cdTOCtest

OBSCENITYOBSCENITYOBSCENITYOBSCENITYOBSCENITY

(See also, ENDANGERING THE WELFARE OF

CHILDREN, this Digest)

I. CONSTITUTIONAL BASIS

Obscene materials are not protected by the First
Amendment or the New Jersey Constitution. Roth v.
United State, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d
1498 (1957); State v. Muldoweny, 60 N.J. 594 (1972);
State v. De Piano, 150 N.J. Super. 309 (App. Div. 1977).
See also City of Renton v. Playtime Theaters, Inc., 475 U.S.
41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (city zoning
ordinance prohibiting adult theaters was not violative of
First Amendment).

The definitions of obscene materials under the Code
(see N.J.S.A. 2C:34-2, 2C:34-3 and 2C:34-6) appear to
be neither overbroad nor vague; the definitions track the
obscenity guidelines set forth by the United States
Supreme Court in Miller v. California, 413 U.S. 15 93
S.Ct. 2607, 37 L.Ed.2d 419 (1973); State v. DeSantis, 65
N.J. 462 (1974); State v. Blecker, 155 N.J. Super. 93
(App. Div. 1977); see also J-R Distributors, Inc. v.
Eikenberry, 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed. 394
(1985).

For a discussion of vagueness, as applied to a
determination of whether an ordinance which prohibited
obscenity or lewdness was unconstitutionally vague, see
Belmar v. Buckley, 187 N.J. Super. 107 (App. Div. 1982),
and Expo Inc. v. City of Passaic, 149 N.J. Super. 416 (Law
Div. 1977). See also Brockett v. Spokane Arcades. Inc, et al.,
472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)
(applying normal rule that use of overbroad term in state
obscenity statute, i.e., “lust”, only required partial, rather
than facial, invalidation since the term can be severed and
excised from otherwise valid statute).

The third prong of the obscenity test set forth in
Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37
L.Ed.2d 419 (1973), is whether a work depicts or
describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law. For a
discussion of this, see Pope v. Illinois, 481 U.S. 497, 107
S.Ct. 1918, 95 L.Ed.2d 439 (1987). See also State v.
Meyer, 212 N.J. Super. 1 (App. Div. 1986).

New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct.
1610, 89 L.Ed.2d 871 (1986) (search warrant for seizure
of allegedly obscene books and films presumptively
protected by the First Amendment evaluated under

standard of probable cause are used in other areas of

Fourth Amendment law).

In re Grand Jury Subpoena: Subpoena Duces Tecum,

829 F.2d 1291 (4th Cir. 1987) (subpoena duces tecum,

requiring production of videotapes depicting sexually

explicit conduct by minors or adults which were

presumptively protected by First Amendment, were

“unreasonable and oppressive,” since prior to issuing

subpoenas government made no attempt to use the less

drastic means of buying tapes for viewing by grand jury

to examine them for obscenity; compliance with

subpoenas would have required two distributors to

peruse 2,000 tapes and 141 tapes, respectively).

II. STATUTORY BASIS

The statutory scheme relating to obscenity is set

forth in N.J.S.A. 2C:34-2 to 2C:34-4 and 2C:34-6 to

2C:34-7. Another relevant statutory section is N.J.S.A.

2C:24-4b. (See also, ENDANGERING THE

WELFARE OF CHILDREN, this Digest).

A. Obscenity for Persons Eighteen Years of Age or Older,

N.J.S.A. 2C:34-2

This section prohibits the sale of “obscene material,”

as that term is defined in N.J.S.A. 2C:34-2a(1), to a

person eighteen years of age or older. A person who

merely sells tickets to a pornographic film to an adult is

not guilty of selling “obscene material” under N.J.S.A.

2C:34-2. State v. Foglia, 182 N.J. Super. 12 (App. Div.

1981). The court based its decision on the fact that the

tickets, in and of themselves, were not “obscene

material.” Thus, the sale of said tickets was not

prohibited by N.J.S.A. 2C:34-2.

N.J.S.A. 2C:34-2 also allows a municipality to adopt

a zoning ordinance which permits the sale of obscene

materials to adults. Such sales shall be deemed legal.

Concerning municipal ordinances preempted by

this section, see State v. Meyer, 212 N.J. Super. 1 (App.

Div. 1986); News Printing Co. v. Borough of Totowa, 211

N.J. Super. 121 (Law Div. 1986). (See also, FIRST

AMENDMENT, this Digest).

B. Obscenity for Persons under Eighteen Years of Age,

N.J.S.A. 2C:34-3

This section prohibits the sale, distribution, rental or

exhibition of “obscene materials,” as that term is defined

in N.J.S.A 2C:34-3a(1), to a person under eighteen years