New Jersey Supreme Court decides that if you can express yourself in New York or Pennsylvania, it’s fine to restrict your speech in New Jersey

Al Bundy is devastated

There’s plenty to like about New Jersey:  Jon Bon Jovi.  Bruce Springsteen.  The Wegman’s in Cherry Hill, Total Wine, Newark’s Mayor Cory Booker, and the fact that there are so many rest stops on the Turnpike that it makes the first half of my commute to Bar Harbor Maine much more bearable.

Today, however, something in New Jersey is not to be liked, and it’s worse than jug handles or paying the troll toll when crossing the Betsy Ross Bridge to get back into Philadelphia.  The New Jersey Supreme Court issued a decision holding that a borough can restrict free speech because an adult business could potentially be operated in a neighboring state.

This is the story of Boro of Sayreville v. 35 Club, LLC.  35 Club, LLC runs Club XXXV on Route 35 in Sayreville.  Club XXXV is what Al Bundy would call “the nudie bar.”  ‘You know, “where the girlies dance, in their underpants” or “where a buck is enough to see their stuff?”

As a nudie bar, the Supreme Court held that XXXV Club meets what the New Jersey Legislature defines as a “sexually oriented business.” A “sexually oriented business” is a:

 (1)  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 where 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

(2)  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.”

c. “Specified anatomical area” means:

(1)  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

(2)  Human male genitals in a discernibly turgid state, even if covered.

d.  “Specified sexual activity” means:

(1)  The fondling or other erotic touching of covered or uncovered human genitals, pubic region, buttock or female breast; or

(2)  Any actual or simulated act of human masturbation, sexual intercourse or deviate sexual intercourse.

Heh.

When Club XXXV opened up in 2007, the Borough of Sayreville filed a lawsuit asking the court to shut it down, because New Jersey law dictates that you can’t have a “sexual oriented business”:

within 1,000 feet of any existing sexually oriented business, or any church, synagogue, temple or other place of public worship, or any elementary or secondary school or any school bus stop, or any municipal or county playground or place of public resort and recreation, or any hospital or any child care center, or within 1,000 feet of any area zoned for residential use.

Club XXXV argued that application of this statute violated its legal right to engage in free speech under the First Amendment, a concept that applies to corporations who want to donate as much as they want to SuperPACs.

Under New Jersey Law, the court has to make a determination of whether there are “adequate alternative channels of communication [for the protected activity] within the relevant market area.”  In other words, if you can take your business somewhere else, the statute isn’t overly restrictive on your First Amendment rights.

To support its position that that Club XXXV had other alternatives, the Borough called Susan S. Gruel, P.P., who, according to the opinion, “is a licensed professional planner with twenty five years of experience and an adjunct professor at Rutgers University.”  Among other things, Gruel testified that the “relevant market area” also consisted of Staten Island in New York.

Club XXXV called licensed professional planner Jason Kasler, P.P., as its expert.  He testified that there were no other real alternatives for the Club XXXV.  His analysis did not include Staten Island, presumably because New York is, you know, in a different state.  Initially the trial court found in favor of the borough.

Without getting into details, the decision to include testimony about whether Staten Island, New York, could be considered part of the “relevant market area” was appealed through the court system for awhile.  Eventually the Supreme Court of New Jersey decided to determine the sole issue of whether Staten Island could be considered part of the “relevant market area.”

The Supreme Court held that “relevant market area” does include other states.

In other words, if you can’t do it in New Jersey, but you can do it in New York or Pennsylvania, it’s not an unreasonable restriction on free speech.  The court explained that:

Our citizens regularly cross into our neighboring states for employment opportunities and entertainment of other kinds, making an analysis that would preclude any consideration of sites in those states unnecessarily restrictive in light of the behavior of our modern mobile populace.

(Although I’m pretty sure it’s technically illegal for us Pennsylvanians to drive into New Jersey to get alcohol.)

Justice Albin wrote a powerful dissent, focusing on the First Amendment:

Today, this Court becomes the first in the nation to suggest that a state can geographically restrict constitutionally permissive expression within its borders, in part, by offering a neighboring state as an alternative forum. A sexually oriented gentlemen’s club, although a disfavored form of expression by many, is nonetheless protected by both the First Amendment of the United States Constitution and Article 1, Paragraph 6 of the New Jersey Constitution.

Justice Albin then framed the issue brilliantly:

At issue is whether New Jersey can tell one of its citizens that a sexually oriented business cannot be operated in a particular location in the State because — as part of this Court’s equation — a neighboring state will accommodate its expressive activities.

Is “go do your dirty bidding in another state” a valid reason to tell someone they don’t have protection under the First Amendment? Then he gets right to the point:

In my view, New Jersey cannot under the federal or state constitution restrict the location of sexually oriented expression without providing that expression a safe haven somewhere within this State’s borders. A sexually oriented business cannot be restricted based on the notion that such constitutionally protected expressive activity is permitted in a nearby state.

New Jersey’s citizens have a federal and state constitutional right to express themselves in their State…”

One has to agree with the learned Justice Albin on this point.

How is it fair to pass speech that isn’t well liked by all, but is protected under the Constitution, onto other states?  The point of the First Amendment is that there will always be some forms of speech that aren’t liked by the majority of people.  That’s why the government is forbidden from unreasonably restricting it.  This decisions essentially allows New Jersey to push unpopular speech into other states.  As Justice Albin said, New Jersey citizens should have a right to express themselves in their own state.

In addition, think about the slippery slope this decision potentially creates.  You can write books, watch movies, and do a lot of things in Pennsylvania and New York…

35 Club, LLC is represented by First Amendment Champion Gregory Vella from The Law Firm of Collins, Vella & Casello, L.L.C.  Thanks to Mr. Vella, the club has operated continuously since 2007 while he continues to fight for their First Amdendment rights.  I therefore forgive Mr. Vella for being a Giants fan under the circumstances.

You can watch Mr. Vella in action here at the oral argument.  You can find a copy of the decision here.

3 Responses to New Jersey Supreme Court decides that if you can express yourself in New York or Pennsylvania, it’s fine to restrict your speech in New Jersey

  1. Jerry says:

    I thought that Al Bundy and his buddies in the No’mam club always went to the “Jiggly Room” for entertainment!

  2. LandUseLawStudent says:

    In City of Renton v. Playtime Theaters, 475 U.S. 41 (1986), the Supreme Court upheld the city ordinance which provided that adult theaters may not be located within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school, against a first amendment challenge. The court upheld the “content-neutral” ordinance because it was designed to serve a substantial government interest, and allows for reasonable alternative avenues of communication.

    In Borough of Sayreville v. 35 Club, LLC, (N.J. 2012), the New Jersey Supreme Court considered the narrow issue of whether a court may consider the availability of alternative channels of communication that are located in another state as part of its determination of an as-applied challenge to 2C:34-7(a), which provides that a sexually oriented business cannot operate within 1,000 feet of a public park or residential zone. The court held that courts may consider the availability of alternative channels of communication that are located in another state.

    The New Jersey Supreme Court, in Borough of Sayreville, departs considerably from the Supreme Court’s discussion of “alternative avenues of communication” in City of Renton.

    In City of Renton, the Supreme Court did not define “reasonable” or “alternative avenues of communication;” however, the facts of Renton provide one point of comparison for other adult use first amendment cases. In City of Renton, the ordinance left 520 acres, approximately 5% of the entire land area of Renton, open to use as adult theater sites. The district court found that these 520 acres constituted ample, accessible real estate, and included land in all stages of development from undeveloped land to developed, industrial, office and retail space. Playtime Theaters argued that because some of the 520 acres was already occupied by businesses, and “practically none” of the undeveloped land was currently for sale or lease, that in effect there was no commercially viable site for constructing or operating an adult theater within the 520 acres the ordinance left open for such use. The court reasoned that although it has cautioned against enactment of zoning restrictions that have the effect of suppressing or restricting access to lawful speech, the Supreme Court has “never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-regulated business for that matter, will be able to obtain sites at bargain prices.” The court concluded the ordinance provided for “alternate avenues of communication” because it “sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas.” Thus, the court’s focus in City of Renton, was that the regulation (limit) on speech-related business (the ordinance) did not prohibit all such business within the unit doing the regulating (the city) but rather separated the use from other uses out of a concern for the general safety.

    In Borough of Sayreville, the court considers how it should evaluate as-applied challenges to its state statute regulating sexually-oriented businesses, whereas in City of Renton the court determined whether a city ordinance violated the first amendment. However, the fact that the court in Borough of Sayreville was dealing with a state statute as opposed to a local ordinance should not be a sufficient reason to justify such a significant departure from the principles of City of Renton.

    The Supreme Court in City of Renton stated that the alternative channel of communication must be “reasonable.” In holding that “alternative channels of communication” can include out of state neighborhoods, the court forgets the reasonableness requirement. The holding in Borough of Sayreville, would essentially allow a local legislative to prohibit all sexually-oriented business in their municipality, so long as they are able to prove a substantial governmental interest and that other municipalities within a “regional market” provide for sexually-oriented uses.

    But is it reasonable to require patrons of sexually-oriented establishments to drive out of state? The court in Borough of Sayreville says that its holding is based in part on the fact that absent allowing courts to consider out of state areas, border towns were disadvantaged under the alternative channels of communication analysis. Similarly, the court noted that patrons of sexually-oriented businesses are often willing to cross state lines to visit these businesses, and that in some parts of New Jersey NY and PA sexually-explicit businesses are closer than NJ sexually-explicit businesses. While the court makes an interesting point, it ignores the Supreme Court’s reasoning in City of Renton which upheld the regulation on speech-oriented business in large part because the regulation (ordinance) provided available land (albeit only 5% of land) for the use within the same political unit (municipality). The court’s decision in Borough of Sayreville removes that essential element – that is, there is requirement under the court’s decision that regulation of speech-oriented business make other space available for such use within the political unit (here, the state). Thus, Borough of Sayreville indicates that now is the time for the Supreme Court to properly define the scope of “alternative avenues of communication.”

    • Leo M. Mulvihill, Jr. says:

      If you’re taking a “Social Media and the Law” class, this comment alone should net you an A.

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