On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C- 101-99.
Before Judges Wallace, Jr., Carchman and Wells.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Rutgers 1000 Alumni Council, the alumni branch of the "Rutgers 1000," a group of students, alumni and faculty opposed to defendant Rutgers University's ("defendant" or "University") focus on Division I athletics and membership in the Big East Conference, submitted an advertisement to the Rutgers Magazine (the Magazine). The ad "invited inquiries" and provided a contact address. The Magazine rejected the ad citing its extant, but unwritten, policy against accepting "issue-oriented" or "advocacy" ads.
Plaintiff challenged that rejection asserting that its First Amendment rights under the United States Constitution and free speech rights under the New Jersey Constitution were violated and that the Magazine engaged in viewpoint discrimination. The trial judge in the Chancery Division agreed and enjoined the Magazine from refusing to publish the advertisement. We now affirm and conclude that while the Magazine's stated policy of refusing issue-oriented or advocacy ads is valid, the Magazine violated its own policy through the prior publication of what can reasonably be construed to be an issue-oriented or advocacy ad addressing that same subject-matter as plaintiff's ad. As such, defendant engaged in viewpoint discrimination, and plaintiff is entitled to injunctive relief mandating publication of its ad.
To place this controversy in perspective and context, we present an expansive review of the relevant facts, noting that they are not in substantial dispute. Plaintiff is an unincorporated association and the alumni branch of the "1000 Men & Women of Rutgers," also known as "Rutgers 1000," which consists of a "movement" of students, alumni and faculty opposed to defendant's focus on Division I college athletics and membership in the Big East Conference. Consisting of approximately 200 members, the Alumni Council, plaintiff here, was formed in 1998, and its primary spokesperson is Richard S. Seclow, a 1951 graduate of Rutgers College.
Plaintiff creates interest in the views of Rutgers 1000 by: (1) writing to newspaper editors, state legislators and university staff and faculty; (2) providing interviews to the press; (3) maintaining an Internet web site; and (4) placing advertisements in various publications. The primary engine for increasing its membership has been plaintiff's web site, which is maintained by the Rutgers 1000 Student Council and has attracted over 200,000 hits; however, plaintiff has no mechanism for targeting or contacting the entire University community or, more narrowly, the alumni.
In April 1998, plaintiff placed a full-page advertisement in the Daily Targum (Targum), the independently produced, Rutgers student newspaper. The ad featured Milton Friedman, a Nobel laureate, Rutgers alumnus and member of Rutgers 1000. Following publication of the ad in the Targum, plaintiff received a "fire storm" of press, and articles about Rutgers 1000 were written in the New York Times, Sports Illustrated, the Chronicle of Higher Education and several New Jersey newspapers as well as the Targum.
The Magazine, an official publication of defendant, is an award-winning quarterly periodical and has a circulation of approximately 105,000. It publishes articles on political, literary, historic, scientific, cultural and athletic issues and is distributed to alumni, faculty and staff, parents of students, non-alumni contributors and other non-university related individuals. Its masthead states that it is "For Alumni & Friends of New Jersey's State University."
Typically, the Magazine dedicated the back and inside covers, plus up to sixteen pages, to advertising and sold advertising to the public; advertisers were not restricted to alumni. All advertisements were paid for, even if the advertisers were departments within the University. Defendant William W. Owens, now retired, but then the Director of Marketing and Communications Services for defendant and Editorial Director of the Magazine, made the final decision on the Magazine's editorial content and possessed the authority to reject an advertisement.
In May 1998, plaintiff submitted a one-column advertisement to the Magazine. Plaintiff sought publication in the Magazine's Summer issue in order to appeal to alumni and to obtain more support for its cause. Plaintiff believed that the Magazine was the "only place where [it could] get the pure alumni audience." *fn1 The proposed advertisement was entitled "For Rutgers Alumni - a Time to Choose," and featured a photograph of Milton Friedman and quotation by him, stating: "Universities exist to transmit knowledge and understanding of ideas and values to students, not to provide entertainment for spectators or employment for athletes." The advertisement urged Rutgers to "withdraw from 'professionalized' college athletics, resume competition at a genuinely collegiate level, and return to its values as an old and distinguished university." It solicited alumni to join plaintiff's campaign and provided a mailing address and an Internet web site.
The advertisement was forwarded to the Magazine's editor, Lori Chambers, who brought it to Owens' attention because she believed it violated the Magazine's policy against accepting issue-oriented ads. Owens examined the advertisement, concurred with Chambers and informed plaintiff that the advertisement was unacceptable because the Magazine did not sell space for "letters, opinion articles, or advocacy advertising of any sort."
On behalf of plaintiff, Seclow wrote to Owens, seeking a clarification of the Magazine's policy concerning advocacy advertising. Owens responded and wrote:
Rutgers Magazine is intended to promote Rutgers and its programs, and to engender loyalty and enthusiasm for the institution among the University community, friends of the University, and alumni. Through its advertisements, the magazine offers goods and services that might benefit and be of interest to that audience so long as the nature of the goods and services is not inconsistent with the magazine's limited purposes.
He further stated that the Magazine had never published any kind of "advocacy advertisement supporting one side or another in a matter of public controversy."
Owens explained that he considered "'advocacy' advertising on any subject to be inconsistent with the goals and purpose of the Magazine," and identified the matter of public controversy in plaintiff's advertisement to be the University's participation in the Big East Conference, that issue being plaintiff's "whole reason for being." He further explained that while he had used the word advocacy several times, it would be "more accurate" to say that the Magazine's policy "was to have only issue neutral ads and not to accept issue oriented ads."
Owens concluded that the advertisement was issue-oriented because plaintiff was an issue-oriented group, stating "it's very obvious and they're inviting people to join their group." The Magazine adopted such a policy because to accept issue- oriented advertisements would "open" them to a number of "critical and negative things from all kinds of groups that -- that we couldn't control" and expose the University to blame for "running controversial ads." Owens' information about plaintiff was based on the text of the proposed advertisement itself, the interview of Seclow that the Magazine conducted for an article about Robert Mulcahy, defendant's new athletic director, and from other articles about plaintiff that Owens had read.
The cover story of the Magazine's Summer 1998 issue focused on Mulcahy and Rutgers' athletic program (the Mulcahy article). As part of this article, Seclow was interviewed, and plaintiff's position on the University's membership in the Big East was included because the Magazine felt that a "balanced" story on the issue should be presented. The article quoted Seclow, stating:
[C]ollege sports has gotten out of hand in this country, and Rutgers has been swept up in it. Why not take coaches' salaries and hire more professors or endow more scholarships for minority students? Big- time athletics leads to cutting corners and lowering academic standards. I think Bob [Mulcahy] is eventually going to find this out and make changes, or he'll find that the job isn't for him.
The subsequent Fall issue of the Magazine published four letters from readers in response to the Mulcahy article, including three supporting plaintiff's position. Also published in the "Alumni Notes" section of that issue was a class note from Seclow regarding plaintiff:
Dick Seclow may be retired from the advertising world, but he's far from inactive. Dick is a leader of the Rutgers 1000 Alumni Council which feels that the academic standing of the University is declining and wants Rutgers to withdraw from the Big East to join a less competitive conference like the Patriot League. They feel that money being spent on big-time athletics might be better spent in the academic area. Dick is interested in your input and he can be contacted at 44 Reading Road, Easton, CT 06612.
In October and November 1998, Seclow tried again to place an advertisement for plaintiff in the Magazine, this time submitting a classified advertisement for publication in the "Marketplace." The section contained the Magazine's classified ads, running advertisements for real estate, vacation properties, services and other miscellanea. *fn2 Seclow's proposed advertisement stated the following:
Invites Inquiries Rutgers 1000 Alumni Council P.O. Box 172 Easton, CT 06612 On the Internet: Search ...