of age. Additionally, the section prohibits one from
admitting a person under eighteen years of age to a
theater then exhibiting an “obscene film,” as that term is
defined in N.J.S.A. 2C:34-3a(2). The definition of
“obscene materials” under N.J.S.A. 2C:34-3 is different
from the definition of “obscene materials” provided in
N.J.S.A. 2C:34-2. N.J.S.A. 2C:34-3, which seeks to
protect minors from obscene materials, sets forth a
definition of “obscene materials” which includes
materials which might not be obscene under N.J.S.A.
2C:34-2 (which protects adults from the dissemination of
obscene materials). However, a state, because of its strong
and abiding interest in its youth, has the authority to
limit the access to minors of materials which would be
objectionable as to them, but would not be objectionable
in its appeal to adults. Thus, as to some materials, sales
to adults may be a constitutionally protected activity,
while sales of the same materials to minors may be barred
and punished. Ginsburg v. New York, 390 U.S. 629
(1968); Cinecom Theaters Midwest St. Inc. v. City of Fort
Wayne, 473 F.2d 1297 (9th Cir. 1973); Trombetta v.
Atlantic City, 181 N.J. Super, 203 (Law Div. 1981); State
v. Seigel, 139 N.J. Super. 373 (Law Div. 1976).
In order to be found guilty of committing one of the
above offenses, the defendant must know that the
material or film was obscene and that the person was
under eighteen years of age. Where the material or film
was in fact obscene and the person was under eighteen
years of age, N.J.S.A. 2C:34-3d presumptively supplies
the defendant with the requisite knowledge. Neverthe-
less, the statutory presumption does not relieve the State
of its burden of proving the element of knowledge beyond
a reasonable doubt and the jury is not required to follow
the statutory presumption. State v. Blecker, 155 N.J.
Super. 93, 101 (App. Div. 1978).
N.J.S.A. 2C:34-3e sets forth the affirmative defenses
applicable to prosecutions under this section. It is a
defense to promoting obscene material if the person
under age eighteen falsely represented in or by writing
that he was age eighteen or over, the person’s appearance
was such that an individual of ordinary prudence would
believe him to be age eighteen or over; and the sale,
distribution, rental, showing or exhibition to or
admission of the person was made in good faith relying
upon such written representation and appearance and in
the reasonable belief that he was actually age eighteen or
over. N.J.S.A. 2C:34-3e. Regarding admitting a person
under eighteen to the exhibition of obscene film, it is an
affirmative defense to this offense if the defendant is an
employee in a motion picture theater who has no
financial interest in that motion picture theater other
than his wages and has no decision-making authority or
responsibility with respect to the selection of the motion
picture show which is exhibited. N.J.S.A. 2C:34-3e.In 1988, two new provisions were adopted. N.J.S.A.
2C:34-3.1 defines “retailer” as per N.J.S.A. 2C:34-3, and
N.J.S.A. 2C:34-3.2 permits municipalities to enact
ordinances requiring covers on obscene material which
might be viewed by people under eighteen.C. Public Communications of Obscenity, N.J.S.A
2C:34-4This section seeks to protect members of the public
from being forced to see or hear obscene material which
they may not wish to see or hear. N.J.S.A. 2C:34-4 does
not ban the private display or communications of obscene
materials. “Publicly communicate” means to display,
post, exhibit, give away or vocalize material in such a way
that its character and content may be readily and
distinctly perceived by the public by normal unaided
vision or hearing when viewing or hearing it in, on or from
a public street, road, thoroughfare, recreation or
shopping center or area, public transportation facility or
vehicle used for public transportation.The definition of “obscene materials” for the purpose
of N.J.S.A. 2C:34-4 is the same definition provided in
N.J.S.A. 2C:34-3. As noted above, N.J.S.A. 2C:34-3,
which protects minors from the dissemination of obscene
materials, sets forth a definition of “obscene materials”
which encompasses materials which are not obscene in its
appeal to adults. See N.J.S.A. 2C:34-2. The use of the
broad definition of “obscene materials” for purposes of
N.J.S.A. 2C:34-4 appears to be constitutionally sound
because public dissemination carries with it a significant
danger of offending the sensibilities of unwilling
recipients or of exposing juveniles to obscene materials.
Miller v. California, 413 U.S. 15, 18-19, 93 S.Ct. 2607,
2612, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 57-59; 93 S.Ct. 2628, 2634-36, 37
L.Ed.2d 446 (1973).D. Sexually Oriented Business Locations, N.J.S.A.
2C:34-7This section, which was enacted in 1995, provides
for restrictions on the placement of sexually oriented
businesses, the establishment of buffer zones and
limitations on signage outside of such businesses. In
Hamilton Amusement Center v. Portiz, 156 N.J. 254
(1998), the Court applied an intermediate level of
scrutiny, and held that the limitation to two exterior