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State v. Calabria

301 N.J. Super. 96, 693 A.2d 949 (Law Div. 1997)

MUNICIPALITIES; SIGNS—Absent evidence that neon signs have a direct and specific impact upon a municipality’s aesthetic goals, a ban on such signs is an impermissible restriction on commercial advertising.

Three business owners challenged the constitutionality of a regulation prohibiting neon signs. They argued: (1) violation of free speech, (2) violation of equal protection, (3) that there was no presumption of validity since the ordinance affected a fundamental right, and (4) that the ordinance was vague and overbroad. Addressing the last claim first, the Law Division found that the ordinance was not vague and the reference to neon signs was sufficiently clear. A statute does not have to specifically define every element of its provisions, and a government may rely on ordinary terms and usage to enable a person of common intelligence to understand whether certain conduct is lawful.

The Court then considered the first three arguments together. The Court had to determine whether the ordinance regulated the content of commercial speech or only its time, place and manner. The Court found that the ordinance in question was content-neutral since it did not ban the words on any sign, only how the sign may be lit. Content-neutral restrictions are permitted provided they serve a significant governmental interest and leave open alternative ways of communication. Clearly there are alternative ways of communication in this case, but the municipality still had to demonstrate a tangible, specific interest in restricting neon signs. Here, the town argued preservation of aesthetics. Although this is a valid reason, the Court stated there must be a factual basis for such a regulation. The Court could not find evidence in the record that demonstrated why the mere existence of neon could not be regulated more narrowly than by an outright ban in order to meet the aesthetic standard of the town. The Court then stated that it examined many decisions throughout the country which upheld or struck down zoning restrictions against specific types of illumination, and the one common thread was that all cases relied on evidence that the particular restriction had a direct and specific impact upon a municipality’s aesthetic goals. Since there was no proof that the ban on neon served a significant government interest, the Court concluded that the ordinance was an impermissible restriction on commercial advertising.


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