The Supreme Court of New Jersey was asked to determine whether a Lawrence Township ordinance prohibiting the display of balloons or inflated signs – except in very limited circumstances – violated the free speech clause of the First Amendment. State v. DeAngelo, 197 N.J. 478 (2009).
The ordinance in question prohibited portable signs, balloon signs or other inflated signs, but excepted grand opening signs. During union activity at a Gold’s Gym in Lawrence Township in 2005 a ten-foot-tall inflatable rat-shaped balloon – which has long been the symbol of union unrest – was displayed on the sidewalk in front of the location. The union was protesting the presence of a non-union contractor working in the gym. Police officers initially instructed the union members to deflate the rat and they did. Officers returned approximately one-hour later and saw that the rat was re-inflated. As a result, officers gave Wayne DeAngelo, the union official in charge of the demonstration, a summons after he admitted re-inflating the balloon. DeAngelo was found guilty of violating the ordinance by the Municipal Court of Lawrence Township and ordered to pay a fine.
DeAngelo appealed the decision of the Municipal Court to the Law Division of the Superior Court. A trial was held before the Law Division which held that DeAngelo violated the ordinance. DeAngelo appealed that decision to the Appellate Division of the Superior Court. The Appellate Division affirmed the decision of the Law Division that DeAngelo violated the ordinance and should pay a fine. DeAngelo appealed to the Supreme Court of New Jersey, which agreed to hear the case to decide the free speech issue.
New Jersey’s Supreme Court held that the ordinance was content-based because it prohibited a union from displaying a rat balloon while permitting a similar display as part of a grand opening. Under the ordinance, whether such a sign is authorized “is justified only by reference to the person or entity displaying the sign.” Id. at p. 488. The ordinance also favored commercial over non-commercial speech and, “because the ordinance is based on the purpose for which the sign is displayed,” the ordinance is content-based. Id.
The Court held that there was no evidence that a rat balloon was more harmful to aesthetics or safety than a similar item displayed as an advertisement for a seven-day grand opening promotion. There was also no evidence that the ordinance was “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. at 489.
The Court also held that the ordinance was overbroad because it prohibited a “substantial amount of protected speech.” Id. An ordinance that prohibits an entire medium of expression “will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” Id. at 490. Lawrence Township’s ordinance virtually eliminated all signs except for grand openings of businesses and other minor exceptions. Its “elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad.” Id. at 491.
Thus, the Court held that the ordinance violated the First Amendment and could not be enforced. As a result, DeAngelo’s conviction for violating the ordinance was overturned and the case remanded to the Law Division for dismissal of the summons issued to DeAngelo.
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