Plaintiff, Prosecutor of Monmouth County, instituted this action under N.J.S.A. 2A:115-3.5, seeking injunctive relief to prohibit the further showing of two motion pictures, "Deep Throat" and "Love for Sale", and for surrender of the films to the Sheriff for destruction in accordance with N.J.S.A. 2A:115-3.7. Defendant Wilson is president of C and V Theatre Corporation which had shown the motion pictures to the public on various dates during February and March 1973. The Answer admits the showing of the motion pictures but denies that they are obscene. By counterclaim defendants seek a declaration that N.J.S.A. 2A:115-1.1, N.J.S.A. 2A:115-2, N.J.S.A. 2A:115-3.4 and N.J.S.A. 2A:115-3.5 are unconstitutional. The matter is before the court on final hearing.
The issue raised by the counterclaim is the interpretation of N.J.S.A. 2A:115-1.1 and the determination of its constitutionality.
It is agreed that if that provision is constitutional, the other statutes referred to are constitutional with the exception of N.J.S.A. 2A:115-3.5.
N.J.S.A. 2A:115-1.1 defines "obscene":
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.
This definition was contained in L. 1971, c. 449, § 3. Before the adoption of that act "obscene" had been defined:
(a) 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.
(b) Any book, publication, picture, writing, record or other mechanical or electronic audio or visual reproduction or other material shall be obscene within the meaning of subsection (a) hereof if it is 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.
The Legislature in making the change spoke clearly as to its intent by stating in N.J.S.A. 2A:115-1.1a:
The Legislature finds that the standards of obscenity now enunciated in chapter 115 of Title 2A of the New Jersey Statutes as amended and supplemented in recent years is unnecessarily permissive and a hindrance to effective legal action against obscene matter. The Legislature further finds that such unnecessary permissiveness has resulted from the incorporation into New Jersey Statutes of language from influential opinions authored by certain United States Supreme Court justices; which language, however, does not represent binding majority decisions of the Supreme Court and, ...