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State v. DeAngelo

February 5, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WAYNE DEANGELO, DEFENDANT-APPELLANT.



On appeal from and certification to the Superior Court, Appellate Division, whose opinion is reported at 396 N.J. Super. 23 (2007).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Lawrence Township sign ordinance prohibits all but a few exempted signs, and it expressly prohibits "balloon signs or other inflated signs (excepting grand opening signs) . . . displayed for the purpose of attracting the attention of pedestrians and motorists." The issue in this appeal is whether the sign ordinance can be applied to prohibit a union from displaying as part of its protest a large inflatable rat, a symbol of labor unrest.

In April 2005, members of the International Brotherhood of Electrical Workers, Local 269, were protesting at Gold's Gym in Lawrence Township in response to a labor dispute with a contractor working at the gym. As part of its protest, the union displayed a ten-foot-tall inflatable rat-shaped balloon on the sidewalk. A police officer dispatched to the scene instructed the union members to deflate the rat. The officer warned them that he would issue a summons if they inflated the balloon again. About one hour later, the officer returned to the scene to discover that the balloon had been re-inflated. Wayne DeAngelo, the union official in charge of the demonstration, admitted that he had re-inflated the balloon. DeAngelo was charged with displaying a balloon sign in violation of the Lawrence Township sign ordinance. The Municipal Court found that DeAngelo violated the sign ordinance and imposed a fine. Following a trial de novo, the Law Division also held that DeAngelo violated the ordinance.

The Appellate Division affirmed in a split decision. State v. DeAngelo, 396 N.J. Super. 23 (2007). The majority held that the ban on all inflatable signs other than grand opening signs was not a restraint on free speech. The majority reasoned that the ordinance was content-neutral with the purpose to enhance aesthetics and to protect public health and safety. Judge Sabatino dissented, finding that the ordinance was not content-neutral. He would have remanded the case for additional fact-finding to determine if the municipality has sufficiently compelling reasons to justify its content-based regulation.

DeAngelo appealed the constitutional issue discussed in Judge Sabatino's dissent as of right, and the Supreme Court granted his petition for certification seeking review of the remaining issues. 193 N.J. 276 (2007).

HELD: The Lawrence Township sign ordinance violates the First Amendment right to free speech and is overbroad.

1. The stated purposes of Lawrence Township's detailed sign restrictions include encouraging the effective use of signs as a means of communication, maintaining the aesthetic environment, and improving pedestrian and vehicular safety. The ordinance expressly prohibits balloon signs, except for grand opening signs. Certain temporary signs, including contracting signs, grand opening signs, and yard sale signs, are allowed without a permit. (pp. 5-7)

2. The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited. Where speech on public issues is involved, government must allow the widest room for discussion. Any restriction on public issue picketing is subject to especially careful scrutiny. The government may impose stricter regulations on commercial speech than on non-commercial speech. (pp. 7-8)

3. In determining the limits that may be placed on protected speech on public property, different standards may apply depending on the character of the property at issue. For the State to enforce a content-based exclusion in a traditional public forum, such as the sidewalk, the State must show that its regulation is necessary to serve a compelling interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. (pp. 8-9)

4. An ordinance that suppresses speech because of its content is subject to the most exacting scrutiny. Laws that distinguish favored speech from disfavored speech on the basis of the ideas expressed are content-based. In Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), the United States Supreme Court found that regulations banning non-commercial advertising on billboards while permitting exceptions for commercial advertising were content-based, and invalidated the ordinance. Many courts have applied Metromedia to invalidate laws that exempt "grand opening" displays from more general restrictions covering non-commercial displays. (pp. 9-12)

5. The Court agrees with the dissenting Appellate Division judge that a sign ordinance that prohibits a union from displaying a rat balloon, while at the same time authorizing a similar display at a grand opening, is content-based. Under the ordinance, the authorization of a sign is justified only by reference to the person or entity displaying the sign. Because the sign ordinance favors commercial over non-commercial speech and because a violation of the ordinance is based on the purpose for which the sign is displayed, that ordinance is content-based. (pp. 12-13)

6. The salutary goals of the Lawrence Township sign ordinance do not justify a content-based restriction of noncommercial speech. There is no evidence to suggest that a rat balloon is significantly more harmful to aesthetics or safety than a similar item being displayed as a commercial grand opening advertisement. The sign ordinance does not fairly advance any compelling governmental interests and is not narrowly tailored to prevent no more than the exact source of the evil it seeks to remedy. The ordinance violates DeAngelo's constitutional right to free speech and is therefore unconstitutional. (p. 13)

7. The Court also has concerns that the ordinance is overly broad. Ordinances that foreclose an entire medium of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. The Lawrence Township sign ordinance is overly broad because it has almost completely foreclosed a unique and important means of communication. Non-verbal, eye-catching symbolic speech represents a form of expression designed to reach a large number of people. The Township's elimination of an entire medium of expression without a readily available alternative renders the ordinance overbroad. (pp. 14-17)

8. The Lawrence Township sign ordinance violates the First Amendment right to free speech and is overbroad. DeAngelo's conviction predicated on an asserted violation of the sign ordinance must be set aside. (p. 17)

The judgment of the Appellate Division is REVERSED, and case is REMANDED to the Law Division for the entry of an order dismissing the summons issued to defendant.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE's opinion.

The opinion of the court was delivered by: Justice Wallace, Jr.

Argued September 23, 2008

The question presented is whether a municipal sign ordinance that prohibited all but a few exempted signs and that expressly prohibited "portable signs[,] balloon signs or other inflated signs (excepting grand opening signs)," can be applied to prohibit a union from displaying as part of its labor protest a large inflatable rat, a symbol of labor unrest. The union official who was in charge of the protest and responsible for displaying the inflatable rat was given a summons for violating the sign ordinance. The union official was convicted and fined. On appeal, the Appellate Division affirmed in a split decision. Before us, the union official claims in part that the ...


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