The opinion of the court was delivered by: Linares, District Judge.
NOT FOR PUBLICATION CLOSED
This matter comes before the Court by way of Defendants', CBS Outdoor, Inc. and Wally Kelly (collectively "CBS"), motion to dismiss the claims of Plaintiffs Life Education Counsel, Inc., John Mulholland and Betty LaRosa (collectively "LEC") pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard. Fed. R. Civ. P. 78. Based on the reasons that follow, Defendants' motion to dismiss is granted.
Plaintiff LEC brings this suit against Defendant CBS for alleged violations of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 (Compl. ¶ 1). LEC is an organization whose "specific objective is to educate the public about the right to life, to offer alternatives to abortion and to promote the heath and well-being of men, women and the unborn" (Compl. ¶ 6). Defendant CBS Outdoor is a private corporation that sells outdoor advertising.
LEC promotes its objectives by "purchasing advertising space on billboards located mostly in the Northern New Jersey and New York City areas to express itself on various public issues, mainly a pro-life message that life begins at conception." (Compl. ¶ 8). In October 2010, LEC and CBS entered into an agreement to place LEC advertisements on two CBS billboards in New Jersey, on Route 1 South in Linden and Route 22 in Hillside. CBS reserved final content approval in the Advertising Agreement (Pl. Ex. 4).
Upon receiving the content of the proposed advertisement, CBS informed LEC that they would have to make certain changes because of the "issue oriented" nature of the message (Compl. ¶ 20). For example, CBS suggested toning down the content from "Abortion Kills Babies" to something like "Life Education Counsel Can Help" (Compl. ¶ 20). LEC offered the following changes: replace "Abortion Kills Babies" with "Abortion Stops a Beating Heart," and replace "We Can Help" with "Pregnant?? Call 1 800-848-LOVE" (Compl. ¶ 22). CBS deemed the changes insufficient and also required that a photo of a baby be removed, stating that abortion is a "potentially emotional topic that might be unduly disturbing to young women who may have made the kinds of choices that the displays deal with. Therefore, the accepted copy cannot include images which might be deemed shocking, unsettling or even manipulative" (Compl. ¶ 23). Plaintiff refused to dilute the message and now claims that CBS impermissibly suppressed their viewpoint in violation of the First and Fourteenth Amendments of the Federal Constitution and seeks relief pursuant to 42 U.S.C. § 1983.
For a complaint to survive dismissal, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Further, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
As discussed above, bald legal assertions without factual enhancement sufficient to raise a right to relief beyond a speculative level do not meet the requisite pleading standard. LEC states in its Complaint that CBS acted under color of state lawto object to the content provided in its proposed advertisements and violate its rights to free speech and equal protection. However, LEC does not allege sufficient facts indicative of how CBS acted under color of state law or that establish a plausible right to relief.
1. First Amendment Claims
The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities. Pub. Util. Comm. Of D.C. v. Pollack, 343 U.S. 451, 461, 72 S.Ct. 813, 96 L.Ed. 1068 (1952) ("The [First Amendment] concededly appl[ies] to and restrict[s] only the Federal Government and not private persons"); Green v. America Online, 318 F.3d 465 (3d Cir. 2003) (private, for profit companies are not subject to constitutional free speech guarantees). "The First Amendment is not ordinarily implicated when private actors design . . . restrictions on expression; indeed, in many instances the first amendment has been held to guarantee private actors the right to make such restrictions." R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85 (3d Cir. 1984) (discussing landowner's right to remove ...