Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 1 of 29 PageID: 1103
`
`NOT FOR PUBLICATION
`
` CASE CLOSED
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`____________________________________
`
`:
`:
`:
`:
`
`::
`
`::
`
`::
`
`THE CHILDREN FIRST FOUNDATION,
`INC., a New York non-profit corporation
`duly registered in the State of New Jersey,
`and DR. ELIZABETH REX, an individual,
`
`Plaintiffs,
`
`v.
`
`CIVIL ACTION NO. 04-2137 (JAP)
`
`OPINION
`
`DIANE LEGREIDE, individually and in her :
`official capacity as former Chief
`:
`Administrator of the New Jersey Motor
`:
`Vehicle Commission; SHARON
`:
`HARRINGTON, individually and in her
`:
`official capacity as Acting Chief
`:
`Administrator of the New Jersey Motor
`:
`Vehicle Commission; DARIA GERARD,
`:
`individually and in her official capacity as
`:
`Director of Customer Operations for the
`:
`Jersey Motor Vehicle Commission; STEVE :
`ROBERTSON, individually and in his
`:
`official capacity as Director of Legal and
`:
`Regulatory Affairs for the New Jersey
`:
`Vehicle Commission; PETER C.
`:
`HARVEY, individually and in his official
`:
`capacity as Attorney General fo the State of :
`New Jersey; and JAMES E. McGREEVEY, :
`individually and in his official capacity as
`:
`Governor of the State of New Jersey,
`
`::
`
`:
`Defendants.
`____________________________________:
`
`PISANO, District Judge.
`
`Presently before the Court is Defendants’ motion to dismiss Plaintiffs’ claims in the
`
`1
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 2 of 29 PageID: 1104
`
`Amended Complaint based on qualified immunity grounds. Plaintiffs oppose the motion.
`
`The Court has jurisdiction to hear this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3)
`
`and (a)(4), 2201, and 2202. Having considered all arguments presented, the Court grants
`
`Defendants’ motion to dismiss.
`
`I.
`
`Factual Background
`
`The New Jersey Legislature (“Legislature”) has authorized the issuance of special
`
`organization vehicle registration (“SOVR”) plates for members of the non-profit community,
`
`alumni, or service organizations. N.J.S.A. 39:3-27.35. In order to be issued an SOVR plate,
`1
`
`certain statutory requirements must be met. First, an organizational representative must submit
`
`an application, with a copy of the organization’s charter indicating the organization’s lawful
`
`purpose and proof of its non-profit status, to the New Jersey Motor Vehicle Commission
`
`(“NJMVC”). N.J.S.A. 39:3-27.36(c). Second, the organizational representative must submit a
`
`certification of membership containing “the organization’s official letterhead, the signature of the
`
`organization’s representative, the names and addresses of organization members requesting
`
`[SOVR] plates, and the present registration plate numbers of the vehicles of the members.” Id.
`
`Lastly, with the exception of service organizations, the statute stipulates that the initial order for
`
`the organizational plates must be, at a minimum, 500. N.J.S.A. 39:3-27.36(f).
`
`Once the organization complies with N.J.S.A. 39:3-27.36, the NJMVC’s Chief
`
`Administrator has the authority to make the final decision concerning whether to approve an
`
`organization’s application for an SOVR plate. Additionally, “the use and arrangement of the
`
`1
`
` The statute was enacted in 1987 and amended in 1989.
`
`2
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 3 of 29 PageID: 1105
`
`name, initials, or logotype of the organization on the registration plates shall be in the sole
`
`discretion of the [Chief Administrator].” N.J.S.A. 39:3-27.36(d). Pursuant to these regulatory
`
`standards, the NJMVC, and its predecessor agency, the New Jersey Department of Motor
`
`Vehicles (“NJDMV”), authorized the issuance of seventeen community SOVR plates. Def. Br.,
`2
`
`pg. 7.
`
`On January 27, 2003, Plaintiff, Elizabeth B. Rex (“Dr. Rex”), requested approval on
`
`behalf of Plaintiff, Children First Foundation, Inc. (“Children First”) of an SOVR plate. Dr. Rex,
`
`as president of Children First, asserted in her application that Children First was a non-profit
`
`community organization, with at least 500 members in good standing, which sought to “promote
`
`and support adoption in the State of New Jersey.” Robertson Decl., Ex. A, pg. 8-9. The
`
`proposed design for Children First’s organizational plate included its official copyrighted logo,
`
`which is a small graphic of a yellow sun, two children’s faces, and the words “Choose Life,” its
`
`Internet domain name and alternate legal name “Fund-Adoption.Org,” and the vertical letters “A
`
`D,” to further promote the purpose of raising funds in support of adoption. Am. Compl. ¶ 39.
`
`Initial approval of Plaintiffs’ design was granted on June 3, 2003; however, on July 2,
`
`2003, a representative of NJMVC called Plaintiffs and alerted them that the organization’s plate
`
`design had been rejected because the agency deemed Children First’s use of the words, “Choose
`
`Life,” too controversial for an SOVR plate. The representative suggested alternative phrases
`
`such as “Choose Adoption” or “Adopt a Baby.” Am. Compl. ¶ 43. By letter dated November
`
`24, 2003, Defendant, Chief Administrator Diane Legreide (“Ms. Legreide”) advised Dr. Rex that
`
`2
` The SOVR plate issued to the Center for Food Action, however, was recalled on November 24,
`2003, for reasons discussed infra.
`
`3
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 4 of 29 PageID: 1106
`
`although Children First had met the preliminary statutory conditions, the submitted design of the
`
`slogan “Choose Life” could not be approved because it was considered a “slogan” and/or
`
`“advocacy message.” Ms. Legreide also enclosed a check for $12,500.00, which refunded
`
`Plaintiffs for the application fee the agency previously cashed on July 7, 2003.
`
`In the November 24, 2003 letter, Ms. Legreide explained that the primary purpose of a
`
`license plate is for vehicle identification, as well as the differences between an SOVR plate and a
`
`special license plate that the Legislature has approved for a particular cause. In the latter, the
`
`Legislature has specifically provided for the inclusion of a slogan or advocacy message, in
`
`addition to an emblem or logo, whereas in the former, only an organization’s emblem or logo is
`
`permitted. Accordingly, Ms. Legreide informed Dr. Rex that she could not approve the proposed
`
`plate design dated January 27, 2003, with the slogan “Choose Life” displayed with the logo of
`
`the two children. Ms. Legreide advised Children First that her decision constituted a final agency
`
`action, which was reviewable by the Appellate Division.
`
`Ms. Legreide sent Dr. Rex a follow-up letter dated Decemeber 4, 2003, in which she
`
`encouraged the organization to submit an alternative plate design consistent with the restrictions
`
`set forth in the November 24, 2003 letter. In response, on December 16, 2003, Dr. Rex proposed
`
`removing the slogan “Choose Life” from the side of the plate, but retaining the picture of the
`
`children, and substituting Children First’s newly registered domain name, “NJChoose-Life.Org,”
`
`in place of the previously proposed “Fund-Adoption.Org” at the bottom of the plate. On January
`
`20, 2004, Ms. Legreide rejected Plaintiffs’ alternative plate design, highlighting that the new
`
`domain name had not been registered until after the organization’s original plate design had been
`
`rejected in the November 24, 2003 letter. As such, Ms. Legreide would not “countenance this
`
`4
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 5 of 29 PageID: 1107
`
`attempt to have [Children First’s] advocacy message on the license plate design by a belated
`
`attempt to make it the identification of [the] organization.” Robertson Decl., Ex. S, pg. 48.
`
`Again, Plaintiffs were advised of their right to seek appellate review of the final agency
`
`determination, which they did not exercise.
`
`II.
`
`Procedural History
`
`On May 4, 2004, Plaintiffs filed a Complaint, which they amended on February 18, 2005.
`
`In their Amended Complaint, Plaintiffs alleged that Defendants abridged their First Amendment
`
`right to freedom of speech by rejecting the inclusion of Children First’s slogan “Choose Life” on
`
`their SOVR plate design. Plaintiffs assert that the denials of their plate design constitutes an
`
`impermissible viewpoint discrimination with no countervailing, compelling governmental
`
`interest. Am. Compl. ¶¶ 90, 97, 103.
`
`Additionally, Plaintiffs claim Fourteenth Amendment due process violations based on
`
`Ms. Legreide’s alleged arbitrary exercise of her discretion in withholding approval of the
`
`proposed SOVR plate design as well as the vague and over broad policies she applied. Id. at ¶¶
`
`108-109. Furthermore, Plaintiffs assert federal Equal Protection violations. Plaintiffs contend
`
`that their Equal Protection guarantees were violated because other similarly situated, non-profit
`
`community organizations obtained approval to utilize “names and logo types that include
`
`slogans, mottos, symbols, advocacy messages, phrases, and other similar identifiers.” Id. at ¶¶
`
`113-114. Plaintiffs seek damages as well as declaratory and injunctive relief seeking approval of
`
`their first rejected design in its entirety.
`
`On March 31, 2005, the Court denied Defendants’ motion to dismiss or stay the
`
`5
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 6 of 29 PageID: 1108
`
`proceedings on abstention grounds. Defendants then moved, pursuant to Fed. R. Civ. P. 12(b)(6)
`
`to dismiss the Amended Complaint in its entirety or, in the alternative, for dismissal of all claims
`
`for damages based upon the qualified immunity doctrine. The Court denied the motion on July
`
`27, 2006. On September 13, 2006, the Court denied Defendants’ motion for reconsideration of
`
`the Court’s July 27, 2006 decision.
`
`Defendants filed an appeal of the portion of the July 27, 2006 Order with the Third
`
`Circuit Court of Appeals. On December 20, 2007, the Third Circuit issued an Opinion and
`
`Judgment vacating that portion of the Court’s July 27, 2006 Order and remanded the matter for
`
`further proceedings to decide the qualified immunity question. The Third Circuit noted that until
`
`the qualified immunity question was resolved, discovery should not be allowed.
`
`On March 7, 2008, Defendants re-filed their motion to dismiss based on the qualified
`
`immunity doctrine. Plaintiffs oppose the motion. Having reviewed the parties’ submissions, the
`
`Court now decides the motion.
`
`III.
`
`Standard of Review
`
`Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails
`
`“to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In deciding a Rule
`
`12(b)(6) motion to dismiss, the court must reasonably read the complaint and decide whether the
`
`plaintiff has pled a cognizable cause of action entitling it to relief. Nami v. Fauver, 82 F.3d 63,
`
`65 (3d Cir. 1996). In making this determination, a court accepts as true all of the well-pleaded
`
`factual allegations within the complaint and any reasonable inferences drawn therefrom. Hayes
`
`v. Gross, 982 F.2d 104, 105-06 (3d Cir. 1992). The court may also consider exhibits attached to
`
`6
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 7 of 29 PageID: 1109
`
`the complaint, matters of public record, and documents that form a basis of plaintiff’s claim.
`
`Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004). However, the court need not consider
`
`plaintiff’s bald assertions or legal conclusions. Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
`
`906 (3d Cir. 1997).
`
`IV.
`
`Analysis
`
`A.
`
`Qualified Immunity
`
`Defendants will be entitled to a dismissal of Plaintiffs’ claims for damages on qualified
`
`immunity grounds if it appears that Plaintiffs’ allegations do not state a violation of clearly
`
`established law. Qualified immunity is an affirmative defense intended to shield government
`3
`
`officials performing discretionary functions from liability for civil damages, provided their
`
`conduct “does not violate clearly established statutory or constitutional rights of which a
`
`reasonable person would have known.” Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (citing
`
`Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is a matter of law to be
`
`decided by the Court. See Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004)
`
` Defendants raise a sovereign immunity defense based on the Eleventh Amendment. They argue
`3
`that, although Plaintiffs claim that their First Amendment rights have been violated, Plaintiffs are
`actually asking the Court to enforce state, not federal, law against individual state officers. As such,
`Defendants assert that New Jersey’s sovereign immunity bars adjudication of Plaintiffs’ claim that Ms.
`Legreide incorrectly construed her delegated powers. See Pennhurst State Sch. & Hosp. v. Halderman,
`465 U.S. 89 (1983) (observing that “[i]t is difficult to think of a greater intrusion on state sovereignty
`than when a federal court instructs state officials on how to conform their conduct to state law”).
`The Court construes Plaintiffs’ Amended Complaint as alleging violations of federal law.
`Therefore, the Court finds that Eleventh Amendment sovereign immunity does not apply and that
`Plaintiffs’ suit against the individual state officers for violations of federal law will be permitted. See Ex
`Parte Young, 209 U.S. 123 (1908) (observing that when a state officer performs an allegedly
`unconstitutional act and since no state could have authorized her to take such action, she acts beyond the
`scope of her authority and, thus, cannot invoke the state’s immunity).
`
`7
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 8 of 29 PageID: 1110
`
`(“The court must make the ultimate determination on the availability of qualified immunity as a
`
`matter of law.”).
`
`Furthermore, until the “‘immunity question is resolved, discovery should not be
`
`allowed.”’ Thomas v. Independence Twp., 463 F.3d 285 (3d Cir. 2006) (quoting Harlow, 457
`
`U.S. at 818). See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff’s
`
`allegations state a claim of violation of clearly established law, a defendant pleading qualified
`
`immunity is entitled to dismissal before the commencement of discovery.”). There is no
`
`obligation on a plaintiff “to plead a violation of clearly established law in order to avoid
`
`dismissal on qualified immunity grounds;” however, if the “plaintiff, on his own initiative, pleads
`
`detailed factual allegations, the defendant is entitled to dismissal before the commencement of
`
`discovery unless the allegations state a claim of violations of clearly established law.” Thomas,
`
`463 F.3d at 293. 4
`
`In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court held that a
`
`claim of qualified immunity must be analyzed using a two-step inquiry. The threshold question
`
`the court must examine is whether, taken in the light most favorable to the party asserting the
`
`injury, the facts alleged show that the actor’s conduct violated a constitutional right. Saucier,
`
`533 U.S. at 201. If the plaintiff fails to make out a constitutional violation, the qualified
`
`immunity inquiry does not need to proceed further. Bennett v. Murphy, 274 F.3d 133, 136 (3d
`
`Cir. 2002). If the plaintiff establishes a constitutional violation, however, the court must then
`
`examine whether the right violated is “clearly established.” Saucier, 533 U.S. at 201. More
`
` If a “lack of factual specificity in a complaint prevents the defendant from framing a fact-
`4
`specific qualified immunity defense,” the court should remedy the situation by “the granting of a defense
`motion for a more definite statement.” Thomas, 463 F.3d at 289.
`
`8
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 9 of 29 PageID: 1111
`
`specifically, “the right the official is alleged to have violated must have been ‘clearly established’
`
`in a more particularized, and hence more relevant sense: the contours of the right must be
`
`sufficiently clear that a reasonable official would understand that what he is doing violates that
`
`right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
`
`i.
`
`Is There a Claim of a Constitutional Violation?
`
`The First Amendment provides that “Congress shall make no law...abridging the freedom
`
`of speech, or of the press....” U.S. CONST. Amend. I. It is well-established, however, that “the
`
`government need not permit all forms of speech on property that it owns and controls.” Int’l
`
`Soc’y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992). In determining whether
`
`Defendants violated Plaintiffs’ First Amendment rights, the Court must conduct three inquires.
`
`First, in order to assess the validity of speech restrictions on government property, in this case
`
`license plates, the Court must classify what type of forum a license plate is. Next, the Court must
`
`determine the appropriate level of scrutiny for the type of forum. Lastly, the Court must evaluate
`
`whether the NJMVC properly applied the relevant standard in rejecting Children First’s SOVR
`
`plate design. See id.
`
`“The [Supreme] Court [has] identified three types of fora: the traditional public forum,
`
`the public forum created by government designation, and the nonpublic forum.” Cornelius v.
`
`NAACP Legal Def. & Ed. Fund, 473 U.S. 788, 802 (1985). The type of forum dictates what
`
`speech, if any, the government may lawfully regulate or exclude. A traditional public forum is
`
`designated as such by looking at the objective characteristics of the property such as whether “by
`
`long tradition or by government fiat [the property is] devoted to assembly and debate.” Perry
`
`9
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 10 of 29 PageID: 1112
`
`Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Here, the license plate is
`
`clearly not a traditional public forum.
`
`A designated public forum is one the government “intentionally open[ed]...for public
`
`discourse.” Cornelius, 473 U.S. at 802. In assessing whether a designated public forum has been
`
`created, the Court must look to the policy and practice of the government agency. “The
`
`government does not create a public forum by inaction or by permitting limited discourse, but
`
`only by intentionally opening a nontraditional forum for public discourse.” Id. The Court must
`
`also consider the “nature of the property and its compatibility with expressive activity” as well as
`
`whether the forum was “designed for and dedicated to expressive activities.” Id. at 803.
`
`The government is not required to create such a forum nor is it required to retain the open forum
`
`once it has designated the forum as such. However, as long as the government retains this type
`
`of open forum, “it is bound by the same standards as appli[ed] in a traditional public forum;” any
`
`exclusion of speech that the designated public forum is generally made available for will be
`
`subject to strict scrutiny. Perry Educ., 460 U.S. at 46.
`
`A sub-category of a designated public forum is known as a limited public forum. “[A]
`
`limited public forum is a sub-category of a designated public forum that ‘refer[s] to a type of
`
`nonpublic forum that the government has intentionally opened to certain groups or to certain
`
`topics.’” Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (quoting DiLoreto v.
`
`Downey Unified Sch. Dist. Bd. Of Educ., 196 F.3d 958, 965 (9th Cir. 1999)). Government
`
`restrictions in a limited public forum are permissible “so long as they are ‘viewpoint neutral and
`
`reasonable in light of the purpose served by the forum.’” Az. Life Coalition, Inc. v. Stanton, 515
`
`F.3d 956, 969 (9th Cir. 2008) (quoting Hopper, 241 F.3d at 1075).
`
`10
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 11 of 29 PageID: 1113
`
`In contrast, a nonpublic forum is “public property which is not by tradition or designation
`
`a forum for public communication.” Id. See also United States Postal Serv. v. Council of
`
`Greenburgh Civic Ass’n, 453 U.S. 114, 129 (1981) (“the First Amendment does not guarantee
`
`access to property simply because it is owned or controlled by the government”). On properties
`
`such as these, the government may utilize “time, place and manner regulations” and “may reserve
`
`the forum for its intended purposes, communicative or otherwise, as long as the regulation on
`
`speech is reasonable and not an effort to suppress expression merely because public officials
`
`oppose the speaker’s view.” Perry Educ., 460 U.S. at 46.
`
`a.
`
`Forum Analysis5
`
`Plaintiffs assert that based on Defendants’ “policies and practices in using the space and
`
`also the nature of the property and its compatibility with expressive activity,” the SOVR plates
`
`are a designated public forum. Christ’s Bride Ministries, Inc. v. SEPTA, 148 F.3d 242, 249 (3d
`6
`
`Cir. 1998) (citing Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, 1371 (3d Cir. 1990)).
`
`Plaintiffs contend that, as a designated public forum, the government restrictions against logos
`
`and slogans on an SOVR plate are subject to strict scrutiny.
`
` The Court refrains from conducting an analysis of whether Children First’s speech constitutes
`5
`government or private speech. Defendants concede in their moving brief that this action concerns the
`exclusion of private speech. Def. Br., pg. 42 n.16. Therefore, the Court moves straight to a forum
`analysis.
`
` Plaintiffs argue that a forum analysis is unnecessary because “viewpoint discrimination is
`6
`impermissible in any forum.” Pl. Br. Pg. 21. Plaintiffs’ contention that a forum analysis is unnecessary
`is based upon the assumption that Defendants did indeed engage in viewpoint discrimination; however,
`neither the regulation nor the partial denials of Plaintiffs’ SOVR plate designs is discriminatory on its
`face. Without conducting a forum analysis, the Court cannot ascertain what speech, if any, the
`government may lawfully exclude from the forum.
`
`11
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 12 of 29 PageID: 1114
`
`The Court finds that the New Jersey motor vehicle license plates cannot be considered a
`
`designated public forum. Rather, the Court characterizes the license plates as a limited public
`
`forum. New Jersey did not intend to designate the SOVR plate as a public forum when it
`
`established the program. The primary purpose of license plates is not to serve as a mechanism
`
`for organizational messages, but rather vehicle identification. See Perry, 280 F.3d at168
`
`(recognizing that the policy behind issuing license plates is to aid in vehicle identification and,
`
`because the “general public does not have unimpeded access to Vermont license plates,” only
`
`those who obtain permission to place a message on their vanity plates may do so). The issuance
`
`of license plates is highly regulated and subject to extensive state control. See N.J.S.A. 39:3-32
`
`to -33; N.J.A.C. 13:20-32.4.
`
`Furthermore, the Court finds that an SOVR plate is not traditionally property that is
`
`“compatible” with the meaningful expression of speech, where people would engage in debate or
`
`assembly. Cornelius, 473 U.S. at 802. A license plate’s physical size alone constrains any type
`
`of meaningful expression that may be imported onto the plate. See Perry, 280 F.3d at 168
`
`(“Because vanity plates are physically restricted by size and shape and by the state’s interests,
`
`including that of vehicle identification, vanity plates are highly limited and extremely constrained
`
`means of expression.”).
`
`Additionally, an SOVR design is subject to restrictions. For instance, an applying
`
`organization must provide a series of documentation verifying organizational and membership
`
`information. See N.J.S.A. 39:3-27.6(f). Such regulation does not support Plaintiffs’ argument
`
`that the government intended to designate the SOVR plates as a public forum, as not everyone
`
`has access to these plates. Moreover, neither the Legislature nor the NJMVC has intentionally
`
`12
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 13 of 29 PageID: 1115
`
`opened the nontraditional forum of license plates for indiscriminate public discourse as the
`
`agency has not established any practice of “permitting virtually unlimited access to the forum.”
`
`Christ’s Bride, 148 F.3d at 252 (holding that the advertising space in SEPTA stations was a
`
`designated public forum even though SEPTA retained the sole discretion to exclude advertising
`
`it deemed to be “objectionable”). See also Cornelius, 473 U.S. 788 (finding that the Combined
`
`Federal Campaign charity drive was not a designated public forum because it was selective in its
`
`access, the organizations had alternative channels to ask for donations, and the history of the
`
`drive did not support a finding that the government desired to provide an open forum); Perry
`
`Educ., 460 U.S. 37 (deciding that a school’s internal mail system was not a public forum because
`
`it was not open to the general public unless granted permission from the school principal). On
`
`the contrary, the Legislature has restricted access to these plates by requiring lawful non-profit
`
`organizations to apply and obtain permission for an SOVR plate, and will only be granted if the
`
`organizations satisfy the specific statutory requirements.
`
`Having concluded that the SOVR plate is a limited public forum, the Court now turns to
`
`evaluate whether the NJMVC’s policy prohibiting advocacy slogans or logos on the SOVR plate
`
`violates Plaintiffs’ constitutional rights under the First Amendment.
`
`b.
`
`Reasonableness and Viewpoint Neutrality
`
`Any governmental restriction on speech in a limited public forum need only be
`
`“viewpoint neutral and reasonable in light of the purpose served by the forum.” Az. Life, 515
`
`F.3d at 971. See also Gen. Media Communications, Inc. v. Cohen, No. 97-6029, 1997 U.S. App.
`
`LEXIS 40571, at *28 (2d Cir. Nov. 21, 1997) (explaining that, under a rational review analysis,
`
`13
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 14 of 29 PageID: 1116
`
`the governmental restriction on speech “need only be reasonable in light of the purpose of the
`
`forum...and reflect a legitimate government concern”); Planned Parenthood of S.C., Inc. v.
`
`Carter, 361 F.3d 786, 799 (4th Cir. 2004) (“Because license plates are publicly displayed and
`
`issued by the State, certain restrictions on speech within this forum are reasonable and
`
`permissible.”). A court should look to all of the circumstances surrounding the restriction,
`
`including the “substantial alternative channels [for communication] that remain open....” Perry
`
`Educ., 460 U.S. at 53.
`
`The NJMVC’s partial denials of Children First’s designs that identify its advocacy slogan
`
`or logo is rationally related to a legitimate state interest. “Automobile license plates are
`
`governmental property intended primarily to serve a governmental purpose, and inevitably they
`
`will be associated with the state that issues them.” Perry, 280 F.3d at 169. New Jersey has a
`
`legitimate interest in communicating that it does not approve or disapprove of any particular
`
`political cause, belief, or message. Therefore, the Legislature’s decision to authorize the NJMVC
`
`to approve of SOVR plates that identify membership in the nonprofit organization, but withhold
`
`authority from the NJMVC to decide which advocacy slogans or causes were appropriate to be
`
`identified on the SOVR plates, is reasonable and related to a legitimate state interest. 7
`
`Moreover, in making this determination, the Legislature has not deprived Children First
`
`of its only opportunity or access to advertise its cause or organizational message. Similar to
`
`other nonprofit organizations seeking an SOVR plate, Children First could seek legislative
`
`approval of a license plate that would allow it greater flexibility in promoting its cause and
`
` Children First’s second proposed design, “NJChoose-Life.Org,” could have easily
`7
`communicated that New Jersey approved of the organization’s slogan “Choose Life” as the State’s name
`was directly associated with the website address.
`
`14
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 15 of 29 PageID: 1117
`
`message. Furthermore, unlike the plaintiffs in Perry, Arizona Life, or Sons of Confederate
`
`Veterans v. Comm’r of Va. Dep’t of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002), the NJMVC
`
`did not flatly reject Children First’s application. Simply because Children First was not allowed
`8
`
`to have its slogan or logo on the plate does not mean the organization and its members’ rights to
`
`assemble and speak have been impinged. On the contrary, by allowing the Internet address on
`
`the SOVR plate, the NJMVC provided an avenue for the organization’s members and others to
`
`communicate their message. Beyond the SOVR plate, alternative means of speech remain
`
`available to Children First and its members such as flyers, buttons, bumper stickers, and license
`
`plate holders.
`
`Having determined that Defendants’ partial denials of Plaintiffs’ designs were reasonable,
`
`the Court now addresses whether the denials were viewpoint discrimination. In a limited public
`
`forum, the government may reasonably restrict speech on the basis of content; however, it cannot
`
`restrict speech on the basis of the speaker’s viewpoint. See Perry Educ., 460 U.S. at 46.
`
`Plaintiffs assert that the rejection of their designs was based on viewpoint discrimination. The
`
`Court finds otherwise.
`
`Ms. Legreide’s partial denials of Plaintiffs’ SOVR plate designs were not because of any
`
`opposition to Plaintiffs’ political, social, or religious viewpoint. The NJMVC’s decisions to
`
`prohibit the use of the slogan and website is not because of the message they stand for, but
`
` Initially, Legreide only partially rejected the advocacy slogan “Choose Life” and later, only
`8
`partially rejected Children First’s alternate domain name, “NJChoose-Life.Org,” as the site was not
`registered until after the organization received the NJMVC’s November 24, 2003 decision rejecting the
`design with “Choose Life.” Defendants were reasonable in their conclusion that the registration of the
`alternate site was an attempt to have their advocacy message placed on the SOVR plate through another
`avenue.
`
`15
`
`

`
`Case 3:04-cv-02137-JAP-TJB Document 72 Filed 06/18/08 Page 16 of 29 PageID: 1118
`
`because Ms. Legreide has the statutory discretion as Chief Administrator to decide whether to
`
`include logotypes on SOVR plates, and Ms. Legreide has determined that slogans or advocacy
`
`messages will not be allowed, irrespective of what the organization’s message is. Whether logos
`9
`
`such as “Columbianism” or “Freemasons,” see Am. Compl. ¶ 26, imply a particular viewpoint is
`
`irrelevant; logos such as those are allowed on the plates because they are not advocating a
`
`message such as “Choose Life” or “Drive Out Hunger.” None of the approved SOVR plates
`
`contain an advocacy message.
`
`Further, unlike the plaintiff in Sons of Confederate Veterans, Children First is not held to
`
`a different statutory standard than other applying organizations. Additionally, no other family
`
`group was given access to an SOVR plate to express their viewpoint. Contra Planned
`
`Parenthood, 361 F.3d 786 (affirming the lower court’s decision that South Carolina’s statute
`
`authorizing the issuance of a “Choose Life” speciality plate without providing a plate for the
`
`alternate view violated the plaintiff’s First Amendment rights). Moreover, Plaintiffs’ designs
`
`were only partially rejected. Plaintiffs were allowed to use their original design, which included
`
`identification of the organization’s website, as long as it did not include its logo along with the
`
`9
` Plaintiffs attempt to support their claim of viewpoint discrimination by highlighting that the
`NJMVC had approved the organization, Center for Food Action’s, SOVR plate design, which included
`the advocacy message, “Drive Out Hunger.” When Dr. Rex brought this to the attention of Ms. Legreide,
`Ms. Legreide reviewed the Center for Food Action’s plate design. By letter dated November 24, 2003,
`Ms. Legreide informed the Center for Food Action that its SOVR plate design had been mistakenly
`approved by her predecessor in 2001, and that the organization’s inclusion of its advocacy message was
`inconsistent with the statutory requirements. Therefore, Ms. Legreide advised that the final agency
`decision was to recall all of the existing plates. See Robertson Decl., Apr. 26, 2006, pg. 7. Although the
`NJMVC previously approved an SOVR plate design that contained an advo