Borough of Sayreville v. 35 Club, L.L.C.

Justice ALBIN,

dissenting.

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. 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.

N.J.S.A. 2C:34-7(a) prohibits a sexually oriented business from operating within 1,000 feet of certain places, such as schools, child care centers, playgrounds, residentially zoned areas, and houses of worship. This statute is constitutional, as applied, only if a sexually oriented business is provided with “adequate alternative channels of communication within the relevant market area.” Twp. of Saddle Brook v. A.B. Family Ctr., Inc., 156 N.J. 587, 596-97, 722 A.2d 530 (1999).

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. Even aside *514from the Court’s multi-state regional approach to constitutional rights, the standard it adopts adds another confounding layer of complexity to a test already difficult enough to implement. Our judges will now have to become conversant with the land-use laws and political realities of zoning in neighboring states.

New Jersey’s citizens have a federal and state constitutional right to express themselves in their State, regardless of whether there is an available forum in a neighboring state. Because the majority has ruled otherwise, I respectfully dissent.

I.

The First Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment, and therefore New Jersey and its subdivisions may not pass laws “abridging the freedom of speech.” See Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); see also U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom of speech____”). Sexually oriented speech and expressive activities are protected under the First Amendment. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181-82, 68 L.Ed.2d 671, 678 (1981); (protecting non-obscene nude dancing); City of Renton v. Playtime Theatres, 475 U.S. 41, 47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29, 37 (1986) (protecting adult theaters); Smith v. California, 361 U.S. 147, 154-55, 80 S.Ct. 215, 219-20, 4 L.Ed.2d 205, 211-12 (1959) (protecting adult bookstores). Such speech or expression, however, is subject to reasonable time, place, and manner regulations. Renton, supra, 475 U.S. at 46-47, 106 S.Ct. at 928, 89 L.Ed.2d at 37.

In Renton, the United States Supreme Court upheld the constitutionality of a municipal ordinance, worded similarly to N.J.S.A. 2C:34-7, because the city used its zoning power not to suppress expression, but rather to make it ¡available in certain other areas within the city’s borders.1 Renton, supra, 475 U.S. at 54, 106 *515S.Ct. at 932, 89 L.Ed.2d at 42. The Court made clear that the First Amendment barred Renton “from effectively denying” the owners of an adult theater “a reasonable opportunity to open and operate” the theater “within the city.” Ibid.

In Schad, the Supreme Court invalidated a municipal ordinance that prohibited all live entertainment, including non-obscene nude dancing, in the Borough’s commercial district. 452 U.S. at 76-77, 101 S.Ct. at 2186-87, 68 L.Ed.2d at 685. The Borough violated the First Amendment by not “leav[ing] open adequate alternative channels of communication” within the municipality for the owner of an adult bookstore who provided his customers with live nude dancing. Id. at 75-76, 101 S.Ct. at 2186, 68 L.Ed.2d at 685. The Court acknowledged that a county-wide-zoning approach might have passed muster, but such an approach was not before the Court and the Borough had not shown that the adult bookstore’s exhibition was “available in reasonably nearby areas.” Id. at 74-76, 101 S.Ct. at 2186-87, 68 L.Ed.2d at 685. Neither Renton nor Schad intimated that a municipality could satisfy its First Amendment obligations by pointing to an adjoining state that permitted sexually oriented businesses. Significantly, in his concurring opinion in Schad, Justice Blackmun declared: “Were I a resident of Mount Ephraim, I would not expect my right to attend the theater or to purchase a novel to be contingent upon the availability of such opportunities in ‘nearby’ Philadelphia, a community in whose decisions I would have no political voice.” Schad, supra, 452 U.S. at 78, 101 S.Ct. at 2188, 68 L.Ed.2d at 686 (Blackmun, J., concurring).

In Saddle Brook, this Court permitted a regional approach to alternative avenues of communication when analyzing the constitu*516tionality of N.J.S.A 2C:34-7, a state-wide restriction on the location of sexually oriented businesses.2 156 N.J. at 596-97, 722 A.2d 530. In that ease there was no area within Saddle Brook for a sexually oriented business to operate without violating N.J.S.A 2C:34-7. Id. at 591, 722 A.2d 530. This Court upheld the statute’s constitutionality as applied to Saddle Brook provided there were “adequate alternative channels of communication within the relevant market area.” Id: at 596-97, 722 A.2d 530. The relevant market area “include[d] aireas located in other municipalities within reasonable proximity to the Saddle Brook location.” Id. at 597, 722 A.2d 530 (internal quotation marks omitted). Nowhere in Saddle Brook did the Court even remotely suggest that Manhattan, a municipality a short distance away, would fall within the relevant market areal This Court noted that “the constitutionality of a state statutfi ... need not be determined solely by reference to the boundaries of the municipality.” Id. at 591, 722 A.2d 530. The Court did not intimate that the constitutionality of a state statute can be determined by looking outside the state’s borders. i

The Saddle Brook approach álready is the most expansive geographical “place” regulation of a sexually oriented business in the nation, but—to my mind—it is a sensible and constitutional approach in a state with 566 municipalities, some smaller than a square mile. Saddle Brook comports with our nation’s alternative-avenues-of-expression jurisprudence: a municipal zoning ordinance regulating sexually oriented businesses must make available sites within the municipality; a county-wide regulation must make available sites within the county; and a state-wide regulation must make available sites in nearby rhunicipalities within the state. The majority takes Saddle Brook beyond the constitutional tipping point by allowing consideration of dut-of-state sites.

*517Since Renton, a few federal courts have addressed the possibility of considering sites outside the municipality whose ordinance is at issue; however, they ultimately avoided deciding the matter. See, e.g., Ill. One News, Inc. v. City of Marshall, 477 F.3d 461, 463-65 (7th Cir.2007) (discussing possibility of considering available sites in neighboring jurisdictions but declining to reach a decision); Boss Capital, Inc. v. Casselberry, 187 F.3d 1251, 1254 (11th Cir.1999) (acknowledging sites available outside city in question, but in light of unsettled nature of Schad “opt[ing] to leave [the issue] open”). Other jurisdictions have considered only available sites within the political subdivision whose ordinance is in question. See, e.g., Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33 (9th Cir.1993) (limiting analysis of alternative sites to those sites within City of Los Angeles), cert. denied, 511 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994); Int’l Eateries of Am. v. Broward Cnty., 941 F.2d 1157, 1164 (11th Cir.1991) (looking only to available sites within Broward County to determine whether county-wide zoning scheme was constitutional), cert. denied, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992); Ranch House, Inc. v. Amerson, 22 F.Supp.2d 1296, 1309 (N.D.Ala. 1998) (upholding state buffer zone statute where there were ample available sites located in same county as well as throughout state).

No court—until today—has held that a state can deny a sexually oriented business its right of expression in one state by asserting that an alternative channel of communication is available in another state. In my view, under the First Amendment, a state must give constitutionally protected speech, however disfavored, a home within its own boundaries, without reference to its availability in an adjoining state.

This Court has held that “the New Jersey Constitution’s right of free speech is broader than the right against governmental abridgement of speech found in the First Amendment.” N.J. Coal. Against War in the Middle E. v. J.M.B. Realty Corp., 138 N.J. 326, 353, 650 A.2d 757 (1994); see also Green Party v. Hartz Mountain Indus., 164 N.J. 127, 145, 752 A.2d 315 (2000) (“[T]he *518New Jersey! ] Constitution’s free speech provision is an affirmative right, broader than practically all others in the nation.”).3 It cannot be that the right to exercise expressive rights in this State under the New Jersey Constitution depends in any measure on whether alternative avenues of communication are available in another state. If our State places restrictions on disfavored speech or expressive activities, the solution is not that New Jersey citizens can exercise their rights in another state. However convenient it may be for New Jersey citizens to travel to Staten Island, that cannot be a basis to abridge their rights in this State.

Hi

Last, the majority’s approach fe not only unconstitutional, but unworkable and will generate needless litigation. The consideration of out-of-state sites will complicate an already “complex and detailed” analysis. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 258, 966 A.2d 1036 (2009). The present regional inquiry “entails, among other things, expert assessments of the size of the relevant market; the absolute number of available locations; the relative number of such locations to land ,mass; the ratio of locations to population; and the qualitative availability of particular properties in light of their own unique characteristics.” Ibid. Now, trial courts will also have to balance the number of out-of-state locations with in-state locations. Moreover, as New Jersey borders New York, Pennsylvania, and DelaWare, trial judges will be forced to evaluate the statutory laws of these states and the zoning regulations of its municipalities. Our judges will have to become conversant, if not experts, on land-use laws applying to Staten Island, Manhattan, Philadelphia, ahd all other neighboring out-of-state municipalities. :

*519This cannot be the equation that our Court had in mind in Saddle Brook. The majority now takes the reasoning of that case to an impractical and unconstitutional conclusion.

For these reasons, I respectfully dissent.

For reversal in part/affirmance in part—Chief Justice RABNER, Justices LONG, HOENS, PATTERSON, and WEFING (temporarily assigned)—5.

For Dissent—Justice ALBIN—1.

Not Participating—Justice LaVECCHIA—1.

New Jersey's statute requires a 1,000-foot buffer between any sexually oriented business and *515any 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.

[N.J.S.A. 2C:34-7 (a).]

New Jersey appears to be one of only a few states to enact a state-wide restriction; in most states, these buffer ¡zones are enacted at the local level.

Article 1, Paragraph 6 provides that "[ejvery person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain jor abridge the liberty of speech or of the press.” N.J. Const, art. 1,116.