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).
2

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. 
1

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, 
2

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).
3

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 
4

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, 
5

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.
6

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 
7

from the Planning Board outlined the process it had employed and 

advised that it “determined that permitting billboards along I287 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.”
8

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.”
9

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 
10

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.
11

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, trivision 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.” 
12

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.
13

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.
14

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 
15

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 contentneutral 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 
16

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 
17

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.
18

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 
19

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. 16:41C6.3(e)(2). NJDOT had issued a permit for a digital billboard to 

E&J subject to local zoning.

V.
20

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 
21

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, 
22

“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 
23

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 
24

(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 
25

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 
26

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 
27

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 
28

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 
29

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 fourprong 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. 
30

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. 
31

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 
32

‘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 
33

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 
34

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 
35

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.
36

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 
37

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 
38

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 
39

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 
40

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 nonprofit 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 
41

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 
42

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 
43

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 
44

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 
45

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 offpremises 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 
46

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.
47

CHIEF JUSTICE RABNER, JUSTICES PATTERSON, FERNANDEZ-VINA 

and SOLOMON, join in JUDGE CUFF’s opinion. JUSTICES LaVECCHIA 

and ALBIN did not participate.