Conford, Michels, and Pressler. The opinion of the court was delivered by Pressler, J.A.D.
Plaintiff North Jersey Suburbanite Co., Inc., the publisher of a periodical in tabloid form distributed weekly and free of charge in 14 Bergen County municipalities, appeals from a declaratory judgment adjudicating the constitutionality of N.J.S.A. 35:1-2.1 and 2.2, which prescribe, respectively, the qualifications of newspapers eligible to publish the statutorily mandated public notices of State Government and of local governmental units. For the reasons herein set forth, we are persuaded that plaintiff has failed to bear its formidable burden of overcoming the presumption of constitutionality attaching to legislation which, as here, is facially reasonable. Accordingly, we affirm.
Plaintiff's constitutional challenge focuses upon three of the eligibility requirements which are common to both statutes, namely, that the newspaper have a general paid circulation, that it have "an average news content of not less than 35%" and that it shall "have been entered for 2 years as second-class mail matter under the postal laws and regulations of the United States." Among the federal postal regulations so incorporated are the disqualification of publications whose advertising content exceeds 75% and whose circulation is either free or at nominal rates. 39 U.S.C.A. §§ 4352(c), 4354(c). Plaintiff's primary argument on appeal is that, contrary to the findings below, its proofs at trial indisputably demonstrated that these criteria, neither singly nor cumulatively, are reasonably related to the advancement
of any legitimate statutory objective sought to be achieved thereby and hence that an eligibility classification based thereon contravenes the equal protection clause of the fourteenth amendment. Subsidiarily, it argues, first, that the content of the stated criteria is violative of due process by virtue of the vagueness of specified terminology, and second, that the second-class mailing permit requirement constitutes an impermissible delegation of legislative authority.
In considering the equal protection argument relied on by plaintiff we are first satisfied that the appropriate standard of review of this legislation is the traditional test of whether the statutory classification is rationally related to the promotion of a valid legislative purpose. We reject the contention that we should here apply the stricter test of whether the statute promotes a compelling state interest. It is our understanding of federal constitutional doctrine that the compelling state interest test is mandated only when the challenged legislation either interferes with a fundamental constitutional right or is based upon an inherently suspect classification. San Antonio Indep. School Dist. v. Rodriguez , 411 U.S. 1, 16, 93 S. Ct. 1278, 1287, 36 L. Ed. 2d 16 (1973). And see, State v. Fearick , 69 N.J. 32, 39-40 (1976); State v. Krol , 68 N.J. 236, 253 (1975). Neither of these special circumstances inheres in these statutes. While plaintiff argues that the First Amendment right of freedom of press is here involved, it has failed to suggest, nor do we perceive, precisely how that right is implicated by the statutory criteria here challenged. There is no proof that the inability of plaintiff and others similarly situated to obtain legal advertising in any way measurably affects their freedom of expression or capacity to disseminate news. We have, moreover, little doubt that the constitutionally protected freedom of the press is not impaired by reasonable state restrictions imposed on paid advertising content, whether commercial or governmental, which are designed to advance other legitimate public policy concerns. Cf. Passaic Daily News v. Blair , 63 N.J. 474 (1973). [154 NJSuper Page 131] Application of the reasonable relation test persuades us that the virtually self-evident nexus between the challenged criteria and the advancement of a valid legislative purpose has survived the barrage of plaintiff's proofs. The legislative purpose is apparent not only from the face of the statutes themselves but is further implicit in the statements appended thereto when they were first adopted. It was the Legislature's obvious intention that published official notices come to the attention of as wide and diverse a readership as possible. See Plainfield v. Courier News , 72 N.J. 171, 177 (1976). And it was also the Legislature's evident assumption that that purpose would be most reliably accomplished by requiring such notices to be published in "actual" and "bona fide" newspapers as distinguished from a "mere advertising medium" or "advertising circulars".*fn1 The basis of that assumption, which we regard as valid as a matter of both common sense and common experience, was clearly its belief that the contents of a newspaper paid for by its readers and having all the characteristics of a genuine journalistic product would reach and have the attention of more people, representing a broader cross-section of the population, than would the contents of a free publication designed and distributed primarily for commercial advertising purposes. Finally the Legislature,
in order to distinguish between what it regarded as a bona fide newspaper and an advertising medium, quite reasonably did so on the basis of a news content ratio, concluding that a periodical whose news was at least 35% of its total content would clearly be identified by the public as a legitimate journalistic vehicle. Since a news content ratio is a prima facie reasonable technique for determining whether the essential character of a periodical is that of an actual newspaper, we cannot say that the fixing of a 35% ratio for that purpose is prima facie unreasonable.
Plaintiff does not argue with the validity of the legislature purpose. Its theory, rather, is that the aim of insuring wide and diverse readership of legal notices is in fact not promoted by the legislative selection of criteria which exclude the hybrid type of periodical published by it and others similarly situated. We agree, however, with the trial judge that that theory was inadequately supported by plaintiff's proof.
The proofs demonstrated that plaintiff's publication is a member of a discernible class of periodicals which is a phenomenon of suburban life in generally affluent counties.*fn2 Customarily known as "shoppers," the general characteristics shared by these periodicals are their primary advertising purpose; their free weekly distribution, typically by delivery and on a "saturation" basis, to the residences and some of the businesses in the areas they serve; a nonadvertising content frequently as high as 20% of total lineage and primarily devoted to civic, cultural and social matters of local interest, and the employment of full-time staffs. These periodicals, or at least those identified at the trial, typically are distributed in communities which are also served by weekly paid newspapers. The thrust of the proofs was directed to a comparison of both the circulation and the
quantity of nonadvertising lineage as between the free circulation paper and the paid weekly serving the same community. Invariably the free-circulation paper was delivered to a significantly greater number of households than the paid paper and frequently, because of its greater number of pages, its total nonadvertising lineage was greater.
The essential flaw, however, in this massive presentation of statistical proof was the plaintiff's inability to demonstrate to the trial judge's satisfaction that the wide circulation of its paper resulted in its wide and diverse readership. We concur in the trial judge's findings that the results of a survey testified to by a plaintiff's witness in support of an alleged delivery-readership equation did not reliably establish that proposition because neither the methodology of the survey, the ...