New Jersey Law Journal
3 November 2014
A New Jersey appeals court has ruled that a local ordinance that bans digital multi-message billboards but not static ones does not violate the First Amendment.
A three-judge Appellate Division panel Oct. 17 affirmed the decision by Franklin Township, N.J., to prohibit the erection of digital billboards along a stretch of Interstate 287 as a proper exercise of regulatory power since the ordinance was content-neutral and the township was acting to preserve aesthetics and promote traffic safety.
“On its face, the ordinance does not restrict any speech based on its content,” Appellate Division Judge Marianne Espinosa wrote for the court in E&J Equities v. Township of Franklin. “The ordinance plainly meets the definition of a content-neutral regulation.”
Franklin Township, a community in central Somerset County, adopted the ordinance banning digital billboards but permitting static ones in 2009.
Espinosa, joined by Judges Clarkson Fisher Jr. and Ellen Koblitz, overturned a determination by Superior Court Judge Peter Buchsbaum that the ordinance could not stand because it violated E&J Equities’ First Amendment rights.
E&J’s attorney, Francis Linnus, said no decision has been made on whether to ask the state Supreme Court to hear an appeal.
But the ruling does have “broad implications,” for the digital billboard industry, according to Linnus, who runs a firm in Somerset, N.J.
“You can ban billboards entirely,” he said. “But when a municipality blesses static billboards, I’m not sure how it can legally and constitutionally ban digital billboards.
“The only difference is that digital billboards change their images.”
The township’s attorney, Louis Rainone, said the appeals court “vindicated” the township’s decision.
“The ruling is reasonable, rational and constitutional,” Rainone, of DeCotiis, FitzPatrick, Cole & Giblin in Teaneck, N.J., said. “The court is providing a kind of road map municipalities can follow in drawing ordinances that pass constitutional muster.”
E&J applied for a permit in 2009 to put up a digital billboard on I-287. It was to have two panels-each 48 feet by 14 feet-arranged in a “V” shape so as to be visible to both northbound and southbound motorists. The messages on the billboard would change every eight seconds and there would be no scrolling, animation or flashing.
The state Department of Transportation gave its approval, but said E&J would still have to get permission from the township.
The township adopted its ordinance while the application was pending. The ordinance restricted static billboards to a 2,000-foot stretch of I-287 and banned digital billboards altogether as being unaesthetic and a traffic danger.
E&J sued. Buchsbaum said the township’s decision was not arbitrary, capricious or unreasonable and he rejected E&J’s equal protection claims. He did, however, rule that the ordinance violated the First Amendment. The township appealed.
“The trial court’s interpretation imposed a burden on the township that is not required for content-neutral restrictions on time, place and manner expression,” Espinosa said.
She quoted the U.S. Supreme Court’s ruling in City Council of Los Angeles v. Taxpayers for Vincent: “The First Amendment does not guarantee the right to employ every conceivable method of communications at all times and in all places.”
The panel rejected E&J’s claim that the medium itself could amount to expression.
“Even if the use of an electronic multi-message is considered a form of expression, the incidental effect of the ordinance’s ban on announcements to be communicated in eight-second segments does not strip the ordinance of its content neutrality,” Espinosa said.
E&J also had argued that the billboards could enhance public safety since the messages could be quickly changed if necessary to announce warnings and alerts for dangers or missing persons.
The appeals court noted that the DOT already had installed Amber and Silver Alert signs on I-287 to warn of missing children or elderly people, and that the township already had a reverse 911 system in place, and had the ability to send out email blasts to residents.
Again citing Vincent, Espinosa said billboard ordinances are designed to restrict the “source of evil,” or visual clutter.
“The ‘source of evil’ the township sought to remedy was the heightened intrusive quality of digital billboards, affecting the aesthetics of the town and residential area nearby, and a not unreasonable unease that the digital billboards would have a negative impact upon traffic safety,” she said.