Facts
- Joseph Schad and another proprietor operated an adult bookstore in Mount Ephraim, New Jersey, with coin-operated devices showing adult films.
- The proprietors added a coin-operated mechanism allowing customers to view a live dancer, usually nude.
- Mount Ephraim enforced a zoning ordinance that limited permitted commercial uses and, as construed by state courts, excluded all live entertainment anywhere in the borough.
- Municipal complaints alleged the live-dancing exhibition violated the zoning ordinance’s permitted-use restrictions.
- The trial court convicted the proprietors, acknowledging nude dancing had First Amendment protection but treating the case as involving only zoning because all live entertainment was barred.
- The Appellate Division affirmed, and the New Jersey Supreme Court denied review.
- The U.S. Supreme Court noted probable jurisdiction.
Issues
- Whether a municipality may, through zoning, categorically exclude all live entertainment from otherwise permitted commercial uses consistent with the First and Fourteenth Amendments.
- Whether non-obscene nude dancing and other forms of live entertainment constitute protected expression requiring substantial governmental justification before exclusion.
- Whether asserted interests such as serving residents’ “immediate needs” and avoiding adverse secondary effects can justify a total ban without evidentiary support and without considering less restrictive alternatives.
Decision
- The Supreme Court reversed in a 7–2 decision (Justice White for the Court; Chief Justice Burger and Justice Rehnquist dissenting).
- The Court held the convictions invalid under the First and Fourteenth Amendments because the borough failed to justify excluding live entertainment from the range of otherwise permitted commercial uses.
- The Court recognized that the ordinance, as construed, prohibited a wide range of protected expression, including plays, concerts, and dance, not merely nude dancing.
- The borough’s “immediate needs” rationale was insufficient to support a categorical prohibition on an entire medium of protected expression.
- The borough offered no evidence that live entertainment created parking, trash, policing, or similar problems greater than those associated with permitted uses, nor that such concerns could not be addressed through less restrictive regulation.
- The Court distinguished zoning upheld in prior adult-business cases as allowing dispersal or location regulation, not total exclusion of adult theaters or all live entertainment.
- The dissent would have afforded greater deference to local land-use judgments aimed at preserving a quiet residential community character.
Legal Principles
- Live entertainment, including non-obscene nude dancing, is expression protected by the First and Fourteenth Amendments.
- A zoning scheme that broadly excludes a protected medium of expression from permitted commercial uses requires sufficient governmental justification.
- Generalized or conclusory invocations of municipal planning goals do not justify a categorical ban on protected expression.
- “Secondary effects” rationales must be supported by evidence and cannot justify an across-the-board prohibition where less speech-restrictive measures (including time, place, and manner limits) could address the stated concerns.
- Municipal zoning authority, though broad, is constrained when it substantially burdens protected expressive activity.
Conclusion
The Court invalidated Mount Ephraim’s use of zoning to exclude all live entertainment, holding that a municipality may not impose a categorical ban on a broad class of protected expression without evidence-based justification and a narrower regulatory approach consistent with the First and Fourteenth Amendments.