Dreier, J.c.c., Temporarily Assigned.
Defendants are the owners and operators of an adult book store in Union Township, allegedly engaged in the dissemination of sexually oriented literature. As a result they have been charged in a multi-count indictment with violating N.J.S.A. 2A:115-2 which reads in pertinent part:
Any person who, without just cause, utters or exposes to the view or hearing of another, or possesses with intent to utter or expose to the view or hearing of another, any obscene or indecent book, publication, pamphlet, * * * or any person who shall sell, import, print, publish, loan, give away, or distribute or possess with intent to sell, print, publish, loan, give away, * * * or offer for sale any obscene or indecent book, publication, pamphlet, * * * is guilty of a misdemeanor.
Defendants have moved, pursuant to R. 3:10-3, to challenge the constitutionality of the statute.
Although other arguments were advanced and disposed of at oral argument, the most troublesome issues raised by defendants are (1) the continuing viability of the "stopgap" interpretation of the statute propounded in State v. DeSantis ,
65 N.J. 462 (1974); (2) whether the statute is contrary to rights secured by Art. I, par. 6 of the New Jersey Constitution and the First and Fourteenth Amendments of the Federal Constitution for vagueness, and (3) whether it is overbroad, permitting discriminatory enforcement, contrary to the command of the Equal Protection Clause of the Fourteenth Amendment. It should be noted at the outset that the allegations of both unconstitutional vagueness and over-breadth are directed to the language of N.J.S.A. 2A:115-2, quoted above, not to N.J.S.A. 2A:115-1.1, the definitional portion of the statute recently construed in DeSantis.
I. Definitional Amendment by DeSantis.
In De Santis our Supreme Court reformed the statutory definition of obscenity, since the language of the present New Jersey statute does not comport with the reformulated test propounded by the United States Supreme Court 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 abandoned the requirement established earlier in Memoirs v. Massachusetts , 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), providing that sexually oriented literature could not be proscribed unless, among other things, it was found to be "utterly without redeeming social value." The infirmity of the Memoirs test was that it imposed an affirmative duty on the prosecution to prove a negative; a task which the Miller court found to be "virtually impossible to discharge under our criminal standards of proof." 413 U.S. at 22, 93 S. Ct. at 2613. Under Miller , a finding of obscenity now requires three elements:
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, * * *; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. * * * [at 24, 93 S. Ct. at 2614]
Miller also noted that state law could so regulate obscene material either as the law was "written or construed." ...