Stripping Speech at NJ Rest Stops

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When an Atlantic City “gentleman’s club” lost its right to place brochures in service plazas along New Jersey highways in December, the Federal Court effectively affirmed the right of a private vendor to control speech in some of New Jersey’s most public places.

The Third Circuit Court of Appeals held that the private company that operates the rest areas is not considered a “state actor” for the purposes of 42 U.S.C. 1983. Accordingly, P.R.B.A. Corporation (otherwise known as “Bare Exposure”) could not bring a civil rights claim under the statute.

Removal of the Strip Club Brochures

The civil rights dispute in P.B.R.A. Corp. v. HMS Host Toll Roads began when an employee of HMS Host Toll Roads (Host) discovered a Bare Exposure brochure in a service plaza display rack. Host leases service plazas located along the Garden State Parkway and the Atlantic City Expressway from the South Jersey Transportation Authority and the New Jersey Turnpike Authority.

Host promptly contacted CTM Media Group, Inc. (CTM), which installed and serviced the brochure display racks. Citing its contract with CTM, which required Host to approve all brochures prior to placement in the racks, the company ordered the brochures be removed. Upon discovering that its brochures were banned from the rest stops, Bare Exposure filed suit under 42 U.S.C. § 1983 alleging that Host’s actions violated its First and Fourteenth Amendment rights.

The Section 1983 Entwinement Test

Section 1983 provides a remedy when an individual’s rights, privileges or immunities secured by the United States Constitution have been violated. The statute specifically states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 

Accordingly, the legal remedies are only available for actions taken by persons acting under color of state law. Because the line between state and private actors is sometimes blurred, the Supreme Court has established a test for determining when liability should be extended to private parties. In Brentwood v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), the Court held that “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” The Court further adopted the “entwinement test,” which revolves around the overlap of public and private entities as a result of their shared leadership or other attributes that make it difficult to separate their public functions from their private ones.

The Third Circuit’s Precedential Decision

Under Supreme Court and federal court precedent, Bare Exposure’s federal civil right suit hinged on its ability to prove that Host should be considered a state actor under Section 1983. In reaching its decision, the appeals court highlighted that no one from the highway authority ever instructed Host to remove the brochures from the rest stops. As set forth in the Third Circuit’s precedential opinion, “The absence of any direct involvement by the state authorities either in the decision to remove the brochures or in the general, day- to-day operations of the service plazas compels this conclusion.”

In reaching its decision, the Third Circuit acknowledged that “Bare Exposure’s strongest argument is the presence of a provision in the service plaza leases that requires Host, in certain situations, to pay a varying percentage of its gross sales income to the Authorities instead of a fixed amount.” However, the court found that there was no evidence that the profit sharing led to any actual involvement of either entity in the management or control of the other and, therefore, did not satisfy the “pervasive entwinement” required under Brentwood.

The Third Circuit also gave little weight to the fact that government signs and images of state officials can be found in the service plazas, noting that — without more—their presence does not constitute entwinement. “The same can be said of Bare Exposure’s allegation that the Authorities’ signs and photographs create the perception that the service plazas are run by the state. Even assuming this to be true, the mere perception of governmental control is insufficient for finding state action under the entwinement test,” the opinion further states.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Stripping Speech at NJ Rest Stops