The opinion of the court was delivered by: MARY COOPER, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION
This matter comes before the Court on the motion by plaintiffs,
Mamie Moore ("Moore") and James Maynard ("Maynard")
(collectively, "plaintiffs"), for preliminary injunctive relief.
Plaintiffs filed the complaint on June 9, 2005 and filed the
motion on June 21, 2005. The parties submitted briefs in support
of and in opposition to the motion, and the Court heard oral
argument on the motion on August 16, 2005. The parties waived the
holding of an evidentiary hearing in favor of the Court deciding
the matter on the papers submitted by the parties. The Court will
grant in part and deny in part plaintiffs' request for a
preliminary injunction for the reasons stated in this memorandum
Plaintiffs are residents of Asbury Park, New Jersey. (Compl. at
¶¶ 7-10.) Moore is a member of both the Parent Teacher Student
Organization and the Student Leadership Committee at Asbury Park
High School, as well as the Government and Education Committee of
the Asbury Park Concerned Christian Coalition, and is a
grandmother of three children who attend Asbury Park schools.
(Id.) Maynard is a public school teacher as well as the
president and founder of the Asbury Park Improvement Association.
(Id.) Maynard is the husband of Susan Maynard, a member of the
Asbury Park Board of Education (the "Board"). (Id. at ¶ 11.)
The Board and individual Board members are the defendants. The
Board is a governmental entity responsible for administering the
elementary and secondary schools of Asbury Park, and it sets
policy for the school district. (Compl. at ¶ 12; Ans. at ¶ 12.)
Defendant Antonio Lewis is the superintendent of the Asbury Park
school system. (Compl. at ¶ 13; Ans. at ¶ 13.) Defendant Robert
DiSanto ("DiSanto") is the president of the Board. (Compl. at ¶
14; Ans. at ¶ 14.) DiSanto was elected by the citizens of Asbury
Park to serve as a member of the Board in April 2003. (DiSanto
Cert., ¶ 8.) DiSanto was appointed as president of the Board in
May 2004 by the county superintendent. (Id.) The remaining defendants, Amsden Bernier, Frank D'Allesandro, Garrett Giberson,
Adrienne Sanders, and Eileen Sonnier, are members of the Board.
(Compl. at ¶¶ 15-19; Ans. at ¶¶ 15-19.)
DiSanto was the general manager of Club Paradise (the "Club"),
a night club in Asbury Park, from the time he was elected to the
Board in April 2003 until September 2004. (Compl. at ¶ 28; Ans.
at ¶ 28.) During that time, the Club promoted its activities in a
monthly publication called "The Palm," recent and archived
editions of which were available at the Club's web site,
www.paradisenj.com. (Compl. at ¶¶ 31-32; Ans. at ¶¶ 31-32.) The
web site is publicly accessible and imposes no age verification
requirement. (Compl. at ¶ 32; Ans. at ¶ 32.) Editions of "The
Palm" published during DiSanto's tenure on the Board contained an
introductory statement by DiSanto along with his picture. (Compl.
at ¶ 33; Ans. at ¶ 33.) These editions also contained, inter
alia: a picture of an apparently naked pornography star, and a
link to a pornographic web site, in connection with his
appearance at the Club; promotion of a Club "sexware" party;
promotion of "hot-hot go-go boys" at the Club; promotion of a
"Battle of the Bulges" underwear contest at the Club ("Don't be
shy kids, we're not looking for the biggest bulge, we're looking
for who looks the best in their skivvies."); promotion of a movie
playing at the Club called "Eating Out," which featured a photo
of two shirtless, apparently teenage boys about to kiss and the text: "be prepared . . . to drool over the gorgeous boys."
(Compl. at ¶ 34; Ans. at ¶ 34.)
The Board holds regular meetings at which it conducts its
business. (Compl. at ¶ 22; Ans. at ¶ 22.) These meetings are open
to the public, and a portion of each meeting is set aside as a
public comment period. (Compl. at ¶¶ 23, 25; Ans. at ¶¶ 23, 25.)
At the May 13, 2004 meeting, during the public comment period,
Maynard said he was "upset with the County Superintendent's
choice of Robert DiSanto as Board President" and asked "to know
the specific criteria used in making the selection." (Excerpts of
Board Minutes from 5-13-04 Meeting at 21, App. of Exhibits Supp.
of Mot. for Prelim. Inj., Ex. ("Pl's Ex.") Q.)
At the June 2, 2004 meeting, Susan Maynard spoke critically of
DiSanto's appointment to the Board presidency and mentioned
"receiving many phone calls from parents unhappy about the
appointment and expressing concern about the [Club] website."
(Compl. at ¶ 36; Ans. at ¶ 36.)
At the June 14, 2004 meeting, Asbury Park resident Donna
Harrison ("Harrison") and another speaker during the public
comment period commented on the fact that the children of
plaintiff Maynard and Board member Susan Maynard did not attend Asbury Park public schools. (Compl. at ¶ 37; Ans. at ¶ 37.)
Harrison referred to criticism of DiSanto by the Maynards as
"cowardly attacks." (Compl. at ¶ 38; Ans. at ¶ 38.)
At the June 16, 2004 meeting, during the public comment period,
resident John Figuerido "spoke of despicable behavior displayed
by some Board Members" and "announced that he [would] begin the
process for a recall vote for Susan Maynard's seat on the Board."
(Compl. at ¶ 40; Ans. at ¶ 40; Excerpts of 6-16-04 Board Mtg. at
25, Pl.'s Ex. R.) Resident Tracy Stark said she would "`second'
[Figuerido's] vote to remove Susan Maynard." (Compl. at ¶ 41;
Ans. at ¶ 41; Excerpts of 6-16-04 Board Mtg. at 25, Pl.'s Ex. R.)
At the September 16, 2004 meeting, two policies relating to
sexual harassment (Policies 3362 and 4352) were on the Board's
agenda. (Compl. at ¶ 45; Ans. at ¶ 45.) Moore was recognized to
speak by DiSanto during the public comment period and she
attempted to read a statement. (Compl. at ¶¶ 47-48; Ans. at ¶¶
47-48.) She said:
I'm a member of the Concerned Christian Coalition and
the statement that I'm reading tonight was prepared
by Overseer Porter Brown, the founding member of the
Concerned Christian Coalition and a Pastor of the
Faith Baptist Tabernacle Church of Asbury Park.
These are challenging times filled with great
opportunity for advancement and better relationships
and understanding within the City of Asbury Park.
However, if voices within the community are silenced
by the loud cries of those who have different views,
then we are teaching our citizens and especially our children that democracy and freedom of
speech actually have no place in our culture.
The media . . . both print and broadcast have up to
this point not covered the thorny issues we face
[with] objective balance but have chosen to give more
coverage to a certain perspective without presenting
alternative views. That, too, sends a detrimental
message to the citizens of our community.
So here we are tonight with the same controversy.
While we do not advocate discrimination, we uphold
[Biblical] demands concerning right and wrong choices
people make. With that stated let's be perfectly
clear. Our concern has all to do with the kind of
role model the present President of the Board of
Education sends to impressionable children, our
(Transcr. of Portion of 9-16-04 Board Mtg. at 2-3, Pl.'s Ex.
DiSanto then spoke:
Ms. Moore, we we had already cautioned you that
this is not a personal attack here tonight. That
we're not going to open up to the public for personal
So, at that point I'm going to ask you to put the
(Id. at 3.) Moore responded:
Well, I I disagree with you that it's a personal
attack . . . but I did anticipate that.
I do have copies for any of the Board Members that
would like a copy.
(Id. at 3-4.)
DiSanto then recognized Board member Sanders to speak. (Id.
at 4; Compl. at ¶ 54.) Sanders spoke about, inter alia: "the
fact that she is a sinner who sins every day;" her college
friendship with a lesbian classmate who later married a man;
DiSanto's resignation from the Club; overreaction to a photograph
of DiSanto that she claimed was from a Halloween party; Coretta
Scott King's views on gay marriage; and gay parents of students
in the Board schools. (Compl. at ¶¶ 55-59; Ans. at ¶¶ 55-59.) No
member of the Board interrupted Sanders nor attempted to
terminate her speech. (Compl. at ¶ 60; Ans. at ¶ 60.) DiSanto
then said, inter alia, that the photo being discussed was a
misrepresentation of who he is and that he had resigned from the
Club for reasons unrelated to the Board. (Compl. at ¶ 61; Ans. at
¶ 61.) Board member D'Allesandro and three Asbury Park residents,
including Harrison, then spoke in support of DiSanto. (Compl. at
¶¶ 62-66; Ans. at ¶¶ 62-66.)
Minister John Muhammad then questioned DiSanto about why he had
not allowed Moore to finish her statement. (Compl. at ¶ 68; Ans.
at ¶ 68.) In response, DiSanto said, This issue has been beaten to death. It's done . . .
I'm not stepping down. The way the way that you
would handle this if you don't like me or you don't
like my lifestyle, then don't vote for me again.
That's how it's done. But at this meeting, the
subject is done, it's dead, it's not going to change
things. The state has come ...