . . necks" in Claiborne, against a backdrop of actual acts of retaliation a nd violence committed by boycott supporters against boycott violators, was no t outside the First Amendment's protection, it is hard to see how defendant's vi deo, with, at most, only nonspecific threatening connotations, could be unprotected. Id . at 902. The judge's suggestion that plaintiff had a right to not be s ubjected to anonymous phone calls, threats, or picketing at his house

— especially absent evidence that defendant made calls herself or distributed plain tiff's contact information

—

is likewise insufficient to render defendant's speech unlawful. Only the #FREE[L.B.B.] photo image, which the judge did not att ribute to defendant, identified plaintiff's hometown, not the video. Moreover, there was no directA- 0305

- 21 36 evidence of a link between the creation of the vide o, the dissemination of the video, and plaintiff's receipt of anonymous phone c alls. In any event, the acts of identifying an individual, encouraging others to call t hem and urge them to change their behavior, and picketing in their hometown are protecte d activities under Keefe, 402 U.S. at 417, 419. 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. Israel i courts

— where marriage and divorce are governed exclusively by religious law

— retain the powe r to impose sanctions including fines or jail sentences fo r get refusal. Jodi M. Solovy, Civil Enforcement of Jewish Marriage and Divorce: Constituti onal Accommodation of a Religious Mandate, 45 DePaul L. Rev. 493, 501 n.59 (1996). "Israeli law gives rabbinical courts the authority to issue certai n sanctions to pressure a non-consenting spouse to give consent to a get." Be n-Haim v. Edri, 453 N.J. Super. 526, 530 (App. Div. 2018). No such risk exists in state courts, as it is a fundamental principle that civil courts may not become entangled i n religious proceedings "if resolution requires the interpretation of religi ous doctrine." RanDav's Cnty. Kosher v. State, 129 N.J. 141, 162 (1992); see also Satz v. Satz, ___ N.J. Super. ___, ___ (App. Div. 2023) (slip op. at 16-18) (rejecting the exhusband's argument that the trial court violated his First Amendment rights by enforcing the provisions of a marital settlement agreement, rather t han a religiousA- 0305

- 21 37 contract, in which the parties agreed to participate in a be th din proceeding to obtain a get that the ex-wife sought). Because calls to exhort social pressure on plaintiff would necessaril y 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 w ere real and imminent is simply not supported by the record

. First Amendment protections cannot be vitiated on unsubstantiat ed findings of fact. The video itself, which was not even directed to plaintiff, contained no ov ert call for or reference to violence. See Carroll, 456 N.J. Super. at 539 (cit ing United States v. Dinwiddie , 76 F. 3d 913, 925 (8th Cir. 1996)) (listing "whet her the threat was communicated directly to its victim" as among the i ndicia of a "true threat"). Even an overt invocation of violence, however, woul d be insufficient to strip the statement of First Amendment protection. See C laiborne Hardware Co. , 458 U.S. at 902; Brandenburg, 395 U.S. at 446-47. Instead, to qualify as incitement and lose First Am endment protection

— as the judge tacitly found

— a communication must be both "directed to inciting or producing imminent lawless action and . . . like ly to incite or produce such action." Brandenburg, 395 U.S. at 447. However, s uch is not the case on this record. The difference between lawful and lawless action "may be identifiedA- 0305

- 21 38 easily by reference to its purpose." Claiborne Har dware Co., 458 U.S. at 933. Defendant's ultimate objective was unquestionably l egitimate

— it was to get a get. We are persuaded that under the circumstances of this case, the means employed by defendant to achieve her goal is entitl ed to First Amendment protection. Of course, should plaintiff ever be subjected to t he threat of violence at the hands of a third party, he will not be without recourse. In Stimler, a small group of rabbis were convicted of kidnapping-relate d charges when, ostensibly on behalf of agunot, they "worked with 'tough guys' or 'muscle men' in exchange for money to kidnap and torture husbands i n order to coerce them to sign . . . gittin ." 864 F.3d at 259-60. Thus, as evidenced in Stimle r, the violent, unlawful pursuit of gittin can be prosecuted. 864 F.3d at 259. But "[t]he normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it." Bartnicki v. Vopper, 532 U.S. 514, 529 (2001). "[I]t would be quite remarkable to hold that speech by a law-abiding [speaker] . . . can be suppressed in order to deter conduct by a non-law-abiding third party." Id. at 529-30. In sum, the judge's finding that the Jewish communi ty was prone to violence against get refusers

— and the implicit holding that defendant was aware of and intentionally availed herself of such violent tendencies

— is notA- 0305

- 21 39 supported by the record. The video was intended to get a get. The video did not threaten or menace plaintiff, and nothing in th e record suggests that plaintiff's safety or security was put at risk by t he video. Neither plaintiff's testimony that his father had been beaten for being a get refuser at an unspecified time and place nor defendant's vague te stimony that plaintiff's 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, defendant's speech does not fall within the narrow category of incitement exempted from Fir st Amendment protection. Likewise, because the judge's finding of a privacy violation relied upon the same factual finding, the record does not support t he finding that the manner of defendant's communication violated subsection (a) o f the harassment statute. As our Supreme Court explained, N.J.S.A. 2C:33-4 criminalizes only those "private annoyances that are not entitled to constitutiona l protection." Hoffman , 149 N.J. at 576. Defendant's communication does not meet that criteria. Therefore, we reverse the April 22, 2021, and August 27, 2021 , orders. In so doing, we vacate the FRO and the restraints contained the rein as well as the counsel fee award. In light of our disposition, the TRO should not be reinstated and we need not address defendant's or amici curiae's remaining argument s. Reversed. We do not retain jurisdiction.