The question properly before this court on an appeal by Today Newspapers from the Franklin Lakes Municipal Court is whether Franklin Lakes Ordinance § 88-8(c) impermissibly infringes on the First Amendment right of Today Newspapers to distribute its weekly paper. R. 3:10-2, R. 3:23, R. 7:4-2(e), State v. Barcheski , 181 N.J. Super. 34, 38-39 (App.Div.1981).
Ordinance § 88-8(c) provides, in pertinent part: "No person shall throw, deposit or distribute any commercial or non-commercial handbill: . . . (c) in or upon any private premises which are temporarily or continuously uninhabited or vacant."
Pursuant to this ordinance, Today Newspapers was served with three separate summonses. The parties stipulate that with regard to Summonses 323 and 325 it would appear that defendant, through its agents, caused copies of the Today Newspaper to be deposited on vacant private property located at 706 Orchard Lane on March 18 and 25, 1981, respectively. Defendant had no actual knowledge that the premises were vacant. With regard to Summons 321, the parties stipulated that defendant had caused, through agents, the placement of numerous copies of Today Newspaper on vacant private property known as 616 Osio Lane.
The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech or the press. . . ." U.S.Const. , Amend. I. There is similar language in the New Jersey Constitution. N.J.Const. (1947), Art. I, par. 6.
The court is compelled to weigh the First Amendment mandate, which embodies one of the fundamental philosophical principles of our society, against the legitimate police functions
exercised by all levels of government in a sincere effort to promote and preserve the day-to-day quality of life.
The First Amendment is the polestar in the constellation of ideals that has guided this country from pre-Revolutionary to modern times. The preeminence of the First Amendment is reflected in the maxim by James Madison in a speech before Congress in 1794 in which he stated: "If we advert to the nature of Republican Government we shall find that the censorial power is in the people over the Government, and not the Government over the people." Brant, " The Bill of Rights ," 235 (1965). See, Absecon v. Vettese , 13 N.J. 581 (1953).
Although the First Amendment is phrased in absolute terms, it is clear, based on historical and judicial precedent, that certain types of speech, e.g. obscenity, are beyond the pale of First Amendment protection. Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). However, since In Matter of Jackson , 96 U.S. 727, 24 L. Ed. 877 (1878), it has been settled that "liberty of circulating is essential to the freedom [of the press] as liberty of publishing; indeed, without the circulation, the publishing would be of little value." Id. at 753. See Schaad v. Ocean Grove Camp Meeting Ass'n , 72 N.J. 237 (1977). This truth was reiterated in Toms River Publishing Co. v. Manasquan , 127 N.J. Super. 176 (Ch.Div.1974):
The right to distribute, circulate, or otherwise disseminate ideas and written materials has long been recognized to constitute an integral part of the right of free speech and press. Both rights are clearly fundamental ones protected by the First Amendment. Martin v. Struthers , 319 U.S. 141, 143, 63 S. Ct. 862 , 87 L. Ed. 1313 (1943), Lovell v. Griffin , 303 U.S. 444, 450-452, 58 S. Ct. 666 [668-669], 82 L. Ed. 949 (1938). The freedom of speech and press embraces the right to distribute literature and necessarily protects the right to receive it. Martin v. Struthers, supra , 319 U.S. at 143, 63 S. Ct. 862 . Accord, Marsh v. Alabama , 326 U.S. 501, 505, 66 S. Ct. 276 , 90 L. Ed. 265 (1946). [at 182]
The fact that Today Newspaper is a "shoppers'" weekly containing mostly advertising, is irrelevant to this court's analysis. In Paton v. La Prade , 469 F. Supp. 773 (D.C.N.J.1978), it was noted that the "[United States] Supreme Court has held that ...