On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling and Jacobs. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J. Jacobs, J. (concurring). Jacobs, J., concurring in result.
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 (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), ...