Social media is a powerful tool to lobby for Jewish divorce. A court nearly took it away
An ‘agunah,’ or ‘chained woman,’ is trapped in a marriage whose husband refuses to grant her a Jewish divorce, or get. Photo by iStock
Michael A. Helfand September 15, 2023
A New Jersey appellate court held last week that the First Amendment protects the right of a woman, chained to a marriage due to her husband’s refusal to grant her a Jewish divorce, to disseminate content that mobilizes social pressure to change her husband’s mind.
The underlying problem in such circumstances is that Jewish law only allows a husband to initiate the Jewish divorce process. Without receiving a get — a Jewish divorce document — Jewish law prohibits a woman from remarrying. Some husbands have, in turn, exploited this asymmetry to demand more favorable divorce settlement terms in exchange for the get — or sometimes abusive husbands have simply withheld the get in order to exercise power and control.
Prior to last week’s ruling, a trial court — in a highly controversial opinion — had held that a woman’s dissemination of such content constituted legally prohibited harassment, sufficient to justify not only a restraining order, but also monetary damages. If left on the books, such a decision could have significantly undermined an important tool within the Jewish community to combat the agunah crisis (agunah literally means “chained woman”).
For this reason, last week’s appellate decision reversing the trial court ensures that attempts to combat the agunah crisis through widespread social pressure remain a viable tool in the American Jewish community’s arsenal.
The total number of agunot is unclear. The Melman group conducted a survey over 10 years ago that reported 462 agunot in the United States and Canada. In 2014, the Organization for the Resolution of Agunot reported that they receive 150 phone calls from agunot annually. But a simple peek at Orthodox Jewish social media pages would reveal many, many instances of women pleading for help from the Jewish community, trapped in coercive circumstances where a husband abuses his power under Jewish law to withhold a Jewish divorce.
The case before the court stems from an acrimonious divorce between two parties — referred to anonymously as S.B.B. and L.B.B. — that has been ongoing since they separated back in 2019. As recounted by the court, the husband had, as of yet, been unwilling to grant his wife a get, necessary to effectuate a divorce under Jewish law.
Women in these situations, after attempting to find a resolution with their rabbi and local beit din, often turn to the Jewish community, hoping that coordinated social pressure can convince otherwise unwilling husbands to convey the get and thereby execute the religious divorce. Indeed, there are Jewish organizations dedicated to remedying these cases of agunot who use well-attended rallies, among other tactics, to pressure husbands to give the get and thereby release their wives from the marriage.
And in more recent years, a growing number of (largely female) social media influencers have sought to use their online presence to further encourage husbands to end marriages that, but for the get, have for all intents and purposes ended long ago.
But in the case of S.B.B. v. L.B.B., an initial New Jersey trial court decision held that for a woman to encourage this sort of coordinated pressure could constitute legally prohibited harassment. The defendant in the case had disseminated a video asking members of the Jewish community to “press” her husband to give her a get. According to the husband, this call to action had triggered a host of phone calls, demanding that he acquiesce. The husband further contended that there exists pervasive disdain within the Jewish community to those labeled a “get refuser,” and, as a result, he feared this campaign could lead to violence.
On this record, the first judge concluded that the wife had engaged in prohibited harassment because she had disseminated a video whose purpose was to “press, harass, annoy [and] alarm” the husband. In turn, the judge granted the husband a final restraining order because this sort of coordinated campaign could “incite violence.” She also awarded the husband attorney’s fees and monetary damages.
The decision had become a cause for worry among agunah advocates. Because only the husband can initiate a Jewish divorce, social pressure had become a key counterbalance to support the cause of women unable to leave their Jewish marriage. Thus, not surprisingly, numerous advocacy groups filed amicus (friend of the court) briefs on behalf of the wife on appeal, including the ACLU of New Jersey, the Jewish Orthodox Feminist Alliance, the Organization for the Resolution of Agunot, Unchained at Last and the Shalom Task Force.
The appeals court, however, reversed the decision, concluding that the First Amendment’s guarantee of free speech protected the dissemination of such videos. While the trial court had rejected such constitutional arguments, the appellate court concluded that “the right to free speech also includes the right to exhort others to take action upon that speech,” including “the right to coerce action by threats of vilification or social ostracism.” Indeed, recounting numerous Supreme Court decisions providing precedent to this ruling, the appellate court concluded that the behavior, “whether viewed on its own or in the context in which it was disseminated, does not fall outside the First Amendment’s protection.”
Essential to the appellate court’s decision was the fact that the video was not “directed to inciting or producing imminent lawless action and … likely to incite or produce such action.” If it had been, then the protections of the First Amendment might very well have fallen to the wayside. But the video, in the assessment of the appellate court, did no such thing. Generalized claims that the video might lead to violence were insufficient to meet such a legal standard. In the words of the court, “the video itself, which was not even directed to plaintiff, contained no overt call for or reference to violence.”
The decision itself has been hailed by advocates as protecting the rights of Jewish women and their communities, empowering them to raise their voices in response to instances of grave injustice. As the court made clear, the First Amendment does not authorize the coordination of violence against those who refuse to grant their wives a get. But principles of free speech do provide a vehicle to ensure that those who seek to manipulate Jewish law for either financial benefit or emotional abuse may very well have to face the condemnation of the broader Jewish community.
Attempts to quash such efforts under the guise of harassment will not withstand constitutional scrutiny.
To contact the author, email [email protected].
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