Back in 2023, I blogged about S.B.B. v. L.B.B., a New Jersey intermediate appellate court case:
[T]he plaintiff husband and defendant wife were getting divorced, and the wife claimed that the husband wasn’t giving her a Jewish religious divorce. (The husband “denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020.”) To quote the court,
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 an “agunah” (pluralized as “agunot“), which subjects her to severe social ostracism within the Orthodox Jewish 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 include, but are not limited to, the use of force against a husband to secure a get.
The wife made a video, which ended up getting broadly distributed online, and in which she apparently said:
Hi. My name is [L.B.B.]. I’m a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we’re trying to get an agreement. We still did not get any of that. I tried 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 whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [blessing] on his head.
This led to dozens of phone calls from strangers to the husband, and the husband said he feared it might lead to violence (which had sometimes happened to Jewish husbands who refused to give gets). The husband therefore sought and obtained a restraining order that
barred defendant from having “any oral, written, personal, electronic, or other form of contact or communication with [p]laintiff,” and specifically ordered defendant to “remove any and all posts from all social media platforms requesting the ‘get‘” and “cease and desist … creating and posting on all social media platforms.” …
The trial judge’s rationale was that the wife’s actions violated defendant’s right to privacy, and risked provoking some people to commit violence against the husband. The order was premised on a New Jersey statutory provision that labeled it illegal harassment to
with purpose to harass another, … [m]ake[], or cause[] to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.
But the appellate court held that this [final restraining order (FRO)] was unconstitutional, and I think this was correct, given NAACP v. Claiborne Hardware and Organization for a Better Austin v. Keefe, cited by the court….
It turns out, though, that there’s more of a First Amendment issue to the case, because the entire case—including the appellate briefing both from the parties and from the amici—had been sealed. Here’s what the N.J. intermediate appellate court said about that in a follow-up decision Thursday, written by Judge Greta Gooden Brown and joined by Judge Arnold Natali:
Given the subject matter, pursuant to a protective order, the record was sealed in the trial court as well as on appeal, and litigants were forbidden from disseminating any information about the case to the public. See N.J.S.A. 2C:25-33(a) (“All records maintained pursuant to [the PDVA] shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law.”); R. 1:38-3(d)(9) and (10) (excluding from public access domestic violence records maintained pursuant to N.J.S.A. 2C:25-33 and the names and addresses of domestic violence victims, respectively).
During the appeal of the underlying domestic violence matter, a host of amici joined the case in support of defendant’s position: the American Civil Liberties Union of New Jersey (ACLU-NJ), the American Civil Liberties Union, the Jewish Orthodox Feminist Alliance, Sanctuary for Families, and Unchained at Last (collectively, ACLU amici), as well as the Organization for the Resolution of Agunot (ORA) and the Shalom Task Force (collectively, ORA amici). Each was automatically subject to the sealing restrictions and precluded from any public dissemination of information about the case…. [Eventually, the N.J.] Supreme Court … remanded the matter to the trial court for consideration of less-restrictive alternatives to the complete seal.
On remand, the trial court entered … [an] order, leaving the seal in place and concluding that no less restrictive alternatives would be sufficient to overcome the need to protect the victim. Amici now appeal from the … order, specifically seeking the right to disseminate and discuss their briefs subject to certain redactions to protect the parties’ anonymity…. [W]e now reverse the … order, unseal the briefs, and allow the litigants to discuss their contents publicly. We also provisionally grant defendant’s motion to unseal the broader record, but order a limited remand to allow the litigants to identify any discrete pieces of information that should remain confidential….
Initially, only the parties and their attorneys were given access to the record of the underlying domestic violence matter, with the directive that they be used solely for purposes of trial and appellate litigation and that confidentiality be maintained. On December 3, 2021, while the appeal of the FRO was pending, the trial court entered an amended protective order on defendant’s motion permitting “potential amicus curiae” to have access to the record, provided they agreed to be bound by the confidentiality provisions and not disclose any information about the case to the public…. [T]he [trial] judge declared:
The factors the [c]ourt must consider are as follows. First, will the release of the court documents be detrimental or potentially harmful to the victim? Second, will adverse publicity be a factor? Third, will access to the court records or in this case the brief on a case[-]by[-]case basis discourag[e] the victim from coming forward? And fourth, will this [c]ourt’s decision deter others similarly situated from filing actions under the domestic violence act for fear of possible disclosure?
Regarding the first factor, the judge remarked that plaintiff’s “name[ and] picture and defendant’s self-proclaimed status as an [a]gunot ha[ve] already infiltrated the community” and that “[a]ny additional release of information … has the potential for being detrimental to [plaintiff].” As to the second factor, the judge explained that because amici’s briefs “improperly characterize[d] … defendant as the victim,” if the briefs were unsealed, the “adverse publicity” would “confuse the public” and prevent “potential victims” from “seeking court assistance when social media is used to harass another.”
Addressing factor three, the judge believed it was “foreseeable” that unsealing amici’s briefs while the “parties [were] still in the midst of their divorce” would discourage plaintiff “from seeking help from the [c]ourt.” With regard to factor four, the judge found that “amici’s brief[s] would clearly discourage others from seeking assistance … for fear of being publicly humiliated or continually harassed by the court system.” …
The appellate court concluded that such sealing violated the First Amendment right to public access to court records, especially in light of the intervening substantive decision setting aside the FRO:
[E]ach of the four factors [applied by the trial judge, based on earlier cases,] are oriented toward the potential risks implicated by unsealing; none of the factors addresses the countervailing interests served by unsealing. Yet, they are some of our most cherished rights. We maintain open courts to “promote[ ] fairness and enhance[ ] public confidence in judicial procedures.” We safeguard the rights of the press “not for the benefit of the press so much as for the benefit of all of us,” to “assure[ ] the maintenance of our political system and an open society.”
Perhaps most crucially, “[o]ne of the core purposes of the First Amendment is to protect speech on matters of public interest, including speech that the government finds offensive.” It is out of respect for all these rights that there is a strong presumption of access to court records and that overcoming that presumption requires a careful balancing of the factors favoring secrecy against those favoring access. This case-by-case balancing test is constitutionally required, notwithstanding any law that would otherwise compel exclusion….
Here, although the judge acknowledged amici’s “strong interest in publicly discussing their briefs,” she never recognized that the constitutionally derived rights to speech and court access were valid interests that she was required to consider. Instead, the judge considered what she identified as “the general expectations of privacy afforded to victims of domestic violence” and found that no proposed redactions could “overcome” that interest. In doing so, the judge gave controlling weight to plaintiff’s interest and no weight to the constitutionally-derived interests of amici and defendant or to the rights of the public, contrary to settled authority….
Additionally, the judge’s factual finding that publication of what she referred to as the false “Agunot scenario” into “the community” would put plaintiff “again … in harm’s away” was a recapitulation of her findings in the FRO litigation that plaintiff was the victim of unlawful harassment by defendant and the Jewish community was likely to perpetrate violence on plaintiff as an accused get refuser. However, those findings were completely vitiated by our holding in S.B.B., where we determined that such findings of fact were “not supported by the record.”
To be clear, we do not fault the judge on this score because the judge issued her opinion maintaining the seal in January 2023, eight months before S.B.B. was decided. Nonetheless, our holding that a given fact is “lacking support in the record … is binding.” …
{The judge also referred to the prospect of plaintiff being “publicly humiliated” and the “general expectation of privacy” he was afforded to support her finding of the requisite harm. However, we have held that a “personal interest in privacy and freedom from annoyance and harassment, while important to the litigant, will not outweigh the presumption of open judicial proceedings.” Moreover, the prospect of “embarrassment” does not generally justify sealing records…. “If embarrassment were the yardstick, sealing court records would be the rule, not the exception.” … Thus, these references to potential harm are unavailing both because they are general and speculative in nature and because they are of the sort that we have specifically found insufficient to justify sealing.} …
Critically, given our opinion in S.B.B., the information contained in the briefs is duplicative of information already available to the public and thus less likely to pose any realistic risk of harm. The public interest in protecting the privacy of domestic violence victims, while no doubt valid, holds little weight in this case where we have determined that plaintiff was not the victim of domestic violence but the subject of lawful speech.
As for the valid concern identified by the judge that unsealing might discourage future victims of domestic violence from seeking help, such a blanket concern cannot carry the day. If it could, the mandate to analyze sealing requests on a case-by-case basis would vanish and be replaced by an automatic process long recognized as unconstitutional.
Beyond the general public interest in open court records, and the “[p]ublic confidence in the judiciary” that it promotes, defendant and amici identify a number of specific interests in disseminating and discussing their briefs. ACLU amici explain their desire to discuss “the ramifications of a trial court’s order on the ability of people allegedly experiencing abuse to use social media to ask for help to end their plights.” They emphasize that the underlying case concerns “the constitutional free speech rights of a woman … to use social media to speak about her inability to obtain a religious divorce and ask her religious community for help ending an allegedly untenable situation,” the court’s finding that this “peaceful online speech constituted harassment,” and the ensuing imposition of sweeping restrictions on her speech….
ORA amici’s concerns are similarly socially inflected; their brief in the underlying domestic violence case discusses get-withholding as a unique manifestation of abuse and explains the crucial role that speech and community have in resisting that abuse. Emphasizing the magnitude of the issue, ORA amici report that although the problem of get-refusal is hard to quantify, “[s]ome estimate that there are 150,000 agunot in New York alone.” Defendant identifies similar concerns as amici, although understandably is more focused on her own experience than a global context, and adds a discussion of the untenable dynamic created where plaintiff was free to speak but she was not.
The discussion in which the litigants wish to engage implicates issues of gender, religion, speech, media, culture, community, and the power of the state. These are precisely the kinds of topics in which the public has the greatest interest and, in turn, whose suppression our Constitution will most stoutly resist. In sum, plaintiff has identified little if any legally cognizable interest in secrecy, whereas the remaining litigants have identified a particularly strong interest in openness….
The court thus ordered the briefs and the record largely unsealed, though with some modest redactions (basically limited to “the parties’ full names and identifying information”).
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