Judge dismisses NJ school board member’s free speech lawsuit

A federal judge has dismissed an Alloway school board member’s lawsuit alleging state officials had impermissibly restrained her speech over an ethics complaint prompted by comments about board matters that she made publicly.

U.S. District Judge Christine P. O’Hearn found that the board member, Gail Nazarene, has no standing to sue because state officials had not moved to enforce the ethics complaint, which was filed after Nazarene solicited feedback on a proposed school tax increase on social media.

Nazarene had argued that an investigation by the School Ethics Commission over her social media comments would violate her free speech rights.

The suit was dismissed without prejudice, which means Nazarene could refile it later, particularly if the commission acts on the ethics complaint against her. Katie Stalcup, a spokesperson for the Foundation for Individual Rights and Expression, which represented Nazarene, said the organization was disappointed in the ruling and would appeal it to the U.S. 3rd Circuit Court of Appeals.

The ethics complaint, filed by former board member Sara Cobb, who resigned her seat in August, argued Nazarene’s posts had created confusion and public concern. It also alleged the posts gave the impression Nazarene was speaking on the board’s behalf, rather than in her own capacity.

The School Ethics Commission could not weigh the complaint while the lawsuit was ongoing as a matter of law. The commission determines whether there is probable cause to find a violation and, if there is, refers the matter to an administrative law judge for a hearing. The commission dismisses complaints where it finds no probable cause.

Nazarene need not necessarily wait for the commission to find probable cause, O’Hearn wrote in an earlier ruling where she rejected the woman’s request for an injunction, but a complaint alone wasn’t enough to chill her speech given the commission has ruled both ways on similar complaints.

“The mere fact that any member of the public may file an ethics complaint does little to move the asserted threat by Nazarene beyond speculation or a self-imposed chill,” the judge wrote in the May order.

Nazarene’s case inspired bipartisan legislation aimed at preventing ethics complaints against school board members for speaking publicly on school matters. It has not moved in the Statehouse since its introduction in May.