NEW JERSEY SECOND AMENDMENT SOCIETY v. MURPHY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NEW JERSEY SECOND AMENDMENT

SOCIETY et al.,

Plaintiffs, Civil Action No. 20-5228 (MAS) (LHG)

v.

MEMORANDUM OPINION

NEW JERSEY PRESS ASSOCIATION et

al.,

Defendants.

SHIPP, 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

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!

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. (/d. (citing N.J.

Exec, Order 102 (Feb. 3, 2020)).) About a month later, the Governor declared a State of

Emergency. (/d. { 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. Ud. § 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. (/d.) Still another order, Executive Order 107 (which

superseded Executive Order 104), mandated the closure of non-essential businesses, including gun

and ammunition retail stores. Ud. {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.” Ud. 19.) Roubian alleges that he “routinely” attended the Daily

' The Court accepts as true all factual allegations in the Complaint. See Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2018) (citing Pinker v. Roche Holdings, Ltd., 292 F.3d 361,

374 n.7 (3d Cir. 2002)).

Public Press Briefings throughout March and raised concerns that the Governor’s orders violated

the Second Amendment. (/d. 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. Ud. § 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 ), ECE

No. 1.)? 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,

* Defendants also attached the Kashinsky Complaint to their Motion. (See Cafferty Decl. Ex. A.,

ECF No. 55-3.)

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). Ud. 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.)’ 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 Decl., Ex. D., ECF No. 55-6.) Further, “[e]ligibility for credentials

is limited to news organization employees having regular contact with New Jersey State Police,

local police, fire, and EMS personnel.” Ud.) 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.” (/d.)

The Press Association’s website is available at http:/Avww-.njpa.org/njpa/.

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. Ifprinted, three (3) consecutive issues of the publication

2. Ifnon-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. (/d.)

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. f 10.) According to Plaintiffs, Defendants

denied them without ever providing “a specification of reasons for denial or affording a right to

appeal the denial.” Ud.) 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.)* 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.” (/d.) 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.” (/d.) 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 to speak to those who are

denying [Roubian] such access.” (/d.)

C. In 2020, the New Jersey State Police Deny Roubian Access to Governor

Murphy’s Coronavirus Taskforce Meeting.

Fast forward two years: there lies the second interaction with Defendants alleged by

Plaintiffs. Beginning in April 2020, the NJSP began excluding Roubian from the Daily Public

Press Briefings. (Am. Compl. {[ 28.) Plaintiffs allege that NJSP Officers stationed outside the press

briefings refused to allow Roubian to enter because he did not have a “Governor’s Press Pass” or

a Press Pass issued by the Press Association. (/d.)

‘ Plaintiffs attached this e-mail exchange to their original complaint but did not attach it to the’

operative Complaint. (See Roubian Decl. Ex. C, ECF No. 1-2.)

The events came to a head on April 7, 2020, in a recorded conversation between Roubian

and NJSP Sergeant Murray. Plaintiffs allege that Sergeant Murray denied Roubian access to the

Daily Public Press Briefing that day, that Arbitell told Sergeant Murray that Roubian “100% was

not working with or in any way affiliated with defendant NJPA, nor did he have any form of press

credentials she was aware of,” and that Arbitell further told Sergeant Murray that “Roubian did

not have press credentials, he was NOT ‘good to go’, and that Roubian should definitely not be

admitted to the Governor’s daily press briefing as he was not a credible news organization.” (Am.

Compl. 29.) A transcript of the events provided by Defendants adds color. (See Cafferty Decl.,

Ex. B, ECF No. 55-4.)° Roubian showed Sergeant Murray the May 2018 e-mail exchange and

argued that Arbitell’s e-mail messages showed that Press Passes were not required. (/d.) Sergeant

Murray also encouraged Roubian to contact Arbitell. dd.)

D. Plaintiffs Sue for Constitutional Violations.

Following their denial from the Daily Public Press Briefing, Plaintiffs sued the State

Defendants and the Press Association. (See generally Compl., ECF No. 1.) Plaintiffs sought relief

under 42 U.S.C. § 1983, alleging that Defendants had violated their First and Fourteenth

Amendment rights. (/d. 32-48.) The Press Association moved to dismiss. (ECF No. 32.) In

October 2020, the Court dismissed the actions against the State Defendants due to the parties’

settlement agreement. (See ECF No. 47.) Then in January 2021, the Court granted the Press

Association’s Motion to Dismiss for failure to state a claim and gave Plaintiffs leave to file the

instant Amended Complaint. See N.J. Second Amend. Soc’y v. Murphy, No, 20-5228, 2021 WL

323723 (D.N.J. Jan. 31, 2021), ECF No. 48.

° The Complaint also incorporates by reference a YouTube video of the April 7, 2020 conversation

between Sergeant Murray and Roubian. (See Am. Compl. § 29 (citing N.J. Second Amend. Soc’y,

Press Denial 3, YouTube (Apr. 7, 2020), https://www.youtube.com/watch?v=IE0cFy9NXQM).)

Plaintiffs filed their Amended Complaint, dropping the State Defendants and adding

Arbitell, where they alleged three constitutional deprivations under § 1983—(1) denial of access

to the Daily Public Press Briefings, (2) denial of membership in the Press Association, and

(3) denial of the Press Pass. The instant Motion followed.

Il. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2)° “requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

what the .. . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 USS.

544, 555 (2007) (alteration in original) (quoting Conley vy. Gibson, 355 U.S. 41, 47 (1957)).

A district court conducts a three-part analysis when considering a motion to dismiss

pursuant to Rule 12(b)(6). Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court

must ‘tak[e] note of the elements a plaintiff must plead to state a claim.” Jd. (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 675 (2009)). Second, the court must accept as true all of the plaintiff's

well-pleaded factual allegations and construe the complaint in the light most favorable to the

plaintiff Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted), The

court, however, may ignore legal conclusions or factually unsupported accusations that merely

state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 US. at

555). Finally, the court must determine whether “the facts alleged in the complaint are sufficient

to show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 211 (quoting Jgbal,

556 U.S. at 679). A facially plausible claim “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Jd. at 210 (quoting Iqbal, 556 U.S. at 678). On

a Rule 12(b)(6) motion, the “defendant bears the burden of showing that no claim has been

° All references to a “Rule” or “Rules” hereinafter refer to the Federal Rules of Civil Procedure.

presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc.

v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

I. DISCUSSION

The Court confronts this case for the second time this year. When the Court first faced this

case, it dismissed because Plaintiffs failed to plead how Defendants’ denial of a Press Pass in 2018

led to a constitutional deprivation in 2020. See Murphy, 2021 WL 323723, ECF No. 48. Not much

has changed the second time around. Plaintiffs still plead that the 2018 Press Pass denial was

constitutionally infirm—but also that they were wronged by an unspecified denial of membership

from the Press Association and by Arbitell’s conversations with Sergeant Murray before the April

7, 2020 Daily Public Press Briefing. The Court is not persuaded that these allegations, many of

which are conclusory and factually unsupported, fare any better.

A. The Court Incorporates by Reference Materials Outside the Amended

Complaint.

Before the Court turns to the adequacy of Plaintiffs’ pleadings, it addresses a threshold

procedural issue. Defendants request that the Court incorporate by reference the following

materials: (1) the Press Association’s website, (2) the 2020 criteria for a Press Pass, (3) the May

2018 e-mail exchange between Arbitell and Roubian, (4) the Complaint in the Kashinsky Lawsuit,

and (5) the video and transcript of the April 7, 2020 conversation between Roubian and Sergeant

Murray. (Defs.” Moving Br. 3-4 n.1, ECF No. 55-1.) The Court agrees regarding items (1), (3),

and (5).

“As a general matter, a district court ruling on a motion to dismiss may not consider matters

extraneous to the pleadings.” Jn re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir. 1997) (citation omitted). But the Court may consider such matters “without converting the

motion [to dismiss] into one for summary judgment” when those matters are “integral to or

explicitly relied upon in the complaint.” Jd. (alteration in original) (citation omitted), And,

“[wlhere plaintiff has actual notice . . . and has relied upon these documents in framing the

complaint,” the exception to the general rule is even stronger. /d. (alterations in original) (citations

omitted). Here, the Court finds good cause to consider the Press Association’s website, the May

2018 e-mail exchange, and the video and transcript of the April 7, 2020 conversation between

Sergeant Murray and Roubian. Regarding the website, the Amended Complaint quotes directly

from the Press Association’s website and includes screenshots of the website. (E.g., Am. Compl.

{ 12.) Regarding the May 2018 e-mail exchange, the exchange details the denial of the Press Pass.

It is therefore integral to Plaintiffs’ claims because the Amended Complaint repeatedly alleges that

Defendants arbitrarily denied the Press Pass to Plaintiffs. (See, e.g., id. JF 10, 14, 38, 44.) Further,

the Court notes that Plaintiffs have actual notice of this e-mail exchange because they attached it

to their original complaint in this matter. (See Roubian Decl. Ex. C, ECF No. 1-2.) Regarding the

video and transcript, Plaintiffs expressly reference the April 7, 2020 conversation in their Amended

Complaint and do not dispute the veracity of the transcript. (See Am. Compl. § 29.) The Court thus

incorporates these items by reference and considers them in its decision. See Burlington Coat

Factory Sec. Litig., 114 F.3d at 1426 (“Plaintiffs cannot prevent a court from looking at the texts

of the documents on which [their] claim is based by failing to attach or explicitly cite them.”).

B. Plaintiffs Fail to Adequately Plead That Defendants Violated the Constitution

by Denying Plaintiffs Access to Press Briefings.

The Court begins its analysis with the charge the Amended Complaint spends the most

time addressing: that Defendants violated Plaintiffs’ constitutional rights by denying them access

to the Daily Public Press Briefings. Plaintiffs maintain several theories of constitutional

deprivation: first, that Defendants violated Plaintiffs’ right to access; second, that Defendants

retaliated against Plaintiffs in violation of the First Amendment; third, that Defendants violated

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Plaintiffs’ substantive due process right to public access; and finally, that Defendants violated

Plaintiffs’ procedural due process rights by failing to provide means to challenge the denial of

access, (See Am. Compl. {§ 38, 44.)’ The Court addresses each theory in turn.

1. First Amendment

Before analyzing the details of Plaintiffs’ claims, the Court considers what this case is and

what it is not. Consider a typical First Amendment retaliation and right-to-access case, which tend

to occur in the prison context. Prisoners might allege that prison officials began taking adverse

actions against them after the prisoners engaged in activities protected by the First Amendment.

For example, prison officials might retaliate against a prisoner for presenting prison grievances by

“allowing inmates to assault him, by fabricating incident reports, and by depriving him of personal

property.” Deen-Mitchell v. Lappin, 514 F. App’x 81, 84 (3d Cir. 2013). In addition, the prisoner

might allege that prison officials hampered his right to access the courts by, say, preventing his

access to the law library or interfering with his outgoing mail to the courts, such that he was unable

to effectively use the public court system. See id. at 84-85. The takeaway is that retaliation and

right-to-access claims are often analyzed separately and have their own set of operative facts.

Now consider this case. Although the Amended Complaint is far from a model of clarity,

it appears to allege a right-to-access claim, asserting that Defendants denied Plaintiffs access to

the Daily Public Press Briefings in April 2020. (See Am. Compl. § 29.) The Amended Complaint

also appears to allege a separate claim that Defendants retaliated against them for speaking and

The Court notes here that the Amended Complaint does not clearly specify these theories and

that Plaintiffs appear to raise many of these theories in their Opposition Brief. Although the Court

analyzes all possible theories out of an abundance of caution, it has no obligation to do so. See

Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) (“It is axiomatic that the complaint

may not be amended by the briefs in opposition to a motion to dismiss.” (quoting Pennsylvania ex

rel, Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988))).

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accessing the Daily Public Press Briefings by either (a) failing to issue a one-year Press Pass or

(b) denying them access to future Daily Public Press Briefings. (See Am. Compl. J 14, 29.) Unlike

the typical case outlined above, the Amended Complaint mixes and matches allegations between

the two claims. The result is an unclear timeline and factually unsupported allegations.

Nevertheless, the Court wades through Plaintiffs’ threadbare pleading in search of anything

plausible.

i. Right to Access

The ability to gather news is a constitutionally protected activity. See Branzburg v. Hayes,

408 U.S. 665, 681 (1972) (‘[W]ithout some protection for seeking out the news, freedom of the

press could be eviscerated.”); PG Pub. Co. v. Aichele, 705 F.3d 91, 98 Gd Cir. 2013) (“[T]he

Supreme Court has recognized that the First Amendment—in addition to protecting freedom of

speech and the press—must also contain protections for some news-gathering activity.” (citation

omitted)). But the breadth of that protected activity is limited. As the Supreme Court has noted,

“Tt]he right to speak and publish does not carry with it the unrestrained right to gather information.”

Zemel v. Rusk, 381 US. 1, 17 (1965). And as the Third Circuit has noted, “[W]hile the First

Amendment does protect [the press’s] right of access to gather news, that right does not extend to

all information.” PG Pub. Co., 705 F.3d at 99; see also Branzburg, 408 U.S. at 684 (“[T]he First

Amendment does not guarantee the press a constitutional right of special access to information not

available to the public generally.”).

The upshot of this limited news gathering right is that the “First Amendment right to gather

news (i.e., the right of access to the source of information or a government process) is best

evaluated via a balancing test.” PG Pub. Co., 705 F.3d at 102. To be sure, the Third Circuit has

held that a trio of Supreme Court decisions stands for a test that balances the “interests of the

People in observing and monitoring the functions of their government” against the ““government’s

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interest and/or long-standing historical practice of keeping certain information from public

scrutiny.” /d. at 104. In evaluating those interests, the Court is cognizant of “whether the place and

process has historically been open to the press and general public” and “whether public access

plays a significant positive role in the functioning of the particular process in question.” Whiteland

Woods, L.P. v. Twp. of West Whiteland, 193 F.3d 177, 181 Gd Cir. 1999) (quoting Capital Cities

Media, Inc. v. Chester, 797 F.2d 1164, 1174 (d Cir. 1986)). For example, in Whiteland Woods,

the Third Circuit held that the First Amendment did not accommodate a request to videotape a

government meeting that was open to the public—particularly because the record contained

evidence that spectators were already allowed to take notes and use audio recording devices. /d. at

183.

All this to say that Plaintiffs must plead sufficient facts for the Court to at least assess

whether it can conduct the necessary balancing test. Critical here is that “the value of access must

be measured in specifics.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 589 (1980)

(plurality) (‘Analysis is not advanced by rhetorical statements that all information bears upon

public issues; what is crucial in individual cases is whether access to a particular government

process is important in terms of that very process.”). The Amended Complaint fails to allege these

facts. For example, although the first prong of the balancing test calls for assessing the “interests

of the People in observing and monitoring the functions of their government,” the Amended

Complaint does not allege any specific facts about access to the Daily Public Press Briefings. See

PG Pub. Co., 705 F.3d at 104. The Amended Complaint broadly alleges that Plaintiffs “were

permitted to attend, film, ask questions at and report on the ‘Daily Public Press Briefings.’” (Am.

Compl. §[ 19.) But that’s it. Aside from Plaintiffs themselves, the Amended Complaint alleges no

specific facts about the public’s access to the Daily Public Press Briefings—for example, was

13

anyone from the public allowed to attend? Was anyone excluded? Was the Daily Public Press

Briefing televised? The Amended Complaint lacks answers to these threshold questions.

Moreover, the Amended Complaint does not allege facts sufficient for the Court to assess

whether access played “‘a significant positive role in the functioning of’ the Taskforce meetings.

Whiteland Woods, L.P., 193 F.3d at 181. For example, what role did press questions play in the

Taskforce meetings? Were questions often asked? Could anyone at the Taskforce meetings ask

questions? The Amended Complaint leaves the Court with more questions than answers, rendering

it unable to determine if Plaintiffs have plausibly alleged a right to access under the First

Amendment. See Fowler, 578 F.3d at 210 (noting that facially plausible claim “allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged”).

Perhaps even more fundamentally, however, Plaintiffs’ right-to-access claim must fail

because, as pled, it fails to sufficiently connect actions taken by Defendants to the alleged

deprivation suffered by Plaintiffs. Plaintiffs suggest that Arbitell’s statements to Sergeant Murray

served as the basis for Roubian’s denial to the Daily Public Press Briefings in April 2020. (See

Am. Compl. { 29.) But a plain reading of the facts belies Plaintiffs’ argument. As Plaintiffs allege,

Arbitell told Sergeant Murray that Roubian “100% was not working with or in any way affiliated

with defendant NJPA, nor did he have any form of press credentials she was aware of,” and that

Arbitell further told Sergeant Murray that “Roubian did not have press credentials, he was NOT

‘good to go’, and that Roubian should definitely not be admitted to the Governor’s daily press

briefing as he was not a credible news organization.” (/d.) Everything Arbitell said was factually

true: as of 2020, Plaintiffs were not affiliated with the Press Association, did not have press

credentials, and could not be admitted to the press briefing because they lacked the required

credentials. Further, the Amended Complaint fails to sufficiently allege that Arbitell controlled

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Sergeant Murray’s actions. To the contrary, the clear inference from the April 7, 2020 interaction

between Sergeant Murray and Roubian is that the State—not Defendants—decided to use

Defendants’ Press Passes for access. Simply put, the Amended Complaint does not allege how

Defendants deprived Plaintiffs of their right to access.

But maybe Arbitell’s statements show a broader intent to arbitrarily change the access

policy into the Daily Public Press Briefings to require Press Passes. Indeed, Plaintiffs argue some

form of “conspiracy” between Sergeant Murray and Arbitell (see Pls.’ Opp’n Br. 16-17), and the

Amended Complaint alleges that Press Passes were not required to access the Daily Public Press

Briefings in March 2020 (see Am. Compl. J 19). But if Arbitell really was involved in the policy

to arbitrarily deny Roubian access, again the Amended Complaint suffers from a failure of

pleading. The Amended Complaint nowhere alleges that Defendants were aware of the policy

change or had any hand in crafting the policy change. It does not allege that Press Passes were the

exclusive method of entry into the Daily Public Press Briefings—indeed Plaintiffs allege that the

“Governor’s Press Pass” was also acceptable. (Am. Compl. {[ 28.) Nor does it allege that Plaintiffs

attempted to comply with the policy.’ And, to the extent Plaintiffs plead a conspiracy claim

between Sergeant Murray and Arbitell, that claim is plainly deficient. See Fioriglio v. City of

Allantic City, 996 F. Supp. 379, 385 (D.N.J. 1998) (To make out a § 1983 conspiracy claim, the

plaintiff must make specific factual allegations of a combination, agreement, or understanding

among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain

of events in order to deprive plaintiff of a federally protected right.” (emphasis added) (citations

omitted)).

8 Indeed, Plaintiffs did not even apply for the Press Pass—good for only one year—for the 2020-

2021 year.

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il. Retaliation

To state a claim for First Amendment retaliation under § 1983, Plaintiffs must allege that:

(1) “they engaged in a protected activity”; (2) the “defendants’ retaliatory action was sufficient to

deter a person of ordinary firmness from exercising his or her rights”; and (3) “there was a causal

connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted). For each elément, the Amended

Complaint is fraught with a failure of pleading.

Start with the first element, a “protected activity.” “Whether an individual has engaged in

protected conduct is a question of law.” White v. Wetzel, No. 14-1552, 2016 WL 3197966, at *6

(W.D. Pa. June 9, 2016). The Amended Complaint does not clearly define the protected activity.

Maybe it’s the access to the Daily Public Press Briefings? But as stated above, Plaintiffs have not

adequately alleged a right to access the Daily Public Press Briefings. Maybe then the protected

activity is the filing of the Kashinsky Lawsuit? That timing makes sense because the Society filed

the Kashinsky Lawsuit on March 23, 2020, and was subsequently excluded from the Daily Public

Press Briefings in April 2020. But the Amended Complaint fails to allege that Defendants were

aware of the Kashinsky Lawsuit. Indeed, Defendants were not named in that lawsuit. So maybe

instead the protected activity is Plaintiffs’ speech advocating for the Second Amendment? The

Amended Complaint alleges that Roubian “asked questions and argued that the Second

Amendment mandated that Gun and Ammunition Stores be declared as ‘Essential Businesses’” at

the March Daily Public Press Briefings. (Am. Compl. § 22.) But again, the Amended Complaint

does not allege that Defendants were aware of this speech or allege any facts substantiating that

Defendants harbored retaliatory animus against Plaintiffs. (See Am. Compl. § 14 (conclusorily

alleging that Defendants “disagree[d] with the political views” of Plaintiffs’); Jgbal, 556 U.S. at

680.) In short, Plaintiffs do not identify what protected activity Defendants retaliated against.

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Regarding the second element, Plaintiffs also fail to identify any concrete act of retaliation.

Here, Plaintiffs suffer from a common-sense timing problem: retaliatory acts must follow a

protected activity. E.g., Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (evaluating claim

for retaliatory discharge by noting that discharge came two days after protected activity). The

Amended Complaint does not allege any retaliatory action taken by Defendants following the

Daily Public Press Briefings. See White, 2016 WL 3197966, at *7 (“The amended complaint is

simply bereft of any allegations that [p]laintiff engaged in any form of constitutionally protected

speech or conduct prior to being issued the misconduct.” (emphasis added)). Here again, the Court

finds it helpful to consider the typical retaliation case outlined above. The pleadings should lay out

a clear exercise of protected activity (such as prison grievance reporting) followed by a clear

exercise of retaliation (such as prison officials allowing inmates to assault the plaintiff). That is

not what Plaintiffs plead here. As evidence of retaliation, Plaintiffs point to paragraph 14 of the

Amended Complaint, which provides that “[b]ecause of [Defendants’] disagreement with the

political views of [Plaintiffs], such plaintiffs have been arbitrarily denied both Membership in

defendant NJPA and denied ‘NJPA New Jersey State Police Press Credentials.’” (Am. Compl.

q 14.) Plaintiffs appear to posit that Defendants retaliated against Plaintiffs’ protected activity in

2020 by denying them a Press Pass in 2018. Simple logic defeats Plaintiffs’ fatally flawed

pleading.

Finally, for the same reasons as above, the Amended Complaint fails to connect

Defendants’ purported retaliation to Plaintiffs’ expression of protected activity. The Court has

already addressed the temporal problem. But consider that, even if withholding the Press Pass

could serve as actionable retaliation, by its terms, it has virtually nothing to do with the Daily

Public Press Briefings or the type of news Plaintiffs purport to report. According to the May 2018

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e-mail exchange between Arbitell and Roubian, Press Passes are for applicants “employed by news

organizations gathering and disseminating news of general interest on a regular schedule

throughout the year.” (Cafferty Decl., Ex. D.) The e-mail exchange further states that “[e]ligibility

for credentials is limited to news organization employees having regular contact with New Jersey

State Police, local police, fire, and EMS personnel.” (/d.) And critically, “[a] New Jersey police

credential is not required nor intended for use related to covering municipal, county, or state

government meetings.” Ud.) All of this to say, the Press Pass is only tenuously related to the events

of this case. The Amended Complaint does not allege, for example, that the Society reports on

“news of general interest,” publishes regularly, or has regular contact with NJSP. (See id.) And it

does not sufficiently allege how the Press Pass mattered given that it was not necessary for “state

government meetings.” (See id.) Perhaps the Press Pass would matter more if the State Defendants

were still in the case. But Plaintiffs cannot maintain a retaliation claim against Defendants who

had virtually nothing to do with Plaintiffs’ exclusion from the Daily Public Press Briefings.

2. Fourteenth Amendment

The Court next turns to Plaintiffs’ claims under the Fourteenth Amendment. None are

actionable.

i. Substantive Due Process

Plaintiffs assert that they have a liberty interest in attending press briefings and that

Defendants infringed on that liberty interest. (See Am. Compl. 9] 42-43 (“Plaintiffs’ First

Amendment rights undoubtedly qualify as a ‘liberty interest’ within the meaning of the Section |

of the Fourteenth Amendment... .”).) Notably, Plaintiffs do not defend this theory in their

Opposition Brief and cite no law in support of their “liberty interest” theory. It’s easy to see why:

the Supreme Court has stated that substantive due process applies only to “the most egregious

official conduct.” See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). To that end,

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“[w]here a particular Amendment provides an explicit textual source of constitutional protection

against a particular sort of government behavior, that Amendment, not the more generalized notion

of substantive due process, must be the guide for analyzing these claims.” /d. at 842 (alteration in

original) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)). Here,

Plaintiffs’ pleadings come nowhere close to alleging the most egregious official conduct. And even

if they had, the substantive due process claim must fail because the Constitution provides “explicit

textual source[s]” for protection through the First Amendment and the Fourteenth Amendment’s

procedural due process clause. See Nicholas v. Bratton, 376 F. Supp. 3d 232, 287 (S.D.N.Y.

2019).?

ii. Procedural Due Process

Plaintiffs additionally assert a procedural due process claim under the Fourteenth

Amendment. The crux of Plaintiffs’ claim is that “Plaintiff Roubian was not afforded a meaningful

opportunity to challenge rejection of... his refusal of admission Officer Murray [sic] — who was

acting at the direction of defendant Arbitell.” (Pls.’ Opp’n Br. 19.) Claims for procedural due

process violations require plaintiffs to allege that (1) they were “deprived of an individual interest

that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or property,’”

and (2) that “the procedures available to [them] did not provide ‘due process of law.’” Hill v.

Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir, 2006) (quoting Alvin v. Suzuki, 227 F.3d 107,

116 Gd Cir. 2000)). Unlike claims under substantive due process, claims under procedural due

process can be enforced directly through the Constitution’s textual rights. See Gitlow v. New York,

268 U.S. 652, 666 (1925) (“[F]reedom of speech and of the press .. . are among the fundamental

To the extent Plaintiffs raise a substantive due process claim regarding membership in the Press

Association and denial of the Press Pass, the Court similarly denies those claims.

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personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment

from impairment by the States.”). Thus, in analyzing the right to access, courts have repeatedly

held that “the protection afforded newsgathering under the first amendment guarantee of freedom

of the press requires that this access not be denied arbitrarily or for less than compelling reasons.”

Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977).

So, to assess Plaintiffs’ procedural due process claim, the Court must answer whether

Plaintiffs have sufficiently pled that Defendants denied them access to the Daily Public Press

Briefings and that Defendants acted arbitrarily in denying them such access. The Court has already

answered, however, that Plaintiffs have not sufficiently pled that Defendants denied them access

to the Daily Public Press Briefings. And further, the Amended Complaint does not contain any

allegations about Defendants’ role in crafting the procedure that ultimately resulted in the denial

of Roubian from the April 7, 2020 Daily Public Press Briefing. Plaintiffs assert that “the process

was Officer Murray called defendant Arbitell, and she said ‘NO.’” (Pls.’ Opp’n Br. 20.) But that

is not supported by the events on April 7, 2020—the State denied Roubian access, and Defendants

told the State, truthfully, that Plaintiffs did not have Press Passes and therefore could not be

admitted to the Daily Public Press Briefing on that basis. Indeed, the Amended Complaint does

not substantiate its threadbare allegation that Arbitell controlled Sergeant Murray’s actions.

Simply put, Plaintiffs’ gripe is with the State's procedure, not Defendants’. Plaintiffs’ procedural

due process claim must fail.

Cc. Plaintiffs Fail to Adequately Plead that Defendants Violated the Constitution

by Denying Plaintiffs Membership and Press Passes.

Having determined that Plaintiffs cannot maintain actionable claims for events relating to

the Daily Public Press Briefings, the Court next turns to whether Defendants’ denial of

membership in the Press Association and denial of Press Passes are constitutional violations. As a

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threshold matter, the Amended Complaint alleges no facts supporting Plaintiffs’

membership-denial theory. For example, the Amended Complaint does not allege that Plaintiffs

attempted to become members in the Press Association, when they did so, what the procedure for

doing so was, or whether Defendants provided any justifications for Plaintiffs’ denial. Further,

Plaintiffs point the Court to no authority supporting any First or Fourteenth Amendment right to

membership in a private press organization. The Court, therefore, dismisses all claims regarding

Defendants’ purported denial of Plaintiffs’ membership in the Press Association.

The Court turns to whether Defendants’ denial of a Press Pass is constitutionally infirm.

1. First Amendment

Plaintiffs allege that Defendants retaliated against their political views by denying Roubian

a Press Pass. On its face, this seems like a straightforward theory. The problem, however, is that

Plaintiffs fail to plead it adequately. The Amended Complaint contains no references to Plaintiffs’

pre-denial political speech to Defendants. Nor does it contain any allegations to Defendants’

awareness of that political speech. Thus, even if the Court considered Defendants’ denial of the

Press Pass retaliatory, the Amended Complaint contains wholly insufficient allegations of any

protected activity or a causal link between Plaintiffs’ speech and Defendants’ conduct. Because

the Court will give Plaintiffs one final opportunity to amend this claim, Plaintiffs must, at

minimum, allege the following: (1) clear statements of protected activity that occurred before the

alleged retaliation; (2) allegations that those statements were made to or known by Defendants

before the alleged retaliation; and (3) allegations explaining how Plaintiffs’ protected activity

caused the Press Pass denial. Only then will the Court be able to evaluate the plausibility of

Plaintiffs’ First Amendment retaliation claim.

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2. Fourteenth Amendment

Turning finally to the Fourteenth Amendment, Plaintiff maintains procedural due process

and equal protection claims against Defendants for the Press Pass denial.

i. Procedural Due Process

Regarding procedural due process, Plaintiffs assert that “Plaintiff Roubian was not afforded

a meaningful opportunity to challenge rejection of ... an application for “New Jersey State Police

Press Credentials.’” (Pls.’ Opp’n Br. 19.) This is a weightier charge than Plaintiffs’ other

procedural due process claim. As stated above, claims for procedural due process violations require

plaintiffs to allege that (1) they were “deprived of an individual interest that is encompassed within

the Fourteenth Amendment’s protection of ‘life, liberty, or property,’” and (2) that “the procedures

available to [them] did not provide ‘due process of law.’” Hilt, 455 F.3d at 233-34.

The Court’s review of Third Circuit precedent reveals no case clearly articulating a due

process interest in the Press Pass. At least one other circuit, however, has provided helpful

guidance. In Sherrill v. Knight, the District of Columbia Circuit grappled with the Secret Service’s

denial of a reporter’s White House press pass. 569 F.2d at 126-27. In assessing the reporter’s

subsequent procedural due process claim, the D.C. Circuit held that “the interest of a bona fide

Washington correspondent in obtaining a White House press pass is protected by the [Flirst

[A]mendment,” and that this “[F]irst [A]mendment interest undoubtedly qualifies as [a] liberty

which may not be denied without due process of law.” ld at 130. Subsequent courts continue to

cite Sherrill favorably. See Karem v. Trump, 404 F. Supp. 3d 203, 205 (D.D.C. 2019) (“In light of

that decision to make White House press facilities widely accessible, the D.C. Circuit has held that

reporters have a First Amendment liberty interest in possessing a long-term so-called ‘hard pass’—

an interest that, under the Fifth Amendment, may not be deprived without due process.” (citing

Sherrill, 569 F.2d at 130)); Tr. of Mot. Hr’g at 13, Cable News Network, Inc. v. Trump, No.

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18-2610, 2018 WL 9436958 (D.D.C. Nov. 16, 2018), ECF No. 22 (“[I]f Sherrill stands for

anything at all, I think it’s unavoidable to .. . conclude anything other than it stands for the Fifth

Amendment’s due process clause protects a reporter’s First Amendment liberty interest in a White

House press pass.”); Huminski v. Corsones, 396 F.3d 53, 84 (2d Cir. 2005); Nicholas, 376 F. Supp.

3d at 280. The Court thus assumes, without deciding, that the principles announced in Sherrill

apply to Plaintiffs’ procedural due process claim.

Regarding the second prong—due process of law—*“procedural due process requires notice

and an opportunity to be heard.” Mancini v. Northampton County, 836 F.3d 308, 315 (Gd Cir.

2016) (citing Mathews v. Eldridge, 424 U.S. 319, 333, 348 (1976)). The Third Circuit has

cautioned, however, that the concepts of notice and opportunities to be heard are “flexible” and

“call[] for procedural protection as dictated by the particular circumstance.” Kahn v. United States,

753 F.2d 1208, 1218 (Gd Cir. 1985) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In

any event, courts evaluating the sufficiency of process weigh three factors:

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.

Dee v. Borough of Dunmore, 549 F.3d 225, 232 (3d Cir. 2008) (quoting Mathews, 424 U.S, at

335).

Against this backdrop, the Court evaluates the sufficiency of Plaintiffs’ pleadings regarding

the denial of the Press Pass. Under the first prong, the Court finds that, under Sherrill, the liberty

interest attaches where the reporters are, at minimum, bona fide journalists. 569 F.2d at 129-30

(“Given these important first amendment rights implicated by refusal to grant White House press

passes to bona fide Washington journalists, such refusal must be based on a compelling

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governmental interest.” (emphasis added)). In describing the contours of a bona fide journalist, the

D.C. Circuit noted that the journalist was “the Washington Correspondent for The Nation since

1965” and that White House press pass applicants were “required to have a pass to the House and

Senate galleries because this verifies the ‘professional credentials’ of the applicant.” Jd. at 126,

129 n.19. Thus, for the liberty interest to attach, Plaintiffs must allege some indicia that they are

bona fide journalists.

The Amended Complaint fails to meet that challenge. It alleges that the Society is a

“non-profit civil rights organization” that has at least one employee, Roubian. (Am. Compl. § 7.)

Roubian is “one of the reporters” and operator of the Society’s website, which reports on “the most

up to date and relevant information regarding New Jersey State and Local Governments and the

Second Amendment.” Ud. 8.) What’s missing though are allegations of indicia to help the Court

determine whether Plaintiffs are bona fide journalists. How many reporters does the Society

employ? Do Plaintiffs have other press credentials? How often do Plaintiffs publish? What do

Plaintiffs publish? The Court further notes that, although it is clear why a Washington-based

political correspondent in Washington, D.C., required a White House press pass, it is less clear

why a civil rights organization requires a Press Pass to access emergency crime scenes. Thus, the

Amended Complaint additionally fails to allege the relevance of the Press Pass to Plaintiffs’

journalistic interests. The Court finds these missing allegations critical, especially considering the

ease with which any citizen could digitally publish on some matter and then claim entitlement to

a Press Pass. The Court additionally notes here that its review of press pass cases has turned up

cases that consider established journalists, unlike Plaintiffs here (at least as alleged). See, e.g.,

Sherrill, 569 F.2d at 126 (established political correspondent); Karem, 404 F. Supp. 3d at 205-06

(same); Tr. of Mot. Hr’g, Cable News Network, Inc., No. 18-2610, 2018 WL 9436958 (same);

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Nicholas, 376 F. Supp. 3d at 242 (freelance photojournalist working for media outlets); Quad-City

Comm. News Serv., Inc. v. Jebens, 334 F. Supp. 8, 10 (S.D. Iowa 1971) (non-profit “underground”

newspaper).

Even stronger though, the Amended Complaint fails to allege that Defendants deprived

Plaintiffs of sufficient process. Plaintiffs assert that “there was not a reasonable assessment of

whether he met the criteria, and he was not provided with the required ‘factual basis for denial

with an opportunity to rebut.’” (Pls.’ Opp’n Br. 19 (alteration omitted) (quoting Sherrill, 569 F.2d

at 131).) The Court disagrees. Under Sherrill, agencies denying press passes “must publish or

otherwise make publicly known the actual standard employed in determining whether an otherwise

eligible journalist will obtain a... press pass” and must give “notice to the unsuccessful applicant

of the factual bases for denial with an opportunity to rebut.” 569 F.2d at 130-31. Plaintiffs have

not alleged that Defendants failed to meet this standard. In a detailed e-mail exchange, Arbitell

provided Roubian with the six criteria that all applicants for Press Passes must meet. (Cafferty

Decl., Ex. D.) She then informed Roubian that “[a]pplicants must be employed by news

organizations gathering and disseminating news of general interest on a regular schedule

throughout the year.” Ud.) She further noted that the Press Pass is only for “reporting on breaking

news” and that “your organization is a civil advocacy group with a targeted topic/audience and is

not considered a news organization covering news of a general nature,” (/d.) In addition, the

May 2018 e-mail exchange shows that Arbitell directed Roubian to appeal directly to those

denying him access and that she “would be happy to speak to those who are denying you such

access.” Id.) The Amended Complaint does not allege that Roubian ever followed up with Arbitell

or that he was denied access to a government event for the 2018-2019 year. Especially without

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more specific allegations showing some denial of process, the Court finds this procedural due

process claim insufficiently pled.

id. Equal Protection Clause

Plaintiffs pen all of two paragraphs in their Opposition Brief in support of their Equal

Protection Clause claim. (See Pls.’ Opp’n Br. 20.) In essence, Plaintiffs assert that under a “class

of one” equal protection claim, “[P]laintiffs alleges [sic] that the NJPA ... issued ‘NJPA New

Jersey State Police Press Credentials’ to a host of others.” (id. at 20.) The Court disposes of this

claim easily. To allege a “class of one” equal protection claim, Plaintiffs must allege that (1) they

have “been intentionally treated differently from others similarly situated,” and that (2) “there is

no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000). The Amended Complaint contains no allegations of Defendants’ intentional conduct. It

broadly alleges that all members in the Press Association have been issued Press Passes (see Am.

Compl. { 13), but the Press Association’s website plainly shows that applying for membership and

applying for Press Passes are two separate procedures. Moreover, even if the Amended Complaint

had alleged intentional discrimination, it alleges nothing overcoming the rational basis for the

Press Pass denial, as articulated in the May 2018 e-mail exchange. This Court finds this claim

insufficiently pled.

IV. CONCLUSION

The Court holds that Plaintiffs’ Amended Complaint is insufficiently pled. It further finds

that amendment would be futile for the following claims and therefore dismisses with prejudice:

(1) Plaintiffs’ retaliation claim related to the Daily Public Press Briefings, (2) Plaintiffs’

substantive due process claim, and (3) all claims related to Plaintiffs’ denial of Press Association

membership. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that

court has discretion to dismiss claims with prejudice when finding amendment would be futile

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(citing Foman v. Davis, 371 U.S. 178, 182 (1962))). Specifically, regarding Plaintiffs’ retaliation

claim, the Court finds amendment futile because Plaintiffs have twice failed to allege any

post-access retaliation. Regarding Plaintiffs’ substantive due process claim, the Court finds

amendment futile because Plaintiffs already bring First Amendment and procedural due process

claims. Regarding Plaintiffs’ membership-denial theory, the Court finds amendment futile because

Plaintiffs have twice failed to allege any specific facts supporting their theory. The Court dismisses

without prejudice the remaining claims.'°

}

MICHAEL A. □□□

UNITED STATES DISTRICT JUDGE

One note of caution for Plaintiffs. Although the Court does not address today whether

Defendants are state actors, that is a necessary ingredient for Plaintiffs’ § 1983 claims. Should they

amend, the Court advises Plaintiffs to sufficiently and non-conclusorily allege how Defendants are

state actors.

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