Adams Theatre Co. v. Keenan

• Decision Date: 27 April 1953
• Docket Number: No. A--108,A--108
• Citation: 96 A.2d 519,12 N.J. 267
• Parties: ADAMS THEATRE CO. v. KEENAN et al.
• Court: New Jersey Supreme Court

Page 267

12 N.J. 267

96 A.2d 519

ADAMS THEATRE CO. v. KEENAN et al.

No. A--108.

Supreme Court of New Jersey.

Argued March 9, 1953.

Decided April 27, 1953.

George B. Astley, Newark, for appellants (Charles Handler, Newark, attorney).

Robert L. Hood, Newark, for respondent.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

The question here is whether the trial court erred in entering a summary judgment directing Newark's director of public safety and city clerk to issue to plaintiff a license to operate a theatre exhibiting burlesque shows. Defendants' appeal to the Appellate Division was certified by this court of its own motion.

The license was refused under a licensing ordinance prohibiting the operation of a theatre for commercial stage or motion picture exhibitions except under license issued with the 'approval' of the director of public safety. The ordinance also empowers the director to suspend or revoke an issued license. In either case the director's discretion is governed by the standard of what 'may be necessary for the furtherance of decency and good order'. That is the norm specified by the provisions related to the suspension or revocation of a license, but from the context of the entire ordinance that norm is plainly to be implied as applicable also to the director's 'approval' of an application for a license in the first instance. Cf. Librizzi v. Plunkett, 126 N.J.L. 17, 16 A.2d 280 (Sup.Ct.1940).

The performance of a play or show, whether burlesque or other kind of theatre, is a form of speech and prima facie expression protected by the State and Federal Constitutions, and thus only in exceptional cases subject to previous restraint by means of the withholding of a theatre license or otherwise. Any doubt raised by Mutual Film Corporation v. Industrial Commission, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552 (1915), that First Amendment protection under the Federal Constitution extends to the commercial exhibition of plays, shows and motion pictures, was removed by the recently decided case of Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).

The First Amendment has been interpreted particularly to bar previous restraints upon free expression, Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), including any attempted prior restraint by state or local authorities, Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925): Near v. State of Minnesota ex rel. Olson, supra; Joseph Burstyn, Inc., v. Wilson, supra. The comparable provision of our State Constitution is to like effect. Article I, paragraph VI of the Constitution of 1947 provides, 'Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.'

However, 'the protection even as to previous restraint is not absolutely unlimited', Near v. State of Minnesota exrel. Olson, supra, 283 U.S., at page 716, 51 S.Ct. at page 631, 75 L.Ed., at page 1367. There are 'narrowly limited classes of speech' which are not given the protection of the First Amendment. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031, 1035 (1942). By universal agreement one such exception is speech which is outrightly lewd and indecent.

But whether a particular play, show or motion picture is lewd and indecent more often is a controverted question than a matter upon which all will agree. The standard 'lewd and indecent' is amorphous, frequently of different content according to the local standard of propriety at the time and place of exhibition. There is ever present, too, the danger that censorship upon that ground is merely the expression of the censor's own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards. The cases involving prior restraints upon the exhibition of plays, shows and motion pictures illustrate the widely varying concepts of lewdness and indecency held by different censors and even by courts. Does every reference to motherhood, birth or the sex relationship Ipso facto classify the presentation as lewd and indecent? Does the presentation become such if the censor's view is that the subject matter or its treatment is not fit for commercial exhibition to patrons of places of public entertainment while suitable for presentment before medical societies or under educational or social welfare auspices? Can the presentation be banned In toto as lewd and indecent because a part--even a minute part--is coarse, vulgar or profane? These and like questions have not always been answered the same way. See Notes, 60 Yale Law Journal, 696 (April 1951); 39 Columbia Law Review, 1383 (December 1939).

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 dominant note in the motion pictures involved in Public Welfare Picture 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.

The defendant director of public safety in his affidavit in this case, and counsel, on the brief and on the oral argument, suggest that these New Jersey decisions leave the director powerless to prevent the exhibition of a presentation actually lewd and indecent even by the suspension or revocation of a license after a history of the performance of such exhibitions. That is a mistaken view of the holdings of those cases. In the Public Welfare Pictures Corp. and Hygienic Productions cases the licensing officials themselves did not contend that the motion pictures were actually lewd and indecent but only that the theme of the story portrayed by each was such that the pictures should not be commercially exhibited but shown under religious, educational or welfare auspices. The decisions held that the officials had no power so to limit the presentations. In the American Museum of Natural History case the trial court viewed the film and found as a fact that 'there is nothing suggestive, obscene, indecent, malicious or immoral in the showing of Latuko aborigines in their normal living state.' We are aware of no reported case in our books which questions the power of a municipality to deal through licensing ordinances with a presentation the dominant note of which is outrightly lewd and indecent. And note also the criminal statutes, N.J.S. 2A:115--1 and 2, N.J.S.A. True, the power of censorship 'is so abhorrent to our traditions that a purpose to grant it should not be easily inferred', Hannegan v. Esquire, Inc., 327 U.S. 146, 151, 66 S.Ct. 456, 459, 90 L.Ed. 586, 589 (1946). And there is no statutory delegation to municipalities of censorship powers as such. However, R.S. 40:52--1, N.J.S.A., authorizes municipalities to license and regulate 'theatres, cinema and show houses,' and R.S. 40:48--1(6), N.J.S.A., empowers them to adopt ordinances to 'Prevent vice, drunkenness and immorality'. Therefore, provided the ordinance sets forth a standard adequate for the purpose, 7 McQuillin, Municipal Corporations (3rd ed.), sec. 24.199, p. 17, these sections together amply suffice as a grant of power through licensing to cope with the problem of the exhibition of plays, shows and motion pictures, the dominant note of which is clearly the purveying merely of dirt for dirt's sake. The standard of 'decency and good order' in the Newark ordinance is a sufficient norm in the statutory category of vice and immorality. See Block v. City of Chicago, 239 Ill. 251, 87 L.e. 1011 (Sup.Ct.1909).

In the instant case the attempt by the defendant director was to impose a previous restraint by the refusal of the theatre license. No burlesque show has been stated in Newark by the plaintiff as a consequence. The prior restraint is therefore plainly insupportable unless the proofs which led the licensing official to conclude that plaintiff intends to stage lewd and indecent shows reasonably tend to show that such is the case. Cf. Bonserk Theatre Corp. v. Moss, supra. The applicant denied a license or the licensee whose license is suspended or revoked may, of course, have judicial review of the action of the licensing official, ordinarily, as in this case, by a proceeding in lieu of prerogative writ under Rule 3:81.

Although the court will assume that the action of the official was actuated by proper motives and for valid reasons, Aschenbacher v. Inhabitants of City of Plainfield, 121 N.J.L. 598, 3 A.2d 814 (Sup.Ct.1939), affirmed on opinion below, 123 N.J.L. 265, 8 A.2d 579 (E. & A. 1939), a judgment setting the action aside and peremptorily ordering the theatre license to issue or to be...