SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4527-18

WILLIAM J. BRENNAN,

Plaintiff-Appellant,

v.

COUNTY OF BERGEN,

KATHLEEN A. DONOVAN, 

PETER INCARDONE, BRIAN 

HIGGINS, JAMES GIBLIN, and

JAMES J. TEDESCO III (in their

individual and official capacities),

Defendants-Respondents.

____________________________

Argued April 13, 2021 – Decided May 20, 2021

Before Judges Gilson, Moynihan, and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-7403-16.

Donald F. Burke argued the cause for appellant (Law 

Office of Donald F. Burke, attorneys; Donald F. Burke

and Donald F. Burke, Jr., on the briefs).

Ashley L. Matias argued the cause for respondents 

County of Bergen, Brian Higgins, James Giblin, and 

James J. Tedesco, III (Chasan Lamparello Mallon & 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Cappuzzo, PC, attorneys; Ashley L. Matias on the 

brief).

Thomas B. Hanrahan argued the cause for respondent 

Kathleen A. Donovan (Hanrahan Pack, LLC, attorneys;

Thomas B. Hanrahan, of counsel and on the brief;

Kathy A. Kennedy, on the brief).

Peter R. Yarem argued the cause for respondent Peter 

Incardone (Scarinci & Hollenbeck, LLC, attorneys; 

Peter R. Yarem, of counsel and on the brief).

PER CURIAM

Plaintiff William J. Brennan claims that his First Amendment rights were 

violated when he entered the Bergen County Administrative Building wearing a 

"Vote for Tedesco" t-shirt and was required to wait in the lobby while a County 

official determined that the building was not a polling place. He appeals from 

orders granting summary judgment to defendants, denying his cross-motion, and 

his motion for reconsideration. We affirm.

I.

We take the facts from the record, viewing them in a light most favorable 

to plaintiff, the non-moving party. Green v. Monmouth Univ., 237 N.J. 516, 

529 (2019) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995)). 
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In late October 2014, plaintiff watched a video on social media showing 

that three sheriff's officers had been denied entrance to One Bergen County 

Plaza (Bergen Plaza) because they were wearing "Tedesco" shirts. At that time, 

James Tedesco was running against the incumbent Kathleen Donovan to be the 

County Executive.

Bergen Plaza was the County's administrative building, and it contained 

the offices of the County Executive, Administrator, Clerk, and Superintendent 

of Elections. Certain areas of the building were open to the public during normal 

business hours, but other areas had restricted access. When members of the 

public entered the building, they were required to go through a security 

checkpoint.

In October 2014, citizens of the County were casting vote-by-mail ballots 

at the Bergen Plaza for the upcoming November 2014 general election. 

Accordingly, voters were able to pick up and drop off their ballot in the building.

On October 30, 2014, plaintiff, accompanied by a cameraman, entered 

Bergen Plaza wearing a "Vote for Tedesco" t-shirt. After passing through the 

security checkpoint, plaintiff was stopped by a Bergen County police officer,

who informed him that he could not wear the t-shirt in the building because it 

was a polling place. Plaintiff disputed the officer's view and within several 
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minutes James Giblin, the Assistant Director of Security for the County, spoke 

with plaintiff. Giblin asked plaintiff to remain in the lobby while he determined 

whether the building was a polling place. 

Sometime later, Giblin returned and told plaintiff that he was free to go 

about his business in the building. At no time was plaintiff told to remove or 

cover his t-shirt, and once it was determined that the building was not a polling 

place, he was permitted to walk in those parts of the building that were open to 

the public. Plaintiff then went to the Superintendent of Elections' office and 

spoke with the Superintendent, who confirmed that the building was not a 

polling place on October 30, 2014, and was considered a polling place only on 

Election Day. 

In support of his position, plaintiff submitted a video of the incident, 

which he also shared publicly on YouTube under the title "Truth to power – Bill 

Brennan." The video is approximately twelve minutes long and depicts

plaintiff's interactions with the unidentified police officer, Giblin, and the 

Superintendent of Elections. The video indicates that plaintiff was delayed in 

the lobby for approximately seven minutes and thirty seconds, but plaintiff later 

claimed that he was delayed for up to forty-five minutes and the cameraman had 

periodically stopped filming.
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Approximately two years later, in October 2016, plaintiff filed a 

complaint against the County, Donovan, Giblin, Tedesco, Peter Incardone, who 

had been Deputy Chief of Staff for Donovan, and Brian Higgins, the Chief of 

the Bergen County Police Department. Plaintiff alleged violations of his federal 

and state constitutional rights to free speech and expressive activity, and he 

sought a permanent injunction prohibiting the County and County officials from 

suppressing free speech and political support for candidates in the Bergen Plaza.

On July 18, 2017, the trial court entered an order dismissing the claims 

against Tedesco for failure to state a claim upon which relief can be granted. 

Plaintiff has not appealed from that order.

The remaining parties engaged in discovery. Plaintiff did not depose any 

defendant; instead, he notified defendants that he would rely on discovery taken 

in a federal action brought by several Bergen County police officers against the 

County and County officials. In October 2014, several Bergen County police 

officers had filed actions against the County and County officials, alleging that 

their constitutional rights had been violated when they were not allowed to enter 

Bergen Plaza while wearing t-shirts supporting Tedesco. Those actions were 

consolidated. Romero v. Cnty. of Bergen, No. 14-cv-6804-SDW (D.N.J. Dec. 
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1, 2015); Tassillo v. Cnty. of Bergen, No. 14-cv-6840-ES (D.N.J. Dec. 1, 2015). 

In December 2017, the federal action was dismissed after the parties settled.

In this action, defendants moved for summary judgment after the close of 

discovery and plaintiff cross-moved for summary judgment. The trial court 

heard oral argument. Thereafter, on March 21, 2019, the trial court issued a 

written opinion and orders granting summary judgment to defendants and 

dismissed plaintiff's complaint with prejudice. The court also denied plaintiff's 

cross-motion. 

The trial court determined that plaintiff had not been restricted from 

entering Bergen Plaza. The court found the undisputed facts established that 

plaintiff was always free to leave the building, was never asked to take off or 

cover his t-shirt and was delayed for only as long as it took County officials to 

determine that the building was not a polling place. Consequently, the trial court 

rejected plaintiff's contention that his expressive activity and speech were 

suppressed or chilled.

The trial court also found that Bergen Plaza was a limited public forum 

and that any delay of plaintiff in the lobby was reasonable. In addition, the trial 

court found that there was no evidence of a conspiracy among the individual 
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defendants to improperly suppress campaigning against Donovan in the 

building.

Plaintiff moved for reconsideration. The trial court denied that motion in 

an order issued on June 7, 2019, and supported that ruling with a written opinion.

II.

On appeal, plaintiff makes two arguments. First, he contends that 

defendants engaged in content-based restrictions on his political speech by 

falsely asserting that the Bergen Plaza was a polling place. In connection with 

that argument, plaintiff claims that the restrictions on his expressive speech were 

not narrowly tailored to serve a compelling state interest. Second, he contends 

that the trial court mischaracterized his claim as a "momentary restriction" of 

his political speech and failed to apply a strict scrutiny analysis. We reject these 

arguments because they are not supported by the record.

We review a grant of summary judgment using the same standard that 

governs the motion court's decision. RSI Bank v. Providence Mut. Fire Ins. Co., 

234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). 

Under that standard, summary judgment will be granted when "the competent 

evidential materials submitted by the parties," viewed in the light most favorable 

to the non-moving party, show that there are no "genuine issues of material fact" 
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and that "the moving party is entitled to summary judgment as a matter of law." 

Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 

N.J. at 38); accord R. 4:46-2(c). 

"An issue of material fact is 'genuine only if, considering the burden of 

persuasion at trial, the evidence submitted by the parties on the motion, together 

with all legitimate inferences therefrom favoring the non-moving party, would 

require submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24 

(quoting Bhagat, 217 N.J. at 38). We owe no special deference to the motion 

court's legal analysis. RSI Bank, 234 N.J. at 472 (citing Templo Fuente De Vida 

Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)).

A.

Initially, we clarify what is at issue. Plaintiff is not claiming that he was 

illegally detained in violation of his Fourth Amendment right against seizure of 

his person. The undisputed material facts establish that plaintiff could have left 

Bergen Plaza whenever he chose. This is a First Amendment case in which 

plaintiff relies on the New Jersey Civil Rights Act (CR Act), N.J.S.A. 10:6-1 to 

-2.

The CR Act provides a means of "vindicating substantive rights" 

guaranteed by federal and New Jersey law, including the Constitutions of the 
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United States and New Jersey. Gormley v. Wood-El, 218 N.J. 72, 98 (2014). In 

relevant part, the CR Act provides that:

Any person who has been deprived of any substantive 

due process or equal protection rights, privileges or 

immunities secured by the Constitution or laws of the 

United States, or any substantive rights, privileges or 

immunities secured by the Constitution or laws of this 

State, or whose exercise or enjoyment of those 

substantive rights, privileges or immunities has been 

interfered with or attempted to be interfered with, by 

threats, intimidation or coercion by a person acting 

under color of law, may bring a civil action for damages 

and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c).]

Under the CR Act, "the party alleging a claim must show a violation of a 

substantive right or that someone 'acting under color of law' interfered with or 

attempted to interfere with a substantive right." State v. Quaker Valley Farms, 

LLC, 235 N.J. 37, 64 (2018) (citing N.J.S.A. 10:6-2(c)).

Political expression is protected by the First Amendment of the United 

States Constitution and by Article I, Paragraphs 6 and 18 of the New Jersey 

Constitution. See Mazdabrook Commons Homeowners' Ass'n v. Khan, 210 N.J. 

482, 486 (2012) (recognizing that political speech "is protected by the State 

Constitution, which affirmatively guarantees the right of free speech to all 

citizens"); G.D. v. Kenny, 205 N.J. 275, 303 (2011) (explaining that "[t]he right 
10 A-4527-18

to speak freely on matters of public concern and the right to criticize a candidate 

for public office implicate core values protected by our [F]ederal and [S]tate 

[C]onstitutions").

Indeed, political speech "is entitled to the highest level of protection in 

our society." Dublirer v. 2000 Linwood Ave. Owners, Inc., 220 N.J. 71, 85 

(2014). Accordingly, under both the Federal and New Jersey Constitutions

political speech and expression are accorded broad protection. Buckley v. 

Valeo, 424 U.S. 1, 14 (1976); Mazdabrook, 210 N.J. at 499. 

"The protections afforded under the First Amendment not only protect 

verbal speech but also non-verbal speech, characterized as 'expressive conduct.'" 

Dempsey v. Alston, 405 N.J. Super. 499, 514 (App. Div. 2009) (citing R.A.V. 

v. St. Paul, 505 U.S. 377, 382 (1992)). "To qualify as expressive conduct 

protected by the First Amendment, the actor must have '[a]n intent to convey a 

particularized message . . . and in the surrounding circumstances the likelihood 

[must be] great that the message would be understood by those who viewed it.'" 

Ibid. (alterations in original) (quoting Spence v. Washington, 418 U.S. 405, 410-

11 (1974)). A ban on wearing political t-shirts "plainly restricts a form of 

expression within the protection of the First Amendment." Minn. Voters All. v. 

Mansky, 138 S. Ct. 1876, 1885 (2018).
11 A-4527-18

Nevertheless, "[l]ike most rights, the rights protected by the First 

Amendment are subject to reasonable restrictions." In re Att'y Gen.'s Directive 

on Exit Polling, 200 N.J. 283, 304 (2009); see also Virginia v. Black, 538 U.S. 

343, 358 (2003) (recognizing that "protections afforded by the First Amendment

. . . are not absolute" and "the government may regulate certain categories of 

expression consistent with the Constitution").

Accordingly, our Supreme Court has held that New Jersey election laws 

N.J.S.A. 19:34-6, -7, and -15, which ban all expressive activities within 100 feet 

of a polling place "are reasonable time, place, and manner restrictions under the 

First Amendment intended to secure and enhance another vital constitutional 

right – the right to vote." In re Att'y Gen.'s Directive, 200 N.J. at 288. In that 

case, the Court found that "the Legislature intended that voters would have a 

100-foot free, unobstructed passage to the polling place, without interference 

from any person, whether that person is conducting exit polling or handing out 

voting-rights cards. The ban applies to all expressive activities within that zone, 

however seemingly laudable or ignoble." Ibid.; see also Burson v. Freeman, 504 

U.S. 191, 193-95 (1992) (finding no First Amendment violation in a contentbased Tennessee statute that prohibited electioneering within 100 feet of a 

polling entrance).
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Applying this well-established law to this case, the undisputed material 

facts show no violation of plaintiff's First Amendment rights. It is undisputed 

that plaintiff entered Bergen Plaza wearing the "Vote for Tedesco" t-shirt. At 

no time was he asked to remove or cover his t-shirt and he wore the shirt the 

entire time he was in the building.

Plaintiff claims that he was "detained" in the lobby for forty-five minutes. 

The undisputed facts, however, establish that plaintiff was delayed from moving 

about the building by an unidentified police officer whom plaintiff never named

as a defendant. More critically, plaintiff was delayed in the lobby for as long as 

it took Giblin to determine whether Bergen Plaza was a polling place and, 

consequently, whether any election restrictions were in effect.

The political message contained on plaintiff's t-shirt was visible to people 

entering and leaving Bergen Plaza. Accordingly, to the extent that plaintiff has 

a complaint, it is the delay in moving beyond the lobby and into the other public 

areas of the building. Plaintiff testified that he was not in the building to conduct 

any business; rather, he had come to the building with the sole purpose of 

challenging what he believed were restrictions on political expression. After 

some delay, plaintiff was allowed to move beyond the lobby and was given free 

access to all the parts of the building that were open to the public. Those 
13 A-4527-18

undisputed facts establish that no defendant interfered with or attempted to 

interfere with plaintiff's First Amendment rights.

B.

Stripped of rhetoric, plaintiff's real complaint is the delay in his ability to 

move beyond the lobby of Bergen Plaza. The record does not clearly establish 

the length of the delay. On the video, it appears that plaintiff waited 

approximately seven minutes while Giblin checked to see if the building was a 

polling place. Plaintiff contends, however, that the video was periodically 

turned off and he may have been delayed as long as forty-five minutes.

He reaches that time by adding the full twelve minutes of the video to 

twenty minutes when the recording device was reportedly turned off. That math 

is not supported by the record because plaintiff was given access to Bergen Plaza 

eight minutes into the video. Consequently, even if we accept plaintiff's 

contention that the video was turned off for twenty minutes, that delay would be 

approximately twenty-eight minutes. Nevertheless, giving plaintiff every 

reasonable inference, we have added an extra two minutes for a total delay of 

thirty minutes.

Accordingly, the issue is whether the thirty-minute delay in access to 

Bergen Plaza was unconstitutional. The only defendant who interacted with 
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plaintiff while he was in the lobby was Giblin. Giblin testified in the federal 

action brought by the sheriff's officers that he had previously been advised that 

the building was an active polling place and therefore no campaigning could be 

conducted in the building. On October 30, 2014, when plaintiff came to Bergen 

Plaza, however, Giblin checked and learned that Bergen Plaza was not a polling 

place on that day. 

If Bergen Plaza had been a polling place on October 30, 2014, Giblin 

could have denied plaintiff entry into the building under New Jersey's election 

laws. See N.J.S.A. 19:34-6; In re Att'y Gen.'s Directive, 200 N.J. at 288. 

Plaintiff has presented no evidence that Giblin interfered with his First 

Amendment rights by threats, intimidation, or coercion. See N.J.S.A. 10:6-2(c). 

The video and plaintiff's own testimony establish that both the unidentified 

officer and Giblin were polite in dealing with plaintiff. The best he can show 

was that Giblin was initially mistaken in thinking that Bergen Plaza was a 

polling place. 

C.

Plaintiff also argues that there was a conspiracy to suppress political 

speech and it was that conspiracy that caused his delayed entry into Bergen 

Plaza. That argument fails for two reasons. 
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First, to establish the conspiracy, plaintiff relies on discovery taken in the 

federal action brought by the County police officers. Those officers were denied 

access to the Bergen Plaza on October 23, 2014. Higgins testified that he was 

told Bergen Plaza was a polling place because absentee ballots were dropped off 

there. Giblin testified that Incardone and Higgins advised him that the building 

was an active polling place and, therefore, no campaigning could be conducted 

in the Plaza. Incardone testified that he did not speak to Higgins or Giblin about 

enforcing election laws. Even if we view those facts in a light most favorable 

to plaintiff, those facts only show that there may have been a policy on October 

23, 2014.

The undisputed facts in this case establish that plaintiff was not denied 

access to the building on October 30, 2014. Instead, as already discussed, his 

movement beyond the lobby was delayed while it was determined that Bergen 

Plaza was not a polling place on October 30, 2014. Consequently, plaintiff can 

show no conspiracy in place on October 30, 2014.1

1 Defendants contend that we should not consider the discovery taken in the 

police officers' federal action because there was a protective order in that matter. 

The protective order covered confidential information and, in particular, an 

internal affairs investigation concerning the activities of one of the officers. The 

testimony plaintiff submitted was not protected by the protective order because 

it does not involve confidential information or the internal affairs investigation. 
16 A-4527-18

Given our holding that plaintiff has shown no interference with his 

constitutional rights, we need not address his arguments about strict scrutiny and 

whether the delay in his entrance was narrowly tailored to support a compelling 

state interest.

Affirmed.

To the extent that defendants seek to overread the scope of the protective order, 

we reject that argument.