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New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

By Brian J. Connolly on December 11, 2018
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New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub.

The federal district court ruled that the advertising restriction violated the First Amendment.  Citing Reed v. Town of Gilbert, the court first determined that the prohibition was clearly content based and concluded that it did not pass muster under the strict scrutiny analysis reserved for content based speech regulations.  In the alternative, the court found that the regulation did not pass muster under the Central Hudson test for the constitutionality of commercial speech regulations.  While the court recognized the state’s ability to regulate conduct within establishments where alcoholic beverages are consumed, it found that a prohibition on a particular medium of speech violated the First Amendment.

GJJM Enters., LLC v. City of Atlantic City, No. 17-2492, 2018 WL 6050629 (D.N.J. Nov. 19, 2018).

Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.

Read more about Brian J. ConnollyEmail
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  • Posted in:
    Administrative and Regulatory
  • Blog:
    Rocky Mountain Sign Law Blog
  • Organization:
    Otten Johnson Robinson Neff + Ragonetti PC
  • Article: View Original Source

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