The opinion of the court was delivered by: COHEN
Once again, the entertainment provided by the Club Lido, Pennsauken, New Jersey, for its patrons is under attack.
Since then a sad lot has befallen the Club Lido: its alcoholic beverage license has been revoked; its application for renewal of the same has been denied by the local licensing authority; indictments have been returned by the Camden County Grand Jury and are pending against the owner, management, and its entertainers; and the Club had ceased its operations and closed its doors.
The latest chapter in the trials and tribulations of the ill-starred Club begins to unfold. Whether for commercial exploitation or as a matter of principle, the Club reopened its doors on February 4, 1974 with the well-advertised announcement of a new policy: "Nude Interpretive Dancing -- No Alcoholic Beverages Sold." If nothing else, the persistence of the Club is worthy of note.
The instant action, instituted by the Club Lido's owner-managers against the Prosecutor of Camden County, his first assistant and the Solicitor and Mayor of Pennsauken, New Jersey, seeks to restrain these officials from interfering with the Club's introduction of this form of entertainment to the local community and its environs. Further, a declaratory judgment is sought by the plaintiffs urging that the proposed entertainment does not fall within the purview of (1) the New Jersey Lewdness Statute or (2) the Pennsauken Ordinance prohibiting the commercial exploitation of obscene material or acts.
The issue presented to this Court is: Is "nude interpretive dancing" embraced within the guarantee of Freedom of Speech under the First Amendment to the United States Constitution?
Jurisdiction is based upon the provisions of 28 U.S.C. §§ 1331(a), 1343(3, 4), 2201, 2202, 2281 and 2284, and 42 U.S.C. §§ 1983, 1985, and under the First, Fifth and Fourteenth Amendments to the Constitution of the United States.
At a hearing held on January 25, 1974, this Court refused to issue a temporary restraining order as requested by plaintiffs. Rather, an agreement was reached between the parties and the Court wherein the Club would be allowed to open on February 4, 1974 at which time a video tape would be made for the Court's review to determine if an injunction should issue. Inasmuch as the challenge here is not directed to a book or film which could be read or viewed by the Court in the privacy of its Chambers, and a personal visit to the Club was not deemed feasible, the only alternative course of action was the submission to the Court of the video tape. Such was done, in camera, on the morning after opening night, solely by the Court, its law clerks and the operator of the equipment. Additionally, the Court was presented with several color photographs of the entertainers taken during the course of their performance. Pending the Court's decision, the Club would be free to operate without fear of police intervention.
Upon an appraisal of the tape, photographs and affidavits executed by the Court's law clerks, the following was revealed:
On the door of the Club are several large signs notifying potential patrons of the entrance fee and cover charge (ten dollars). Immediately upon entering the quonset-like building, and after paying the entrance tariff, a patron is required to sign a "waiver" which indicates that he is over eighteen years of age, that he realizes that nude entertainment is being offered and that he does not consider nude entertainment lewd or offensive, but rather he considers it to be one of his constitutional rights to view this type of entertainment. A sign to this effect is prominently displayed near the entrance.
In the center of the Club are two oval bars, each surrounding a "stage" upon which the "artists" perform. Patrons may sit at the bar, or at elevated tables lining two walls of the Club. The lighting is limited, with most illumination coming from various colored spot and strobe lights focused upon the stages.
There are two girls dancing simultaneously -- one in the center of each bar. They apparently enter from an "undressing" room located on the side of the Club. As the girls walk from the room to the stage, they are covered with sheer negligee-type garments. Upon reaching the stage, they disrobe and stand poised waiting for the first throbbing notes to sound. The girls "dance" to four numbers, then dress and leave. They are, of course, immediately replaced by two new girls.
The girls are completely nude as they gyrate with varying degrees of intensity. They bump, grind and bounce to the strains of contemporary rock music while the audience looks on sipping their one dollar soft drinks, with expressions of deep thought, nervousness, or amusement. While the girls carefully avoided fondling themselves or carrying on conversations with the patrons, the movements of their generously endowed torsos left absolutely nothing to the imagination. Indeed, those persons sitting at the bar were able to distinguish the ...