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August 23, 2005.

MAMIE MOORE, et al., Plaintiffs,

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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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 opinion. BACKGROUND

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, (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 children.
(Transcr. of Portion of 9-16-04 Board Mtg. at 2-3, Pl.'s Ex. A.)*fn1
  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 attacks.
So, at that point I'm going to ask you to put the microphone down.
(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 ...

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