By Kerry Yoakum, Vice President of Government Affairs, OAAA

The New Jersey Supreme Court has ruled in favor of digital billboards, overturning a local ban as unconstitutional suppression of free speech.

The court said: “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.”

Click here for the court decision, issued September 15.   New Jersey’s highest court said digital billboards are afforded free speech protection via the New Jersey Constitution and the First Amendment of the US Constitution.The local government (Township of Franklin) based its ban on digital billboards on aesthetics and public safety concerns, while permitting static billboards in designated zones. The state Supreme Court said the record failed to demonstrate that the local ban furthered the governmental interest asserted by the township.

The dispute revolved around the proposed placement of a digital billboard in an industrial zone adjacent to an interstate. While E&J Equities was pursuing a variance for the digital billboard, Franklin Township passed a new ordinance regulating the placement of billboards, prohibiting digital billboards.

After the Board of Adjustment of the Township denied the application seeking a variance, E&J Equities filed an appeal challenging the constitutionality of the ordinance. E&J maintained that the billboard ordinance violated its First Amendment rights through its unjustified limitation on commercial and non-commercial speech.

The state Appellate Division Court supported the township’s authority to ban digital billboards. The New Jersey Supreme Court reversed the lower court.

Meanwhile, digital billboards also won in federal appeals court on September 6 (Scenic America v. US Department of Transportation). In that case, a three-judge panel ruled that the federal government acted properly in issuing Guidance in 2007 on the regulation of digital billboards.

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