Defendant is charged with violation of N.J.S.A. 2A:115-1.8, the sale of obscene material, as defined by N.J.S.A. 2A:115-1.7, to persons under 18 years of age. It is defendant's contention that he cannot be found guilty under this statute because it is unconstitutional and void for being vague and indefinite, in violation of the N.J. Const. (1947), Art. I, par. 1, and the Fifth and Fourteenth Amendments to the United States Constitution.
Specifically, defendant asserts that the statute "fails to state narrowly-drawn, reasonable and definite standards to measure what materials fall into the category of being obscene." In addition he argues that a State has no right to establish different standards in determining obscene materials for adult and minors.
Addressing defendant's last argument first, it has been established for some time that a state or city, because of its strong and abiding interest in its youth, is not without authority to limit the access to minors of materials which would be objectionable as to them, but would not be objectionable in its appeal to adults. Cinecom Theatres Midwest
St. Inc. v. City of Fort Wayne , 473 F.2d 1297 (9 Cir. 1973); Interstate Circuits v. Dallas , 390 U.S. 676, 690, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968); Ginsburg v. New York , 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). On the authority of Ginsburg , a city, in order to protect its children, can restrict a child's exposure to nudity in an obscene context, and can define obscenity as it relates to only children. Cinecome Theatres Midwest St. Inc. v. Fort Wayne, supra. Thus, as to some materials, sales to adults may be a constitutionally protected activity, while sales of the same material to minors may be barred and punished. This concept of "variable obscenity" in statutes is generally upheld.*fn1
Defendant, in his brief, conceded that the New York statute (under attack in the Ginsburg case), in its definition of obscenity as it relates to minors, was held to have a rational relation to a legitimate state objective of safeguarding minors from harm. Is it defendant's contention that the New Jersey statute, N.J.S.A. 2A:115-1.8, has no such interest and objective? The power and authority of a state to protect its youth from objectionable materials and establish two standards of obscenity, one for adults and one for minors, is firmly planted. The United States Supreme Court in the Ginsburg case adopted the language in Bookcase
Inc. v. Broderick , 18 N.Y. 2d 71, 271 N.Y.S. 2d 947, 218 N.E. 2d 668 (Ct. App. 1966), app. dism. sub nom. Bookcase, Inc. v. Leary , 385 U.S. 12, 87 S. Ct. 81, 17 L. Ed. 2d 11 (1966), to uphold the validity of the statute:
Material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined. Because of a State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults. [390 U.S. 629 at 636, 87 S. Ct. at 1278.]
Thus, the cases before Ginsburg , as well as its progeny, seem to have adopted the common sense approach to the problem in having consistently allowed a state to be more strict in its regulations of obscene materials circulated among minors.
The second issue raised by the defendant is the constitutionality of N.J.S.A. 2A:115-1.7 and N.J.S.A. 2A:115-1.8. Specifically, it is his contention that the statute in question does not comport with the latest standards and definition of obscenity set out in 1973 by the Supreme Court of the United States in Miller v. California , 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), reh. den. 414 U.S. 881, 94 S. Ct. 26, 38 L. Ed. 2d 128 (1973).
In Miller the Supreme Court dealt with a defendant who was charged with the distribution of obscene materials (not to minors). In doing so it announced a new standard to determine obscene material for adults. The new test which is to be ...