E & J Equities v. Board of Adjustment of the Township of Franklin(075207)

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
interest of brevity, portions of any opinion may not have been summarized.)
E&J Equities v. Board of Adjustment of Franklin Township (075207) (A-40-14)
Argued March 1, 2016 – Decided September 15, 2016
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers the constitutionality of an ordinance adopted by the Township of
Franklin (Township) to regulate billboards, which prohibits the erection of digital billboards in the municipality
while allowing static billboards adjacent to an interstate highway that passes through the Township.
In 2008, the Township commenced a review of its ordinance governing signs and billboards. In January
2009, the Director of Planning identified potentially acceptable billboard locations, and suggested billboard bulk and
design requirements. The Director recommended limiting billboards to the M-2 (light manufacturing) and General
Business zoning districts, and prohibiting signs that moved or gave the illusion of movement, rotated, or produced
noise or smoke. On April 7, 2009, the Planning Board forwarded a draft ordinance to the Township Council. The
accompanying memorandum recommended that permitting billboards along I-287 would be the most prudent means
of addressing potential First Amendment claims by billboard companies, and stated that the draft ordinance was
crafted to minimize impact to the character of the Township. The Planning Board further stated that it decided to
recommend barring LED billboards because it felt that it did not have sufficient information or expertise to draft
language regulating them. The Board suggested that whether LED billboards would be appropriate was best
addressed through an application by a billboard company before the Zoning Board of Adjustment (Board).
In September 2009, while the Planning Board and Township Council were considering amendments to the
sign ordinance, E&J Equities, LLC (E&J) applied for a variance to install a digital billboard on its property parallel
to Interstate Route 287 (I-287) in the M-2 zone. In support of its application, E&J relied on two of a number of
published studies which addressed digital billboards and traffic safety, and opined that digital billboards have no
statistically significant relationship with the occurrence of accidents.
On May 3, 2010, the Township Council adopted Ordinance 3875-10. The stated purpose of the ordinance
was to promote and preserve the aesthetic beauty and character of the Township, and public safety and convenience,
and also to protect certain Constitutional rights relative to outdoor advertising. The ordinance permitted static
billboards in the M-2 zone, and barred digital billboards in the Township. Following the adoption of the ordinance,
the Board voted 4 to 3 in favor of E&J’s application. The vote constituted a statutory denial of the use variance,
which required five affirmative votes.
E&J commenced this action against the Township, challenging the ban on digital billboards as contrary to
the First Amendment of the United States Constitution and Article I, paragraph 6 of the New Jersey Constitution.
The trial court determined that the Township failed to establish that the total ban on digital or electronic billboards
served a legitimate government interest, and that the ordinance was not narrowly drawn to advance that interest.
The trial court found that a single digital billboard was not likely to have any more of an impact on Township
aesthetics than a static billboard, and that the Township failed to demonstrate that the ban advanced its stated interest
in traffic safety. The trial court therefore held the ordinance invalid.
The Appellate Division reversed in a published decision, and upheld the ordinance. 437 N.J. Super. 490(App. Div. 2014). The panel stated that the government has a legitimate and substantial interest in preserving the
aesthetics of its community and promoting traffic safety. The panel found that the stated purpose of the ordinance,
as well as the need for further studies on the impact of digital billboards, provide a rational and objective basis for
the Township’s determination to ban digital billboards.
This Court granted plaintiff’s petition for certification. 220 N.J. 574 (2015).
HELD: A digital billboard, as a form of communication, is subject to the protections afforded to speech under the
First Amendment to the United States Constitution and the New Jersey Constitution. To the extent that a
municipality seeks to restrict billboards, the regulation must find support in the governmental interests that the
municipality seeks to protect or advance. 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 ordinance ban on digital billboards is
therefore unconstitutional.
1. Regulations on billboards are justified because signs may obstruct views, distract motorists, displace alternative
uses for land, and pose other problems that legitimately require regulation by the municipality. If a billboard is
adjacent to the interstate highway system, it is subject to the Highway Beautification Act of 1965, Pub. L. No. 89-
285. The Legislature has established state controls of roadside advertising in areas adjacent to the federal highway
system. (pp. 18-19)
2. The First Amendment protects commercial speech from unwarranted governmental regulation, but such speech is
granted less protection than other constitutionally-guaranteed expression. The protection afforded turns on both the
nature of the expression and the governmental interests served by its regulation. To balance these factors, the
United States Supreme Court has created a four-part test for the regulation of commercial speech, known as the
Central Hudson standard. The Court has recognized that laws that regulate only the time, place or manner of
speech, stand on a different footing. Such regulations are valid provided that they are content-neutral, narrowly
tailored to serve a significant governmental interest, and leave ample alternative channels for communication of the
information, under the Clark/Ward time, place and manner standard established by the United States Supreme Court.
A municipal ban foreclosing an entire form of media has been held to contravene the First Amendment. See
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981); Bell v. Township of Stafford, 110 N.J. 384 (1988).
Ordinances restricting too little speech or too much protected speech also have been found to be violative of the First
Amendment. (pp. 20-37)
3. The Court determines that the Clark/Ward test is the appropriate standard for review of the ordinance based on
the variety of commercial and noncommercial messages that a digital billboard can convey, and because the
ordinance does not bar all outdoor, off-premises advertising, since signs are permitted, subject to certain conditions,
and static billboards are allowed in the M-2 zone adjacent to I-287. Although the ordinance carries a presumption of
validity, in light of the constitutional challenge, the Township must demonstrate that the ban on digital billboards
satisfies the Clark/Ward standard. (pp. 38-41)
4. The ordinance is content-neutral because the ban on digital billboards addresses a manner of communication, and
not its content. The ordinance also does not suppress an entire mode of communication, since it permits signs and
static billboards. However, the record does not support the government interests of aesthetics and the safety of
travelling motorists that the Township has contended support the ban on digital billboards. (pp. 42-43)
5. The interests of aesthetics and safety upon which the Township relies have long been recognized as legitimate
and substantial government interests related to billboards. Although the Township has sought to preserve the
bucolic character of sections of the municipality, it permits industrial and corporate development, and has directed
that static billboards may be erected in the M-2 zone. Despite the Township’s assertion that no standards exist to
allow it to address aesthetic and public safety concerns, the considerable body of literature and studies concerning
the safety impact, or lack thereof, of digital billboards, suggests a basis for standards that can be applied to enhance
traffic safety and mitigate aesthetic concerns with digital billboards. The motor vehicle accident statistics fail to
prove either party’s arguments on the asserted danger of digital billboards. (pp. 43-45)
6. A more robust factual record in support of the government interests cited by the Township is necessary to satisfy
the Clark/Ward standard. In the absence of such support, the ban on digital billboards in the ordinance is
unconstitutional. (pp. 45-46)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON, FERNANDEZ-VINA and SOLOMON, join
in JUDGE CUFF’s opinion. JUSTICES LaVECCHIA and ALBIN did not participate.
2
SUPREME COURT OF NEW JERSEY
A-40 September Term 2014
075207
E&J EQUITIES, LLC, a New
Jersey limited liability
company,
Plaintiff-Appellant,
v.
BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF FRANKLIN,
Defendant,
and
TOWNSHIP OF FRANKLIN,
Defendant-Respondent.
Argued March 1, 2016 – Decided September 15, 2016
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 437 N.J. Super. 490 (App. Div.
2014).
Francis P. Linnus argued the cause for
appellant (Mr. Linnus, attorney; Benjamin T.
Wetzel, on the briefs).
Louis N. Rainone argued the cause for
respondent (DeCotiis, Fitzpatrick & Cole,
attorneys; Mr. Rainone, Jason D. Attwood,
and Victoria A. Flynn, on the briefs).
Ronald K. Chen argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director
and Rutgers Constitutional Rights Clinic
Center for Law & Justice, attorneys; Mr.
Chen, Mr. Barocas, Jeanne M. LoCicero,
1
Alexander R. Shalom, and Andrew Gimigliano,
of counsel and on the brief).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
In 2010, the Township of Franklin (the Township) adopted an
ordinance revising its regulation of signs, including
billboards. The ordinance permits billboards, subject to
multiple conditions, in a zoning district proximate to an
interstate highway but expressly prohibits digital billboards
anywhere in the municipality.
A company seeking to install a digital billboard challenged
the constitutionality of the ordinance. The Law Division
declared unconstitutional that portion of the ordinance barring
digital billboards. The trial court viewed the Township’s
treatment of such devices as a total ban on a mode of
communication. In a reported opinion, the Appellate Division
reversed. Applying the Central Hudson1 commercial speech
standard and the Clark/Ward2 time, place, and manner standard to
content-neutral regulations affecting speech, the appellate
1 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S.
557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).
2 Ward v. Rock Against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105
L. Ed. 2d 661 (1989); Clark v. Cmty. for Creative Non-Violence,
468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984).
2
panel determined that the ban on digital billboards passed
constitutional muster.
We acknowledge that aesthetics and public safety are
generally considered to be substantial governmental interests,
particularly in the context of regulations affecting billboards.
Nevertheless, billboards generally or specific types of
billboards are a medium of communication, and any regulation of
that medium may not transgress the United States Constitution or
the Constitution of this State. Thus, simply invoking
aesthetics and public safety to ban a type of sign, without
more, does not carry the day.
Here, the Township, citing aesthetic and public safety
concerns, permitted billboards to be installed in a single
zoning district proximate to a heavily travelled interstate
highway but prohibited digital billboards in the same zone. The
Township did so on the basis of information gathered by its
Director of Planning, Planning Board, and a Land Use Committee
of the municipal governing body. Nevertheless, the record
provides scant support for several propositions that informed
the Township’s decision and no support for the decision that the
aesthetics of three billboards are more palatable than the
aesthetics of a single digital billboard. Although we do not
consider the digital billboard ban equivalent to a total ban on
a medium of communication, it is a form of communication that is
3
subject to the protection of the First Amendment. To that end,
the record must support, to some degree, the interests that the
municipality seeks to protect or advance. The record fails to
support this restriction. We therefore declare that the 2010
ban on digital billboards is unconstitutional and reverse the
judgment of the Appellate Division.
I.
The Township is the second-largest municipality in Somerset
County, covering forty-seven square miles. Sixty-two thousand
persons reside in the Township. A former planner for the
Township described it “as a mosaic of various development
patterns.”
Some sections of the Township are rural, and some sections
contain historic villages. A road that passes through the
Township has been designated a national scenic byway. Other
portions of the Township are highly developed. Interstate Route
287 (I-287), a highway that carries over 100,000 cars and trucks
daily, passes through the Township. The I-287 corridor is
bordered by an M-2 Light Manufacturing zoning district
(hereinafter the M-2 zone),3 which permits various industrial and
3 The M-2 zone permits the following uses: manufacturing,
fabrication and assembly of various products including light
machinery, wood and paper products and metal furniture, bottling
of food and beverages, food processing, manufacturing of
liquors, laboratories, industrial parks, warehouses, general
office buildings, administrative and dispatch services, hotels,
4
corporate uses. The Township has aggressively sought to
preserve farmland and open space. To that end, it has preserved
thirty-four percent of the real property in the Township.
In 2008, the Township commenced a review of its ordinance
governing signs and billboards. The Township did so at the
suggestion of its insurance company, which noticed some
inconsistencies in the existing ordinance. At the time,
billboards were permitted in the Township’s General Business
zoning district as a conditional use. The ordinance, however,
failed to define a billboard and did not identify any conditions
for approval of an application to construct a billboard. The
Township also prohibited signs with electronic script or
electronic bulletin boards.
Upon notice to the public, the Township Council and the
Planning Board commenced a two-year review of the Township’s
sign ordinance. During the course of the review, the Planning
Board conducted a survey of existing billboards4 and identified
potentially acceptable locations for billboards on two highways
in the Township -- State Highway 27 and I-287.
indoor recreational uses, child care centers, and personal
storage facilities. Franklin Twp., N.J., Code ch. 112, Schedule
1 (2015).
4 Three existed at the time, but none were located in the M-2
zone.
5
The discussions of the Planning Board were followed closely
by plaintiff E&J Equities, LLC (E&J), which owns property along
I-287 in the M-2 zone. E&J made a presentation to the Planning
Board about the features and benefits of digital billboards, and
it submitted a proposed ordinance prepared by its attorney as
well as other material prepared by a professional engineer and
planner it retained. The ordinance proposed by E&J permitted
billboards with changing imagery and the use of LED or
equivalent technology.
In January 2009, the Director of Planning forwarded a
memorandum to the Planning Board identifying potentially
acceptable billboard locations and suggesting billboard bulk and
design requirements. The Director of Planning recommended
limiting billboards to the M-2 and General Business zoning
districts, and prohibiting signs that moved or gave the illusion
of movement, rotated, or produced noise or smoke. The Director
of Planning also recommended that neither signs nor billboards
should display videos or other changing imagery. The Director
of Planning also suggested standards for illumination of any
billboards and a ban on words or symbols, such as “STOP” or
“DANGER,” that might be interpreted by a passerby as a command
issued by a public authority.
On April 7, 2009, the Planning Board forwarded a draft
ordinance to the Township Council. The accompanying memorandum
6
from the Planning Board outlined the process it had employed and
advised that it “determined that permitting billboards along I-
287 would be the most prudent means of addressing potential
First Amendment claims on the part of billboard companies.” The
memorandum also stated that the draft ordinance “was carefully
crafted to minimize impact to the character of Franklin,
particularly to the residential properties on the north side of
I-287.” Finally, the Planning Board reported that it had
decided to recommend barring “LED billboards” because “the Board
felt that it did not have enough information or sufficient
expertise to craft ordinance language to appropriately address
LED billboards.”
Notably, the Planning Board suggested that the question
whether such LED billboards would be appropriate was best
addressed by an application by a billboard company before the
Zoning Board of Adjustment. Later, in defense of the ordinance
adopted by the Township Council, the Director of Planning added
that the Planning Board and the Land Use Committee of the
Township Council believed that the Planning Board made its
recommendation and the Township Council adopted the new
billboard ordinance because “there was no conclusive source or
documentation that digital billboards were safe, or some
literature that the Board or Committee could depend on to come
up with reasonable standards.”
7
In September 2009, E&J submitted an application to the
Zoning Board of Adjustment for a variance to construct and
install a digital billboard on its property parallel to I-287.
E&J’s property is located in the M-2 zone. The area immediately
south of the zone consists of several shopping centers, large
supermarkets, banks, several large drug stores, and senior
housing projects. The closest residential neighborhood to the
proposed billboard is 500 feet across the highway. A heavily
vegetated buffer separates the homes from the highway.
At the time the Planning Board and Township Council were
considering amendments to the sign ordinance, and the Zoning
Board of Adjustment was considering E&J’s application for a use
variance, a number of studies investigating the relationship
between digital billboards and traffic safety were published.
The Director of Planning acknowledged that he was familiar with
those studies, and stated that he had concluded there was a lack
of “conclusive guidance on the issue.” Two of those studies,
one from Rochester, Minnesota, and the other from Cuyahoga
County (including Cleveland), Ohio, were submitted by E&J in
support of its variance application before the Board of
Adjustment. Each study opined that “digital billboards in [city
or county] have no statistically significant relationship with
the occurrence of accidents.”
8
The methodology used in those studies was sharply
criticized in a report issued in April 2009 prepared by Jerry
Wachtel (the Wachtel Report) commissioned by the Association of
State Highway and Transportation Officials. The Wachtel Report
concluded that “the issue of the role of [digital billboards] in
traffic safety is extremely complex,” that the rapidly changing
digital billboard technology complicates the task of assessing
risk, and that the absence of uniform criteria for assessing the
relationship between billboards and traffic safety has hampered
local officials’ ability to assess the traffic safety risk of
digital billboards. Nevertheless, the Wachtel Report determined
that the plethora of studies reviewed supported the conclusion
that
[t]he research underway by [the Federal
Highway Administration as of April 2009] may
begin to provide specific, directed answers to
assist those officials in their work. In the
interim, those governmental agencies and toll
road operators, faced with the need to make
such decisions now have, in our opinion, a
sufficient and sound basis for [reviewing
applications for digital billboards].
Both E&J’s planner and the Director of Planning acknowledged
familiarity with the Wachtel Report during consideration of the
2010 ordinance.
Since 1996, the New Jersey Department of Transportation
(NJDOT) has permitted off-premises digital billboards or
multiple message signs on the interstate highway system. 28
9
N.J.R. 4742(a) (Nov. 4, 1996). Such signs are governed by
regulations that establish minimum distance requirements between
a digital billboard and an official variable message board,
N.J.A.C. 16:41C-11.1(a)(6);5 bar illumination by intermittent or
moving light, N.J.A.C. 16:41C-11.1(a)(4); and establish the
minimum time a message must remain fixed before a new message
can be displayed, N.J.A.C. 16:41C-11.1(a)(3). Under those
regulations, a neighboring municipality, South Plainfield,
permitted installation of a digital billboard along a portion of
I-287 traversing that borough.
On May 3, 2010, the Township Council adopted Ordinance
3875-10. Franklin Twp., N.J., Ordinance 3875-10 (2010) (the
Ordinance). The stated purpose of the Ordinance is “to balance
the need to control and regulate billboards, promote and
preserve the scenic beauty and character of the Township,
provide for the safety and convenience of the public, and to
recognize certain Constitutional rights relative to outdoor
advertising.” The Ordinance permits static billboards in the
M-2 zone. Id. § 112-114.1. The Ordinance added Section 53.1 to
Chapter 112 of the Township Code. Id. § 112-53.1. The
challenged section of the Ordinance provides, in relevant part:
No billboard or billboard display area or
portion thereof shall rotate, move, produce
5 Until March 2, 2015, the regulations governing off-premises
digital billboards were codified at N.J.A.C. 16:41C-8.8.
10
noise or smoke, give the illusion of movement,
display video or other changing imagery,
automatically change, or be animated or
blinking, nor shall any billboard or portion
thereof have any electronic, digital, tri-
vision or other animated characteristics
resulting in an automatically changing
depiction.
[Id. § 112-53.1(C)(3).]6
Allowing for the minimum spacing of 1000 feet between permitted
billboards, N.J.A.C. 16:41C-8.1(d)(3), three static billboards
can be erected in the Township. Allowing for the minimum
spacing of 3000 feet between digital billboards, N.J.A.C.
16:41C-11.1(a)(5), only one digital billboard can be erected in
the Township.
Following adoption of the Ordinance, the Zoning Board of
Adjustment voted four to three in favor of E&J’s application.
The effect of the vote is a statutory denial of the use variance
for a digital billboard because N.J.S.A. 40:55D-70(d)(3)
requires five members to vote in favor of a variance
application.
6 The Ordinance also amended Section 112-109J, of Chapter 112,
Land Development, Article XII, Sign Regulations, Section 112-
109, Prohibited Signs, to make it consistent with the Ordinance.
The new provision states: “No sign or portion thereof shall
rotate, move, produce noise or smoke, display video or other
changing imagery, automatically change, or be animated or
blinking, nor shall any sign or portion thereof have any
electronic, digital, tri-vision or other animated
characteristics.”
11
To date, traffic safety remains a concern at the location
of the proposed digital billboard. According to motor vehicle
accident statistics cited by the Township, the portion of I-287
on which E&J proposed to install a digital billboard had 181
crashes in 2010 and 176 crashes in 2011, making it the portion
of I-287 with the greatest number of crashes in 2010 and the
second-greatest number of crashes in 2011. N.J. Dep’t of
Transp., Summary of Crash Rates on State and Interstate Highways
in Route and Milepost Order for 2011 183 (June 21, 2012),
http://www.state.nj.us/transportation/refdata/accident/11/route1
1.pdf (2011 Crash Rates) (stating that, between mileposts 10.48
and 12.30 on I-287, there were 176 crashes in 2011); N.J. Dep’t
of Transp., Summary of Crash Rates on State and Interstate
Highways in Route and Milepost Order for 2010 187 (Nov. 17,
2011), http://www.state.nj.us/transportation/refdata/
accident/10/route10.pdf (2010 Crash Rates) (stating that,
between mileposts 10.48 and 12.30 on I-287, there were 181
crashes in 2010). Notably, however, the segment of I-287 in
South Plainfield, where a digital billboard has been located for
several years, experienced only 70 crashes in 2010 and 48 in
2011. See 2011 Crash Rates, supra; 2010 Crash Rates, supra.
II.
A.
12
E&J filed a complaint in lieu of prerogative writs against
the Township’s Zoning Board of Adjustment and the Township. E&J
challenged the constitutionality of the section of the Ordinance
prohibiting digital billboards, alleging that it contravened the
First Amendment of the United States Constitution and Article I,
paragraph 6 of the New Jersey Constitution. At trial, E&J and
the Township presented witnesses who testified about the
technical details of digital billboards, the economic benefits
of digital billboards, the types of messages that can be
displayed on them, and the impact on traffic safety of such
devices. The parties also presented evidence about the
legislative process, the purposes of the Ordinance, and the
alternative means to communicate certain messages.
The trial court determined that “the Township has failed to
meet the First Amendment intermediate scrutiny standard required
for commercial speech restrictions.” In doing so, the trial
court determined that the Ordinance banned an entire medium of
speech and burdened commercial speech. Applying the
intermediate scrutiny standard, the trial court determined that
the Township failed to establish that the total ban on digital
or electronic billboards served a legitimate government interest
and that the Ordinance was not narrowly drawn to advance that
interest.
13
In particular, the trial court found that “one digital
billboard, by itself, was not likely to have any more of an
impact on [T]ownship aesthetics than a static billboard.” The
trial court also found that the Township failed to demonstrate
that the complete ban of this medium of expression advanced its
stated interest in traffic safety. The trial court accepted as
credible the traffic safety studies submitted by E&J which
uniformly found no correlation between the installation of
digital billboards and any increase in traffic accidents, and
characterized the Township’s justification as supported by
nothing more than speculation. Having found that the Township’s
ban on digital billboards was more expansive than necessary to
advance the identified governmental interests, the trial court
declared the Ordinance invalid.
B.
On appeal, the Appellate Division reversed the trial court
and found that the Ordinance “passe[d] constitutional muster.”
E&J Equities, LLC v. Bd. of Adjustment of Franklin, 437 N.J.
Super. 490, 496 (App. Div. 2014). The Appellate Division agreed
that “a time, place, and manner review” was appropriate, and
criticized the trial court’s reliance on Bell v. Township of
Stafford, 110 N.J. 384 (1988). E&J Equities, supra, 437 N.J.
Super. at 496, 506. Such reliance, the panel found, “required
the Township to meet standards not required in the review of
14
content-neutral time, place and manner restrictions.” Id. at
504.
The panel also determined that the Central Hudson test
“governs the review of restrictions on commercial speech that
are not content-neutral.” Id. at 507. The Appellate Division
noted that “somewhat wider leeway” was afforded to content-
neutral regulations. Id. at 508 (quoting McCullen v. Coakley,
___ U.S. ___, ___, 134 S. Ct. 2518, 2529, 189 L. Ed. 2d 502, 514
(2014)).
The panel stated that “the standard governing the
regulation of commercial speech that is not content-neutral and
the standard applicable to time, place, and manner restrictions,
are often ‘closely intertwined.’” Ibid. The appellate panel
proceeded to analyze the Ordinance de novo under the Clark/Ward
standard. Id. at 509-19. Concluding that the restriction
imposed by the Ordinance is content neutral, id. at 509-10, the
panel stated that “[i]t is universally recognized that [the]
government has a legitimate, even substantial, interest in
preserving the aesthetics of its community and in promoting
traffic safety,” id. at 512. The panel determined that the
Township’s stated reasons, as well as the need for further
studies on the impact of such billboards, “provides a rational,
objective basis for the Township’s decision to refrain from
adopting a regulation of them.” Id. at 514. The panel also
15
recognized that “a regulation need not be ‘the least restrictive
means’ to satisfy the requirement that a content-neutral
restriction on time, place, and manner [of speech] be ‘narrowly
tailored.’” Id. at 515. The Appellate Division concluded that
the concerns triggered by the new form of outdoor advertising
was reasonable and no broader than necessary “to eliminate [the]
heightened intrusive quality” of digital billboards. Id. at
518. Lastly, the Appellate Division determined that the
Township has adequate alternatives for communicating certain
messages that can be displayed on a digital billboard,
particularly emergency messages. Id. at 519. The panel cited
the NJDOT signs located along I-287 and other measures, such as
reverse 9-1-1 calls and emails, used in the Township. Ibid.
We granted E&J’s petition for certification. 220 N.J. 574(2015). We also permitted the American Civil Liberties Union of
New Jersey (ACLU-NJ) to appear as amicus curiae.
III.
E&J contends that the ban on digital billboards restricts
commercial and noncommercial speech. It therefore maintains
that the Court should apply the strict scrutiny standard to the
noncommercial speech ban and the intermediate scrutiny standard
to the commercial speech restrictions. E&J contends that the
Township has not met its burden under either standard because
the Township failed to demonstrate that the stated reasons for
16
the ban -- maintaining the aesthetic character of the Township
and traffic safety -- are significant and substantial interests.
The Township contends that the digital billboard ban
represents a valid exercise of government authority. It
maintains that the intermediate scrutiny standards outlined in
Central Hudson and Clark/Ward are the appropriate standards.
The Township argues that the digital billboard ban is content
neutral and that it demonstrated that its aesthetic and traffic
concerns are real and reasonable and provide an objective and
rational basis for the restriction.
Amicus ACLU-NJ contends that the Appellate Division
judgment should be reversed. ACLU-NJ maintains that the
Township bore the burden of establishing that the digital
billboard ban advances a substantial government interest and is
no more expansive than necessary. ACLU-NJ contends that the
Township has neither established the existence of an actual
threat to safety attributable to a single digital billboard nor
narrowly tailored its Ordinance. Furthermore, amicus argues
that the Township’s reliance on advancing its interest in
aesthetics is unsupported and does not justify a complete ban on
the distinct form of communication represented by digital
billboards. Finally, ACLU-NJ argues that the Township failed to
establish a reasonable factual basis that alternative means of
communication are available to reach the intended audience.
17
IV.
We commence our scrutiny of the Ordinance with review of
the regulatory process governing billboards.
Billboards of any kind are subject to considerable
regulation. Regulations on billboards are justified because
“signs take up space and may obstruct views, distract motorists,
displace alternative uses for land, and pose other problems that
legitimately call for regulation. It is common ground that
governments may regulate the physical characteristics of
signs[.]” City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct.
2038, 2041, 129 L. Ed. 2d 36, 42-43 (1994). Further, some
scholars have suggested that while “[t]raditional billboards
have been debated for decades, . . . digital technology has
significantly raised the stakes.” Susan C. Sharpe, “Between
Beauty and Beer Signs”: Why Digital Billboards Violate the
Letter and Spirit of the Highway Beautification Act of 1965, 64
Rutgers L. Rev. 515, 517 (2012) (arguing that digital billboards
“command far more profits,” “attract far more attention,” and
“are far more intrusive to communities” than traditional
billboards).
If a billboard is adjacent to the interstate highway
system, it is subject to the Highway Beautification Act of 1965,
Pub. L. No. 89-285, 79 Stat. 1028 (codified as amended in
scattered sections of 23 U.S.C.A.). That statute requires
18
states to take “effective control of the erection and
maintenance” of outdoor advertising signs located within 660
feet of that system. 23 U.S.C.A. § 131(b). Outdoor advertising
signs are permitted in areas adjacent to those systems which are
zoned industrial or commercial, with “size, lighting and
spacing, consistent with customary use . . . to be determined by
agreement between the several states and the Secretary [of
Transportation].” 23 U.S.C.A. § 131(d). When a local zoning
authority “has made a determination of customary use,” that
determination controls within the locality. Ibid.In accordance with those provisions, the Legislature
established state controls of roadside advertising in areas
adjacent to the federal interstate system and authorized the
Commissioner of Transportation to enter into agreements with the
United States Secretary of Transportation. N.J.S.A. 27:5-5
to -26. Pursuant to N.J.S.A. 27:5-11(a), municipalities
continue to control local land use, but, in the event of
conflict, state regulations prevail to the extent necessary to
permit the state to carry out its declared policy or to permit
the state to comply with its agreement with the United States
Department of Transportation. See also N.J.A.C. 16:41C-
6.3(e)(2). NJDOT had issued a permit for a digital billboard to
E&J subject to local zoning.
V.
19
A.
The First Amendment to the United States Constitution
states, “Congress shall make no law . . . abridging the freedom
of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances.” U.S. Const. amend. I. Similarly, “[t]he New
Jersey Constitution guarantees a broad affirmative right to free
speech[.]” Dublirer v. 2000 Linwood Ave. Owners, Inc., 220 N.J.
71, 78 (2014) (citing N.J. Const. art. I, ¶ 6).
“Because our State Constitution’s free speech clause is
generally interpreted as co-extensive with the First Amendment,
federal constitutional principles guide the Court’s analysis.”
Twp. of Pennsauken v. Schad, 160 N.J. 156, 176 (1999) (citing
Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 264-65
(1998)). The few exceptions where the State Constitution
provides greater protection are not at issue here. See, e.g.,
Dublirer, supra, 220 N.J. at 71 (state action); W.J.A. v. D.A.,
210 N.J. 229, 242 (2012) (defamation).
Different types of speech are afforded different levels of
protection, and some forms of expression are beyond the scope of
the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 452,
131 S. Ct. 1207, 1215, 179 L. Ed. 2d 172, 181 (2011); R.A.V. v.
St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 2542-43, 120 L.
Ed. 2d 305, 317 (1992). “If a statute regulates speech based on
20
its content, it must be narrowly tailored to promote a
compelling Government interest.” United States v. Playboy
Entm’t Grp., 529 U.S. 803, 813, 120 S. Ct. 1878, 1886, 146 L.
Ed. 2d 865, 879 (2000) (citing Sable Commc’ns of Cal., Inc. v.
FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836, 106 L. Ed. 2d 93,
105 (1989)). Similarly, “[l]aws that burden political speech
are ‘subject to strict scrutiny[.]’” Citizens United v. FEC,
558 U.S. 310, 340, 130 S. Ct. 876, 898, 175 L. Ed. 2d 753, 782
(2010) (quoting FEC v. Wis. Right to Life, Inc., 551 U.S. 449,
464, 127 S. Ct. 2652, 2664, 168 L. Ed. 2d 329, 343 (2007)); see
also Schad, supra, 160 N.J. at 177.
“The First Amendment . . . protects commercial speech from
unwarranted governmental regulation. Commercial expression not
only serves the economic interest of the speaker, but also
assists consumers and furthers the societal interest in the
fullest possible dissemination of information.” Cent. Hudson
Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561-62,
100 S. Ct. 2343, 2349, 65 L. Ed. 2d 341, 348 (1980) (internal
citation omitted).
“Commercial speech, however, is granted less protection
than other constitutionally-guaranteed expression.” Schad,
supra, 160 N.J. at 175 (citing Barry v. Arrow Pontiac, Inc., 100
N.J. 57, 72 (1985)); see also Cent. Hudson, supra, 447 U.S. at
563, 100 S. Ct. at 2350, 65 L. Ed. 2d at 348-49. Instead,
21
“commercial speech [is afforded] a limited measure of
protection, commensurate with its subordinate position in the
scale of First Amendment values, while allowing modes of
regulation that might be impermissible in the realm of
noncommercial expression.” Metromedia, Inc. v. City of San
Diego, 453 U.S. 490, 506, 101 S. Ct. 2882, 2892, 69 L. Ed. 2d
800, 814 (1981) (quoting Ohralik v. Ohio State Bar Ass’n, 436
U.S. 447, 456, 98 S. Ct. 1912, 1918, 56 L. Ed. 2d 444, 453
(1978)).
Most commonly, commercial speech has been defined as
“expression related solely to the economic interests of the
speaker and its audience[,]” or “speech proposing a commercial
transaction[.]” Cent. Hudson, supra, 447 U.S. at 561-62, 100 S.
Ct. at 2349, 65 L. Ed. 2d at 348 (citations omitted).
“The protection available for particular commercial
expression turns on the nature both of the expression and of the
governmental interests served by its regulation.” Id. at 563,
100 S. Ct. at 2350, 65 L. Ed. 2d at 349. To balance these
factors, the United States Supreme Court created a four-part
test for commercial speech:
At the outset, we must determine whether the
expression is protected by the First
Amendment. For commercial speech to come
within that provision, it at least must
concern lawful activity and not be misleading.
Next, we ask whether the asserted governmental
interest is substantial. If both inquiries
22
yield positive answers, we must determine
whether the regulation directly advances the
governmental interest asserted, and whether it
is not more extensive than is necessary to
serve that interest.
[Id. at 566, 100 S. Ct. at 2351, 65 L. Ed. 2d
at 351.]
“[T]he effect of the challenged restriction on commercial speech
ha[s] to be evaluated in the context of the entire regulatory
scheme, rather than in isolation[.]” Greater New Orleans Broad.
Ass’n v. United States, 527 U.S. 173, 192, 119 S. Ct. 1923,
1934, 144 L. Ed. 2d 161, 180 (1999).
“[L]aws regulating the time, place, or manner of speech
stand on a different footing from laws prohibiting speech
altogether.” Linmark Assocs. v. Twp. of Willingboro, 431 U.S.
85, 93, 97 S. Ct. 1614, 1618, 52 L. Ed. 2d 155, 162 (1977). The
United States Supreme Court has consistently held that
[e]xpression, whether oral or written or
symbolized by conduct, is subject to
reasonable time, place, and manner
restrictions. We have often noted that
restrictions of this kind are valid provided
that they are justified without reference to
the content of the regulated speech, that they
are narrowly tailored to serve a significant
governmental interest, and that they leave
open ample alternative channels for
communication of the information.
[Clark, supra, 468 U.S. at 293, 104 S. Ct. at
3069, 82 L. Ed. 2d at 227 (citations
omitted).]
See also id. at 308, 104 S. Ct. at 3076, 82 L. Ed. 2d at 236
23
(Marshall, J., dissenting); Ward, supra, 491 U.S. at 791, 109 S.
Ct. at 2753, 105 L. Ed. 2d at 675 (quoting Clark, supra, 468
U.S. at 293, 104 S. Ct. at 3069, 82 L. Ed. 2d at 227).
The threshold inquiry is whether the regulation of
expressive activity is content neutral. See Ward, supra, 491
U.S. at 791, 109 S. Ct. at 2753-54, 82 L. Ed. 2d at 675.
“Government regulation of expressive activity is content neutral
so long as it is ‘justified without reference to the content of
the regulated speech.’” Id. at 791, 109 S. Ct. at 2754, 105 L.
Ed. 2d at 675 (quoting Clark, supra, 468 U.S. at 293, 104 S. Ct.
at 3069, 82 L. Ed. 2d at 227); see also Linmark, supra, 431 U.S.
at 94, 97 S. Ct. at 1619, 52 L. Ed. 2d at 163 (holding that
ordinance which banned “for sale” signs could not be time,
place, or manner restriction because it only prohibited certain
types of signs, “based on their content”); State v. DeAngelo,
197 N.J. 478, 487 (2009) (holding that laws are “content-based”
if they “distinguish favored speech from disfavored speech on
the basis of the ideas or views expressed” and “content-neutral”
if they “confer benefits or impose burdens on speech without
reference to the ideas or views expressed[.]” (quoting Turner
Broad. Sys. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445, 2459,
129 L. Ed. 2d 497, 517 (1994))).
“The principal inquiry in determining content neutrality,
in speech cases generally and in time, place, or manner cases in
24
particular, is whether the government has adopted a regulation
of speech because of disagreement with the message it conveys.”
Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d
at 675 (citing Clark, supra, 468 U.S. at 295, 104 S. Ct. at
3070, 82 L. Ed. 2d at 228). When courts assess content
neutrality, “[t]he government’s purpose is the controlling
consideration. A regulation that serves purposes unrelated to
the content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others.”
Ibid. By contrast, when a regulation “favors commercial over
non-commercial speech and, more importantly, [where] a violation
of the ordinance is based on the purpose for which the sign is
displayed, . . . [that regulation] is content-based.” DeAngelo,
supra, 197 N.J. at 488.
Under the second part of the time, place, and manner test,
courts assess the government’s asserted interests as well as the
fit between the interests served and the means used. The
Supreme Court has noted that “the validity of the regulation
depends on the relation it bears to the overall problem the
government seeks to correct, not on the extent to which it
furthers the government’s interests in an individual case.”
Ward, supra, 491 U.S. at 801, 109 S. Ct. at 2759, 105 L. Ed. 2d
at 682. A regulation is narrowly tailored if it “promotes a
substantial government interest that would be achieved less
25
effectively absent the regulation.” Id. at 799, 109 S. Ct. at
2757-58, 105 L. Ed. 2d at 680 (quoting United States v.
Albertini, 472 U.S. 675, 689, 105 S. Ct. 2897, 2906, 86 L. Ed.
2d 536, 548 (1985)). Moreover, a regulation is not invalid
“simply because there is some imaginable alternative that might
be less burdensome on speech.” Id. at 797, 109 S. Ct. at 2757,
105 L. Ed. 2d at 679 (citation omitted). On the other hand, a
restriction may not “burden substantially more speech than is
necessary to further the government’s legitimate interests.
Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals.” Id. at 799, 109 S. Ct. at 2758, 105 L. Ed.
2d at 681.
When speech is restricted, there must be alternative means
of communicating the message, although there is some
disagreement as to what are qualified alternative channels. In
Linmark, supra, the United States Supreme Court held that “[t]he
alternatives . . . are far from satisfactory” when “[t]he
options to which sellers realistically are relegated . . .
involve more cost and less autonomy[,] . . . are less likely to
reach persons not deliberately seeking sales information, and
may be less effective media for communicating the message[.]”
431 U.S. at 93, 97 S. Ct. at 1618, 52 L. Ed. 2d at 162 (internal
citations omitted). Similarly, in Metromedia, supra, the Court
26
accepted the parties’ stipulations that alternative channels
were inadequate. 453 U.S. at 516, 101 S. Ct. at 2897, 69 L. Ed.
2d at 820.
Some federal appellate courts, however, have found that
“[t]he First Amendment does not guarantee a right to the most
cost-effective means of [speech.]” Naser Jewelers, Inc. v. City
of Concord, 513 F.3d 27, 37 (1st Cir. 2008) (second alteration
in original) (quoting Globe Newspaper Co. v. Beacon Hill
Architectural Comm’n, 100 F.3d 175, 193 (1st Cir. 1996)). The
Third Circuit found that “maximizing . . . profit is not the
animating concern of the First Amendment. The fact that
restrictions prohibit a form of speech attractive to plaintiff
does not mean that no reasonable alternative channels of
communication are available.” Interstate Outdoor Advert., L.P.
v. Zoning Bd. of Mt. Laurel, 706 F.3d 527, 535 (3d Cir. 2013)
(alteration in original) (quoting Naser Jewelers, supra, 513
F.3d at 37).
The United States Supreme Court has observed that “[e]ach
method of communicating ideas is ‘a law unto itself’ and that
law must reflect the ‘differing natures, values, abuses and
dangers’ of each method.” Metromedia, supra, 453 U.S. at 501,
101 S. Ct. at 2889, 69 L. Ed. 2d at 810-11 (quoting Kovacs v.
Cooper, 336 U.S. 77, 97, 69 S. Ct. 448, 459, 93 L. Ed. 513, 528
(1949)). Billboards are no exception. Despite their ubiquity
27
along main highways in this country and their use to communicate
a wide variety of messages, “the billboard remains a ‘large,
immobile, and permanent structure which like other structures is
subject to . . . regulation.’” Id. at 502, 101 S. Ct. at 2889-
90, 69 L. Ed. 2d at 811 (alteration in original) (citation
omitted).
First Amendment jurisprudence regarding the regulation of
billboards and signs falls roughly into two categories: those
regulations that prohibit billboards or signs of any kind and
those that impose conditions on the size and mode of
communication. Two analytically distinct grounds have emerged
to challenge billboard or sign regulation. One avenue of attack
is that the ordinance “restricts too little speech because its
exemptions discriminate on the basis of the signs’ messages.
Ladue, supra, 512 U.S. at 51, 114 S. Ct. at 2043, 129 L. Ed. 2d
at 44. The other is that the measure “simply prohibit[s] too
much protected speech.” Ibid.
B.
We turn to Metromedia, the seminal case on the regulation
of billboards, to discuss the constitutional principles
governing regulations of billboards. Metromedia, supra,addressed a city ordinance which permitted onsite commercial
advertising but prohibited other fixed-structure signs,
including billboards, unless a sign fell within one of several
28
enumerated exceptions. 453 U.S. at 495-96, 101 S. Ct. at 2886,
69 L. Ed. 2d at 807. The ordinance created exceptions for
onsite signs and signs in twelve exempted categories, id. at
494, 101 S. Ct. at 2885-86, 69 L. Ed. 2d at 806-07, “but other
commercial advertising and noncommercial communications using
fixed-structure signs [were] everywhere forbidden unless
permitted by one of the specified exceptions,” id. at 496, 101
S. Ct. at 2886, 69 L. Ed. 2d at 807. Several outdoor
advertising companies challenged the ordinance. Ibid.In its analysis, the plurality “consider[ed] separately the
effect of the ordinance on commercial and noncommercial speech.”
Id. at 505, 101 S. Ct. at 2891, 69 L. Ed. 2d at 813. With
regard to commercial speech, the plurality applied the four-
prong Central Hudson test and found that the ordinance was
constitutional. Id. at 507, 101 S. Ct. at 2892, 69 L. Ed. 2d at
815.7 The Metromedia plurality found that prongs one, two, and
four of the Central Hudson test were uncontroversial. Ibid.Notably, the plurality held that traffic safety and aesthetics,
the only purposes identified by the ordinance, are “substantial
7 The Central Hudson test is a four-prong inquiry: first, whether
the restricted expression enjoys constitutional protection;
second, whether the state has asserted a substantial interest to
be achieved by the restrictions; third, whether the restriction
“directly advances the governmental interest asserted”; and
fourth, whether the restriction is no more extensive than
necessary to serve that interest. Cent. Hudson, supra, 447 U.S.
at 566, 102 S. Ct. at 2351, 65 L. Ed. 2d at 351.
29
government goals.” Id. at 507-08, 101 S. Ct. at 2892, 69 L. Ed.
2d at 815. The plurality also stated that “[i]f the city has a
sufficient basis for believing that billboards are traffic
hazards and are unattractive, then obviously the most direct and
perhaps the only effective approach to solving the problems they
create is to prohibit them.” Id. at 508, 101 S. Ct. at 2893, 69
L. Ed. 2d at 815.
The Court then considered the “more serious question” of
whether the ordinance directly advances the government’s
interests, and thereby satisfies the third prong of the Central
Hudson test. Ibid. The plurality answered in the affirmative,
finding that the ordinance advanced the government’s interests
in traffic safety and aesthetics. Justice White, writing for
the plurality, noted the California Supreme Court’s finding that
“[b]illboards are intended to, and undoubtedly do, divert a
driver’s attention from the roadway,” and stated, “[w]e likewise
hesitate to disagree with the accumulated, commonsense judgments
of local lawmakers and of the many reviewing courts that
billboards are real and substantial hazards to traffic safety.”
Id. at 508-09, 101 S. Ct. at 2893, 69 L. Ed. 2d at 815-16 (first
alteration in original) (internal citation omitted).
Additionally, the plurality did not find that the city’s
interest was undermined by underinclusiveness because the
ordinance permitted onsite advertising and other exempted signs.
30
Id. at 510-11, 101 S. Ct. at 2894, 69 L. Ed. 2d at 817.
“[W]hether onsite advertising is permitted or not, the
prohibition of offsite advertising is directly related to the
stated objectives of traffic safety and esthetics. . . . [T]he
city may believe that offsite advertising, with its periodically
changing content, presents a more acute problem than does onsite
advertising.” Id. at 511, 101 S. Ct. at 2894, 69 L. Ed. 2d at
817. Thus, the plurality held that “insofar as it regulates
commercial speech the San Diego ordinance meets the
constitutional requirements of Central Hudson[.]” Id. at 512,
101 S. Ct. at 2895, 69 L. Ed. 2d at 818.
Because the total ban of offsite billboards included both
commercial and noncommercial speech, however, the plurality
found that the ordinance was unconstitutional on its face as to
the noncommercial speech banned by the ordinance. Id. at 521,
101 S. Ct. at 2899, 69 L. Ed. 2d at 823. The plurality held
that “[i]nsofar as the city tolerates billboards at all, it
cannot choose to limit their content to commercial messages; the
city may not conclude that the communication of commercial
information concerning goods and services connected with a
particular site is of greater value than the communication of
noncommercial messages.” Id. at 513, 101 S. Ct. at 2895, 69 L.
Ed. 2d at 818. Additionally, the plurality found that the
ordinance was not “appropriately characterized as a reasonable
31
‘time, place, and manner’ restriction” because the ordinance
distinguished between signs based on content. Id. at 515-17,
101 S. Ct. at 2896-97, 69 L. Ed. 2d at 820.
Justice Brennan wrote separately. Because he approached
the ordinance as a total ban on a distinctive medium, Justice
Brennan would have applied the Supreme Court’s tests that were
“developed to analyze content-neutral prohibitions of particular
media of communication.” Id. at 526-27, 101 S. Ct. at 2902, 69
L. Ed. 2d at 826-27 (Brennan, J., concurring) (citing Schad v.
Mt. Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671(1981), in which “Court assessed ‘the substantiality of the
governmental interest asserted’ and ‘whether those interests
could be served by means that would be less intrusive on
activity protected by the First Amendment’”). Under such a
test, Justice Brennan found the ordinance invalid. Id. at 528,
101 S. Ct. at 2903, 69 L. Ed. 2d at 827. Justice Brennan found
that the city’s sole asserted interest, aesthetics in its
“commercial and industrial areas,” was insufficient. Id. at
530, 101 S. Ct. at 2904, 69 L. Ed. 2d at 829.
Justice Stevens dissented in part. He agreed with the plurality
that San Diego could constitutionally distinguish between onsite
and offsite commercial signs. Id. at 541, 101 S. Ct. at 2909-
10, 69 L. Ed. 2d at 836 (Stevens, J., dissenting in part).
However, Justice Stevens would have held that as long as it was
32
impartial, the city could “entirely ban one medium of
communication.” Id. at 542, 553, 101 S. Ct. at 2910, 2916, 69
L. Ed. 2d at 836, 843. Justice Stevens did not believe that the
content-neutral exceptions affected the analysis and would have
upheld the ordinance. Id. at 542, 101 S. Ct. at 2910, 69 L. Ed.
2d at 836. Both Chief Justice Burger and then-Justice
Rehnquist, in separate dissents, lamented the use of the federal
court’s power to address a traditionally local concern, worthy
of deference. See id. at 556, 101 S. Ct. at 2917, 69 L. Ed. at
845 (Burger, C.J., dissenting); id. at 570, 101 S. Ct. at 2925,
69 L. Ed. 2d at 854-55 (Rehnquist, J., dissenting).
In Bell, supra, this Court applied Metromedia and its prior
sign jurisprudence to invalidate a municipal ordinance
prohibiting “[b]illboards, signboards and off-premises
advertising signs and devices[.]” 110 N.J. at 387 (first
alteration in original). Characterizing the ban as a drastic
and direct encroachment of constitutionally protected freedom of
speech and expression, the Court assigned to the municipality a
“particularly strenuous” burden to overcome the constitutional
challenge. Id. at 395-96 (citations omitted). Noting that the
municipality failed to identify any government objective
furthered by the ban or to provide any facts to support the ban,
the Court found that the municipality could not demonstrate that
the ban was the least-restrictive means to achieve the
33
government interest. Id. at 396-97. Moreover, the Court found
that the municipality failed to make any showing of alternate
means of communicating the messages that would have been
displayed in the prohibited signage. Id. at 397. The Court
therefore declared the complete ban on off-premises advertising
unconstitutional. Id. at 398.
Metromedia and Bell represent instances in which a
municipal ban foreclosing an entire form of media has been held
to contravene the First Amendment. A restriction on the
content of signage also may contravene the First Amendment
guarantee of free speech. Linmark, supra, 431 U.S. 85, 97 S.
Ct. 1614, 52 L. Ed. 2d 155, and Ladue, supra, 512 U.S. 43, 114
S. Ct. 2038, 129 L. Ed. 2d 36, respectively, represent instances
in which a regulation of speech that is underinclusive of
permitted messages or the combination of a general speech
restriction accompanied by multiple exemptions to that ban may
yield an unconstitutional selection of permissible messages.
Linmark, supra, illustrates a regulation restricting too
little speech. 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155.
There, an ordinance generally permitted signs for commercial and
noncommercial purposes but expressly prohibited signs announcing
that a house was “For Sale” or “Sold.” Id. at 86, 97 S. Ct. at
1615, 52 L. Ed. 2d at 157-58. The ostensible purpose of the
ordinance -- to promote stable, racially integrated
34
neighborhoods -- ran afoul of First Amendment guarantees because
it prevented communication of specific and truthful information.
Id. at 96-97, 97 S. Ct. at 1620, 52 L. Ed. 2d at 164.
Ladue, supra, illustrates a signage regulation that
prohibits too much protected speech. There, the city adopted an
ordinance prohibiting homeowners from displaying any signs on
their homes with the exception of “For Sale” or “Sold” signs,
signs identifying the house, and signs warning of a dangerous
condition on the property. 512 U.S. at 45, 114 S. Ct. at 2040,
129 L. Ed. 2d at 41. The terms of the ordinance therefore
prohibited a homeowner from placing a two-foot by three-foot
sign on her lawn declaring her opposition to war in the Persian
Gulf and a smaller sign in a second-story window stating “For
Peace in the Gulf.” Id. at 45-47, 114 S. Ct. at 2040-41, 129 L.
Ed. 2d at 41-42.
The Supreme Court observed that the combination of a
general speech restriction with multiple exemptions permits the
government to select messages it deems permissible. Id. at 51,
114 S. Ct. at 2043-44, 129 L. Ed. 2d at 45. The Supreme Court
recognized that the stated purpose of eliminating visual clutter
is a valid public purpose, but found that the ordinance “almost
completely foreclosed a venerable means of communication that is
both unique and important, . . .[and] has totally foreclosed
that medium to political, religious, or personal messages.” Id.
35
at 54, 114 S. Ct. at 2045, 129 L. Ed. 2d at 46-47. The Supreme
Court therefore declared the municipal ban on virtually all
residential signs violative of the First Amendment. Id. at 58,
114 S. Ct. at 2045, 129 L. Ed. 2d at 49.
C.
Metromedia, Linmark, and Ladue addressed billboards and
signs that may be placed on a lawn or in the window of a house.
The billboards at issue in Metromedia, supra, were static
billboards displaying a single message for a fixed period of
time as long as a month or more before a new message was affixed
to the surface of the billboard. 453 U.S. at 496, 101 S. Ct. at
2886, 69 L. Ed. 2d at 807. Since the Metromedia decision, new
methods of displaying messages, such as electronic messaging
centers, have developed, and various governmental units have
reacted to their introduction by commercial and noncommercial
users. Electronic messaging centers display electronically
changeable messages. The text may change frequently by the use
of scrolling text or substituting a series of different messages
on the screen. Opinions addressing municipal regulations of
such signage inform our evaluation of regulations governing
digital billboards because such devices are similar to digital
billboards in virtually all respects other than size.
In Naser Jewelers, supra, the Court of Appeals held that an
ordinance prohibiting all electronic messaging centers was
36
constitutional. 513 F.3d at 30. In reaching that conclusion,
the court determined that the ban was content neutral, and
applied to commercial and noncommercial entities. Id. at 30-31.
Determining that the Central Hudson test applied to restrictions
involving solely commercial speech, id. at 33, the Court of
Appeals invoked the Clark/Ward intermediate scrutiny standard.
Under this test, if the restriction is content neutral, the
ordinance is constitutionally permissible “if it is narrowly
tailored to serve a significant government interest and leaves
open alternative channels of communication. An ordinance is
narrowly tailored if it does not burden substantially more
speech than necessary to further the government’s legitimate
interests[.]” Id. at 30. Moreover, the court held that the
ordinance “need not be the least restrictive means to serve
those interests.” Ibid.Notably, the panel did not consider the ban on electronic
message centers as a ban on an entire medium of communication.
Id. at 36. The panel also emphasized that billboards and other
signs were permitted, and that they constituted an alternative
means of communication. Ibid. The court also underscored the
principle that “[t]he maximizing of profit is not the animating
concern of the First Amendment.” Id. at 37. The court
therefore held that the ban on electronic messaging centers was
constitutional. Ibid.; see also La Tour v. City of
37
Fayetteville, 442 F.3d 1094, 1096-97 (8th Cir. 2006) (applying
Clark/Ward standard to hold as constitutional ban on electronic
message boards displaying anything other than time, date, and
temperature); Carlson’s Chrysler v. City of Concord, 938 A.2d
69, 72-74 (N.H. 2007) (applying Central Hudson standard to hold
total ban of electronic message boards constitutional;
concurring justice would apply Clark/Ward standard).
VI.
We commence our analysis with the question of whether the
Central Hudson commercial speech standard or the Clark/Ward
time, place, and manner standard governs our review of the
Ordinance. We acknowledge that applying either standard often
produces the same conclusion; yet judicial scrutiny of the
constitutionality of government regulation of speech deserves
precision. In recent years, several courts have sought to
clarify those instances when the Central Hudson standard or the
Clark/Ward standard governs. See Naser Jewelers, supra, 513
F.3d at 30 (employing Clark/Ward standard to review challenge to
ordinance prohibiting all electronic messaging centers);
Carlson’s Chrysler, supra, 938 A.2d at 74 (Duggan, J.,
concurring) (declaring Central Hudson governs only when
regulation restricts only commercial speech).
We conclude that an ordinance or statute regulating signs,
including billboards of any form, and affecting commercial as
38
well as noncommercial speech should be examined in accordance
with the Clark/Ward time, place, and manner standard. Central
Hudson, supra, addressed purely commercial speech. 447 U.S. at
561, 100 S. Ct. at 2349, 65 L. Ed. 2d at 348. There, a state
utility commission adopted a regulation imposing a total ban on
electric utilities from all advertising promoting the use of
electricity. Id. at 558, 100 S. Ct. at 2347, 65 L. Ed. 2d at
346. The standard fashioned to evaluate the constitutionality
of the ban concerned solely commercial entities and the message
they sought to disseminate. Id. at 566, 100 S. Ct. at 2351, 65
L. Ed. 2d at 351. The standard also addressed a total ban of a
particular message. See id. at 571-72, 100 S. Ct. at 2354, 65
L. Ed. 2d at 354-55.
The Clark/Ward standard, however, is generally applicable
to content-neutral regulations restricting or regulating
expression by those seeking to advance commercial ventures or
broad noncommercial interests. In many instances, the
government action does not impose a complete ban on a particular
speaker or mode of expression. For example, in Ward, supra, the
City of New York adopted a regulation to address complaints of
poor sound quality at events staged at an open-air theater in
Central Park and complaints of excessive noise by those in other
areas of the park and nearby residents. 491 U.S. at 784-88, 109
S. Ct. at 2750-52, 105 L. Ed. 2d at 670-72. The regulation
39
required those using the open-air theater to comply with noise
standards and directed those using the sound system to employ
designated sound engineers. Id. at 78, 109 S. Ct. at 2751, 105
L. Ed. 2d at 672. Noting that the sound-level regulation was
content neutral and did not prohibit the expression of ideas,
the Court departed from the Central Hudson commercial speech
standard and used a time, place, and manner standard to evaluate
the constitutionality of the regulations. Id. at 802, 109 S.
Ct. at 2760, 105 L. Ed. 2d at 683.
We conclude that this appeal is best addressed using the
Clark/Ward standard. Here, E&J explained to the Planning Board
the variety of commercial and noncommercial messages that
digital billboards could convey. E&J took pains to compare the
flexibility and versatility of a digital billboard to the single
message static billboard. E&J also emphasized the ability of a
digital billboard to rapidly respond to the need to broadcast
emergency messages and the cost-effectiveness of this form of
advertising to advance the interests and special needs of non-
profit groups in the Township. In other words, E&J advocated a
form of advertising not limited to commercial messages.
Moreover, the prohibition of digital billboards adopted by
the Township does not bar all outdoor, off-premises advertising.
Signs, other than billboards, are permitted, albeit with certain
conditions, in the Township, and static billboards are permitted
40
in the M-2 zone along I-287. In fact, three static billboards
can be erected within the M-2 zone. We therefore conclude that
the Clark/Ward standard is the appropriate standard to evaluate
the Ordinance at the center of this appeal.
Under that standard, although the Ordinance carries a
presumption of validity, Bell, supra, 110 N.J. at 394, when
faced with a constitutional challenge to its 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, Ward,
supra, 491 U.S. at 791, 109 S. Ct. at 2757-58, 105 L. Ed. 2d at
675; Clark, supra, 468 U.S. at 293, 104 S. Ct. at 3069, 82 L.
Ed. 2d at 227. In assessing whether an ordinance is narrowly
tailored, the inquiry is whether it “promotes a substantial
government interest that would be achieved less effectively
absent the regulation.” Ward, supra, 491 U.S. at 799, 109 S.
Ct. at 2758, 105 L. Ed. 2d at 680 (quoting Albertini, supra, 472
U.S. at 689, 105 S. Ct. at 2906, 86 L. Ed. 2d at 548). A
restriction on speech may not substantially burden more speech
than necessary to further the government interest, but
identification of another alternative that might be less
restrictive of speech to achieve the desired end does not render
41
the ordinance invalid. Id. at 798-99, 109 S. Ct. at 2757-58,
105 L. Ed. 2d at 680-81.
Here, there can be little, if any, debate that the
Ordinance is content neutral. Unlike the ordinance addressed in
DeAngelo, supra, which permitted a temporary sign to announce
the opening of a store, but barred a union from displaying a rat
balloon at the site of a business employing non-union labor, 197
N.J. at 481-82, the Township ban of digital billboards addresses
a manner of communication, not its content. See Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S. Ct. 925,
928-29, 89 L. Ed. 2d 29, 37-38 (1986) (declaring regulation
content neutral because it serves purposes unrelated to content
of expression); Naser Jewelers, supra, 513 F.3d at 32 (declaring
municipal ban of electronic message boards content neutral
because ordinance banned category of communication, not
message).
E&J urges that the Township has suppressed an entire mode
of communication. That is simply not the case. All manner of
signs are permitted as well as static billboards. Furthermore,
other than frustrating E&J’s attempt to maximize profit by
utilizing a different form of billboard, there is no suggestion
that the Township had an ulterior motive antithetical to free
expression.
E&J also argues that the stated reasons have not been amply
42
supported by the Township. It focuses on the studies it
submitted and the existence of digital billboards in places
proximate to the Township along the I-287 corridor and along
other heavily travelled highways. It contends this information
belies the interests invoked by the Township.
The government interests identified by the Township --
aesthetics and the safety of motorists travelling on I-287 –-
have long been recognized as legitimate and substantial
government interests, particularly related to billboards.
Metromedia, supra, 453 U.S. at 507-08, 101 S. Ct. at 2892-93, 69
L. Ed. 2d at 815. Yet, when a governmental entity restricts
speech, it 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 interest.
To be sure, the record demonstrates that the Township has
labored to preserve the bucolic character of sections of the
municipality and to minimize the impact on a residential
neighborhood across the highway. The Township Council also
cited safety concerns. The Township, however, permits
industrial and corporate development and has directed that
static billboards may be erected in the M-2 zone. In fact,
three static billboards can be erected along I-287 in the M-2
zone. The record provides no basis to discern how three static
43
billboards are more aesthetically palatable than a single
digital billboard.
Clearly, the action by the governing body was informed by
the work of the Planning Board and the advice of the Township
Planner. That official informed the governing body that there
was an absence of research upon which he could recommend
standards to address those concerns. Yet, the record reveals
the existence of a considerable body of literature discussing
the impact, or lack thereof, of digital billboards on traffic
safety and standards that can be applied to such devices to
enhance traffic safety and mitigate aesthetic concerns. A
respected report concluded its exhaustive review of the impact
of such devices stating that ample information existed to make
informed decisions about such devices. In addition, NJDOT had
promulgated regulations governing off-premises digital
billboards. See N.J.A.C. 16:41C-11.1. Moreover, a digital
billboard had been erected along I-287 in a neighboring
municipality. It appears that standards were available to the
Township to inform its decision-making.
Finally, motor vehicle accident statistics do not prove
either party’s argument regarding the danger of digital
billboards. To be sure, the Township has experienced more than
twice the number of motor vehicle accidents along I-287 than the
neighboring town, but the numbers standing alone do not lead
44
inexorably to the conclusion that the installation of a single
digital billboard in the Township will exacerbate the accident
rate. The accident rate in the Township may be attributable to
many other factors such as weather, road design or road
maintenance. The record is also bereft of any examination of
the safety impact of the installation of three static
billboards. In short, bare numbers do not carry the public
safety debate.
We recognize that the Township was not required to adopt
the least restrictive means to further its interests. Rather,
an ordinance is considered to be narrowly tailored “so long as
the . . . regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.”
Ward, supra, 491 U.S. at 799, 109 S. Ct. at 2758, 105 L. Ed. 2d
680 (alteration in original) (quoting Albertini, supra, 472 U.S.
at 689, 105 S. Ct. at 2906, 86 L. Ed. 2d at 548). Here,
however, in the face of a record founded only on unsupported
suppositions, fears, and concerns, we need not address whether
the course taken by the governing body is reasonable under all
of the circumstances.
We do not suggest that no municipal restriction on off-
premises digital billboards or multiple message centers can pass
constitutional muster. Contrary to E&J and amicus, we do not
consider the ban adopted by the Township a complete ban on a
45
form of communication but rather a restriction on a subset of
off-premises signage. A more robust factual record in support
of the cited government interests deemed substantial may satisfy
the Clark/Ward standard. By the same token, the information
accumulated over the last six years concerning the aesthetic and
safety impacts of such devices may assuage the governing body’s
concerns.
In sum, we do not quarrel with the proposition that
aesthetics and public safety are substantial government
interests, particularly when the medium of expression is an
outdoor, off-premises advertising device. See Metromedia supra,453 U.S. at 507-08, 101 S. Ct. at 2892-93, 69 L. Ed. 2d at 815.
On the other hand, a governing body seeking to restrict
expression cannot simply invoke those interests with scant
factual support informing its decision-making and expect to
withstand a constitutional challenge. In the end, the record
provides no explanation of the qualitative differences between
three static billboards and a single digital billboard. The
record also belies the assertion that no standards existed to
address aesthetic and public safety concerns. This absence
requires us to declare § 112-53.1(C)(3) of Ordinance 3875
unconstitutional.
VII.
The judgment of the Appellate Division is reversed.
46
CHIEF JUSTICE RABNER, JUSTICES PATTERSON, FERNANDEZ-VINA
and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICES LaVECCHIA
and ALBIN did not participate.
47