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NEW JERSEY SECOND AMENDMENT SOCIETY et al, Plaintiffs,
v.
NEW JERSEY PRESS ASSOCIATION et al, Defendants.
Civil Action No. 20-5228 (MAS) (LHG)
United States District Court, D. New Jersey
October 15, 2021
NOT FOR PUBLICATION
MEMORANDUM OPINION
MICHAEL A. SHIPP, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on Defendants New Jersey Press Association (the "Press Association") and Peggy Stephan Arbitell's ("Arbitell") Motion to Dismiss Plaintiffs New Jersey Second Amendment Society (the "Society") and Alexander Roubian's ("Roubian") Amended Complaint. (ECF No. 55.) Plaintiffs opposed (ECF No. 59), and Defendants replied (ECF No. 62). The Court has carefully considered the parties' submissions and decides the motion without oral argument under Local Civil Rule 78.1. For the reasons set forth below, the Court grants Defendants' Motion.
I. BACKGROUND
This case began as a constitutional showdown between Governor Murphy and the Society, a non-profit corporation that advocates for gun rights. Governor Murphy and the other public defendants (collectively, the "State Defendants"), however, settled their case with the Society. With the Governor tapped out, all that remains is a battle between two non-profit corporations and
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their principals: the Society, run by Roubian, and the Press Association, a trade organization of press entities managed by Arbitell. Although the remaining parties continue to toss around lofty terms like "freedom of the press" and "fundamental rights," the facts in this matter are relatively mundane.[1]
A. The Government Responds to the Novel Coronavirus.
The story, like so many others over the past year and a half, finds its background in the spread of the novel coronavirus. A serious threat to public health, the World Health Organization declared the coronavirus a public health emergency on January 30, 2020. (Am. Compl. ¶ 15, ECF No. 51.) A flurry of executive orders from Governor Murphy's office ensued. Four days after the declaration, Governor Murphy announced the creation of New Jersey's Coronavirus Taskforce (the "Taskforce"), which coordinated the State's efforts to combat the coronavirus. (Id. (citing N.J. Exec. Order 102 (Feb. 3, 2020)).) About a month later, the Governor declared a State of Emergency. (Id. ¶ 16 (citing N.J. Exec. Order 103 (Mar. 9, 2020)).) Soon after, the Governor issued Executive Order 104, which limited the hours and operations of non-essential businesses in New Jersey. (Id. ¶ 18 (citing N.J. Exec. Order 104 (Mar. 16, 2020)).) As relevant here, that order did not list gun and ammunition retail stores as "essential" businesses-meaning those stores fell under the ambit of the order's business restrictions. (Id.) Still another order, Executive Order 107 (which superseded Executive Order 104), mandated the closure of non-essential businesses, including gun and ammunition retail stores. (Id. ¶ 20 (citing N.J. Exec. Order 107 (Mar. 21, 2020)).)
Unhappy with Executive Orders 104 and 107, Roubian began attending the Taskforce's "Daily Public Press Briefings." (Id. ¶ 19.) Roubian alleges that he "routinely" attended the Daily
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Public Press Briefings throughout March and raised concerns that the Governor's orders violated the Second Amendment. (Id. ¶ 22.) Roubian further alleges that for at least the March 2020 Daily Public Press Briefings, he was able to freely attend and ask questions-without need of any press pass. (Id. ¶ 19.)
Roubian also expressed his frustration with the Governor's orders through litigation. On March 23, 2020, the Society and others sued the Governor (the "Kashinsky Lawsuit"). The Kashinsky Lawsuit alleged that Executive Order 107 amounted to a perpetual ban on the sale of firearms and ammunition and sought to enjoin the State from enforcing the order as applied to gun and ammunition stores. (See generally Compl., Kashinsky v. Murphy, No. 20-3127 (D.N.J.), ECF No. I.)[2] A week after the lawsuit's filing, however, the State issued an administrative order that added gun and ammunition stores to the list of essential businesses. (Am. Compl. ¶ 26 (citing Admin. Order, No. 2020-6 (Mar. 30, 2020)).) The Court soon after administratively terminated the Kashinsky Lawsuit. (See Consent Order, Kashinsky, No. 20-3127, ECF No. 28.)
B. In 2018, Defendants Deny Plaintiffs Membership and Press Passes.
Against that backdrop, one might wonder what, if anything, Defendants have to do with this case. Roubian alleges two interactions with Defendants that give rise to constitutional concerns. The first-occurring two years before the ravages of the coronavirus and society's acculturation of terms like "social distancing" and "mask mandates"-was Defendants' administrative denial of membership and press credentials to Plaintiffs. Let's break that down.
The Press Association is a non-profit trade organization that brings together news organizations around the State. (Am. Compl. ¶ 5.) It has many members, including newspapers,
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digital news organizations, and other associate members-the latter category comprising, among others, printing companies, law firms, universities, and advocacy organizations (like the New Jersey Chamber of Commerce). (Id. ¶¶ 12-13.) Not just anyone can join the Press Association. To become a member, applicants must fill out forms on the Press Association's website, which mandate certain criteria. For example, newspaper applicants must attach their "most recent newspaper audit," a "postal statement or publisher's sworn statement," and the "last four consecutive issues" of their newspapers. (See N.J. Press Ass'n, Newspaper Membership Application.)[3] Applicants joining as digital news organizations or associate members are asked if their organizations promote special interest groups and if they use third-party verification services to measure unique visitors. (See N.J. Press Ass'n, Digital News Organization Application; N.J. Press Ass'n, Associate Membership Application.)
Membership in the Press Association bestows several benefits, including the ability to apply for the Press Association's "New Jersey Police Press Credentials" (the "Press Pass"). During 2018, the Press Association issued Press Passes on behalf of the New Jersey State Police ("NJSP"). (See Am. Compl. ¶ 9.) According to Defendants, the purpose of the Press Passes is "to aid police officers and other emergency personnel in identifying professional news reporters and photographers having a need for access to police and fire scenes in connection with their professional duties." (Cafferty Deck, Ex. D., ECF No. 55-6.) Further, "[eligibility for credentials is limited to news organization employees having regular contact with New Jersey State Police, local police, fire, and EMS personnel." (Id.) And, as will become critical later, "[a] New Jersey police credential is not required nor intended for use related to covering municipal, county, or state government meetings." (Id.)
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The Press Association employs six criteria in selecting applicants for Press Passes, which are reproduced fully below:
1. Applicants must be employed by news organizations gathering and disseminating news of general interest on a regular schedule throughout the year
2. Police press credentials are
1. NOT required to cover municipal, county or state government meetings or events
2. NOT to be used for professional, college or high school sporting events
3. NOT to be used for entertainment events
3. Applicants must be full-time news reporters or press photographers or freelance/independent contractors
4. Applications for freelancers and independent contractors require
1. Signature of the publisher or senior news editor of the sponsoring news organization
2. Copies of three (3) stories/photos published by the sponsoring news organization on whose behalf the application is submitted
5. First-time organizations applying for credentials must provide:
1. If printed, three (3) consecutive issues of the publication
2. If non-printed, a letter on company letterhead confirming the nature of the organization's news coverage, date established, and other information to help confirm the ongoing news reporting published by the organization.
6. Applications are submitted and credentials issued each year through September 30. Thereafter application forms for the coming year are posted in October and are good through the end of the calendar year.
(Id.) Critically, as shown by the sixth criterion above, the Press Association issues Press Passes that are effective for one calendar year. (Id.)
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Why does all this matter? Because Plaintiffs allege that Defendants denied them membership in the Press Association and additionally denied their application for the Press Association's 2018-2019 Press Pass. (Am. Compl. ¶ 10.) According to Plaintiffs, Defendants denied them without ever providing "a specification of reasons for denial or affording a right to appeal the denial." (Id.) Regarding Defendants' denial of the Press Pass, Defendants point to a May 2018 e-mail exchange between Roubian and Arbitell. (See Cafferty Decl., Ex. D.)[4] There, Arbitell denied Roubian's application for the 2018-2019 Press Pass, stating that "[a]pplicants must be employed by news organizations gathering and disseminating news of general interest on a regular schedule throughout the year." (Id.) She further mentions that the Press Pass is only for "reporting on breaking news" and, in a subsequent e-mail, that "[Roubian's] organization is a civil advocacy group with a targeted topic/audience and is not considered a news organization covering news of a general nature." (Id.) In response to Roubian's assertion that government officials used Press Passes for access to non-police events, Arbitell directed Roubian to "work [that] out with them directly" and stated that she "would be happy...
