third prong of the test by leaving open other forms of
communication in the form of allowing other sized flags.
However, since the borough failed to establish that the
ordinance was content neutral by presenting testimony
concerning its purpose, or that it served a significant,
substantial governmental goal, the Court found that it
was an unconstitutional restriction on defendant’s
freedom of speech.
In City of Houston, Texas v. Hill, 482 U.S. 451
(1987), a municipal ordinance, which made it unlawful
to interrupt a police officer in the performance of his
duty, was held unconstitutionally overboard under the
First Amendment. In determining the question of
overbreadth, the Court’s examination considered
whether the law reached a substantial amount of
constitutionally protected conduct. The Court
concluded that the instant statute did, and further
concluded that the enactment accorded police
“unconstitutional discretion in enforcement.”
State v. Miller, 162 N.J. Super. 333 (App. Div. 1978),
aff’d, 83 N.J. 402 (1980). Defendant appealed from his
conviction of a violation of a portion of the Borough of
Milltown zoning ordinance prescribing the permitted
size and content of signs erected in the various use
districts of the borough. He claimed that the ordinance
provision was unconstitutional, based on the fact that the
ordinance tended to prohibit rather than merely regulate
expressions of political views. The basis of defendant’s
conviction was that the size limitation of Zoning
Ordinance § 20-9.1(d) could be applied to the sign in
question since the content of the sign was not within First
Amendment political speech protection. The Appellate
Division reversed the conviction and held that with
respect to the constitutional question involved, the State
concedes the evident proposition that a municipality is,
by reason of the First Amendment, precluded from total
prohibition of an individual’s freedom of political
expression through the technique of posting a sign on his
own property. Political expression obviously includes
any fair comment on any matter of public interest,
whether or not the subject of an election campaign,
whether or not embarrassing to the local governing body,
and whether or not irritating to one’s neighbors. The
constitutionally protected right of free speech, if it
extends to the dissemination of accurate commercial
information must a fortiori extend to the dissemination of
non-commercial information which may be of impact
not only to the disseminator but also to those to whom
the information is communicated.
In Capitol Movies, Inc. v. City of Passaic, 194 N.J.
Super. 298 (App. Div. 1984), an action challenging the
constitutionality of a municipal ordinance which limited
the showing of x-rated films to certain hours, the
Appellate Division held that the restriction imposed by
the ordinance constituted more than a minimal intrusion
of freedom of speech and was, therefore, unconstitu-
tional. A regulation which restricts the time, place or
manner of protected speech will survive judicial scrutiny
only if it meets a three-prong test: 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 and third, the regulation must leave open
ample alternative channels for the communication of the
information. Additionally, where the subject of the
regulation is a constitutionally protected interest, the
governmental agency must prove that all of the criteria
prerequisite to permissible regulation have been met.The regulated activity was within the ambit of the
free speech protection of the First and Fourteenth
Amendments. That factor coupled with the fact that
Passaic had failed to demonstrate either the nature of the
governmental interest to be served by the regulation or
the manner in which the regulation might serve any
legitimate public interest led the Court to find the
ordinance unconstitutional. See Regan v. Time, Inc., 468
U.S. 641 (1984).Compare, Members of City Council of City of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984),
wherein the United States Supreme Court held that an
ordinance prohibiting posting of signs on public
property was not unconstitutional as applied to
expressive activities of a group of supporters of political
candidates. The Court held that based on the record
before it, the city’s interests were sufficiently substantial
to justify the “content neutral, impartially administered
prohibition” against the posting of signs on public
property.Regarding the power of municipalities to enact
ordinances, and the permissible scope thereof, see Bonito
v. Council of Bloomfield Township, 197 N.J. Super. 390
(Law Div. 1984); N.J. Shore Builders Ass’n v. Township
Committee of Dover Township, 191 N.J. Super. 627 (Law
Div. 1983); Redeb Amusement, Inc. v. Committee of
Township of Hillside, 191 N.J. Super. 84 (Law Div. 1983);
Trombetta v. Mayor and Commissioners of City of Atlantic
City, 181 N.J. Super. 203 (Law Div. 1981), aff’d, 187
N.J. Super. 351 (App. Div. 1982).