Hamilton Amusement Center v. Verniero

716 A.2d 1137, 156 N.J. 254, 1998 N.J. LEXIS 628
CourtSupreme Court of New Jersey
DecidedJuly 21, 1998
StatusPublished
Cited by83 cases

This text of 716 A.2d 1137 (Hamilton Amusement Center v. Verniero) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamilton Amusement Center v. Verniero, 716 A.2d 1137, 156 N.J. 254, 1998 N.J. LEXIS 628 (N.J. 1998).

Opinions

The opinion of the Court was delivered by

COLEMAN, J.

This appeal challenges the constitutionality of N.J.S.A. 2C:34-7c that restricts the size, number, and content of signs that sexually oriented businesses may display. The case calls for the sensitive balancing of the interests of sexually oriented businesses in free speech with the State’s interest in minimizing the adverse secondary effects caused by those businesses. The Appellate Division found that the statute does not violate federal or state constitutional guarantees to freedom of speech and that the statute is not void for vagueness. 298 N.J.Super. 230, 689 A.2d 201 (1997). We granted certification, 150 N.J. 24, 695 A.2d 667 (1997), and now affirm.

I

For some time prior to August 1995, plaintiffs Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, Pyneo, Inc., t/a Camelot Book Store, and Crescendo Book, Inc., t/a Carnival Books (collectively referred to as “Hamilton” or “plaintiffs”) owned or operated sexually oriented businesses selling a variety of magazines, books and videotapes, including adult materials. Plaintiffs used large signs to advertise the types of products sold, operating hours, and the locations of entrances. On August 16,1995, Governor Whitman signed Assembly Bill No. 252 (1994), L. 1995, c. 230, codified at N.J.S.A. 2C:34-6 and N.J.S.A. 2C:34-7, that directly affects those signs. N.J.S.A. 2C:34-6 defines the key words and phrases used in the legislation, and N.J.S.A. 2C:34-7 contains the restrictions on signage and the establishment of perimeter buffer requirements that triggered this litigation.

On September 3,1995, plaintiffs instituted the present litigation challenging the constitutionality of the signage restrictions in [263]*263N.J.S.A 2C:34-7c. Subsection c provides: “No sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign giving notice that the premises are off limits to minors. The identification sign shall be no more than 40 square feet in size.” N.J.S.A. 2C:34r-7c.

Plaintiffs alleged in their complaint that those restrictions violate the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. Plaintiffs also contended that the provision is unconstitutionally vague because it fails to define “identification sign.” Finally, they alleged that N.J.S.A 2C:34-7c violates their Fourteenth Amendment rights to equal protection because the statute targets only sexually oriented businesses. Plaintiffs sought declaratory and injunctive relief to prevent the State from enforcing N.J.S.A. 2C:34-7e.

The trial court determined that N.J.S.A. 2C:34-7c was a content-based restriction on speech and applied strict scrutiny. The court found the provision unconstitutional under Article I, Paragraph 6 of the New Jersey Constitution because the State failed to articulate a factual basis to establish the legitimacy of its asserted compelling state interests — traffic safety and the protection of minors. Alternatively, the trial court found that the statute failed to survive the less onerous time, place, and manner analysis because it was not narrowly tailored to protect against the secondary effects of sexually oriented businesses. The trial court entered a permanent injunction on December 19,1995.

The Appellate Division reversed, concluding that N.J.S.A. 2C:34-7c targets only commercial speech and therefore is not subject to strict scrutiny. Hamilton, supra, 298 N.J.Super. at 238, 689 A.2d 201. The Appellate Division reasoned that the protection of minors and the regulation of traffic safety are both substantial governmental interests, id. at 239-40, 689 A.2d 201, and that N.J.S.A. 2C:34-7c is not substantially broader than necessary because it allows two signs, does not proscribe other modes of advertisement, does not limit the material that may be displayed within the store, and does not place any significant [264]*264limitation on what may be advertised on the two signs. Id. at 241, 689 A.2d 201.

The Appellate Division construed the sign requirements to permit affixing the street numbers of the property as required by federal postal regulations and to permit the posting of temporary political signs. Id. at 241 n. 6, 689 A.2d 201. The Appellate Division also interpreted “identification sign” to include: the name of the establishment; its street number; its telephone number; its operating hours; and the general nature of the establishment. Id. at 242, 689 A.2d 201.

II

First, we address plaintiffs’ contention that N.J.S.A. 2C:34-7c violates state and federal constitutional guarantees of free speech. The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech____” U.S. Const, amend. I. The First Amendment restriction on governmental interference with free speech was made applicable to the states by the Fourteenth Amendment to the United States Constitution. U.S. Const, amend. XIV, § 1; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516, 116 S.Ct. 1495, 1515, 134 L. Ed.2d 711, 736 (1996); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940).

Article I, Paragraph 6 of the New Jersey Constitution provides: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” N.J. Const, art. I, ¶ 6. Because we ordinarily interpret our State Constitution’s free speech clause to be no more restrictive than the federal free speech clause, Shelton College v. State Bd. of Educ., 48 N.J. 501, 518, 226 A.2d 612 (1967), “[w]e rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution.” Karins v. City of Atlantic City, 152 N.J. 532, 547, 706 A.2d 706 (1998); see Bell v. Township of Stafford, 110 N.J. 384, 393, 541 A.2d 692 [265]*265(1988) (stating that constitutional approach taken by United States Supreme Court when examining commercial speech conforms to our own). Two exceptions to the general rule, which are not involved here, are political expressions at privately-owned-and-operated shopping malls, New Jersey Coalition v. J.M.B., 138 N.J. 326, 650 A.2d 757 (1994), and defamation, Sister v. Gannett Co., 104 N.J. 256, 271, 516 A.2d 1083 (1986).

-A-

Our decision whether N.J.S.A. 2C:34-7e regulates only commercial speech will in turn determine the appropriate level of scrutiny to be applied. Plaintiffs argue that both commercial and political speech are impacted by the statute. They contend that even under the Appellate Division’s construction of the statute to allow the posting of temporary political signs, they are prohibited from conveying political messages on the identification sign, from posting non-temporary political signs, and from posting signs related to religion or “everyday problems.” Plaintiffs also contend that because the statute distinguishes between sexually oriented businesses and other businesses, strict scrutiny is appropriate.

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Bluebook (online)
716 A.2d 1137, 156 N.J. 254, 1998 N.J. LEXIS 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-amusement-center-v-verniero-nj-1998.