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North Jersey Newspapers Co. v. Borough of Kenilworth

Decided: August 8, 1991.

NORTH JERSEY NEWSPAPERS COMPANY, PLAINTIFF,
v.
BOROUGH OF KENILWORTH, CHIEF BRENT DAVID AND PATROLMAN JOHN DOE, DEFENDANTS



UNION COUNTY

Boyle, P.J.Ch.

Boyle

BOYLE, P.J.Ch.

Plaintiff, North Jersey Newspaper Company ("North Jersey"), is before the court on a return date of an order to show cause seeking to enjoin the enforcement by defendant, Borough of Kenilworth ("Kenilworth"), of N.J.S.A. 39:4-64.*fn1 N.J.S.A. 39:4-64 prohibits the throwing or dropping of any object from a moving vehicle. Plaintiff, North Jersey, is an authorized New Jersey corporation which owns and publishes a bi-weekly newspaper known as "The Suburban News." Defendant, Kenilworth, is a New Jersey municipal corporation. Plaintiff contends that to the extent N.J.S.A. 39:4-64 is applied to restrict the distribution of newspapers, the statute violates plaintiff's freedom of speech guaranteed by the First and Fourteenth

Amendments to the Federal Constitution and by Article I, paragraph 6 of the New Jersey Constitution.

The facts are not in dispute. On July 12, 1991, North Jersey, through its agent, Peter Price, was delivering the newspaper known as "The Suburban News" to residents of Kenilworth. Price was driving a vehicle at a speed of approximately 25 miles an hour in the vicinity of Michigan and Clinton Avenues. Patrolman Henry Moll of the Kenilworth Police Department observed Price and his passenger throwing newspapers from windows on both the passenger and driver sides of the vehicle onto the lawns of nearby homes. Patrolman Moll stopped the vehicle and issued a summons to Price for violation of N.J.S.A. 39:4-64. N.J.S.A. 39:4-64(a) provides:

No person shall throw or drop any bundle, object, article or debris of any nature from a vehicle whether in motion or not when such vehicle is on a highway. The words "object, article or debris of any nature" as used in this section shall be deemed to include a lighted cigarette, cigar, match or live ashes, or any substance or thing in and of itself likely to cause a fire, but such inclusion shall not be deemed to in any wise limit the generality of said words "object, article or debris of any nature." Any person who violates this section shall be subject to a fine of not less than $100.00 nor more than $500.00 for each offense.

Plaintiff, North Jersey, contends that the enforcement of N.J.S.A. 39:4-64, so as to prohibit the aforedescribed method of distributing newspapers, is unconstitutional.

"It is unquestioned that a necessary predicate to freedom of speech and press is the freedom to disseminate ideas, information and newspapers in public places." Gannett Satellite Information Network v. Township of Pennsauken, 709 F. Supp. 530, 535 (D.N.J.1989) (citing Talley v. California, 362 U.S. 60, 63, 80 S. Ct. 536, 538, 4 L. Ed. 2d 559 (1980); Lovell v. Griffin, 303 U.S. 444, 452, 58 S. Ct. 666, 669, 82 L. Ed. 949 (1938)). "Liberty of circulating is as essential to that freedom as liberty of publishing; indeed without the circulation, the publication would be of little value." In re Jackson, 96 U.S. 727, 733, 24 L. Ed. 877, 879 (1878). However, the time, place and manner of protected speech may be limited by state regulation which

satisfies the three-prong test enunciated in Capitol Movies, Inc. v. City of Passaic, 194 N.J. Super. 298, 476 A.2d 869 (App.Div.1984).

First, the regulation must be justified without reference to the content of the regulated speech. Second, the regulation must serve a significant governmental interest by the least restrictive possible means. Third, the regulation must leave open ample alternative channels for the communication of the information. Erznozik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975) State v. Miller, 83 N.J. 402, 412 [416 A.2d 821] (1980). The evidential corollary of this three-prong test is that the burden of ...


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