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