Articles Posted in Communications Law

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In 2010, the Township of Franklin (the Township) adopted an ordinance revising its regulation of signs, including billboards. The ordinance permits billboards, subject to multiple conditions, in a zoning district proximate to an interstate highway but expressly prohibited digital billboards anywhere in the municipality. A company seeking to install a digital billboard challenged the constitutionality of the ordinance. The Law Division declared unconstitutional that portion of the ordinance barring digital billboards. The trial court viewed the Township's treatment of such devices as a total ban on a mode of communication. In a reported opinion, the Appellate Division reversed. Applying the "Central Hudson" commercial speech standard and the "Clark/Ward" time, place, and manner standard to content-neutral regulations affecting speech, the appellate panel determined that the ban on digital billboards passed constitutional muster. The Supreme Court disagreed: "simply invoking aesthetics and public safety to ban a type of sign, without more, does not carry the day." The Court declared the 2010 ban on digital billboards as unconstitutional and reversed the judgment of the Appellate Division. View "E&J Equities v. Board of Adjustment of Franklin Township" on Justia Law

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The police arrested defendant Gary Lunsford after they executed a search warrant at his home based on suspected criminal activity involving transactions in controlled dangerous substances (CDS). As part of its continuing investigation, the Monmouth County Grand Jury issued a subpoena duces tecum to a wireless telephone service provider requesting subscriber information associated with defendant's cell phone number, which was the contact for the controlled drug buys that led to defendant's arrest. Defendant filed a motion to quash, which the trial court granted, stating that a communications data warrant (CDW - the equivalent of a search warrant), was needed to obtain telephone billing records. The Attorney General, who superseded the Monmouth County Prosecutor s Office to litigate the constitutional question raised by the trial court's decision, sought leave to appeal, which the Appellate Division denied. On appeal to the New Jersey Supreme Court, the Attorney General did not dispute that telephone billing records were entitled to protection under the State Constitution. He argued instead that a grand jury subpoena, based on a relevancy standard rather than probable cause, was sufficient to safeguard the privacy rights at stake here. "Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate." Here, the Court affirmed the trial court's grant of the motion to quash, noting that the State could apply for a court order to obtain defendant's cell phone records consistent with the Court's discussion of protected privacy interests in this opinion. View "New Jersey v. Lunsford" on Justia Law

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In 2005, "The Record," a newspaper owned by Defendant North Jersey Media Group, published an article about an SEC complaint. The headline of the article read: "3 N.J. men accused in $9M stock scam." Neither the SEC complaint nor the article suggested that Plaintiffs Ronald Durando and Gustave Dotoli were arrested. The North Jersey Media Group also owns Defendant "The Nutley Sun," which received permission to reprint the Record article about Plaintiffs. In 2008, the Sun prepared the article for publication in its December 8 edition (a promotional issue circulated to 2500 non-subscribers in addition to the weekly's regular subscribers), but wrote a new headline for the article: "Local men charged in stock scheme." The day after publication, Plaintiffs' attorney sent an email to The Sun pointing out that his clients had not been "arrested," and demanded a retraction. The North Jersey Media Group gave approval for the filing of a retraction, and indeed one was published in boldface and large print on the front page of The Nutley Sun's December 22 edition. This edition was not circulated to the 2500 non-subscribers who received the December 8 edition with the erroneous teaser. Subsequently, Plaintiffs filed suit, alleging libel against the Sun and North Jersey Media Group. The trial court ultimately granted summary judgment in favor of Defendants on all claims and dismissed the complaint. The court determined that there was not "sufficient evidence from which a jury could clearly and convincingly conclude that any . . . of the defendants acted with actual malice." In an unpublished opinion, the Appellate Division affirmed, finding no 'clear and convincing' evidence of actual malice to warrant a jury trial on defamation or false light. Upon review, the Supreme Court affirmed: "[a]lthough this case unquestionably involves sloppy journalism, the careless acts of a harried editor, the summary-judgment record before the Court cannot support a finding by clear and convincing evidence that the editor knowingly or in reckless disregard of the truth published the false front-page teaser." View "Durando v. The Nutley Sun" on Justia Law