Hamilton Amusement Center v. Verniero

Page 254

156 N.J. 254

716 A.2d 1137

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.

Supreme Court of New Jersey.

Argued Jan. 22, 1998.

Decided July 21, 1998.

Barry Nelson Covert, a member of the New York Bar, Buffalo, NY, for plaintiffs-appellants (Steven S. Polinsky, attorney, East Brunswick; Mr. Polinsky and Paul J. Cambria, Jr., a member of the New York Bar, Buffalo, NY, on the briefs).

Larry R. Etzweiler, Senior Deputy Attorney General, for defendants-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, 689 A.2d 201 (1997). We granted certification, 150 N.J. 24, 695 A.2d 667 (1997), and now affirm.

I

For some time prior to August 1995, plaintiffs Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, Pynco, Inc., t/a Camelot Book Store, and Crescendo Book, Inc., t/a Carnival Books (collectively referred to as "Hamilton" or "plaintiffs") owned or operated sexually oriented businesses selling a variety of magazines, books and videotapes, including adult materials. Plaintiffs used large signs to advertise the types of products sold, operating hours, and the locations of entrances. On August 16, 1995, Governor Whitman signed Assembly Bill No. 252 (1994), L. 1995, c. 230, codified at N.J.S.A. 2C:34-6 and N.J.S.A. 2C:34-7, that directly affects those signs. N.J.S.A. 2C:34-6 defines the key words and phrases used in the legislation, and N.J.S.A. 2C:34-7 contains the restrictions on signage and the establishment of perimeter buffer requirements that triggered this litigation.

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, 689 A.2d 201. The Appellate Division reasoned that the protection of minors and the regulation of traffic safety are both substantial governmental interests, id. at 239-40, 689 A.2d 201, 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, 689 A.2d 201.

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, 689 A.2d 201. 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, 689 A.2d 201.

II

First, we address plaintiffs' contention that N.J.S.A. 2C:34-7c violates state and federal constitutional guarantees of free speech. The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech...." U.S. Const. amend. I. The First Amendment restriction on governmental interference with free speech was made applicable to the states by the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, § 1; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516, 116 S.Ct. 1495, 1515, 134 L. Ed.2d 711, 736 (1996); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940).

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, p 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, 226 A.2d 612 (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, 706 A.2d 706 (1998); see Bell v. Township of Stafford, 110 N.J. 384, 393, 541 A.2d 692 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, 650 A.2d 757 (1994), and defamation, Sisler v. Gannett Co., 104 N.J. 256, 271, 516 A.2d 1083 (1986).

-A-

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. 447, 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...