On appeal from Superior Court, Law Division, certified to Supreme Court of its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by William J. Brennan, Jr., J. Wachenfeld, J. (dissenting).
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 theater 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 theater 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 (Sup. Ct. 1940).
The performance of a play or show, whether burlesque or other kind of theater, 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 theater 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 ex rel. 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. 2 d 541, 547 (Sup. Ct. 1942). It is the absence of this dominant note in the motion pictures involved in Public Welfare Pictures Corp. v. Brennan, 100 N.J. Eq. 132 (Ch. 1926); Hygienic Productions v. Keenan, 1 N.J. Super. 461 (Ch. Div. 1948) and American Museum of
Natural History v. Keenan, 20 N.J. Super. 111 (Ch. Div. 1952), which underlies those holdings denying any power in the public officials ...