Dios, J.d.c. (temporarily assigned).
This matter is before the court on plaintiff's order to show cause, pursuant to R. 4:52-1, seeking a temporary restraining order prohibiting defendants from enforcing Ordinance MC2382 which restricts the hours of exhibition of "X-rated" motion pictures from 7 P.M. until midnight. Plaintiff challenges the validity of the ordinance on the basis that its First Amendment right of free expression has been impeded and that the time limitation constitutes an unreasonable exercise of Irvington's police power. N.J.S.A. 40:48-2.
Plaintiff operates a motion picture theater which exhibits "X-rated" films in Irvington under a license to do business, obtained as a result of an order to show cause compelling the issuance thereof. By this application plaintiff seeks to expand its hours of operation by restraining defendants from enforcing the ordinance which provides in part:
Defendants contend that the regulation is justified as a valid exercise of the municipality's police power and serves the purpose of protecting the morals or general welfare of its citizenry. Specifically, they argue that the time limitations set forth in the ordinance are authorized by N.J.S.A. 40:52-1(f):
The governing body may make, amend, repeal and enforce ordinances to license and regulate: * * * f. Theatres, cinema and show houses, opera houses, concert halls, dance halls, pool or billiard parlors, bowling alleys, exhibition grounds, and all other places of public
amusement, circuses and traveling or other shows, plays, dances, exhibitions, concerts, theatrical performances and all street parades in connection therewith; * * *.
The general power of municipalities to adopt local regulatory legislation is inherent in the broad delegation of the police power contained in N.J.S.A. 40:48-2. Inganamort v. Fort Lee , 62 N.J. 521, 528 (1973); N.J. Builders Ass'n v. East Brunswick Tp. , 60 N.J. 222, 225 (1972); Kennedy v. Newark , 29 N.J. 178, 184 (1959). This power includes the right to regulate motion pictures, the medium of expression involved here. Adams Newark Theatre Co. v. Newark , 22 N.J. 472, 475-476 (1956), aff'd 354 U.S. 391, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957); Hamar Theatres, Inc. v. Newark , 150 N.J. Super. 14, 17 (App. Div. 1977).
In Adams Newark Theatre Co. v. Newark, supra , the New Jersey Supreme Court recognized that the presentation of motion pictures is protected by the constitutional right of free speech. U.S. Const. , Amend. I; N.J. Const. (1947), Art. I, par. 6. However, the court stated:
While this liberty is extensive and is usually ardently defended by the courts, it is by no means absolute. Inroads and restrictions are permitted under the aegis of the police power of the states which may be delegated to subordinate governmental bodies. In New Jersey, municipalities are granted such regulatory power in the interest of preservation of public morality. [22 N.J. at 475-476]
The First Amendment also affords protection for expression which, as in the case at bar, has been exploited for financial gain. Virginia Pharmacy Bd. v. Citizens Consumer Council , 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). Commercial speech, though protected, may be subject to regulation. Id. , 425 U.S. at 770-771, 96 S. Ct. at 1830, 48 L. Ed. 2d at 363-364. Freedom of expression is a preferred right, and close judicial scrutiny is required where the possibility of an infringement of that right exists, but where material sought to be protected does not constitute pure speech, the First and Fourteenth Amendments do not
provide the same protection. See Linmark Assocs., Inc. v. Willingboro , 431 U.S. 85, 97 S. Ct. 1614, 52 L. Ed. 2d 155 (1977); Cox v. Louisiana , 379 U.S. 536, 559, 85 S. Ct. 453, 476, 13 L. Ed. 2d 471, 487 (1965); Breard v. ...