Stripping of Strip Club Ads May Lead to Trial

     (CN) – New Jersey transportation authorities may be liable after an employee removed strip club brochures from Garden State Parkway rest stops, a federal judge ruled.
     P.R.B.A. Corp. dba Bare Exposure has contracted with advertising agency CTM Media Group to advertise at New Jersey area rest stops. Its brochures depict a woman’s face and the text “Bare Exposure … Atlantic City’s Only All Nude Entertainment.”
     The club sued the South Jersey Transportation Authority (SJTA), New Jersey Turnpike Authority (NJTA), and private rest-stop operator HMS Host Toll Roads in December 2012, claiming that its brochures had been illegally rejected.
     HMS Host employee Greg Dion admitted that he had removed the brochures in the fall out of concern that they were potentially inappropriate. He said he was unaware of certain provisions of the New Jersey Administrative Code that regulate advertising at the New Jersey Turnpike or Garden State Parkway, and that he acted without any instruction from state authorities.
     Bare Exposure’s amended complaint asserts a First Amendment violation and facial challenge to the code provisions; 14th Amendment due process and equal protection violations; and speech, association, due process, and equal protection violations of the New Jersey Constitution.
     The club moved to preliminarily enjoin the defendants from removing the brochures March 18, and the defendants opposed and moved for summary judgment.
     U.S. District Judge Renée Marie Bumb denied both motions Friday, finding that Bare Exposure cannot challenge the only code provision still in effect, which prohibits the unauthorized distribution of samples, pamphlets, or advertising on state highways.
     “Plaintiff has offered no evidence that: (1) its brochures were removed pursuant to this provision; (2) the NJTA or SJTA has threatened to enforce this provision against plaintiff in the future, and the NJTA would not authorize plaintiff’s brochure display; or (3) the provision would even apply to plaintiff’s display of brochures, given that it would be displayed at a rest stop and not on the expressway itself,” Bumb wrote. “Without more, plaintiff’s claim is, at best, a conjectural concern about future harm or a subjective chill – not an injury in fact.”
     The club is unlikely to establish that Host acted under the control of a state agency, the judgment states.
     “Host is an independent Delaware corporation, and state employees are not involved in its management or routine operations,” Bumb wrote.
     The judge later added: “Because plaintiff is unlikely to establish state action or any exception to the state action requirement, plaintiff is unlikely to succeed on the merits, and a preliminary injunction is unwarranted.”
     Summary judgment for the defendants meanwhile is premature because Federal Rule of Civil Procedure 56(d) warrants further discovery, the court ruled.
     “Plaintiff properly proffered a Rule 56(d) declaration indicating that it lacked vital information on the state action issue and that it had been unable to obtain information because discovery is not yet underway,” Bumb wrote. “Accordingly, the defendants’ summary judgment motion is denied without prejudice.”
     The parties must notify the court whether they have agreed to a joint discovery plan on or before Aug. 9, the ruling states.

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