Adams Newark Theatre Co. v. City of Newark

• Decision Date: 05 November 1956
• Docket Number: No. A--23,A--23
• Citation: 22 N.J. 472,126 A.2d 340
• Parties: ADAMS NEWARK THEATRE CO., a corporation, Plaintiff-Respondent, v. CITY OF NEWARK et al., Defendants-Appellants. I. HIRST ENTERPRISES, Inc., a corporation, Plaintiff-Respondent, v. CITY OF NEWARK et al., Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 472

22 N.J. 472

126 A.2d 340

ADAMS NEWARK THEATRE CO., a corporation, Plaintiff-Respondent, v. CITY OF NEWARK et al., Defendants-Appellants.

I. HIRST ENTERPRISES, Inc., a corporation, Plaintiff-Respondent, v. CITY OF NEWARK et al., Defendants-Appellants.

No. A--23.

Supreme Court of New Jersey.

Argued Oct. 15, 1956.

Decided Nov. 5, 1956.

Jacob M. Goldberg, Newark, for appellants (Vincent P. Torppey, Newark, attorney; Joseph A. Ward, Newark, on the brief).

Robert L. Hood, Newark, for respondent Adams Newark Theatre Co.

Henry H. Rubenson, Newark, for respondent i. Hirst Enterprises, Inc. (Leo J. Berg, Newark, attorney).

The opinion of the court was delivered by

WACHENFELD, J.

The respondents are the operators of a theater in the City of Newark and taxpayers in the municipality. They filed a complaint in lieu of prerogative writ wherein they sought to have a judicial determination of the legality of certain amendatory provisions of two ordinances adopted by the City of Newark on December 21, 1955, intended to become effective January 11, 1956. They contended the ordinances violated the state and federal constitutional provisions guaranteeing freedom of speech.

The cause came on for hearing by way of cross-motions for summary judgment on the pleadings and filed affidavits. There was no testimony or evidence. Summary judgment for the respondents was entered invalidating the questioned ordinances, and this appeal is from the judgment so rendered.

The two ordinances are, in fact, amendatory ordinances in that one repeats in full an ordinance regulating shows and exhibitions and the other repeats in full an ordinance commonly known as the 'Disorderly Persons Ordinance.' In addition to repeating the prior ordinances in full as above stated, the amendatory ordinances add certain new restrictions which to all intents and purposes are similar in both ordinances, except the language of the two amendatory sections differs only slightly grammatically in an endeavor to fit the intended prohibitions into their respective categories.

They penalize the performer who violates the standards of the Disorderly Persons Ordinance and the entrepreneur who promotes such performance. The original ordinances, in general terms, condemned lewdness, obscenity or indecency on the part of the actor or the show, but the amendments specifically place certain conduct within these prohibited classifications.

Since the language of the amendatory ordinances is materially identical, it becomes necessary to quote the new provisions of only one:

'The removal by a female performer in the presence of the audience of her clothing, so as to make nude, or give the illusion of nudeness, of the lower abdomen, genital organs, buttocks or breasts;

'The exposure by a female performer in the presence of the audience, or the giving of the illusion of nudeness in the presence of the audience, of the lower abdomen, genital organs, buttocks or breasts;

'The exposure by a male performer in the presence of the audience of the genital organs or buttocks;

'The use by a performer of profane, lewd, lascivious, indecent or disgusting language;

'The performance of any dance, episode, or musical entertainment, the purpose of which is to direct the attention of the spectator to the breasts, buttocks or genital organs of the performer.'

Recent decisions make it plain that the presentation of moving pictures and stage shows definitely comes within the protective ambit of constitutional free speech. Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519 (1953). While this liberty is extensive and is usually ardently defended by the courts, it is by no means absolute. Inroads and restrictions are permitted under the aegis of the police power of the states, which may be delegated to subordinate governmental bodies. In New Jersey, municipalities are granted such regulatory power in the interest of preservation of public morality by R.S. 40:48--1(6), 40:52--1 and 40:48--2, N.J.S.A.

Thus, the primary issue here is whether the municipality properly curtailed freedom of speech within the latitude allowed to the police power by the Federal Constitution, First Amendment, and Article I, paragraph 6, of the State Constitution.

The scope of permissible limitation of speech is generally confined to proscribing what is 'lewd, obscene or indecent.' See Burstyn, supra. This comports with the terms of the original ordinances. But the words quoted are essentially meaningless and insubstantial unless reference is made to the manner in which the judiciary has defined them.

On the federal scene as well as in our own jurisdiction, the predominant approach has been to survey the questioned exhibition or performance as a whole before determining whether its display or circulation would be so offensive to the well-being of the community as to permit prohibition.

In the Adams case, supra (12 N.J. 267, 96 A.2d 521), we held:

'Our state decisions tend to adhere to the 'dominant effect' test. United States v. One Book Entitled 'Ulysses', 72 F.2d 705 (C.C.A.2, 1934), affirming 5 F.Supp. 182 (D.C.S.D.N.Y.1933). By that test the mere fact that sexual life is the theme of the presentation or that the characters portray a seamy side of life and play coarse scenes or use some vulgar language does not constitute the presentation Per se lewd and indecent. The question is whether the dominant note of the presentation is erotic allurement 'tending to excite lustful and lecherous desire' dirt for dirt's sake only, smut and inartistic filth, with no evident purpose but 'to counsel or invite to vice or voluptuousness.' People v. Wendling, 258 N.Y. 451, 180 N.E. 169, 81 A.L.R. 799 (Ct.App.1932). In such case, prior restraint upon the exhibition offends no constitutional right, if indeed censorship in the strict sense is involved at all; the exhibition then 'is not theatre and in no wise involves free expression'. Bonserk Theatre Corp. v. Moss, 34 N.Y.S.2d 541, 547 (Sup.Ct.1942). It is the absence of this dominent note in the motion pictures involved in Public Welfare Pictures Corp. v. Brennan, 100 N.J.Eq. 132, 134 A. 868 (Ch.1926); Hygienic Productions v. Keenan, 1 N.J.Super. 461, 62 A.2d 150 (Ch.Div.1948), and American Museum of Natural History v. Keenan, 20 N.J.Super. 111, 89 A.2d 98 (Ch.Div.1952) , which underlies those holdings denying any power in the public officials to ban their commercial presentations.'

Relying largely on the Burstyn case, supra, and terming the Adams-Keenan case its counterpart, the respondents assert neither the legislative nor the police powers can be exercised in the enforcement of the enactments as presently written. These cases, they say, 'clearly espouse the principle that the dominant effect of a presentation must be lewd, indecent or obscene and that attempted pre-censorship of specific acts prior to their performance, without regard to the circumstances of their presentation, offends against the constitutional right.'

The court below, citing the language of the ordinance, determined:

'* * * it utterly disregards the established rule to the effect that the acts specified may be prohibited only when the dominant note of the presentation is erotic allurement, and the same is equally true of the prohibition of any dance, episode or musical entertainment which depicts sexual subjects. For this reason, if for no other, the plaintiffs' motion for summary judgment should be granted.' (39 N.J.Super. 111, 120 A.2d 499.)

In substance, it inconsistently holds that 'lewd, obscene or indecent' is sufficient and constitutional, while setting out the specific acts prohibited Ipso facto makes the ordinance offensive and unconstitutional.

The municipality is thus faced with a constant dilemma. If it employs broad language, such as 'lewd, obscene or indecent,' the defense contends the accusation is so vague and general as not to apprise the defendants of the particular case to be met. While, if the information which would undoubtedly be demanded under those circumstances is put into the ordinance itself for clarification, it is said to become a trespass upon the constitutional protection of free speech.

The law is well settled that where the provisions of an ordinance are separable, the invalidity of one of the separable parts will not invalidate the entire ordinance. Scharf v. Recorder's Court of Ramsey, 137 N.J.L. 231, 59 A.2d 595 (Sup.Ct.1948), affirmed 1 N.J. 59, 61 A.2d 765 (1948); City of Elizabeth v. Windsor-5th Ave., 31 N.J.Super. 187, 106 A.2d 9 (App.Div.1954); Blake v. Pleasantville, 87 N.J.L. 426, 95 A. 113 (Sup.Ct.1915); Schwarz Bros. Co. v. Bd. of Health, 84 N.J.L. 735, 87 A. 463 (E. & A.1913).

Thus, even though some of the enumerated behavior prohibited by the act be determined not subject to censorship, still by any interpretation of the record it must be admitted beyond the realm of debate that the large majority of the acts prohibited are obviously condemnable, being violently contrary to good morals and decency. If there be questionable acts contained within the ordinance, the whole ordinance should not be invalidated, including both the good and the bad provisions.

Individual trangressions alleged to come within the purview of the ordinance will be tested and weighed in accord with the law when the occasion for the prosecution arises. The respondents will have their full day in court, and if they are trespassed against, the right to appeal will still be available.

Government under our form of democracy has the responsibility of protecting the morals of its people. The obligation is basic and undisputed. There is also a well-settled rule of construction that where there are two possible interpretations of a statute or ordinance, by one of which the law would be unconstitutional and by the other it would be valid, a court should adopt the construction which will...