E&J Equities v. Franklin Tp. Bd. of Adj. , ___ N.J. ___ (2016). Billboards are not everyone’s favorite thing. Many view them as a blot on the landscape (and not humorous at all, unlike the 1980’s British comedy “Blott on the Landscape“). Here, after plaintiff had applied to the defendant Board for a variance allowing it to install a digital billboard on its land along I-287, Franklin Township adopted an ordinance that permitted “static” (conventional) billboards in the zone where plaintiff’s property was located, but banned digital billboards in the Township. The stated bases for the digital billboard ban were aesthetics and public safety, since such billboards were more distracting to drivers than static billboards. The Board then denied plaintiff’s variance application (actually, plaintiff got a 4-3 margin in its favor, but a supermajority was required in this circumstance, so the result was a denial).
Plaintiff brought suit, asserting violation of its free speech rights under the United States and New Jersey Constitutions. The Law Division agreed with plaintiff and invalidated the ordinance. The Appellate Division reversed and upheld the ordinance as being based on legitimate public interests. The Supreme Court granted review and reversed by a 5-0 vote. In an opinion by Judge Cuff, the Court held that the record did not show sufficient governmental interests to justify a total ban on digital billboards.
Judge Cuff considered whether to apply the commercial speech standards of Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980), or the “Clark/Ward” (named for Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), and Ward v. Rock Against Racism, 491 U.S. 781 (1989)) time, place, and manner criteria for evaluating content-neutral regulations that affect speech. She concluded that Clark/Ward was the appropriate measuring stick, since that test is designed for laws that affect both commercial and non-commercial speech, while Central Hudson applies only to commercial speech. Plaintiff’s digital billboard was presented as being able to convey both commercial and non-commercial messages.
Clark/Ward looks at whether a regulation is content-neutral (this ordinance was, the Court found), whether it is “narrowly tailored to serve a recognized and identified government interest,” and whether there are reasonable alternative methods to convey the information that the regulation regulates. Judge Cuff noted that the aesthetics and safety justifications advanced by the Board were recognized ones. But the Board had to do more than just invoke them; the Board had to show “a modicum of support” for them in the record. This the Board did not do.
The Court observed that static billboards are permitted, despite the aesthetics rationale. Three such billboards can be erected in the zone, and in the part of the zone, where plaintiff’s property is situated. “The record provides no basis to discern how three static billboards are more aesthetically palatable than a single digital billboard.”
The safety rationale did not stand up either. Though Franklin had experienced more than double the number of accidents along I-287 as a neighboring town, that figure, standing alone, did not show that plaintiff’s digital billboard would exacerbate the situation. The accident rate could have resulted from factors such as “weather, road design or road maintenance.” The record was also “bereft” of any evidence of the safety impact of three static billboards. Thus, though Judge Cuff was careful to note that a different record might have produced a different result, the record here called for the invalidation of Franklin’s digital billboard ban.