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State v. Budco Quality Theaters Inc.

December 9, 1977

STATE OF NEW JERSEY
v.
BUDCO QUALITY THEATERS, INC., DEFENDANT



Rossetti, J.c.c.

Rossetti

[155 NJSuper Page 51] This is an appeal from defendant's municipal court conviction for exhibiting a film depicting acts of sado-masochistic abuse on an outdoor screen which was

visible from beyond the theater audience area, in violation of N.J.S.A. 2A:170-25.18.

The defendant argues that the statute deprives it of rights which are protected by the First Amendment of the United States Constitution. The basis for defendant's attack is a recent United States Supreme Court opinion, Erznoznik v. City of Jacksonville , 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975). In that case the Court held that a municipal ordinance unconstitutionally infringed on First Amendment rights where it proscribed the exhibition of any motion picture in which the human male or female bare buttocks, human female bare breasts or human bare public areas are shown on a screen visible from any public street or public place.

The New Jersey statute provides:

Whoever exhibits any motion picture in which any person is shown, depicted or revealed in any act of sexual conduct or sado-masochistic abuse in any outdoor theater where the screen is visible beyond the limits of the theater audience area, so that such motion picture may be readily seen and its content or character distinguished by normal unaided vision by a person viewing it from beyond said limits, is a disorderly person. [ N.J.S.A. 2A:170-25.18]

It does not appear that the effect of the Erznoznik opinion on New Jersey's statute has ever been determined.

Defendant's attack on the statute is primarily based on the court's conclusion in Erznoznik , that the limited privacy interests of persons on the public streets cannot justify censorship of films being seen from such streets and other public places "where the offended viewer can readily avert his eyes." 422 U.S. at 212, 95 S. Ct. at 2274. This attack fails to recognize the State's valid concern with the exposure of children to material depicting sado-masochistic abuse.

It is well settled that a state can adopt more stringent controls on communicative materials available to youths than on those available to adults. Ginsberg v. New York , 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). The rationale underlying this principle is that parents, who bear primary

responsibility for children's well-being, are entitled to the support of laws designed to aid discharge of that responsibility. Id.; Report of the N.J. State Commission to Study Obscenity and Depravity in Public Media 46 (1970). In Ginsberg, supra , the court upheld a New York statute which prohibited distribution of sado-masochistic material to minors. It is interesting to note that the definition of "sado-masochistic abuse" in that statute parallels N.J.S.A. 2A:170-25.19. The Supreme Court's recent decision in Ward v. Illinois , 431 U.S. 767, 97 S. Ct. 2085, 52 L. Ed. 2d 738 (1977), leaves no doubt that a state may prohibit the dissemination of materials depicting sado-masochistic abuse.

New Jersey's statute bears little similarity to the municipal ordinance which was invalidated in Erznoznik, supra. The Supreme Court there found that the ordinance was overbroad because it was "not directed against sexually explicit nudity, nor is it otherwise limited." 422 U.S. at 213, 95 S. Ct. at 2274. Such enactments, the court feared, would bar films in which a baby's buttocks, the nude body of a war victim, bathers on a beach, scenes from a culture in which nudity is indigenous, or newsreel scenes from the opening of an art exhibit were shown. Id. In contrast, the New Jersey statute is narrowly drawn so as to shield from undesired public purview only those films which depict acts of sexual conduct or sado-masochistic abuse. "Sexual conduct" is defined in N.J.S.A. 2A:170-25.19 as "human masturbation, sexual intercourse, or any touching of the genitals, public areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification " (emphasis supplied). ...


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