The Supreme Court of New Jersey recently struck down a municipal ban of digital billboards. In its decision in E&J Equities v. Board of Adjustment of Franklin Township, the state’s highest court held that the ordinance was unconstitutional under both the United States and New Jersey constitutions.
The Facts of the Case
The case involves the proposed placement of a digital billboard in an M-2 industrial zone adjacent to I-287 in Franklin Township. While plaintiff E&J Equities was in the process of pursuing a variance for the billboard, Franklin Township passed a new ordinance regulating the placement of billboards.
While conditionally permitting static billboards in the M-2 industrial zone, the ordinance prohibited digital/electronic billboards such as the one plaintiff sought to erect. After the Board of Adjustment of the Township denied the application seeking a variance, E&J Equities filed an appeal challenging the constitutionality of the ordinance. The plaintiff maintained that the billboard ordinance violated E&J’s First Amendment rights through its unjustified limitation on commercial and non-commercial speech. As detailed in a prior post, the trial court agreed that the ordinance impermissibly curtailed commercial speech and, thus, violated the First Amendment to the U.S. Constitution. The Appellate Division reversed, holding that the government has a legitimate and substantial interest in preserving the aesthetics of its community and promoting traffic safety.
The Court’s Decision
The Supreme Court of New Jersey concluded that the ordinance failed to pass constitutional muster. “Although the Township relied upon aesthetic and public safety concerns in banning digital billboards, while permitting static billboards in designated zones, the record fails to demonstrate that the ban furthers the governmental interests that the Township asserts,” the court held.
In reaching its decision, the court applied the Clark/Ward standard established by the U.S. Supreme Court to govern “content-neutral regulations restricting or regulating expression by those seeking to advance commercial ventures.” As explained by the court:
Under that standard, although the Ordinance carries a presumption of validity when faced with a constitutional challenge to it legislation, the Township must demonstrate that the prohibition of digital billboards is content neutral, that it is narrowly tailored to serve a recognized and identified government interest, and that reasonable alternative channels of communication exist to disseminate the information sought to be distributed.
The court concluded that the ordinance is content-neutral because the ban on digital billboards addresses a manner of communication, and not its content. It also noted that the ordinance does not suppress an entire mode of communication, since it permits signs and static billboards.
Nonetheless, the court found that record failed to support the government interests of aesthetics and the safety of travelling motorists that the Township contended support the ban on digital billboards. As explained in the opinion:
[While the] government interest identified by the Township—aesthetics and the safety of motorists… have long been recognized as legitimate and substantial government interests, particularly related to billboards… [the Township] must do more than simply invoke government interests that have been recognized over time as substantial. In other words, there must be a modicum of support for the invoked government interests.
Despite its ruling, the court made it clear that not all digital billboard bans are unconstitutional. It stated, “we do not suggest that no municipal restrictions on off-premises digital billboards or multiple message centers can pass constitutional muster…[Rather,] a more robust factual record in support of the cited government interests deemed substantial may satisfy the Clark/Ward test.”
For more information about the court’s decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.