The Monmouth County Prosecutor instituted this action under N.J.S.A. 2A:115-3.5 to enjoin the showing and exposing to public view of the motion picture "Man and Wife" and for an order compelling the defendants to surrender to him the film for destruction in accordance with N.J.S.A. 2A:115-3.7. The matter is before the Court on final hearing.
The defendant Edward N. Wilson is the owner and operator of the Strand Theatre in Keyport, New Jersey. The defendant Albert Large (improperly designated as Abert Large) is employed by Wilson as a motion picture projectionist.
On Wednesday, June 10, 1970 the film was first shown at the theatre. On Friday, June 12, 1970 a warrant for the arrest of Wilson was obtained upon complaint of a detective of the Keyport police department charging a violation of N.J.S.A. 2A:115-2. Wilson was arrested that evening, and at that time the film was seized. On June 17, 1970 Wilson, Large and Institute of Adult Education, the owner of the film, filed a complaint in this Court (Docket C-2928-69) naming as defendants the chief of police of Keyport, the detective who signed the complaint, the magistrate who issued the warrant and the prosecutor of Monmouth County, seeking a judgment restraining the defendants from interference with the exhibition of the film on the ground that it was not [111 NJSuper Page 492] obscene and its showing was constitutionally protected under the First and Fourteenth Amendments of the United States Constitution. An order to show cause issued that day directing the defendants to show cause on June 22, 1970 why they should not be restrained from making any arrests or issuing any warrants for alleged violation of N.J.S.A. 2A:115-2. After the hearing on the order to show cause the Court reserved decision. The following day, June 23, 1970, the Monmouth County Grand Jury handed up an indictment for a violation of N.J.S.A. 2A:115-2. Although the original film had been seized and was in the possession of the prosecutor, Wilson obtained another copy and resumed showing of the film on June 23, 1970. The complaint herein was filed on June 24, 1970 alleging that the film "Man and Wife" was obscene and seeking to enjoin its showing. An order to show cause for a preliminary injunction to restrain the showing of the film until the final hearing was issued returnable July 2, 1970. A request for a temporary restraining order was denied. On June 25, 1970 a second warrant was issued for the arrest of Wilson upon complaint of an investigator of the Monmouth County prosecutor's office alleging a violation of N.J.S.A. 2A:115-2. The film then being shown was not seized. Wilson filed a petition in Docket C-2928-69 on June 26, 1970 seeking to enjoin the defendants from any further arrests of him or his employees on the ground that such further arrests constituted harassment and intimidation calculated to chill his First Amendment rights and those of the public. An order to show cause was issued returnable July 2, 1970 containing a temporary restraint. On June 30, 1970 the defendants filed an answer herein denying the material allegations of the complaint and counterclaimed for a declaration that the motion picture is not obscene. The answer demanded a hearing within one day in accordance with N.J.S.A. 2A:115-3.6. The matter came before the Court for final hearing on July 1, 1970. The order to show cause in this action for a preliminary injunction has been abandoned. In Docket C-2928-69 the defendants (one of whom is the
plaintiff herein) now have consented to a preliminary injunction enjoining further arrests.
There was no pretrial conference. However, at the outset of the trial the parties agreed to the Court's statement of the issues involved:
(1) Does the dominant theme of the film taken as a whole appeal to a prurient interest in sex; that is, a shameful or morbid interest in sex, going substantially beyond customary limits of candor in description or representation?
(2) Is the film patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; community being nationwide (State v. Hudson County News Co. , 41 N.J. 247, 262-266 (1963))?
(3) Is the film utterly without redeeming social value?
To be entitled to a judgment that the film is obscene and therefore not protected by the First Amendment, the plaintiff must prove by a preponderance of the evidence the affirmative of each of the three issues. If the plaintiff does not sustain that burden, it becomes the burden of the defendants to prove by a preponderance of the evidence the negative of any one of the three issues to be entitled to a judgment on the counterclaim.
Although N.J.S.A. 2A:115-1.1 defines obscenity, such definition must stay within the constitutional bounds laid down by the United States Supreme Court in Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), as refined in A Book Named "John Cleland's Memoirs of a Woman of Leisure" v. Attorney General of the Commonwealth of Massachusetts , 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2 d 1 (1966) (Memoirs). See Mishkin v. New York , 383 U.S. 502, 507-508, 86 S. Ct. 958, 962-963, 16 L. Ed. 2 d 56, 61 (1966). The issues, therefore, are based upon the definition of obscenity stated in Roth and Memoirs.
The Court viewed the film which runs for 65 minutes. It begins with an introduction quoting from Dr. T. H. Van de Velde, the author of "Ideal ...