United States District Court, D. New Jersey
August 23, 2005.
MAMIE MOORE, et al., Plaintiffs,
ASBURY PARK BOARD OF EDUCATION, et al., Defendants.
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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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
I. The Parties
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.)
II. The Board Meetings
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 back to support me . . .
The way that they would talk about this issue is at
the polls, not in this forum, not here. Not here."
(Compl. at ¶ 69; Ans. at ¶ 69.)
At the October 14, 2004 meeting, two policies relating to
inappropriate staff conduct (Policies 4281 and 3281) were on the
Board's agenda. (Compl. at ¶ 70; Ans. at ¶ 70.) Maynard was
recognized to speak by DiSanto and attempted to read a statement
during the public comment period. (Compl. at ¶¶ 72-73; Ans. at ¶¶
72-73.) The following exchange took place:
[Maynard]: My name is James Maynard, President of the
Asbury Park Improvement Association.
At the last meeting on the 16th it was abruptly
abruptly terminated; you all went into Closed
Session; a number of parents wanted to speak to the
As you know, this issue of Robert DiSanto and the
fact that he is still the Board President is still
under contention. In the papers he said it was a
non-issue but what I want to do is bring some facts
to go into the record about Mr. DiSanto.
[DiSanto]: Mr. Johnson
[Maynard]: In April, 2004, Mr. DiSanto was appointed
as President. After and before this date Mr. DiSanto
placed significant objectionable material on the Club
[Gregory Johnson, Board counsel ("Johnson")]: Excuse
me, Mr. Maynard [Maynard]: Mr. DiSanto
[Johnson]: Mr. Maynard
[Maynard]: was the general manager
[Johnson]: I just want to warn you that under the
Board policy there's certain limits to what you could
say. Those limits require that you be civil, that you
be respectful, that you do not direct any comments
personally to the Board Members.
[Maynard]: Have I done that?
[Johnson]: Well, we're warning we're warning you at
[Maynard]: You warned me the times before
[Maynard]: and I'm an intelligent person and I
appreciate your warning. Now, just thank you very
In April, 2004, Mr. DiSanto, the Board President,
[Johnson]: Well, I just want to let you know, before
you get too far out there, that we do have the
ability to ask the Police to stop you from making
[Johnson]: I just want to let you know that to
personally direct these comments at a particular
Board Member is improper. We're not
[Maynard]: Why why is it improper for me to read
information to educate the public about an
[Johnson]: Well, as I said before
[Maynard]: Really, why is that improper? [Johnson]: As I said before,
[Maynard]: No, answer that question.
[Johnson]: We have a policy
[Maynard]: What is the impropriety there?
[Johnson]: We have a policy
[Maynard]: What is the impropriety in a nation of
freedom where you have a democratic society
[Unidentified voice]: Why don't you read the
[Unidentified voice]: Come on, get out of here.
[Unidentified voice]: It's disruptive.
[DiSanto]: All right, well, just let's keep some
Mrs. (indiscernible) would you like to comment?
[Maynard]: No, (indiscernible)
[Maynard]: why are you (indiscernible)
addressing me? What have I done wrong?
[Johnson]: Mr. Maynard?
[Unidentified voice]: Just keep composed.
[Maynard]: Are you going to allow me to read my
statement or not?
[Johnson]: Well, if you're going to attack any Board
[Maynard]: Have I attacked anybody?
[Johnson]: we're not we're not going to allow
that. [Maynard]: Have I attacked anybody?
[Johnson]: Well, we know
[Maynard]: We know what?
[Johnson]: that you we know that you have certain
objections to the Board President.
[Maynard]: You know what this is now? You are
[Unidentified voice]: Oh, come on. Enough's enough.
[Two unidentified voices]: (Indiscernible.)
[Unidentified voice]: (Indiscernible) public's
comments should be related to agenda items.
[Unidentified voice]: Well, the other people want to
[Unidentified voice]: Come on.
[Maynard]: Are you going to let me talk about
[Johnson]: Well, if you're if you're not going to
discuss the agenda
[Maynard]: No, no, I can discuss governmental issues
[Johnson]: That's not that's not an issue.
[Unidentified voice]: (Indiscernible.)
[Unidentified voice]: Mr. Johnson, we have a Board
policy that says that the public comments are to be
made concerning agenda items.
[Maynard]: This is an agenda item.
[Unidentified voice]: That's a personal item of
[Maynard]: So, you're telling me that the public who
has concerns about the educational system here cannot
address anything in the educational system?
[Unidentified voice]: (Indiscernible.)
[Johnson]: I'm asking you that if you have anything
[Maynard]: Let me read by [sic] statement and if you
find it wrong, you can you can (indiscernible).
Let me read my statement.
In April, 2004, Mr. DiSanto
[Unidentified voice]: Why must we endure this?
[Unidentified voice]: (Indiscernible.)
[Unidentified voice]: We don't want to hear this.
[Johnson]: Mr. Maynard? Mr. Maynard? Mr. Maynard,
we're not going to listen to that. If you
[Johnson]: want to discuss that, then we're going
to ask the Police Officer to remove you.
[Maynard]: Go ahead and have me removed. I have
have him remove me then.
[Unidentified voice]: Enough's enough.
[Maynard]: You go ahead then. (Indiscernible) that
In April of 2004,
[Unidentified voice]: All right, I don't want to hear
[Unidentified voice]: Adhere to the policy.
[Maynard]: After and before this date, Mr. DiSanto
has placed significant objectionable material
[Unidentified voice]: (Indiscernible) [Maynard]: Are you going to tell this gentleman here
(Indiscernible portion, several people speak at the
[DiSanto]: Let's let's get some order in here.
[Maynard]: Thank you very much.
[DiSanto]: Mr. Maynard, please. We are trying to
conduct a positive meeting here.
[Maynard]: I agree.
[DiSanto]: We have heard your concerns.
[Maynard]: You haven't heard my concerns. I'm going
to read them tonight.
[DiSanto]: I believe we've heard it before.
[Maynard]: How can you surmise what someone's about
[DiSanto]: Could we make it brief, please?
[Maynard]: You're going to give me my two minutes?
And after those two minutes I can come back and get
another two minutes. Thank you very much.
In April of 2004, Mr. DiSanto
[Johnson]: Mr. President, wait, I would recommend
that we have a Resolution going into Executive
Session because we do have another legal matter and
we can return after members of the Board have heard
have met with the attorney who's a special counsel.
[D'Allesandro]: I make a motion we go into Closed
[DiSanto]: Motion to go into Closed Executive Session
made by Mr. D'Allesandro. Seconded by Mrs. Sonnier.
To discuss personnel, litigation and matters of
attorney/client privilege. [Roll call was taken and the Board went
into closed session.]
(Tr. of Portion of 10-14-04 Board Mtg. at 2-10, Pl.'s Ex. B.)
The Board reopened the public comment period following a closed
session. (Id. at 10-12.) The first speaker during this second
public session was Dennis Caufield ("Caufield"), plaintiffs'
counsel in this action. (Id. at 12.) Caufield introduced
himself as an attorney in consultation with Maynard and said,
"What I'd like to do is address a topic that Mr. Maynard had
wanted to put on record. They're simply facts that exist on a
website located at Club Paradise." (Id.) Caufield and Johnson,
following a few remarks by each, then had the following exchange:
[Johnson]: Mr. Caufield, I believe that your client
did get an opportunity to speak earlier and he was
interrupted because his speech or his statement was a
personal attack upon one of the Board Members. And we
really don't want to get into that. We believe we
have the authority to limit areas that the public can
talk about, so, you know, we would like to open the
public participation up to other members of the
public to talk.
There are concerns that people of the public may
have. We've listened to what your client had to say
tonight, so I'd ask you we're asking you
We don't want to hear that. Okay? We we heard your
client make a statement not only tonight but at
previous Board meetings.
[Caufield]: Sir, you're assuming what he's going to
put on the record. He's not going to put on the
record tonight what he put on at other business
meetings rather other Board meetings. [Johnson]: Well, we know what he said before and he's
already spoken about that issue. So,
[Caufield]: (Indiscernible) he was not given an
opportunity. I'm going to speak about something
different than what you anticipate . . .
. . .
[Johnson]: Does that concern a member of the Board of
Education? That's what I'm all I'm asking you?
Your speech, will that concern a member of the Board
[Caufield]: Yes, it will, sir.
[Johnson]: Okay, sir, we don't have to go into that.
. . .
[Caufield]: You haven't heard what I have to say.
[Johnson]: You just said that you're going to comment
about an individual Board Member. We you know that
is a personal attack.
[Caufield]: It's no, what I'm going to represent
are only materials that he placed on the website.
[Johnson]: No, no, no, no, no.
(Id. at 12-15.)
Johnson then recognized a Mr. Crudup, who spoke about agenda
items. (Id. at 16.) Maynard then spoke again, and had the
following exchange with an unidentified Board member or members:
[Maynard]: My name is James Maynard . . . and I have
a question about the minutes.
If you look at item 10(a), which was referred to Mr.
Crudup, they talk about the this inappropriate staff
conduct, policy 4281.
[Board member]: May I have a point of order?
[Board member]: Is this staff conduct or Board of
[Johnson]: Staff members.
[Board member]: Staff conduct. We are not members of
[Johnson]: That's right.
[Board member]: This particular policy does not apply
to the Board of Education. It applies to the staff of
the Board of Education. Therefore, the policy that
they're talking about has nothing to do with the
Board of Education and we will not accept personal
attacks upon the Board of Education. That is outside
of our policy. Our policy does not permit it.
[Maynard]: Has there been a personal attack? I'm
asking about the minutes here.
(Id. at 16-17.)
At the November 18, 2004 Board meeting, Maynard attempted to
read a statement during the public comment period. (Compl. at ¶¶
88-89; Ans. at ¶¶ 88-89.) The minutes reflect that, in response
to Maynard, Board counsel "clarified that Policy # 4281 applies
to staff only, not Board Members. He further explained that this
Board has no jurisdiction over misconduct of a Board Member."
(Excerpts of Board Minutes from 11-18-04 Meeting at 27, Pl.'s Ex.
V.) III. The Challenged Policy
Plaintiffs challenge the constitutionality of certain
provisions of Board Bylaw 0167 (the "Bylaw") and seek a
preliminary injunction to prevent the Board from enforcing those
provisions. The Bylaw, entitled "Public Participation in Board
The Board of Education recognizes the value of public
comment on educational issues and the importance of
allowing members of the public to express themselves
on school matters of community interest.
In order to permit the fair and orderly expression of
such comment, the Board shall provide a period for
public comment at every public meeting.
Public participation shall be permitted at the
discretion of the presiding officer.
Public participation shall be extended to residents
of this district, persons having a legitimate
interest in the actions of this Board, persons
representing groups in the community or school
district . . . except when the issue addressed by the
participant is subject to remediation by an alternate
method provided for in policies or contracts of the
Public participation shall be governed by the
1. A participant must be recognized by the presiding
officer . . .
2. Each statement made by a participant shall be
limited to three minutes' duration, or at the
discretion of the presiding officer;
3. No participant may speak more than once on the
same topic until all others who wish to speak on that
topic have been heard; 4. All statements shall be directed to the presiding
officer; no participant may address or question Board
5. The presiding officer may:
a. Interrupt, warn, or terminate a participant's
statement when the statement is too lengthy,
personally directed, abusive, obscene, or irrelevant;
b. Request any individual to leave the meeting when
that person does not observe reasonable decorum;
c. Request the assistance of law enforcement officers
in the removal of a disorderly person when that
person's conduct interferes with the orderly progress
of the meeting;
d. Call for a recess or an adjournment to another
time when the lack of public decorum so interferes
with the orderly conduct of the meeting as to warrant
such action; and
e. Waive these rules when necessary for the
protection of privacy or the efficient administration
of the Board's business.
(Asbury Park Board of Educ. Bylaw 0167, Pl.'s Ex. E.)
Plaintiffs specifically challenge the following phrases:
The phrase "at the discretion of the presiding
officer" in the third full unnumbered paragraph
The phrase "personally directed" in numbered
paragraph 5(a) ("paragraph 5(a)"); and
The phrase "Waive the rules when necessary for the
protection of privacy or the efficient administration of the Board's business," in numbered paragraph 5(e)
("paragraph 5(e)"), i.e., all of
Plaintiffs challenge the Board's policies and practices both
facially and as applied on the grounds that the policies (1)
constitute impermissible viewpoint-based restrictions in
violation of the First Amendment to the United States
Constitution, (2) in the alternative, are viewpoint neutral but
are unreasonable restrictions on speech, (3) are overbroad, and
(4) are void for vagueness. (See Pl.'s Br. at 5-6.)
I. Preliminary Injunction Standard
Injunctive relief is an "extraordinary remedy, which should be
granted only in limited circumstances." Frank's GMC Truck Ctr.,
Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)
(citation omitted). When determining whether to grant preliminary
injunctive relief, the Court must consider whether: (1) the party
seeking such relief has shown a reasonable probability of success
on the merits; (2) the moving party will be irreparably injured
by denial of the relief; (3) granting such relief will result in
even greater harm to the nonmoving party; and (4) granting such
relief will be in the public interest. See, e.g., Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153,
158 (3d Cir. 1999); ACLU of N.J. v. Black Horse Pike Reg'l Bd.
of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir. 1996). When relevant,
the Court also considers possible harm to interested third
parties. See, e.g., Oburn v. Shapp, 521 F.2d 142, 152 (3d
Cir. 1975). "The injunction should issue only if the plaintiff
produces evidence sufficient to convince the district court that
all four factors favor preliminary relief." Amer. Tel. & Tel.
Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d
Cir. 1994) (citations omitted).
II. Reasonable Probability of Success on the Merits
The party seeking a preliminary injunction must demonstrate a
"reasonable probability of eventual success in the litigation."
Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982). In
evaluating whether a moving party has satisfied this first part
of the preliminary injunction standard, "[i]t is not necessary
that the moving party's right to a final decision after trial be
wholly without doubt; rather, the burden is on the party seeking
relief to make a prima facie case showing a reasonable
probability that it will prevail on the merits." Oburn,
521 F.2d at 148 (citations omitted).
Plaintiffs must demonstrate a reasonable probability of success
on the merits of their claim that the Board's policy is an
impermissible restraint on speech. The standard we use in reviewing restrictions on speech, such as the Bylaw, depends on
the type of forum where the speech is restricted. Bach v. Sch.
Bd. of the City of Virginia Beach, 139 F.Supp.2d 738, 741 (E.D.
Va. 2001). The parties agree that the forum here, the Board
meeting, is a limited public forum. (See Pl.'s Br. at 7-8;
Def.'s Br. at 11-13.) See Leventhal v. Vista Unified Sch.
Dist., 973 F.Supp. 951, 957 (S.D. Ca. 1997) (finding open school
board meetings to be limited public fora, i.e., "fora open to
the public in general, but limited to comments related to the
school board's subject matter") (quotations and citations
omitted); see also Bach, 139 F.Supp.2d at 741 (same).
In limited public fora like the Board meetings,
content-neutral regulations may be drawn to restrict
the time, place, and manner of protected speech, as
long as the regulation is narrowly tailored to serve
a significant governmental interest and leaves open
ample alternative channels for communication.
Content-based regulations, however, are subject to a
more exacting standard of scrutiny and must be
narrowly drawn to achieve a compelling state
Bach, 139 F.Supp.2d at 741 (citations omitted). See also
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 280-81 (3d Cir.
2004) ("[A limited public forum] is reviewed under a sliding
standard that allows for content-related regulation so long as
the content is tied to the limitations that frame the scope of
the designation, and so long as the regulation is neutral as to
viewpoint within the subject matter of that content."). We will consider the challenged provisions of the Bylaw in two groups for
the purposes of this analysis: (1) the provisions that grant
discretion to the presiding officer to restrain speech
("discretionary provisions") and (2) the provision that limits
speech that is personally directed ("personally directed
A. Discretionary Provisions
Plaintiffs challenge the following provisions of the Bylaw that
grant discretion to restrain speech to a Board meeting's
The phrase "at the discretion of the presiding
officer" in paragraph three; and
The phrase "Waive the rules when necessary for the
protection of privacy or the efficient administration
of the Board's business," in paragraph 5(e).
Plaintiffs characterize the discretion afforded the presiding
officer by paragraph three and paragraph 5(e) (collectively the
"discretionary provisions") as "unbridled" and argue that
granting such discretion to one person "allows a single public
official to determine which members of the community get to
address the forum and even gives the latitude to waive the rules
when that one person deems it necessary." (Pl.'s Reply Br. at
Plaintiffs challenge the discretionary provisions both facially
and as applied. Plaintiffs argue generally that DiSanto has used the discretion granted by the discretionary provisions
to prohibit viewpoints critical of his own fitness for office.
(Pl.'s Reply Br. at 8-9.) Plaintiffs, however, do not point to
instances when DiSanto allegedly used his discretion to waive any
rules pursuant to paragraph 5(e). Neither do plaintiffs argue
that DiSanto used his discretion pursuant to paragraph three in a
manner other than to prevent negative statements about him.
Plaintiffs' as-applied challenge, then, is based solely on the
Board's use of discretion in applying the "personally directed"
provision. The Court, as discussed infra, will order the
"personally directed" provision to be stricken from the Bylaw.
The plaintiffs' motion requests only prospective injunctive
relief. (See Pl.'s Rev. Prop. Ord. Granting Prelim. Inj. (dkt.
entry no. 5).) The Court, therefore, will not consider
plaintiffs' as-applied challenge to the discretionary provisions
because defendants will not be able to apply those provisions in
the future in the manner complained of, i.e., to enforce the
"personally directed" provision. We will consider only
plaintiffs' facial challenge to the discretionary provisions.
The standard of review for plaintiffs' challenge to the
discretionary provisions depends on whether the regulation is
content neutral or content based. A restriction on speech is
content neutral if it is "justified without reference to the
content of the regulated speech." Scroggins v. City of Topeka, 2 F.Supp.2d 1362, 1371 (D. Kan. 1998) (quotations and citation
omitted). "A regulation that serves purposes unrelated to the
content of the expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others."
Scroggins, 2 F.Supp.2d at 1371 (quotations and citation
omitted). The language of these discretionary provisions makes no
reference to any particular content or viewpoint that may be
expressed at a Board meeting. These provisions serve a purpose
unrelated to the content of any speech that may be limited
pursuant to their grant of discretion, specifically, the fair and
orderly expression of public comment. (See Bylaw 0167 at second
full unnumbered paragraph, Pl.'s Ex. E.) The presiding officer
may waive a rule for the protection of privacy or the efficiency
of the Board's meeting without reference to a given statement's
content. (Id. at ¶ 5(e).) And, although the presiding officer
is given discretion to permit public participation, the Bylaw
emphatically recognizes the value of public comment and states
that public participation "shall be extended" to residents of the
district and other interested parties. (Id. at first and fourth
unnumbered paragraphs.) We therefore find that the discretionary
provisions are content neutral.
The validity of these provisions, then, depends on their being
narrowly tailored to serve a significant governmental interest
and on their leaving open ample alternative channels for communication. Bach, 139 F.Supp.2d at 741. The government has a
recognized significant interest in conducting orderly, efficient,
effective, and dignified meetings of its public bodies. See
Scroggins, 2 F.Supp.2d at 1372 (citing cases). For the
presiding officer of a Board meeting to "allow a speaker to try
to hijack the proceedings, or to filibuster them, would impinge
on the First Amendment rights of other would-be participants."
Eichenlaub, 385 F.3d at 281. The discretionary provisions are
aimed squarely at serving the Board's significant interest in
orderly, efficient meetings. Far from regulating content in
advance, these provisions simply give the presiding officer the
requisite discretion to supervise public meetings.
The challenged provisions also leave open ample alternative
channels for communication. See Bach, 139 F.Supp.2d at 741.
These provisions do not close off channels for communication but
rather serve as guidelines for the form of such communication.
The Bylaw, for example, limits each statement to three minutes'
duration but does not limit the number of statements a speaker
may make. The Bylaw emphasizes the importance of public comment
and dictates that public participation "shall" be permitted
unless an alternate method of remediation is provided by the
policies of the Board.
We find that the discretionary provisions are content neutral.
We find further that these provisions are narrowly tailored to serve a significant governmental interest and leave
open ample alternative channels of communication. We hold,
therefore, that plaintiffs have failed to demonstrate a
reasonable probability of success on the merits of their claim
that these provisions of the Board's policy are an impermissible
restraint on speech.
B. "Personally Directed" Provision
We must determine the appropriate standard of review for
plaintiffs' challenge to the "personally directed" provision,
again based on a determination of whether the challenged
provision is content based or content neutral. Courts have found
similar school board policies to be content-based restrictions.
In Leventhal v. Vista Unified Sch. Dist., 973 F.Supp. 951 (S.D.
Ca. 1997), plaintiffs challenged a school board bylaw that
permitted the board president to terminate a presenter's comments
if the presenter, after a warning, persisted in making improper
remarks, which included complaints against individual employees
of the school district unless such employees consented to the
remarks. Leventhal, 973 F.Supp. at 953-54. The Leventhal
court found such a prohibition on criticism to be a content-based
regulation. Leventhal, 973 F.Supp. at 957. Similarly, in Bach
v. Sch. Bd. of the City of Virginia Beach, 139 F.Supp.2d 738
(E.D. Va. 2001), plaintiffs challenged the constitutionality of a
school board bylaw that, inter alia, prevented persons
addressing the board at meetings from making "attacks or accusations
regarding the honesty, character, integrity or other like
personal attributes of any identified individual or group."
Bach, 139 F.Supp.2d at 741 n. 1. The Bach court, in finding
the bylaw to be an unconstitutional restraint on speech, found
the bylaw to be content based. Bach, 139 F.Supp.2d at 742-44.
See also Baca v. Moreno Valley Unified Sch. Dist.,
936 F.Supp. 719, 725 (C.D. Cal. 1996) (finding similar bylaw to be
We find that the "personally directed" provision of the Bylaw,
on its face and as applied by the Board, contains content-based
restrictions on speech. The effect of this provision is similar
to the effects of content-based restrictions in the case law:
"Participants in an open session of a public meeting were
permitted to praise the actions of [individuals] but were
prohibited from making any critical or accusatory comments."
Bach, 139 F.Supp.2d at 742. The record shows that the Board
consistently relied on this provision to prevent plaintiffs from
criticizing DiSanto but conversely did not prevent other speakers
from supporting him. In so doing, the Board in effect implemented
a policy of preventing personal attacks rather than preventing
all personally directed comments. Indeed, Board members often
used the phrase "personal attack" instead of "personally
directed" a phrase that rarely appears in the transripts. At
the September 16, 2004 meeting, for example, DiSanto interrupted Moore, warned her against making personal
attacks, and asked her to put down the microphone. Three Board
members, including DiSanto, and three members of the public then
spoke in support of DiSanto without interruption. At the October
14, 2004 meeting, Maynard was prevented from speaking on the
grounds that his speech would involve personal attacks. When
Maynard attempted to ask about Board Policy 4281, an item on the
agenda, the Board cut him off on the basis of preventing personal
attacks before he articulated his question.*fn3 "It is
difficult to imagine a more content-based prohibition on speech
than this policy, which allows expression of two points of view
(laudatory and neutral) while prohibiting a different point of
view (negatively critical) on a particular subject matter
(District employees' conduct or performance)." Baca,
936 F.Supp. at 730.
The "personally directed" provision, as a content-based
restriction on speech in a limited public forum, is subject to
review under the modified strict-scrutiny inquiry set out in
Eichenlaub v. Twp. of Indiana, 385 F.3d 274 (3d Cir.
2004).*fn4 A limited public forum is "reviewed under a
sliding standard that allows for content-related regulation so long as the content is
tied to the limitations that frame the scope of the designation,
and so long as the regulation is neutral as to viewpoint within
the subject matter of that content." Eichenlaub,
385 F.3d at 280-81. This provision of the Bylaw cannot withstand such
scrutiny. Assuming arguendo that the limitation on personally
directed comments is tied to the limited subject matter of the
Board meetings, we find that the provision is not neutral as to
viewpoint within that limited subject matter. The Bylaw, as
applied by the Board, limits the expression of one viewpoint,
i.e., negative criticism of the Board president, but does not
limit the opposing viewpoint. Viewpoint-based regulations are
improper. Eichenlaub, 385 F.3d at 281 n. 3.
"[T]he ability to question the fitness of the community
leaders, including the administrative leaders in a school system,
especially in a forum created specifically to foster discussion
about a community's school system," is an important public
interest. Bach, 139 F.Supp.2d at 743. A policy that "deters
individuals from speaking out on an issue of public importance
violates the First Amendment." Bach, 139 F.Supp.2d at 743. We
find that the words "personally directed" as they appear in
paragraph 5(a) of the Bylaw and as applied by the Board are a
content-based restriction on speech. We find that these words
have the effect of an impermissible viewpoint-based restraint and are unconstitutional. Because we find the challenged provision to
be an unconstitutional restraint on speech in a limited public
forum, we find that plaintiffs have demonstrated a substantial
likelihood of success on the merits of their challenge to this
provision of the Bylaw.
We find also, however, that the "personally directed" provision
is not an essential part of the Bylaw and that the Bylaw as a
whole does not depend on the validity of that provision. The
"personally directed" provision is not essential to the Bylaw's
goal of permitting the fair and orderly expression of public
comments, and numerous other provisions in the Bylaw contribute
toward that end. See Bach, 139 F.Supp.2d at 744 (finding the
contested provision not to be essential to the bylaw, ordering
the contested provision stricken, and noting that the remaining
provisions of the bylaw remain unaffected by the court's order).
Our striking the phrase "personally directed" from the Bylaw will
not affect the remaining provisions.
III. Irreparable Injury to Moving Party
A. Discretionary Provisions
"[A] failure to show a likelihood of success . . . must
necessarily result in the denial of a preliminary injunction."
Morton v. Beyer, 822 F.2d 364, 371 (3d Cir. 1987). The Court,
having concluded that plaintiffs have not demonstrated a
reasonable likelihood of success on the merits of their claims as to the discretionary provisions of the Bylaw, need not determine
whether plaintiffs have satisfied the remaining requirements for
preliminary injunctive relief as to these claims. Forum for
Academic & Inst'l Rights, Inc. v. Rumsfeld, 291 F.Supp.2d 269,
322 (D.N.J. 2003). We will address briefly the remaining factors,
though, for the sake of completeness.
We find no irreparable harm suffered by plaintiffs as a result
of the discretionary provisions of the Bylaw. Plaintiffs have not
shown that any rules were waived to plaintiffs' detriment. To the
extent that plaintiffs suffered injury by the restraint on their
speech, we find that such injury was caused not by the
discretionary provisions of the Bylaw but rather by the
"personally directed" provision.
B. "Personally Directed" Provision
A party seeking a preliminary injunction must make a "clear
showing of immediate irreparable injury." Hohe v. Casey,
868 F.2d 69, 72 (3d Cir. 1989). The deprivation of liberties
protected by the First Amendment typically constitutes
irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976).
"A plaintiff who meets the first prong of the test for a
preliminary injunction will almost certainly meet the second,
since irreparable injury normally arises out of the deprivation
of speech rights." ACLU v. Reno, 217 F.3d at 172 (citation
omitted). See also Child Evangelism Fellowship of New
Jersey, Inc. v. Stafford Twp. Sch. Dist., 233 F.Supp.2d 647, 666-67
(D.N.J. 2002) (same).
The Board argues that plaintiffs have not suffered irreparable
harm because their constitutional rights have not been violated.
(Def.'s Br. at 30.) This argument fails, as we have found already
that defendants are likely to succeed on the merits of their
constitutional claim with regard to the "personally directed"
provision. We find that, because plaintiffs suffered a
deprivation of their speech rights as described supra,
plaintiffs have made a clear showing of irreparable injury.
IV. Greater Harm to Nonmoving Party
The Court also must consider the harm to the nonmoving party if
the requested injunction is granted. Defendants argue that if
plaintiffs' request for injunctive relief is granted the Board
will lose its ability to conduct efficient and effective public
meetings because it will have no way to control chaos stemming
from public speakers' conduct. (Def.'s Br. at 30.) We disagree.
Although the Court will grant plaintiffs' request for injunctive
relief as to the "personally directed" provision of the Bylaw,
the Board will retain the robust set of rules currently set out
by the Bylaw. The discretion of the presiding officer will remain
intact, as will the remaining provisions of paragraph 5(a). The
presiding officer retains the ability, for example, to interrupt or terminate speech that is too lengthy, abusive,
obscene, or irrelevant. The Court recognizes the significant
interest the Board has in the orderly and efficient
administration of its business, and we expect the Board's ability
to conduct its business in such a manner will not be diminished
by our ruling.
V. The Public Interest
Neither the government nor the public itself can claim an
interest in enforcing an unconstitutional law. Child
Evangelism, 233 F.Supp.2d at 667. The public interest,
therefore, favors the granting of injunctive relief as to the
"personally directed" provision of the Bylaw. However, the public
interest favors the denial of injunctive relief as to the
discretionary provisions because those provisions serve the
important public interest in the fair and orderly administration
of Board of Education business without improperly restricting
public comment on the Board's business.
VI. No Bond Required
No bond requirement will be imposed pursuant to Federal Rule of
Civil Procedure 65(c), because we find that this case falls
within that exceptional class of cases warranting relief from the
bond requirement. See, e.g., First Puerto Rican Festival v.
Vineland, 108 F.Supp.2d 392, 396 (D.N.J. 1998). CONCLUSION
We will grant plaintiffs' request for a preliminary injunction
as to the phrase "personally directed" in paragraph 5(a) of the
Bylaw and deny plaintiffs' request as to the remaining
provisions. The Court directs the parties to submit a proposed
order consistent with this memorandum opinion.*fn5