On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication February 7, 1997. As Corrected March 26, 1997.
Before Judges Petrella, Landau and Kimmelman. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
The State of New Jersey appeals from the Law Division's decision that N.J.S.A. 2C:33-12.2 was an unconstitutional, content-based restriction on free speech, as well as void for vagueness, and an order permanently enjoining its enforcement. We reverse.
Chez Sez VIII, Inc., t/a United Video, David Porten, t/a Adult Entertainment Center, Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, and Vito J. Fruggiero, Inc., t/a Red Barn Books (collectively referred to as plaintiffs) are retail book and video stores which sell and rent adult materials including video tapes, as well as provide private viewing booths for such materials. Plaintiffs obtained a judgment declaring N.J.S.A. 2C:33-12.2 *fn1 violative of their First Amendment rights.
The challenge to the statute here concerns essentially the provisions relating to booths or enclosures. The Law Division Judge granted preliminary restraints *fn2 against enforcement of the subject statute because he considered it a content based restriction on free expression since it only applied to "sexually oriented businesses." Applying strict scrutiny, the Judge concluded that although the statute promoted a significant government interest in reducing the spread of sexually transmitted diseases, it was not the least restrictive means of achieving that goal. Additionally, the Judge was of the opinion the statute was void for vagueness because ordinary persons would not know which type of booth facilitated sexual activity.
On appeal the State essentially argues: (1) the statute is a content neutral regulation, designed to ameliorate secondary effects of sexually oriented businesses, and (2) the statute is understandable to persons of average intelligence. Alternatively, it argues that if the statute is found to be vague, we should construe it in such a manner as to allow it to stand and excise any constitutional defect.
Governor Whitman signed into law Senate Bill No. 342 of 1995 (S-342) which, among other things, prohibits in Section 2 (N.J.S.A. 2C:33-12.2) commercial establishments from providing booths or similar enclosures "which facilitate sexual activity." L. 1995, c. 167, eff. Sept. 3, 1995. Thus, N.J.S.A. 2C:33-12.2 provides:
Sexually oriented businesses
(1) "Sexually oriented business" means:
(a) A commercial establishment which as one of its principal business purposes offers for sale, rental, or display any of the following:
Books, magazines, periodicals or other printed material, or photographs, films, motion pictures, video cassettes, slides or other visual representations which depict or describe a "specified sexual activity" or "specified anatomical area"; or still or motion picture machines, projectors or other image-producing devices which show images to one person per machine at any one time, and whether the images so displayed are characterized by the depiction of a "specified sexual activity" or "specified anatomical area"; or instruments, devices, or paraphernalia which are designed for use in connection with a "specified sexual activity"; or
(b) A commercial establishment which regularly features live performances characterized by the exposure of a "specified anatomical area" or by a "specified sexual activity," or which regularly shows films, motion pictures, video cassettes, slides, or other photographic representations which depict or describe a "specified sexual activity" or "specified anatomical area";
(2) "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity.
(3) "Specified anatomical area" means:
(a) Less than completely and opaquely covered human genitals, pubic region, buttock or female breasts below a point immediately above the top of the areola; or
(b) Human male genitals in a discernibly turgid state, ...