SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Philip A. Besler, et al. v. Board of Education of West Windsor-Plainsboro Regional School District, et al.

(A-81-08)

Argued September 29, 2009 -- Decided May 17, 2010

ALBIN, J., writing for a majority of the Court.

This appeal presents the Court with two primary issues. First, whether plaintiff Philip Besler's right to free speech under the First Amendment was violated during the public comment period of a meeting of the Board of Education of the West Windsor-Plainsboro Regional School District (Board). Second, whether the evidence supported the jury's award of $100,000 for plaintiff's pain-and-suffering.

In the spring of 1996 Philip Besler began attending and speaking at School Board meetings as a concerned parent and citizen. His daughter, Jennifer, then a senior at West Windsor-Plainsboro High School and member of the girls varsity basketball team, claimed that her basketball coach, Daniel Hussong, repeatedly verbally abused her and other team members. Jennifer asserted that Hussong singled her out for particularly harsh treatment, making her the target of profanity-laced tirades and disparaging comments about her weight. The mistreatment took a physical and emotional toll on Jennifer, causing an eating disorder and a condition called amenorrhea, a disruption of her menstrual cycle.

From April 1996 through January 1997, Mr. and Mrs. Besler met with school officials, wrote letters, and attended various Board meetings. During the public comment period of nine Board meetings, the Beslers addressed their concerns about the failure of the District to hold coaches accountable for inappropriate and unsportsmanlike conduct. The focus of this case is the January 28, 1997 Board meeting. At least one hundred people were at this meeting. The public comment period began with a statement by the Board's President, Dr. Lester Bynum. Dr. Bynum stated that the public comment period would last no longer than thirty minutes and that no speaker would have more than five minutes of comment time.

The first member of the public to speak was a District resident who had spoken at length at numerous Board meetings. That evening his comments lasted more than seven-and-one-half minutes. Mr. Besler had his hand raised to speak next. Before calling on him, Dr. Bynum made remarks that appeared specifically tailored for Mr. Besler, including that "the meeting was not intended for personnel discussions of individuals" or for "allegations or insinuations about staff behavior or staff performance." Besler then gave his name and address and, after speaking for no more than thirty seconds, was silenced by four loud bangs of the gavel. Besler was told that he could hand out his written comments, but that the Board was "not going to entertain those comments." After Besler sat down, two other members of the public spoke during the public comment period, one engaging in dialogue with the Board for more than twelve minutes and the other for more than eight minutes.

In January 1998, Mr. and Mrs. Besler, and daughter Jennifer, filed a twelve-count complaint in the Superior Court, Law Division of Mercer County, naming as defendants the Board, the girls high school basketball coach, the District's Superintendent, the high school Principal, and others. Only one of the twelve counts dealt with Mr. Besler's federal civil rights claim pursuant to 42 U.S.C.