The opinion of the court was delivered by: GARTH
This is an action challenging the Constitutionality of the New Jersey antiobscenity statute, L.1971, c. 449 (eff. February 16, 1972) (codified at N.J.S. 2A:115-1.1 (Supp.1972)), repealing L.1962, c. 165, § 1, as amended, L.1966, c. 199. Jurisdiction of the three-judge court is invoked under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201, 2202, 2281 and 2284.
Plaintiff, a New York corporation, is the operator of the Royal Art Theatre located at 1077 Springfield Avenue, Irvington, New Jersey. Jerry Rasnick is the manager of the Royal Art Theatre. In September of 1971, Mr. Rasnick was arrested in connection with the exhibition of certain allegedly obscene films under N.J.S. 2A:115-2, pursuant to a definition of obscenity contained in L.1962, c. 165, § 1, as amended, L.1966, c. 199, New Jersey's prior anti-obscenity law, which provided that a communication was obscene if it were established that:
"(1) The dominant theme of the material taken as a whole appeals to a prurient interest;
(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
(3) The material is utterly without redeeming social value."
Although arrested under the preceding anti-obscenity statute, plaintiff pleaded guilty to a municipal ordinance violation. In March of 1972 Mr. Rasnick was again arrested for the exhibition of allegedly obscene films at the Royal Art Theatre, this time pleading guilty to a violation of N.J.S. 2A:130-3 -- "Maintaining nuisance a misdemeanor."
Effective February 16, 1972, the New Jersey Legislature amended the definition of obscenity in its anti-obscenity statute, N.J.S. 2A:115-1.1, so as to eliminate sub-section (3) of the definition set forth above. N.J.S. 2A:115-1.1 (Supp. 1972) now provides:
"The word 'obscene' wherever it appears in the chapter to which this act is a supplement shall mean that which to the average person, applying contemporary community standards, when considered as a whole, has as its dominant theme or purpose an appeal to prurient interest."
Thus, under New Jersey's present anti-obscenity statute, matter can be obscene even if it has some redeeming social value.
Plaintiff, contending that the elimination of the "social-value" test from the definition of obscenity in the present anti-obscenity statute renders any prosecution under that definition unconstitutional, seeks declaratory and injunctive relief against enforcement of the statute.
This Court cannot entertain this action unless the plaintiff has the requisite standing and thus presents a justiciable case or controversy within Article III, Section 2 of the Constitution. Where declaratory relief is sought, "the facts alleged, under all the circumstances, [must] show that there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826 (1941). See Golden v. Zwickler, 394 U.S. 103, 108, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969); Evers v. Dwyer, 358 U.S. 202, 203, 79 S. Ct. 178, 3 L. Ed. 2d 222 (1958); YWCA v. Kugler, 342 F. Supp. 1048 (D.N.J.1972) (three-judge court).
In this case, plaintiff has been twice arrested for exhibiting allegedly obscene films -- once under the predecessor statute of that under challenge and once on a charge of a statutory misdemeanor. Plaintiff alleges that the County prosecutor has represented that the new law will be enforced to its fullest extent. Plaintiff further alleges that he will continue to exhibit sexually-oriented adult pictures of the ...