Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)

Schad v. Borough of Mount Ephraim

No. 79-1640

Argued February 25, 1981
Decided June 1, 1981
452 U.S. 61

APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

Syllabus

Appellants operate an adult bookstore in the commercial zone of appellee borough, and the store contains licensed coin-operated devices that display adult films. When appellants added a coin-operated mechanism permitting a customer to watch a usually nude live dancer, complaints were filed against them charging that the exhibition of live dancing violated an ordinance that restricted uses permitted in a commercial zone, and they were convicted. Rejecting appellants’ defense based on the First and Fourteenth Amendments, the trial court, while recognizing that live nude dancing is protected by the First Amendment, held that First Amendment guarantees were not involved, since the case involved solely a zoning ordinance under which live entertainment, whether a nude dance or some other form of live presentation, was not a permitted use in any establishment in the borough. The Appellate Division of the New Jersey Superior Court affirmed, and the New Jersey Supreme Court denied further review.

Held: Appellants’ convictions are invalid under the First and Fourteenth Amendments, for appellee failed to justify the exclusion of live entertainment from the broad range of commercial uses permitted in the borough. Pp. 65-77.

(a) The ordinance in question, as construed by the New Jersey courts to exclude live entertainment, including nude dancing, throughout the borough, prohibits a wide range of expression that has long been held to be within the protection of the First and Fourteenth Amendments. An entertainment program may not be prohibited solely because it displays a nude human figure, and nude dancing is not without its First Amendment protection from official regulation. Pp. 65-66.

(b) The First Amendment requires sufficient justification for the exclusion of a broad category of protected expression from the permitted commercial uses, and none of appellee’s asserted justifications withstands scrutiny. Its asserted justification that permitting live entertainment would conflict with its plan to create a commercial area catering only to the residents’ "immediate needs" is patently insufficient. As to its asserted justification that live entertainment may be selectively excluded from the permitted commercial uses to avoid problems associated with live entertainment, such as parking, trash, police protection, and medical facilities, appellee has presented no evidence that live entertainment poses problems of this nature more significant than those associated with various permitted uses, or that its interests could not be met by restrictions that are less intrusive on protected forms of expression. And as to the claimed justification that the ordinance in question is a reasonable "time, place, and manner" restriction, appellee does not identify its interests making it reasonable to exclude all live entertainment but to allow a variety of other commercial uses, and has presented no evidence that live entertainment is incompatible with the permitted uses. Pp. 67-77.

Reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 77. POWELL, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 79. STEVENS, J., filed an opinion concurring in the judgment, post, p. 79. BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 85.