As Justice Byron White brought to our attention, “[e]ach method of communication has its own set of laws, and we deal here with the law of billboards.” This “law of billboards” seeks to resolve the confluence between the First Amendment and the billboard, a particularly unique means of expression–especially in our ever increasingly technical society where billboards now appear like giant outdoor televisions.

Attempts at resolving this confluence have resulted in a quagmire of legal rulings which may leave municipalities unsure of the extent that they may prohibit or restrict the use of billboards. In the last three months, the New Jersey Superior Court and the Third Circuit have each issued opinions which, at first glance, leave these waters no less muddied. However, a careful review of these opinions does leave governing bodies, land use applicants, and opponents with some guidance in this area.

Earlier this year, the New Jersey Superior Court in E&J Equities, LLC v. Board of Adjustment of Twp. of Franklin, SOM-L-1526-10 (Law Div. Jan. 4, 2013), issued an opinion that a municipal ordinance conditionally permitting static billboards but prohibiting digital or electronic billboards in a specifically zoned area was an unconstitutional restraint on speech protected by the First Amendment. This decision follows Bell v. Stafford, 110 N.J. 384 (1988), where the New Jersey Supreme Court struck down a municipal ordinance banning all off-site billboards due to its infringement on commercial and noncommercial speech. In Bell, the Supreme Court held that a municipality that did not develop sufficient facts demonstrating that the harms complained of are real– and not speculative or conjectural– had failed to meet its burden in justifying a restriction on constitutionally protected speech.

In E&J Equities, the Superior Court acknowledged that municipalities do have interests in advancing laws addressing a billboards’s aesthetic impact on the community, as well as the traffic safety concerns billboards create by intentionally drawing a driver’s attention away from the road. However, strictly banning digital billboards would require a factual demonstration that the concerns were severe enough to infringe upon otherwise constitutionally permitted speech.  In E&J Equities, the municipality did not make that showing. Furthermore, the municipality did not demonstrate the impact that less expansive restrictions (e.g. restricting letter height/width/font, luminosity, light spillage, and message length) would have on eliminating the negative impact of the municipality’s aesthetic and traffic concerns.

Little more than a month after E&J Equities was decided, the Third Circuit issued an opinion in Interstate Outdoor Advertising, L.P. v. Zoning Bd. of Twp. of Mt. Laurel, No. 11-3837 (3rd Cir. Feb. 11, 2013), where the federal appeals court upheld a municipal ordinance regulating billboards. The Third Circuit relied heavily upon the United States Supreme Court’s decision in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), where the high court found that although the municipality did not demonstrate evidence advancing its aesthetic and traffic safety concerns, the “accumulated, common-sense judgments” of municipalities and reviewing courts have established the “real and substantial hazards” which billboards create. In Metromedia, while seemingly willing to permit a city-wide prohibition on billboards, the Supreme Court nonetheless struck down the ordinance as unconstitutional because it impermissibly prohibited non-commercial on-site billboards, but allowed commercial on-site billboards. Still, the Third Circuit in Interstate upheld a municipal ordinance allowing privately-owned billboards to display messages, so long as the billboard followed a myriad of content-neutral restrictions which advanced the proffered aesthetic and traffic concerns.

Upon first glance, the Metromedia and Interstate cases seem inconsistent with the Bell and E&J Equities cases.  Though the latter cases appear to require a higher bar when it comes to substantiating the aesthetic and traffic safety concerns of municipalities, a closer reading of the facts reconciles this superficial inconsistency. In E&J Equities, the municipality sought to enforce a strict prohibition of digital billboards, whereas the governing body in Interstate merely imposed content-neutral restrictions. It appears from the recent rulings that courts are hesitant to provide deference to a municipality’s aesthetics and traffic safety concerns when the regulation is a strict prohibition of billboards. The converse as demonstrated in Interstate is also true; more deference is given to a municipality’s concerns when it is only seeking to restrict, rather than prohibit, the use of billboards by enforcing various content-neutral goals and purposes advancing those concerns.

Municipalities seeking to adopt ordinances regulating the use of billboards must take these rulings into account. At a minimum, municipalities must consider less intrusive restrictions before imposing an outright prohibition on billboards. In the event that a municipality determines that less intrusive restrictions are too costly or impose too great a burden on the municipality, then the municipality must adequately develop the record to justify its regulation of what is now firmly established as constitutionally protected speech.  While this is no easy task, these recent decisions assist in clearing the morass that is now known as “billboard law.”