By this action plaintiff seeks to invalidate an ordinance that bars nude sunbathing on the beaches of Lower Township, New Jersey. The initial challenge is on constitutional grounds, plaintiff claiming that the ordinance impermissibly restricts freedom
of expression, the right to privacy, freedom of association and certain undefined but constitutionally protected liberties. Although the challenge to this ordinance is broad-based, since the particular beach being used by plaintiff's members is part of a state-owned wildlife preserve, plaintiff also claims that the Township lacks jurisdiction to enforce the ordinance at that site. With respect to that portion of the challenge, plaintiff is joined by the State of New Jersey as intervenor. With one exception, all parties agree that the material facts are not in dispute and that this case can be decided based on the stipulated facts, trial briefs and oral argument. The following represents the judgment of this court.*fn1
Plaintiff, Tri-State Metro Naturists (hereinafter Tri-State) is an unincorporated organization whose members advocate and practice a so-called "clothing-optional lifestyle." Their activities include nude bathing and sunbathing as well as lobbying, informational dissemination and furnishing legal counsel where needed. The organization serves members in New Jersey, New York and Connecticut. For many years several of Tri-State's members have engaged in nude sunbathing on a stretch of beach in Lower Township, New Jersey known as Higbee Beach. For some, the practice has gone on more or less uninterrupted for almost two decades. During the last two or three years, however, the Township has arrested several of plaintiff's members and charged them with violations of the State Obscenity Laws. N.J.S.A. 2C:14-4. Although convictions resulted, they were reversed on appeal based on the conclusion that nudity alone did not constitute lewdness under the State Criminal Code. The Township then enacted Ordinance No. 86-15 (July 21, 1986) which, among other things, makes it unlawful for any person to appear or travel on any street, beach or other public
place in the Township in a state of nudity. Members of plaintiff organization continued to sunbathe nude and on July 27, 1986 Township police arrested certain of them and charged them with a violation of the ordinance. Plaintiff then initiated this suit.
The site of the nude sunbathing is a portion of a state-owned wildlife preserve known as Higbee Beach. Higbee Beach consists of approximately 200 acres of generally undeveloped land bordering on Delaware Bay along the southerly most tip of Cape May County. That property was purchased by the State of New Jersey in 1978, following which a Management Plan was adopted by the Department of Environmental Protection and implemented through the Division of Fish, Game and Wildlife. The Management Plan reflects the "growing number of outdoor enthusiasts" that visit the area and the "increasing popularity with such tourists as a free beach and place of quiet solitude." Pursuant to N.J.S.A. 13:8A-25 regulations were promulgated covering a wide variety of subjects, the primary purpose of which was to preserve wildlife but which included the management of human conduct as well, including recreational activities. N.J.A.C. 7:25-2.20. The recreational activity covered by the regulations is extensive and includes birdwatching, picnicking and bathing. No prohibition exists, however, with respect to nude bathing or sunbathing. See N.J.A.C. 7:25-2.9.
One of the characteristics of Higbee Beach that became an item of dispute between the parties and the one fact which could not be stipulated was whether it was secluded. Since that fact had a potential impact on certain of the constitutional issues raised, the court was asked to resolve that dispute based on a site inspection. Having completed the inspection, it is this court's conclusion that the area can clearly be labeled as secluded. There is only one road that leads into Higbee Beach and the area is not easily accessible through neighboring property. It is not a place that one would stumble upon by accident. On the other hand, it is clearly open to the public and is used by
a large number of people. The fact that it is remote and secluded, therefore, does not mean that it is private or out of public view. Although no specific proofs were presented with respect to how many people visit the area, studies done by the State as part of its Management Plan support the conclusion that the number is substantial. Those studies include traffic counts during different periods and show that in 1985, for example, approximately 56,000 people visited Higbee Beach. Although that specific number is not critical to the court's findings, judicial notice may be taken of the studies generally to support the factual conclusion that the area is visited by a large number of people who engage in a variety of activities. Evid.R. 9(2)(a). It is undisputed that the members of Tri-State represent a small percentage of the total.
Two general areas require examination in order to resolve the legal issues raised by plaintiff's challenge. The first involves a variety of constitutional claims; the second deals with principles of state sovereignty. Since plaintiff's constitutional claims, if successful, impact on the enforceability of the ordinance in areas beyond Higbee Beach, those issues will be examined first.
(1) Freedom of Expression
Plaintiff argues that nude sunbathing is constitutionally protected under both the Federal and State Constitutions.*fn2 Its initial claim is that governmental efforts to preclude it, such as this ordinance, violate the freedom of expression protected by the First and the Fourteenth Amendments to the United States
Constitution. Plaintiff's argument is that because its members are part of an organization which has chosen a clothing-optional lifestyle their practice of nude sunbathing represents a form of passive expression that cannot be the subject of a total ban. No case has been cited that supports this argument. In fact, those cases that have addressed the subject suggest the contrary. As noted in Williams v. Hathaway, 400 F. Supp. 122, 126 (D.C.Mass.1975), there is little in plaintiff's conduct that merits First Amendment protection. While there may be an element of nonverbal expression inherent in nude sunbathing, its communicative character is not sufficiently distinct to warrant constitutional protection. It is more akin to wearing one's hair long. See Richards v. Thurston, 424 F.2d 1281 (1st Cir.1970); Ibid. Both acts are "fundamentally individualistic and personal rather than expressive or communicative." Williams v. Hathaway, 400 F. Supp. at 126.
In affirming Williams the Court of Appeals made the following observation:
The distinction must be made between groups concerned with discussing and promoting a pleasurable activity, and those gatherings of those people merely desiring to pursue that activity where it can take place. [ Williams v. Kleppe, 539 F.2d 803, 806, n. 9 (1st Cir.1976).]
Other federal decisions are to the same effect. See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975), involving freedom of expression and nudity on a publicly visible drive-in movie screen; see also, Richards v. Thurston, where the First Circuit noted that "the right to appear au naturel at home is relinquished when one sets foot on a public sidewalk." 424 F.2d at 1285.
Nudity, of course, is not in itself obscene. Erznoznik v Jacksonville, 422 U.S. at 215, 95 S. Ct. at 2275. When combined with other forms of expression such as nude dancing, for example, it may be protected as a form of expression. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); Schad v. Mt. Ephraim, 452 U.S. 61, 101 ...