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New Jersey Supreme Court: Digital Billboard Ban Unconstitutional
Rocky Mountain Sign Law Blog
By Brian J. Connolly
September 29, 2016

In a surprising decision, the New Jersey Supreme Court found earlier this month that a township ordinance prohibiting digital billboards violated the free speech provisions of the U.S. and New Jersey constitutions.
 
Franklin Township, New Jersey, a suburban community in Somerset County, enacted sign regulations that allowed billboards in zoning districts near interstate highways.  The regulations prohibited digital billboards.  The township justified its regulations on the basis of traffic safety and aesthetics.  Various township bodies suggested that the ban on digital billboards was enacted because the township did not have sufficient information on the safety of digital billboards in order to craft appropriate regulations. 

Because state law imposes dispersal requirements on billboards, it was established that the township could have just three static billboards and just one digital billboard.

In 2009, E&J Equities sought a variance to allow the placement of a digital billboard in the township.  Because digital billboards were not allowed, the request was brought before the township's Zoning Board of Adjustment.  The ZBA did not approve the application.

Thereafter, E&J brought an action against the township in state trial court.  The trial court found that the township failed to meet intermediate scrutiny because the ban on digital billboards constituted a ban on an entire medium of speech and overly burdened commercial speech.  On appeal, the Appellate Division reversed, finding that the digital billboard ban was a time, place, and manner restriction and that the digital billboard ban was content neutral and survived intermediate scrutiny.

The Supreme Court chose to analyze the law under the standard for noncommercial speech articulated in Clark v. Community for Creative Non-Violence and Ward v. Rock Against Racism instead of the more lenient commercial speech standard in Central Hudson Gas & Electric Company v. Public Service Commission .  This choice was made at least partially on the basis that the record before the ZBA indicated that the proposed billboard would contain at least some noncommercial messages.  The court held that the ordinance was content neutral and further held that the township's ordinance did not foreclose an entire medium of communication.

However, in analyzing whether the ordinance was narrowly tailored to the township's interests in traffic safety and aesthetics, the court found that the township failed intermediate scrutiny. 

Specifically, the court found that the township provided "no basis to discern how three static billboards are more aesthetically palatable than a single digital billboard."  The court also found that the township's staff planner failed to identify specific literature regarding the safety of digital billboards and that the township's recitation of traffic crash data near the site of the proposed digital billboard did not do a sufficient analysis of causation of crashes.  In the course of its discussion of the analysis performed by the township, the Supreme Court referred to "a record founded only on unsupported suppositions, fears, and concerns," and stated that a "more robust factual record in support of the cited government interests deemed substantial" might pass constitutional muster.

The New Jersey court's decision is a clear outlier given other decisions that have upheld local prohibitions on digital billboards.  The court appears to have followed a series of cases, beginning with the 2014 U.S. Supreme Court case of McCullen v. Coakley , that suggest that local governments have a heightened evidentiary burden in proving up the significance of governmental interests and the narrowness of the regulation.  At the same time, however, the opinion conflicts to some extent with earlier U.S. Supreme Court decisions- most notably City of Renton v. Playtime Theatres -in which the Court indicated that local governments are entitled to rely on the experiences of other local governments in establishing governmental interests and narrow tailoring.  While heightened evidentiary burdens have become the norm in cases involving public forum and panhandling bans, this is the first case since McCullen that appears to impose such a heightened burden in the area of sign regulations.

The effect of this case is to ensure that, at least in New Jersey, local governments should be cautious in ensuring that their sign regulations are justified by substantial, location-specific background research to support asserted governmental interests.


More Local Control of Digital Billboards Needed, Lawmakers Told
Pilly.com
By Michaelle Bond
September 30, 2016
 
Alarmed by the proliferation of digital billboards in Pennsylvania, residents, environmentalists, and local officials had the same message for state lawmakers Wednesday: Give municipalities more power to restrict electronic signage.

"Without our intervention, [companies] will find such creative places to install their billboards," said Phil Dague, a Downingtown Borough Council member. "Every nook and cranny of the state will be affected."

Dague was among about 10 people who testified at a hearing called by the Senate Democratic Policy Committee on how to strengthen a bill introduced in June by Sen. Andy Dinniman (D., Chester), one of four legislators on the panel in Downingtown.

Under the proposal, billboard companies would be required to meet with representatives of both PennDot and the proposed site's municipality. Before approving a digital billboard, the municipality would have to hold hearings.

The bill would amend the Outdoor Advertising Control Act of 1971, which the senators said is technologically outdated.

Critics say digital billboards distract drivers, ruin scenic views, and can reduce property values. Proponents say they are less expensive than traditional signage for businesses, more effective at targeting customers, and necessary to distribute emergency information.

In a written statement to the senators, George T. Merovich, president of the Outdoor Advertising Association of Pennsylvania, said members worry that if the bill passes, they could face "an unnecessary regulatory burden."

For the last five months, some Downingtown residents have protested the digital billboard along the Route 30 Bypass because it shines into their homes. Council members and residents said the billboard company misled them into believing the sign would be "innocuous."

Downingtown Mayor Josh Maxwell said the borough "did not have the ordinances in place or the authority granted by the state to prevent this billboard from going up."

Residents of Phoenixville and Lower Oxford in Chester County, as well as Haverford and Marple Townships in Delaware County, also have voiced opposition to digital and static billboards.

Those who testified Wednesday asked that the bill ensure that municipal officials are given the information and tools they need to penalize companies that provide incorrect information.

Ernie Holling, president of the Chester County Association of Township Officials, suggested billboard companies simultaneously submit applications to PennDot and the municipality, so everyone is included in the process from the beginning.

Toward the end of the hearing, Michael McCalley, an attorney who said he works on behalf of the billboard industry, asked that industry officials have an opportunity to submit written comments for the committee to consider, because "it is imperative that you get it right."

Sen. Lisa Boscola (D., Lehigh), chair of the Senate Democratic Policy Committee, said she welcomed further suggestions.

Is Outdoor Digital Signage Eco-Friendly?
Digital Signage Today
By Daniel Waldron
September 23, 2016
 
Is your business eco-conscious? Are you unsure if outdoor digital signage is eco-friendly? Perhaps this will solve your dilemma.

You're considering upgrading from print-based advertising to digital advertising. You've already made the transition to online, but the problem is you're not reaching the customer on the ground -- those customers who enjoy a visit to Main Street or the shopping malls.

The only way you know how to reach them is by using posters or billboards, which require huge amounts of paper and create even more waste, which is a black mark against your business in these eco-friendly times.

You've looked at outdoor digital signage as a solution and perhaps created an "objection list."

Perhaps that list looks something like this:
  • digital signage costs too much;
  • it's too much effort to maintain; and
  • my business is too small to go digital.
You're asking the wrong question about outdoor digital signage

Now, something else is bothering you about opting for digital signage. It's probably further down your objection list, but it's there nonetheless. You're questioning the environmental credentials of outdoor digital signage, asking yourself: Is digital signage eco-friendly?

This is the wrong question to ask. Compared to print-based advertising, outdoor digital signage is much more green.

A better question to ask is: Would outdoor digital signage improve upon my current environmental footprint compared to my print advertising methods?

The answer should be "yes." Anything that reduces your environmental footprint is a huge plus, digital signage included.

Outdoor digital signage vs. print advertising: The eco-friendly war

Imagine, if you will, that you've had 1,000 posters printed for a new promotional campaign, for which you've waited a couple of weeks. You set down the boxes, open the first one and - catastrophe - you immediately spot a glaring error. The posters end up in a landfill, and you have to request another print run. That's one serious waste of paper.

With errors on digital signage content, there's no such drama. Content can be quickly edited without further damage to the environment.

Question: What do you do with your posters after your campaign has finished? Do you recycle them? Kudos if you do. However, chances are they're probably disposed of with general waste and now occupy a landfill site.

Think of a quick service restaurant with 100 outlets worldwide. Each outlet is still using posters to display their menus. A call comes in from head office, saying "We're adding new items to the menu and our posters need changing." That's a lot of paper to dispose of and a whole lot more being used to replace them.

Consider your favorite quick service restaurant. Imagine them in this scenario and then think about how often it adds a new menu item. It could be every week, every month or every time it runs a promotional offer.

Regardless the frequency at which these menus are changed, can you envision the huge amount of paper used in a year simply by replacing menu posters on a weekly or monthly basis?

Based on this example alone, digital signage holds the upper hand in the eco-friendly stakes, instantly eliminating paper wastage.

But paper can be recycled, and that's good for the environment

Yes, paper can be recycled. However, there's still an environmental impact for recycling. You dispose of your posters on a weekly or monthly basis, responsibly. That's great. Now, consider how your waste makes its way to the recycling plant. No doubt it's picked up by a fuel-guzzling truck that's pumping out fumes all the way to the recycling center.

If you're disposing of such waste on a weekly or monthly basis, the environmental implications are more harmful than transporting a digital signage network just once to your location. Additionally, the machinery required to sort recycling and process it into something else uses a lot of energy.
 
We're not saying outdoor digital signage is 100 percent eco-friendly

Nothing is 100 percent eco-friendly. To suggest that outdoor digital signage is would be absurd. However, it's a marked improvement on print-based advertising methods. Yes, LCD screens do require a considerable amount of energy to be powered. However, technological advancements continue to make LCD screens more efficient.

In fact, LED screens offer an eco-friendly alternative to LCD screens. They use less electricity and tend to have a longer lifespan, meaning they avoid the landfill for considerably longer.

Yet, the longevity of LCD screens can be extended by introducing a digital signage enclosure.

Enclosures work to keep screens cooler through the use of fans and other cooling devices, preventing malfunction and stopping them from ending up in landfill ahead of their time. Again, this reduces your environmental impact long-term.

In the future, digital signage will be your ally

Compared to churning out endless reams of printed posters, outdoor digital signage is a massive step forward in terms of reducing your company's environmental impact. A day is coming when businesses will be severely reprimanded for failing to adhere to environmental guidelines and that includes the overuse of paper.

The impact of humanity on the environment has become a big issue among world leaders in recent years. While you may feel they're being "preachy," they have the power to bring your business into line with environmental guidelines.

If ever you needed an incentive to upgrade from print-based advertising to digital, consider the future demands that will be placed on your business to conform to these environmental guidelines.

Outdoor digital signage will become your eco-friendly ally, and investment in it will cost less than any levy or fine likely to hit businesses in the future as world governments look to clampdown on environmental concerns.