(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).
Argued January 22, 1998 -- Decided July 21, 1998
COLEMAN, J., writing for the Court.
This appeal challenges the constitutionality of N.J.S.A. 2C:34-7c, which restricts the size, number, and content
of signs that sexually oriented businesses may display.
For some time prior to August 1995, Hamilton Amusement Center (“Hamilton”) owned and operated sexually
oriented businesses selling a variety of magazines, books, and videotapes, including adult materials. Hamilton used
large signs to advertise the types of products sold, operation hours, and the locations of entrances. On August 16,
1995, Governor Whitman signed an Assembly Bill, later codified, that directly affects those signs. Specifically, N.J.S.A.
2C:34-7 contains restrictions on signage and the establishment of perimeter buffer requirements. It provides that “no
sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign
giving notice that the premises are off limits to minors.” The statute further limits the size of the identification sign to
no more than 40 square feet.
Hamilton filed suit seeking declaratory and injunctive relief to prevent the State from enforcing N.J.S.A. 2C:34-7, alleging that the restrictions contained in the statute violated the First Amendment to the U.S. Constitution and
Article I of the New Jersey Constitution. Hamilton further contended that the statute was unconstitutionally vague
because it failed to define “identification sign.” Finally, Hamilton alleged that the statute violated its Fourteenth
Amendment rights to equal protection because it targets sexually oriented businesses.
The trial court determined that the statute was a content-based restriction on speech and applied strict
scrutiny, ultimately finding it unconstitutional under the New Jersey Constitution because the State failed to articulate a
factual basis to establish the legitimacy of its asserted compelling state interests -- traffic safety and the protection of
minors. The court further found that the statute failed to survive the time, place, and manner analysis because it was
not narrowly tailored to protect against the secondary effects of sexually oriented businesses. The trial court entered a
permanent injunction on December 19, 1995.
The Appellate Division reversed, concluding that the statute targets only commercial speech and therefore is
not subject to strict scrutiny. The court reasoned that the statute was not substantially broader than necessary to
advance the two substantial governmental interests (protection of minors and regulation of traffic) because it allows
two signs, does not proscribe other modes of advertisement, does not limit the material that may be displayed within
the store, and does not place any significant limitation on what may be advertised on the two signs. The Appellate
Division interpreted “identification sign” to include the name of the establishment; its street number; its telephone
number; its operating hours; and the general nature of the establishment.
The Supreme Court granted Hamilton's petition for certification.
HELD: The limitations on signage contained in N.J.S.A. 2C:34-7c represent constitutional limitations of commercial
speech.
1. New Jersey's constitutional free speech clause is ordinarily interpreted to be no more restrictive than the federal
free speech clause. (pp. 5-6)
2. N.J.S.A. 2C:34-7c applies only to commercial speech and such speech is provided a limited measure of protection
under the First Amendment. (pp. 6-9)
3. A statute or ordinance is considered to be content-neutral when the Legislature's predominant concern is with
adverse secondary effects, such as those caused by sexually oriented businesses, and not with the content of the speech
being restricted. (pp. 10-11)
4. Courts have generally analyzed statutes and ordinances restricting sexually oriented businesses under an
intermediate level of scrutiny because of the unique secondary effects associated with those businesses, and, unlike
rational basis review (applied by the trial court), the intermediate standard does not permit a court to supplant the
precise interests put forward by the State with other suppositions. (pp. 11-12)
5. Because the commercial advertising challenged here is not misleading or does not involve unlawful activity or
obscene material, the threshold prong of the intermediate test is satisfied and the speech at issue involves protected
commercial speech. (p. 12)
6. The pre-enactment evidence that was before the Legislature when it enacted N.J.S.A. 2C:34-7c, and the legislative
history as a whole sufficiently establish that the Legislature was genuinely concerned with mitigating the adverse
secondary effects of sexually oriented businesses, all of which represent substantial governmental interests. (pp. 12-20)
7. A governmental body must demonstrate that the harms it recites are real and that its restriction will in fact alleviate
them to a material degree; sign regulations are permissible if the government can show that the particular restrictions
on signs in fact relate to the stated goal. The limitations of the signs set forth in the statute directly advance the
government's interests in limiting secondary negative effects and in protecting minors and regulating traffic. (pp. 20-22)
8. N.J.S.A. 2C:34-7c is not substantially broader than necessary and leaves intact the ability to advertise in the print
and electronic media. Furthermore, in addressing the goals of protecting minors and increasing traffic safety, a
decision to regulate at a statewide level is rational because it creates uniformity, rather than relying on the various
municipalities to regulate individually in their own ways. (pp. 23-27)
9. When a statute's constitutionality is at issue, a court has the power and obligation to narrow any imprecise language
to render it constitutional, and N.J.S.A. 2C:34-7c as construed by the Appellate Division is sufficiently clear and gives
adequate notice to sexually oriented businesses. (pp. 27-33)
10. N.J.S.A. 2C:34-7c is not constitutionally infirm based on either equal protection or underinclusiveness concerns.
(pp. 33-34)
11. N.J.S.A. 2C:34-7c does not act as a prior restraint because it does not prohibit plaintiffs from expressing their
message entirely. (pp 34-36)
12. The strong presumption of constitutionality that attaches to a statute can be rebutted only upon a showing that the
statute's repugnancy to the Constitution is clear beyond a reasonable doubt. (pp. 36-37)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN filed a separate opinion concurring in part with and dissenting in part from the Court's
opinion. Although Justice Stein does not disagree with the Court's conclusion that the statute regulates only
commercial speech and that its constitutionality should be determined on the basis of an intermediate standard of
scrutiny, he finds a complete lack of legislative findings supporting the alleged governmental interests. Moreover,
Justice Stein views the Court as having sustained the statute at issue without imposing on the State the burden of
proving to the trial court that the alleged governmental interests are not pretextual.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN and GARIBALDI join in
JUSTICE COLEMAN's opinion. JUSTICE STEIN filed a separate opinion concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A-
64 September Term 1997
HAMILTON AMUSEMENT CENTER, t/a
VIDEO EXPRESS, L.O.J., INC., t/a
THE EMPORIUM, PYNCO, INC., t/a
CAMELOT BOOK STORE and CRESCENDO
BOOKS, INC., t/a CARNIVAL BOOKS,
Plaintiffs-Appellants,
v.
PETER VERNIERO, ATTORNEY GENERAL
for the STATE OF NEW JERSEY and the
STATE OF NEW JERSEY,
Defendants-Respondents.
Argued January 22, 1998 -- Decided July 21, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
298 N.J. Super. 230 (1997).
Barry Nelson Covert, a member of the New York
bar, argued the cause for appellants (Steven
S. Polinsky, attorney; Mr. Polinsky and Paul
J. Cambria, Jr., a member of the New York
bar, on the briefs).
Larry R. Etzweiler, Senior Deputy Attorney
General, argued the cause for respondents
(Peter Verniero, Attorney General of New
Jersey, attorney; Mary C. Jacobson, Assistant
Attorney General, of counsel).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal challenges the constitutionality of N.J.S.A.
2C:34-7c that restricts the size, number, and content of signs
that sexually oriented businesses may display. The case calls
for the sensitive balancing of the interests of sexually oriented
businesses in free speech with the State's interest in minimizing
the adverse secondary effects caused by those businesses. The
Appellate Division found that the statute does not violate
federal or state constitutional guarantees to freedom of speech
and that the statute is not void for vagueness.
298 N.J. Super. 230 (1997). We granted certification,
150 N.J. 24 (1997), and
now affirm.
On September 3, 1995, plaintiffs instituted the present litigation challenging the constitutionality of the signage restrictions in N.J.S.A. 2C:34-7c. Subsection c provides: "No sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign giving notice that the premises are off limits to minors. The identification sign shall be no more than 40 square feet in size." N.J.S.A. 2C:34-7c.
Plaintiffs alleged in their complaint that those restrictions violate the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. Plaintiffs also contended that the provision is unconstitutionally vague because it fails to define "identification sign." Finally, they alleged that N.J.S.A. 2C:34-7c violates their Fourteenth Amendment rights to equal protection because the statute targets only sexually oriented businesses. Plaintiffs sought declaratory and injunctive relief to prevent the State from enforcing N.J.S.A. 2C:34-7c.
The trial court determined that N.J.S.A. 2C:34-7c was a content-based restriction on speech and applied strict scrutiny. The court found the provision unconstitutional under Article I, Paragraph 6 of the New Jersey Constitution because the State failed to articulate a factual basis to establish the legitimacy of its asserted compelling state interests -- traffic safety and the protection of minors. Alternatively, the trial court found that the statute failed to survive the less onerous time, place, and manner analysis because it was not narrowly tailored to protect against the secondary effects of sexually oriented businesses. The trial court entered a permanent injunction on December 19, 1995.
The Appellate Division reversed, concluding that N.J.S.A. 2C:34-7c targets only commercial speech and therefore is not subject to strict scrutiny. Hamilton, supra, 298 N.J. Super. at 238. The Appellate Division reasoned that the protection of minors and the regulation of traffic safety are both substantial governmental interests, id. at 239-40, and that N.J.S.A. 2C:34-7c is not substantially broader than necessary because it allows two signs, does not proscribe other modes of advertisement, does not limit the material that may be displayed within the store, and does not place any significant limitation on what may be advertised on the two signs. Id. at 241.
The Appellate Division construed the sign requirements to permit affixing the street numbers of the property as required by federal postal regulations and to permit the posting of temporary political signs. Id. at 241 n.6. The Appellate Division also interpreted "identification sign" to include: the name of the establishment; its street number; its telephone number; its operating hours; and the general nature of the establishment. Id. at 242.
Article I, Paragraph 6 of the New Jersey Constitution provides: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." N.J. Const. art. I, ¶ 6. Because we ordinarily interpret our State Constitution's free speech clause to be no more restrictive than the federal free speech clause, Shelton College v. State Bd. of Educ., 48 N.J. 501, 518 (1967), "[w]e rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution." Karins v. City of Atlantic City, 152 N.J. 532, 547 (1998); see Bell v. Township of Stafford, 110 N.J. 384, 393 (1988) (stating that constitutional approach taken by United States Supreme Court when examining commercial speech conforms to our own). Two exceptions to the general rule, which are not involved here, are political expressions at privately-owned-and-operated shopping malls, New Jersey Coalition v. J.M.B., 138 N.J. 326 (1994), and defamation, Sisler v. Gannett Co., 104 N.J. 256, 271 (1986).
Our decision whether N.J.S.A. 2C:34-7c regulates only
commercial speech will in turn determine the appropriate level of
scrutiny to be applied. Plaintiffs argue that both commercial
and political speech are impacted by the statute. They contend
that even under the Appellate Division's construction of the
statute to allow the posting of temporary political signs, they
are prohibited from conveying political messages on the
identification sign, from posting non-temporary political signs,
and from posting signs related to religion or "everyday
problems." Plaintiffs also contend that because the statute
distinguishes between sexually oriented businesses and other
businesses, strict scrutiny is appropriate. We find those
arguments to be unpersuasive.
We begin our analysis by defining commercial speech.
Commercial speech is "expression related solely to the economic
interests of the speaker and its audience." Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n,
447 U.S. 557, 561,
100 S. Ct. 2343, 2349,
65 L. Ed.2d 341, 348 (1980). It is "'speech
proposing a commercial transaction.'" Id. at 562, 100 S. Ct. at
2349,
65 L. Ed 2d at 348 (quoting Ohralik v. Ohio State Bar
Ass'n,
436 U.S. 477, 455-56,
98 S. Ct. 1912,
56 L. Ed 2d 444
(1978)); see also Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60, 66-67,
103 S. Ct. 2875, 2880-81,
77 L. Ed 2d 469, 477-78
(1983) (holding that combination of following characteristics of
communication "provides strong support" for conclusion that
communication is "properly characterized as commercial speech":
advertisement, mention of specific product, and economic
motivation).
N.J.S.A. 2C:34-7c restricts, rather than prohibits
altogether, the signs that sexually oriented businesses may
display. We find nothing to suggest that the statute restricts
more than commercial speech, or that the Legislature contemplated
that its application would extend beyond the commercial context.
Although outdoor signs are often used to convey political,
social, and commercial ideas, plaintiffs have made no showing of
actual noncommercial use. Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 501,
101 S. Ct. 2882, 2889,
69 L. Ed 2d 800, 811
(1981). On the contrary, the record reveals the messages
conveyed on plaintiffs' signs that predated the litigation are
limited to business identification, the types of products sold,
business hours, location of the video rental sections of the
businesses, location of entrances, and parking information.
Although plaintiffs could conceivably use their signs to convey
noncommercial messages, they have not done so. We therefore
decline to discuss political speech in a hypothetical case that
is not before us. Furthermore, nothing in the legislative
history suggests that the Legislature intended that the statute
restrict political speech. We hold, therefore, that the statute
applies only to commercial speech.
Our conclusion that N.J.S.A. 2C:34-7c has as its purpose the
regulation of commercial speech does not mean that no
constitutional protection is afforded to plaintiffs. On the
contrary, the First Amendment protects commercial speech when the
threshold requirements are met: that the speech is not misleading
and relates to lawful activity. Central Hudson, supra, 447 U.S.
at 563-64, 100 S. Ct. at 2350, 65 L. Ed.
2d at 349; see Schad v.
Borough of Mt. Ephraim,
452 U.S. 61, 65-66,
101 S. Ct. 2176,
2180-81,
68 L. Ed.2d 671, 678-79 (1981) (recognizing First
Amendment protection for sexually explicit speech that is not
"obscene"); In re Anis,
126 N.J. 448, 456 (1992). It is a
limited measure of protection, however, because the First
Amendment "accords less protection to commercial speech than to
other constitutionally-guaranteed expression." Barry v. Arrow
Pontiac, Inc.,
100 N.J. 57, 72 (1985); Town Tobacconist v.
Kimmelman,
94 N.J. 85, 125 (1983). The limited measure of
protection afforded commercial speech is "'commensurate with its
subordinate position in the scale of First Amendment values.'"
Metromedia, supra, 453 U.S. at 506, 101 S. Ct. at 2892, 69 L. Ed.
2d at 814 (quoting Ohralik, supra, 436 U.S. at 456, 98 S. Ct. at
1912, 49 L. Ed.
2d at 444); Central Hudson, supra, 447 U.S. at
562-63, 100 S. Ct. at 2349-50, 65 L. Ed.
2d at 348-49.
Central Hudson articulated a four-part test for determining
when regulating commercial speech does not violate the First
Amendment:
[1 I]t at least must concern lawful activity
and not be misleading. [2] Next, we ask
whether the asserted governmental interest is
substantial. If both inquiries yield
positive answers, we must determine [3]
whether the regulation directly advances the
governmental interest asserted, and [4]
whether it is no more extensive than is
necessary to serve that interest.
[Central Hudson, supra, 447 U.S. at 566, 100
S. Ct. at 2350, 65 L. Ed.
2d at 351.]
Subsequently, in 44 Liquormart, the Supreme Court held that
Rhode Island's complete ban on liquor price advertising violated
the First Amendment. 44 Liquormart, supra, 517 U.S. at 516, 116
S. Ct. at 1515, 134 L. Ed.
2d at 736. Similarly, Central Hudson
involved a total ban of forms of commercial advertising found to
violate the First Amendment because the government failed to
demonstrate that a more limited speech regulation would not have
adequately served the governmental interest.
Although the present case does not involve a total ban on
commercial expression, the governmental regulation must be
examined under both the Central Hudson standard and the time,
place, and manner test articulated in Clark v. Community for
Creative Non-Violence,
468 U.S. 288, 293,
104 S. Ct. 3065, 3069,
82 L. Ed.2d 221, 227 (1984). The time, place, and manner
restrictions on protected speech are valid provided they "are
justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample alternative
channels for communication of the information." Ibid. Because
the Central Hudson and Clark standards are closely intertwined in
this case, we will conduct the two analyses simultaneously. City
of Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 46, 54-55,
106 S. Ct. 925, 928, 932,
89 L. Ed.2d 29, 37, 42 (1986).
In addition to concluding that N.J.S.A. 2C:34-7c targets
only commerical speech, we are also persuaded that the statute is
content-neutral. A statute or ordinance is considered to be
content-neutral when the legislature's predominant concern is
with adverse secondary effects, such as those caused by sexually
oriented businesses, and not with the content of the speech being
restricted. Ward v. Rock Against Racism,
491 U.S. 781, 791,
109 S. Ct. 2746, 2754,
105 L. Ed.2d 661, 675 (1989). An incidental
effect on some speech does not change the content-neutral
characterization. Ibid.
Having concluded that N.J.S.A. 2C:34-7c targets only
commercial speech and that such speech is provided a limited
measure of protection under the First Amendment, we are required
to engage in an intermediate scrutiny of the restrictions imposed
by N.J.S.A. 2C:34-7c. Florida Bar v. Went For It, Inc.,
515 U.S. 618, 623,
115 S. Ct. 2371, 2375-76,
132 L. Ed.2d 541, 549
(1995). Moreover, courts have generally analyzed statutes and
ordinances restricting sexually oriented businesses under an
intermediate level of scrutiny because of the unique secondary
effects associated with those businesses. Young v. American Mini
Theatres, Inc.,
427 U.S. 50, 70,
96 S. Ct. 2440, 2452,
49 L. Ed.2d 310, 326 (1976).
The intermediate scrutiny will be conducted pursuant to
Central Hudson and Clark. "Unlike rational basis review [applied
by the trial court in the present case], the Central Hudson
[intermediate] standard does not permit [a court] to supplant the
precise interests put forward by the State with other
suppositions." Edenfield v. Fane,
507 U.S. 761, 768,
113 S. Ct. 1792, 1798,
123 L. Ed.2d 543, 553 (1993). In this case, that
means that the State cannot substitute another substantial
interest for its assertion that N.J.S.A. 2C:34-7c is required to
protect minors and to promote traffic safety. It may, however,
advance other substantial interests in addition to those two.
Under a commercial speech analysis, first we must determine
whether the speech at issue merits protection by examining
whether the speech concerns lawful activity that is not
misleading. Central Hudson, supra, 447 U.S. at 566, 100 S. Ct.
at 2350,
65 L. Ed 2d at 351. There has been no suggestion that
the commercial advertising challenged here is misleading or
involves unlawful activity or obscene material. Therefore, under
the threshold prong of the Central Hudson test the case before us
involves protected commercial speech.
Next, we focus on Central Hudson's second prong, namely
whether a substantial governmental interest is advanced by
regulating the commercial speech involved here. We will combine
that discussion with our analysis under the first prong of the
time, place, and manner test: whether the regulation is
justifiable without reference to content. In the trial court,
the State argued that the statute served two substantial state
interests: (1) traffic safety; and (2) the welfare of minors.
Before the Appellate Division, the State expanded the list of
secondary effects it sought to address with N.J.S.A. 2C:34-7c,
arguing that sexually oriented businesses, as well as the signs
that advertise their existence, generally detract from
neighborhood stability and contribute to prostitution, crime,
juvenile delinquency, deterioration in property values, and
lethargy in neighborhood improvement efforts.
The burden is on the State to establish the existence of the
substantial governmental interest it sought to advance through
the signage regulation. To assist in meeting this burden, the
State relies on an established rule of statutory interpretation:
Consistent with the judicial predisposition in
favor of the validity of legislation, courts will
readily impute a proper governmental purpose or
interest as the object to be served by the
enactment, and, if need be, infer an adequate
factual basis to support legislative regulations,
even in the absence of particular purposes or
specific findings being expressed by the
lawmakers.
Nevertheless, if an enactment directly
impinges on a constitutionally protected right,
the presumption in favor of its validity
disappears. Courts are far more demanding of
clarity, specificity and restrictiveness with
respect to legislative enactments that have a
demonstrable impact on fundamental rights.
[Bell, supra, 110 N.J. at 394-95 (citations
omitted).]
The government's failure to sufficiently substantiate its
alleged substantial interests can be constitutionally fatal to a
regulation. See, e.g., id. at 396 (striking down ordinance
because of failure to reveal objectives or factual
underpinnings); Basiardanes v. City of Galveston,
682 F.2d 1203,
1215-16 (5th Cir. 1982) (finding that city had failed to prove
justifiable interest in regulation prohibiting advertising by
adult theaters because there was no evidence that city conducted
careful study of effects of adult theaters). The First
Amendment, however, does not require a legislative body "to
conduct new studies or produce evidence independent of that
already generated by other cities" before enacting a regulation
affecting sexually oriented businesses, "so long as whatever
evidence the [legislative body] relies upon is reasonably
believed to be relevant to the problem" addressed. City of
Renton, supra, 475 U.S. at 51-52, 106 S. Ct. at 931,
89 L. Ed 2d
at 40. In Renton, the United States Supreme Court found that
although the city had not conducted its own hearings on its
locational zoning ordinance, it was entitled to rely upon another
city's studies that had been placed in the record. Ibid. Unlike
the city in Renton, however, when enacting N.J.S.A. 2C:34-7c, the
Legislature did not place into the record the studies of this or
any other jurisdiction; nor is there evidence that lawmakers
relied on such studies. Similarly, the record does not reflect
that the Legislature relied on decisional law from this or any
other jurisdiction that discusses the detrimental secondary
effects of sexually oriented businesses. Nonetheless, we will
consider the precedents. Viewed collectively, a national
consensus emerges regarding the secondary effects of sexually
oriented businesses.
Both the United States Supreme Court and this Court have
held that the government does not have a heavy burden to satisfy
the substantial governmental interest prong of the Central Hudson
standard. That burden may be satisfied in a variety of different
ways. As recently as 1995, the Supreme Court stated that
we do not read our case law to require that
empirical data come to us accompanied by a
surfeit of background information. Indeed,
in other First Amendment contexts, we have
permitted litigants to justify speech
restrictions by reference to studies and
anecdotes pertaining to different locales
altogether, see City of Renton v. Playtime
Theatres, Inc.,
475 U.S. 41, 50-51,
106 S.
Ct. 925,
89 L. Ed.2d 29 (1986); Barnes v.
Glen Theatre, Inc.
501 U.S. 560, 584-585,
111 S. Ct. 2456,
115 L. Ed.2d 504 (1991)
(Souter, J., concurring in the judgment), or
even, in a case applying strict scrutiny, to
justify restrictions based solely on history,
consensus, and "simple common sense," Burson
v. Freeman,
504 U.S. 191, 211,
112 S. Ct. 1846,
119 L. Ed.2d 5 (1992). Nothing in
Edenfield, supra, a case in which the State
offered no evidence or anecdotes in support
of its restriction, requires more.
[Florida Bar, supra, 515 U.S. at 628, 115 S.
Ct. at 2378, 132 L. Ed.
2d at 552.]
The Supreme Court has recognized that sexually oriented
businesses can cause concrete and non-speculative side effects
that government can target. These effects include promoting
juvenile delinquency, contributing to an overall increase in
crime, creating an environment that leads to the general
deterioration of neighborhoods, and lowering property values.
City of Renton, supra, 475 U.S. at 51, 106 S. Ct. at 931, 89 L.
Ed.
2d at 40.
Additionally, this Court has held that a zoning ordinance
need not articulate its objectives but may be sustained against
constitutional challenge on the presentation in court of evidence
supporting the governmental interest advanced by the ordinance.
Zilinsky v. Zoning Bd. of Adjustment,
105 N.J. 363, 371 (1987).
Thus, the substantial governmental interest prong can be
satisfied by reference to studies pertaining to other
jurisdictions, legislative history, consensus, and even common
sense. The State maintains that the legislative history
reflecting the State's substantial interest in ameliorating the
negative effects of sexually oriented businesses consists of a
position report submitted by Concerned Women for America, a floor
speech given by the bill's sponsor, Assemblywoman Crecco, and the
legislative history of N.J.S.A. 2C:33-12.2.
The Assembly Judiciary, Law and Public Safety Committee
considered the Concerned Women report. That report focuses on
the connection between violent, sexually explicit material and
violent crime, but does not mention signage. The report does not
address traffic safety or harm to minors; nor does it address the
additional effects that were presented to the Appellate Division.
Assemblywoman Crecco's speech supports the State's assertion
that the Legislature was concerned with the protection of minors
and the reduction of traffic hazards. She explained that "[s]ign
restrictions would be advantageous because multiple signs
distract motorists and cause accidents." Crecco also referred to
the welfare of minors twice in her speech. First, she mentioned
minors in reference to buffer planting, but not in reference to
signage restrictions. Second, she stated that "[w]e need to put
the brakes on these sorts of element [sic] in all municipalities
. . . . Parents are concerned about their children being exposed
to these types of perverted establishments and their sordid
activities." Assemblywoman Crecco, however, did not offer
evidentiary support for her conclusions.
Further support for the proposition that N.J.S.A. 2C:34-7c
was enacted to protect the welfare of minors can be found in the
text of the statute itself: N.J.S.A. 2C:34-7c requires a sign
indicating that the premises are off-limits to minors. Moreover,
because N.J.S.A. 2C:34-7c and N.J.S.A. 2C:33-12.2See footnote 1 were part of
the same package, consideration of the legislative history of the
latter statute is appropriate. In Chez Sez VIII, Inc. v. Poritz,
the Appellate Division held that N.J.S.A. 2C:33-12.2 was
constitutional, relying on the pre-enactment evidence regarding
private viewing booths.
297 N.J. Super. 331, certif. denied,
149 N.J. 409, and cert. denied, __ U.S. __,
118 S. Ct. 337,
139 L. Ed 2d 262 (1997). The history of N.J.S.A. 2C:33-12.2 was not a part
of the record in this case at the trial level, but the State
introduced it before the Appellate Division. The State has
requested this Court to take judicial notice of that history to
establish that the Legislature had a factual basis for enacting
N.J.S.A. 2C:34-7c.
The legislative history of N.J.S.A. 2C:33-12.2 indicates
that, generally, the State was concerned with the negative
effects caused by sexually oriented businesses, particularly
businesses that operate private viewing booths. The history
demonstrates that the Legislature was specifically informed about
those effects when it simultaneously enacted N.J.S.A. 2C:33-12.2
and N.J.S.A. 2C:33-7c.
Furthermore, in an unpublished opinion, a federal district
court upheld the 1995 amendments to N.J.S.A. 2C:34-2 to -7
against First and Fourteenth Amendment challenges.
Internationally Hott II v. City of Elizabeth, Civ. No. 96-1447
(D.N.J. Apr. 9, 1997). The District Court found the statutes
constitutional and determined that a memorandum submitted to the
Senate Judiciary Committee, Deputy Attorney General Etzweiler's
testimony before the Assembly Judiciary Committee, and
Assemblywoman Crecco's statement "detail[ed] the need for these
types of narrowly tailored statutes to combat the secondary
effects of sexually oriented businesses." Id. at 13.
We conclude that the pre-enactment evidence that was before
the Legislature when it enacted N.J.S.A. 2C:33-12.2 and N.J.S.A.
2C:34-7c, and the legislative history as a whole sufficiently
establish that the Legislature was genuinely concerned with
mitigating the adverse secondary effects of sexually oriented
businesses to improve traffic safety, to limit harm to minors,
and to reduce prostitution, crime, juvenile delinquency,
deterioration in property values, and lethargy in neighborhood
improvement efforts. Whether viewed separately or collectively,
they represent substantial governmental interests. See American
Mini Theaters, supra, 427 U.S. at 80, 96 S. Ct. at 2457,
49 L. Ed 2d at 332 (Powell, J., concurring) (finding interests in zoning
adult movie theaters substantial because "[w]ithout stable
neighborhoods, both residential and commercial, large sections of
a modern city quickly can deteriorate into an urban jungle with
tragic consequences to social, environmental, and economic
values"); Metromedia, supra, 453 U.S. at 507-08, 101 S. Ct. at
2892, 69 L. Ed.
2d at 815 ("Nor can there be substantial doubt
that the twin goals that the ordinance seeks to further -
traffic safety and the appearance of the city -- are substantial
government goals."); Borrago v. City of Louisville,
456 F. Supp. 30, 33 (W.D. Ken. 1978) (finding no doubt that regulation of
adult entertainment furthers "important and substantial"
interests); City of Pasco v. Rhine,
753 P.2d 993, 997 (Wash. Ct.
App. 1988) (finding that government had substantial interest in
mitigating secondary impacts of adult theater's "location in an
area not suitable for such theaters").
"[A] governmental body . . . must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, supra, 507 U.S. at 770-71, 113 S. Ct. at 1800, 123 L. Ed. 2d at 555. Therefore, sign regulations are permissible if the government can "show that the particular restrictions on signs in fact relate to the stated goal." State v. Miller, 83 N.J. 402, 415 (1980).
In American Mini Theaters, supra, the United States Supreme Court found that a municipality's conclusion that the concentration of sexually oriented businesses, unlike other businesses, "causes the area to deteriorate and become a focus of crime" was "a factual basis" for the conclusion that dispersal requirements would "have the desired effect." American Mini Theaters, supra, 427 U.S. at 71 & n.34, 96 S. Ct. at 2452-53 & n.34, 49 L. Ed. 2d at 326 & n.34. Similarly, we hold that the limitation of the signs promulgated in N.J.S.A. 2C:34-7c directly advances the government's interests in limiting negative secondary effects, such as neighborhood deterioration and concentration of crime. The limitation of signage may reduce the effects generated by the presence of sexually oriented businesses, particularly in conjunction with the other provisions of N.J.S.A. 2C:34-7, dispersal requirements, locational restrictions, and perimeter buffers. N.J.S.A. 2C:34-7a to -7b.
In Metromedia, supra, the Supreme Court found that the goal of increased traffic safety was furthered by the limitation of off-site advertising billboards. 453 U.S. at 508-09, 101 S. Ct. at 2893, 69 L. Ed. 2d at 815-16. The Court explained that "'[b]illboards are intended to, and undoubtedly do, divert a driver's attention from the roadway.'" Ibid. (quoting California Supreme Court decision in same case). The same is true of the on-site advertising signs limited by N.J.S.A. 2C:34-7c. "Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S. Ct. 2038, 2041, 129 L. Ed.2d 36, 42-43 (1994) (emphasis added). The Legislature could reasonably conclude that the nature and content of the signs of sexually oriented businesses cause greater distraction to motorists than other commercial signs. But cf. Rappa v. New Castle County, 18 F.3d 1043, 1082 (3d Cir. 1994) (Garth, J., concurring and dissenting) ("[T]he allowance of some signs, but not others, is evidence that the government's asserted interests in traffic safety and aesthetics are not sufficiently compelling to justify disparate treatment between classes of speech.").
We also conclude that the sign limitations serve the State's interest in protecting the welfare of minors. The Legislature has chosen to criminalize the sale, distribution, rental, or exhibition of obscene material to minors. N.J.S.A. 2C:34-3. The requirement that sexually oriented businesses post signs indicating that the businesses are off-limits to minors helps to ensure that minors will be excluded from the premises. Furthermore, we find that the limitations on the identification sign reduce the ability of sexually oriented businesses to attract minors. Moreover, the other goals that we have determined are advanced by N.J.S.A. 2C:34-7c, such as limiting neighborhood deterioration and crime and promoting traffic safety, undoubtedly contribute to the welfare of minors who live in, or pass through, the vicinity of sexually oriented businesses.
The final prong of the commercial speech test is whether the
regulation is no more extensive than necessary to serve the
State's asserted interests. Central Hudson, supra, 447 U.S. at
566, 100 S. Ct. at 2350,
65 L. Ed 2d at 351. That inquiry is
similar to that part of the time, place, and manner test
requiring the narrow tailoring of the regulation and leaving open
ample alternative means of communication. Clark, supra, 468 U.S.
at 293, 104 S. Ct. at 3069, 82 L. Ed.
2d at 227. Therefore, we
must determine whether N.J.S.A. 2C:34-7c is narrowly tailored to
serve the State's asserted interests. We combine the narrow
tailoring discussion with our analysis under the final prong of
the time, place, and manner test, whether the regulation leaves
open ample alternative means of communication. Clark, supra, 468
U.S. at 293, 104 S. Ct. at 3069, 82 L. Ed.
2d at 227.
N.J.S.A. 2C:34-7c is not substantially broader than
necessary because it: (1) allows two signs to be posted; (2)
does not proscribe other modes of advertisement; (3) does not
inhibit the material that may be displayed within the store; and,
(4) does not place any significant limitation on what might be
advertised on the two signs. The statute does not ban
advertising completely, and sexually oriented businesses have a
reasonable opportunity to advertise in the print and electronic
media. SDJ, Inc. v. City of Houston,
837 F.2d 1268, 1278 (5th
Cir. 1988), cert. denied sub nom M.E.F. Enters., Inc. v. City of
Houston,
489 U.S. 1052,
109 S. Ct. 1310,
103 L. Ed.2d 579
(1989); see also State v. J.&J. Painting,
167 N.J. Super. 384,
386 (App. Div. 1979) (regulation "leaves unaffected all other
means [for businesses] to advertise their business services -
newspapers, telephone directories, radio and electronic media[,
and word of mouth]"). The State "has gone no further than
necessary in seeking to meet its ends. Indeed it has stopped
short of fully accomplishing its ends: It has not prohibited
all" signs. Metromedia, supra, 453 U.S. at 508, 101 S. Ct. at
2893,
69 L. Ed 2d at 815.
Furthermore, to satisfy Central Hudson and the narrow
tailoring requirement of Clark, the regulation need not be the
least restrictive means of serving the State's content-neutral
substantial interest. Ward, supra, 491 U.S. at 797, 109 S. Ct.
at 2757, 105 L. Ed.
2d at 679. "[T]he requirement of narrow
tailoring is satisfied 'so long as the . . . regulation promotes
a substantial government interest that would be achieved less
effectively absent the regulation'" and the means chosen does not
"burden substantially more speech than is necessary to further"
the State's content-neutral interest. Id. at 799, 109 S. Ct. at
2758, 105 L. Ed.
2d at 680-81 (quoting United States v.
Albertini,
472 U.S. 677, 689,
105 S. Ct. 2897,
86 L. Ed.2d 536
(1985)).
Several other courts examining the same issue found
regulations that are more restrictive than N.J.S.A. 2C:34-7c to
be sufficiently tailored. For example, in Excalibur Group, Inc.
v. City of Minneapolis,
116 F.3d 1216 (8th Cir. 1997), cert.
denied, ___ U.S. ___,
118 S. Ct. 855, ___ L. Ed.2d ___ (1998),
signs were prohibited in windows, a one-square-foot
identification sign was permitted on the entrance door, and
another identification sign equal to one-square foot for each
foot of lot frontage on the street was allowed. All signs had to
be flat, wall signs. That meant that a sexually oriented
business with a twenty-five foot frontage could have one five
feet-by-five-feet sign. In the present case, a sign for the same
frontage could be eight feet by five feet. The signage
regulation was found not to be too restrictive because it
limited only the outside of the businesses and the city could
reasonably conclude that this limitation was best able to buffer
the visual and other impacts of those businesses on the
neighborhood. Id. at 1222.
SDJ involved an ordinance requiring sexually oriented
business to use "simple signs." SDJ, supra, 837 F.
2d at 1278.
Although the opinion does not contain a definition of "simple
signs," the Fifth Circuit found that the signage requirements did
not violate the First Amendment.
Similarly, in Borrago, supra, a district court upheld an
ordinance that restricted adult entertainment establishments from
having more than one outside sign, not to exceed ten feet in
length and three feet in width, and "not to contain any emphasis,
either by wording or picture or otherwise, on matters relating to
sexual activities." 456 F. Supp. at 31. The court concluded
that the restrictions were no greater than essential
in light of the findings . . . that the showing
and advertising of adult entertainment attracts an
undesirable quantity and quality of transients,
causes an increase in crime, and encourages
residents and businesses to move elsewhere. The
findings, as to the undesirability of the
transients who are attracted to this type of
entertainment and as to the resulting increase in
crime, justify the City in imposing strict
controls over the persons who manage and control
these types of businesses and also justify the
restrictions on advertising.
We conclude that although there is no history to explain why the Legislature selected forty square feet as the size limitation, the choice of sign size falls within the ambit of Renton's legislative discretion. "'It is not [the] function [of the Court] to appraise the wisdom of [the governmental regulation because the government] . . . must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.'" Renton, supra, 475 U.S. at 52, 106 S. Ct. at 931, 89 L. Ed. 2d at 42 (quoting American Mini Theatres, supra, 427 U.S. at 71, 96 S. Ct. at 2440, 49 L. Ed. 2d at 310). A sign that contains forty square feet represents a reasoned compromise between serving the State's asserted goals and allowing some advertisement. Forty square feet is an adequate amount of space for a business to announce its presence given the secondary effects of sexually oriented business that are unrelated to the content of the signs.
Furthermore, we conclude that the State has an interest in regulating the signage of sexually oriented businesses rather than leaving that function to municipalities. In addressing the goals of protecting minors and increasing traffic safety, a decision to regulate at a statewide level is rational because it creates uniformity, rather than relying on the various municipalities to regulate individually in their own ways.
Next, we consider plaintiffs' vagueness argument. N.J.S.A.
2C:34-7c permits a sexually oriented business to display an
"identification sign" that does not exceed forty square feet in
size. The trial court held the sign statute void for vagueness
because the word "identification" could mean more than name only.
The Appellate Division interpreted the statute to mean that "an
identification sign may communicate not only the name of the
establishment, but also the street number, telephone number,
operating hours and general nature of the establishment in order
to identify the business." 298 N.J. Super. at 242. Based on
that interpretation, the court found the statute was not vague.
Ibid. Plaintiffs contend that the Appellate Division's
interpretation of the statute has enhanced its vagueness. We
disagree.
A statute may be challenged as being either facially vague
or vague "as applied." State v. Maldonado,
137 N.J. 536, 563
(1994); State v. Cameron,
100 N.J. 586, 593 (1985). Plaintiffs
maintain that the statute is facially vague. The vagueness
doctrine involves procedural due process considerations of fair
notice and adequate warning. Karins, supra, 152 N.J. at 544. A
law is void if it is so vague that persons "'of common
intelligence must necessarily guess at its meaning and differ as
to its application.'" Town Tobacconist, supra, 94 N.J. at 118
(quoting Connally v. General Constr. Co.,
269 U.S. 385, 391,
46 S. Ct. 126, 127,
70 L. Ed. 322, 328 (1926)).
"When a statute's constitutionality is doubtful, a court has
the power to engage in 'judicial surgery,'" construing the
statute in a constitutional way. Town Tobacconist, supra, 94
N.J. at 104. When a statute is vague, the court's "'power and
obligation to narrow imprecise statutory language . . . to render
it constitutional is beyond question.'" State v. Mortimer,
135 N.J. 517, 533, cert. denied,
513 U.S. 970,
115 S. Ct. 440,
130 L.
Ed 2d 351 (1994) (quoting State v. Ramseur, 106 N.J. 123, 200
(1987)). That power and obligation exist because the court
"'begins with the assumption that the legislature intended to act
in a constitutional manner.'" Id. at 534 (quoting Right to
Choose v. Byrne,
91 N.J. 287, 311 (1982)). Therefore, we must
construe N.J.S.A. 2C:34-7c in a constitutional manner if it is
reasonably susceptible to such a construction. Ibid. In the
past, this Court has engaged in "'judicial surgery' to excise a
constitutional defect or engraft a needed meaning." Right to
Choose, supra, 91 N.J. at 311; see, Mortimer, supra, 135 N.J. at
534-35 (excising unconstitutionally vague language from statute
on bias crimes); Town Tobacconist, supra, 94 N.J. at 104
(excising unconstitutionally vague portion of "drug
paraphernalia" definition in Drug Paraphernalia Act); New Jersey
State Chamber of Commerce v. New Jersey Election Law Enforcement
Comm'n,
82 N.J. 57, 75-81 (1980) (limiting election financing
reporting act to avoid overbreadth); Borough of Collingswood v.
Ringgold,
66 N.J. 350, 357 (1975), appeal dismissed,
426 U.S. 901,
96 S. Ct. 2220,
48 L. Ed 2d 826 (1976) (limiting ordinance
requiring prior registration of canvassers and solicitors to
door-to-door activity on private property); Camarco v. City of
Orange,
61 N.J. 463, 466 (1972) (limiting anti-loitering
ordinance to interference with others in public places or threats
of immediate breach of peace).
In State v. DeSantis,
65 N.J. 462 (1974), the Court
considered the New Jersey criminal laws dealing with obscenity.
These laws did not define "obscenity" with the specificity
required by Miller v. California,
413 U.S. 15,
93 S. Ct. 2607,
37 L. Ed 2d 419 (1973). DeSantis, supra, 65 N.J. at 472. The Court
weighed whether it should judicially salvage the statute:
[I]t is entirely likely that the Legislature will
expeditiously deal with the subject in light of
all of the opinions in Miller and the related and
ensuing cases both federal and state. In the
meantime, however, we are confronted with the
choice of nullifying L. 1971, c. 449, thereby
leaving an interim void . . . or supplying a
stopgap constitutional interpretation . . . .
[W]e take the latter course which we consider the
more consonant with the legislative goals and our
precedential judicial expressions.
Furthermore, the Legislature has explicitly authorized courts to interpret terms contained in the New Jersey Code of Criminal Justice (Code); for example, N.J.S.A. 2C:1-2 provides principles of construction to guide courts in interpreting Code provisions. N.J.S.A. 2C:1-2(c) ("The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this section and the special purposes of the particular provision involved.").
Courts, however, will not unquestioningly construe statutes. In State v. Miller, for example, this Court declined to perform judicial surgery or to adopt a narrow construction of an ordinance prohibiting homeowners from posting signs containing political messages because the ordinance "so directly cuts to the heart of the First Amendment." State v. Miller, 83 N.J. 402, 414 (1980).
The Appellate Division's construction of N.J.S.A. 2C:34-7c was appropriate for several reasons. The Appellate Division complied with its obligation to supply a definition of the type of identification sign that is lawful in order to "restore the statute to health." Town Tobacconist, supra, 94 N.J. at 104. That interpretation was necessary to prevent the statute from being unconstitutionally vague. The term "identification" could mean the establishment's name only, the establishment's name combined with a general description of the nature of its business, or its address, or both. Given that the Legislature enacted N.J.S.A. 2C:34-7c as part of a comprehensive package regulating sexually oriented businesses, it is reasonable to conclude that the Legislature would prefer the Court to adopt a "stopgap constitutional interpretation" rather than nullify the statute. Unlike the ordinance at issue in Miller, supra, N.J.S.A. 2C:34-7c does not "so directly cut[] to the heart of the First Amendment" because N.J.S.A. 2C:34-7c primarily concerns commercial, rather than political, speech. Furthermore, unlike the homeowners in Miller, sexually oriented businesses have multiple commercial means of expression available.
Consistent with N.J.S.A. 2C:1-2(c), which authorizes courts to interpret vague terms in the criminal code, the Appellate Division's construction gives "fair warning of the nature of the conduct proscribed." N.J.S.A. 2C:1-2(a)(4). As a result, sexually oriented businesses will not have to speculate as to what is permitted on their signs.
Additionally, the Appellate Division's construction of "identification" is consistent with several items used to identify businesses: name, location, description of location, description of premises, identity of proprietors and operators, hours of operation, and the type of business performed. The Appellate Division's interpretation allows a sexually oriented business to display the basic elements and function of its commercial identity.
Hamilton argues that the Appellate Division exacerbated the statute's vagueness by failing to define the "general nature of the business," the length of time in posting a political sign that is "temporary," and what constitutes a political sign. We conclude that N.J.S.A. 2C:34-7c as construed is sufficiently clear and gives adequate notice to sexually oriented businesses to withstand this pre-enforcement challenge. A common sense interpretation of "general nature of the business" allows the establishment to advertise that it is a sexually oriented business and that it sells such products to adults.
We also hold that the term "temporary political sign" is not vague. "Temporary" denotes both physical and temporal impermanence. A person of average intelligence would understand "temporary political signs" to include signs that are not permanently affixed to the establishment's property and that speak to matters relating to the activities of the government, a politician, a political party, or a political issue. For those reasons, the statute is not facially unconstitutional.
The Fourteenth Amendment to the United States Constitution provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "Of course, the equal protection claim in this case is closely intertwined with First Amendment interests." Police Dep't v. Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 2289, 33 L. Ed.2d 212, 216 (1972). "[T]he notion that a regulation of speech may be impermissibly under-inclusive is firmly grounded in First Amendment principles." City of Ladue, supra, 512 U.S. at 51, 114 S. Ct. at 2043, 129 L. Ed 2d at 45 (emphasis in original).
The Legislature may legitimately distinguish between the speech of sexually oriented businesses and non-sexually oriented businesses because "society's interest in [the former] type of expression is of a wholly different, and lesser magnitude than the interest of untrammeled political debate." American Mini Theaters, supra, 427 U.S. at 70, 96 S. Ct. at 2456, 49 L. Ed 2d at 326. Thus, a state "may legitimately use the content of [sexually oriented] materials as the basis for placing them in a different classification from other motion pictures." Id. at 70-71, 96 S. Ct. at 2456, 49 L. Ed 2d at 326. This reasoning applies equally to the signs of sexually oriented businesses as to adult films. We conclude, therefore, that N.J.S.A. 2C:34-7c is not constitutionally infirm based on either equal protection or underinclusiveness concerns.
One of the factors considered in determining if a restriction is a prior restraint is whether it "prevents the expression of a message. Thus, the Supreme Court has consistently found (often without discussion) that injunctions are prior restraints if they forbid entirely the publication of a message." Murray, supra, 138 N.J. at 222. N.J.S.A. 2C:34-7c does not act as a prior restraint, however, because it does not prohibit plaintiffs from expressing their message entirely. Rather, they are simply prohibited from expressing it on signs larger than those permitted by the statute. See id. at 223 (finding that injunction did not act as prior restraint because it only "prohibited [defendants] from expressing [message] by picketing within the 300-foot zone that the injunction establishes"). More importantly, there is no prior restraint here because plaintiff has sought to restrain enforcement of the statute while the government has taken no specific act to restrain plaintiffs' expressions.
VI