The opinion of the court was delivered by: WOLIN
On June 29, 1998, the Court preliminarily enjoined New Jersey from enforcing N.J.S.A. 2C:47-10, which prohibits inmates at the Adult Diagnostic and Treatment Center ("ADTC") from possessing or obtaining "sexually oriented materials," because Richard Waterman and Michael Curtis ("plaintiffs"), who are inmates at the ADTC, had shown that they were likely to succeed on the merits, that they would suffer irreparable harm if the Court did not issue the injunction, that New Jersey would not be injured if the Court issued the injunction, and that the public interest weighed in favor of plaintiffs. The Court must now determine whether N.J.S.A. 2C:47-10 is constitutionally infirm.
The Court reiterates that it is sensitive to society's concern and interest in defending against and punishing sex offenders. Moreover, the Court is cognizant of the public outrage that the preliminary injunction created. The Court's disapprobation of this statute, however, flows from its duty to uphold the Constitution, which protects all citizens, including convicted felons. History teaches that when society stands idly by as the state violates the rights of one segment of the body politic, the rights of others will eventually be diminished. The flashback of Pastor Martin Niemueller, a Protestant anti-Nazi who was imprisoned in a concentration camp during the war, exemplifies the currency of this principle:
First they came for the Socialists and I did not speak out because I was not a Socialist;
Then they came for the trade unionists and I did not speak out because I was not a trade unionist;
Then they came for the Jews and I did not speak out because I was not a Jew;
Then they came for me and there was no one left to speak for me.
If this statute is worthy of retention and serves a valid penological interest, then the New Jersey Legislature has the duty to enact it so that it comports with the Constitution.
The Court will permanently enjoin New Jersey from enforcing N.J.S.A. 2C:47-10 because New Jersey has not overcome the insurmountable burdens discussed in the Court's initial Opinion. Furthermore, the Court has determined that plaintiffs' experts' opinion that psychologists should assess the effect of sexually oriented materials on the treatment of the inmates at the ADTC on a case-by-case basis is a more reasonable approach for dealing with the materials than is N.J.S.A. 2C:47-10.
I. Standard for Permanent Injunction
Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, district courts are permitted to consolidate a hearing for a preliminary injunction with the trial on the merits. In this case, New Jersey and plaintiffs have informed the Court that they are willing to rely on their written submissions and that a trial is unnecessary for the adjudication of this case. Thus, according to the parties' decision to forego a trial and Rule 78 of the Federal Rules of Civil Procedure, this Court will decide this case without a trial or oral arguments.
For the Court to issue a permanent injunction, plaintiffs must: (1) succeed on the merits, (2) establish that they will be irreparably injured if the Court does not issue the injunction, (3) show that the issuance of the permanent injunction will not cause greater harm to the defendant, and (4) demonstrate that the injunction is in the public interest. See CIBA-GEIGY Corp. v. Bolar Pharm. Co., Inc., 747 F.2d 844, 850 (3d Cir. 1984) ("In deciding whether a permanent injunction should be issued, the court must determine if the plaintiff has actually succeeded on the merits (i.e. met its burden of proof). If so, the court must then consider the appropriate remedy.").
At the outset, the Court notes that it will not revisit the facts or all of the arguments and issues raised in its initial Opinion because this Opinion serves ...