Chez Sez VIII, Inc. v. Poritz

Page 331

297 N.J.Super. 331

688 A.2d 119

CHEZ SEZ VIII, INC., t/a United Video, David Porten, t/a Adult Entertainment Center, Hamilton Amusement Center, Inc t/a Video Express, L.O.J., Inc., t/a The Emporium, and Vito J. Fruggiero, Inc., t/a Red Barn Books, Plaintiffs-Respondents, v. Deborah PORITZ, Attorney General for the State of New Jersey, and the State of New Jersey, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 6, 1997.

Decided Feb. 7, 1997.

Carol Johnston, Deputy Attorney General, for defendants-appellants (Peter Verniero, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel, Ms. Johnston, on the brief).

Paul J. Cambria, Jr., of the New York Bar, Buffalo, NY, for plaintiffs-respondents (Steven S. Polinsky, of the New Jersey Bar, Paramus, attorney and on the brief; Mr. Cambria, Jr., of the New York Bar, also on the brief).

Before Judges PETRELLA, LANDAU and KIMMELMAN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

The State of New Jersey appeals from the Law Division's decision that N.J.S.A. 2C:33-12.2 was an unconstitutional, content-based restriction on free speech, as well as void for vagueness, and an order permanently enjoining its enforcement. We reverse.

Chez Sez VIII, Inc., t/a United Video, David Porten, t/a Adult Entertainment Center, Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, and Vito J. Fruggiero, Inc., t/a Red Barn Books (collectively referred to as plaintiffs) are retail book and video stores which sell and rent adult materials including video tapes, as well as provide private viewing booths for such materials. Plaintiffs obtained a judgment declaring N.J.S.A. 2C:33-12.2 ¹ violative of their First Amendment rights.

The challenge to the statute here concerns essentially the provisions relating to booths or enclosures. The Law Division Judge granted preliminary restraints ² against enforcement of the subject statute because he considered it a content based restriction on free expression since it only applied to "sexually oriented businesses." Applying strict scrutiny, the judge concluded that although the statute promoted a significant government interest in reducing the spread of sexually transmitted diseases, it was not the least restrictive means of achieving that goal. Additionally, the judge was of the opinion the statute was void for vagueness because ordinary persons would not know which type of booth facilitated sexual activity.

On appeal the State essentially argues: (1) the statute is a content neutral regulation, designed to ameliorate secondary effects of sexually oriented businesses, and (2) the statute is understandable to persons of average intelligence. Alternatively, it argues that if the statute is found to be vague, we should construe it in such a manner as to allow it to stand and excise any constitutional defect.

Governor Whitman signed into law Senate Bill No. 342 of 1995 (S-342) which, among other things, prohibits in Section 2 ( N.J.S.A. 2C:33-12.2) commercial establishments from providing booths or similar enclosures "which facilitate sexual activity." L. 1995, c. 167, eff. Sept. 3, 1995. Thus, N.J.S.A. 2C:33-12.2 provides:

Sexually oriented businesses

a. As used in this act:

(1) "Sexually oriented business" means:

(a) A commercial establishment which as one of its principal business purposes offers for sale, rental, or display any of the following:

Books, magazines, periodicals or other printed material, or photographs, films, motion pictures, video cassettes, slides or other visual representations which depict or describe a "specified sexual activity" or "specified anatomical area"; or still or motion picture machines, projectors or other image-producing devices which show images to one person per machine at any one time, and whether the images so displayed are characterized by the depiction of a "specified sexual activity" or "specified anatomical area"; or instruments, devices, or paraphernalia which are designed for use in connection with a "specified sexual activity"; or

(b) A commercial establishment which regularly features live performances characterized by the exposure of a "specified anatomical area" or by a "specified sexual activity," or which regularly shows films, motion pictures, video cassettes, slides, or other photographic representations which depict or describe a "specified sexual activity" or "specified anatomical area";

(2) "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity.

(3) "Specified anatomical area" means:

(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or

(b) Human male genitals in a discernibly turgid state, even if covered.

(4) "Specified sexual activity" means:

(a) The fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breasts; or

(b) Any actual or simulated act of human masturbation, sexual intercourse or deviate sexual intercourse.

b. In addition to any activities proscribed by the provisions of N.J.S. 2C:33-12, a person is guilty of maintaining a nuisance when the person owns or operates a

sexually oriented business which offers for public use booths, screens, enclosures or other devices which facilitate sexual activity by patrons.

c. Notwithstanding any other provision of law, a municipality shall have the power to determine restrictions, if any, on the hours of operation of a [sic ] sexually oriented businesses.

d. A person who violates this act is guilty of a crime of the fourth degree.

[Emphasis supplied].

Any establishment in violation of N.J.S.A. 2C:33-12.2 may be ordered closed for up to one year and is subject to forfeiture of property. N.J.S.A. 2C:33-12.1. ³

The statute was enacted to stem the spread of sexually transmitted diseases. The Senate Judiciary Committee in considering S-342 was made aware of the substantial public health interests of other states and the means they employed in regulating private enclosures provided by adult entertainment establishments. Essentially, those jurisdictions were concerned with unsanitary conditions and the spread of sexually transmitted diseases fostered by private enclosures in buildings of public accommodation.

Judicial inquiry is limited when reviewing legislative notice. ⁴ Here, the legislative action was informed by various considerations. The Senate Judiciary Committee considered a memorandum by the Chief of the Judiciary Section in the Office of Legislative Services outlining the concern that private booths provided by sexually oriented businesses encourage anonymous sexual activity and are conducive to the spread of sexually transmitted diseases. The Legislature was made aware that the Third Circuit recently upheld a Delaware statute regulating such private booths or enclosures in Mitchell v. Comm'n on Adult Entertainment Est., 10 F.3d 123 (3rd Cir.1993). Additionally a newspaper article in the Atlantic City Press was brought to the Committee's attention which described how New Jersey men often enter peep-show booths and gesture through an aperture known as a "glory hole" to an adjoining booth and engage in anonymous sexual acts. It was with this background that the Legislature enacted S-342.

I.

The distinctions between speech and conduct are often difficult to parse, but when conduct is regulated solely because of its expressive attributes the Supreme Court has consistently held the regulation unconstitutional. See e.g., United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) (burning flag); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (participating in a sit-in); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) (flying a red flag). Thus, the First Amendment has been construed by various courts to protect sexually explicit expression of various types. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 707 (5th Cir.1994); Mitchell v. Comm'n on Adult Entertainment Est., 10 F.3d 123, 130 (3rd Cir.1993); see e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (live nude dancing in adult book store and nightclub). While this form of expression is protected, the protection afforded it has been characterized as "only marginal[ ]." Barnes v. Glen Theatre, Inc., supra, 501 U.S. at 566, 111 S.Ct. at 2460, 115 L.Ed.2d at 511. The Supreme Court in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) recognized that "Specified Sexual Activities" may not be totally abrogated but its protection is "lesser [in] magnitude than the interest in untrammeled political debate." Id. at 70, 96 S.Ct. at 2452, 49 L.Ed.2d at 326. Moreover, a State "may legitimately use the content of these materials as the basis for placing them in a different classification." Id. at 70-71, 96 S.Ct. at 2452, 49 L.Ed.2d at 326.

A plain reading of N.J.S.A. 2C:33-12.2 makes clear that it does not purport to ban the viewing of sexually explicit material. Rather, it prohibits commercial establishments that offer sexually explicit material for distribution from providing "booths, screens, enclosures or other devices which facilitate sexual activity by patrons." N.J.S.A. 2C:33-12.2b. On its face the statute is intended to regulate sexual conduct as a health problem, not the materials presented.

In Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), the Supreme Court granted certiorari to consider whether the First Amendment barred enforcement of a statute which authorized the closure of a business that promoted prostitution and lewdness. In Arcara, ...