Hamilton Amusement Center v. Verniero

The opinion of the Court was delivered by

COLEMAN, J.

This appeal challenges the constitutionality of N.J.S.A. 2C:34-7c that restricts the size, number, and content of signs that sexually oriented businesses may display. The case calls for the sensitive balancing of the interests of sexually oriented businesses in free speech with the State’s interest in minimizing the adverse secondary effects caused by those businesses. The Appellate Division found that the statute does not violate federal or state constitutional guarantees to freedom of speech and that the statute is not void for vagueness. 298 N.J.Super. 230, 689 A.2d 201 (1997). We granted certification, 150 N.J. 24, 695 A.2d 667 (1997), and now affirm.

I

For some time prior to August 1995, plaintiffs Hamilton Amusement Center, Inc., t/a Video Express, L.O.J., Inc., t/a The Emporium, Pyneo, Inc., t/a Camelot Book Store, and Crescendo Book, Inc., t/a Carnival Books (collectively referred to as “Hamilton” or “plaintiffs”) owned or operated sexually oriented businesses selling a variety of magazines, books and videotapes, including adult materials. Plaintiffs used large signs to advertise the types of products sold, operating hours, and the locations of entrances. On August 16,1995, Governor Whitman signed Assembly Bill No. 252 (1994), L. 1995, c. 230, codified at N.J.S.A. 2C:34-6 and N.J.S.A. 2C:34-7, that directly affects those signs. N.J.S.A. 2C:34-6 defines the key words and phrases used in the legislation, and N.J.S.A. 2C:34-7 contains the restrictions on signage and the establishment of perimeter buffer requirements that triggered this litigation.

On September 3,1995, plaintiffs instituted the present litigation challenging the constitutionality of the signage restrictions in *263N.J.S.A 2C:34-7c. Subsection c provides: “No sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign giving notice that the premises are off limits to minors. The identification sign shall be no more than 40 square feet in size.” N.J.S.A. 2C:34r-7c.

Plaintiffs alleged in their complaint that those restrictions violate the First Amendment to the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. Plaintiffs also contended that the provision is unconstitutionally vague because it fails to define “identification sign.” Finally, they alleged that N.J.S.A 2C:34-7c violates their Fourteenth Amendment rights to equal protection because the statute targets only sexually oriented businesses. Plaintiffs sought declaratory and injunctive relief to prevent the State from enforcing N.J.S.A. 2C:34-7e.

The trial court determined that N.J.S.A. 2C:34-7c was a content-based restriction on speech and applied strict scrutiny. The court found the provision unconstitutional under Article I, Paragraph 6 of the New Jersey Constitution because the State failed to articulate a factual basis to establish the legitimacy of its asserted compelling state interests — traffic safety and the protection of minors. Alternatively, the trial court found that the statute failed to survive the less onerous time, place, and manner analysis because it was not narrowly tailored to protect against the secondary effects of sexually oriented businesses. The trial court entered a permanent injunction on December 19,1995.

The Appellate Division reversed, concluding that N.J.S.A. 2C:34-7c targets only commercial speech and therefore is not subject to strict scrutiny. Hamilton, supra, 298 N.J.Super. at 238, 689 A.2d 201. The Appellate Division reasoned that the protection of minors and the regulation of traffic safety are both substantial governmental interests, id. at 239-40, 689 A.2d 201, and that N.J.S.A. 2C:34-7c is not substantially broader than necessary because it allows two signs, does not proscribe other modes of advertisement, does not limit the material that may be displayed within the store, and does not place any significant *264limitation on what may be advertised on the two signs. Id. at 241, 689 A.2d 201.

The Appellate Division construed the sign requirements to permit affixing the street numbers of the property as required by federal postal regulations and to permit the posting of temporary political signs. Id. at 241 n. 6, 689 A.2d 201. The Appellate Division also interpreted “identification sign” to include: the name of the establishment; its street number; its telephone number; its operating hours; and the general nature of the establishment. Id. at 242, 689 A.2d 201.

II

First, we address plaintiffs’ contention that N.J.S.A. 2C:34-7c violates state and federal constitutional guarantees of free speech. The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech____” U.S. Const, amend. I. The First Amendment restriction on governmental interference with free speech was made applicable to the states by the Fourteenth Amendment to the United States Constitution. U.S. Const, amend. XIV, § 1; 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516, 116 S.Ct. 1495, 1515, 134 L. Ed.2d 711, 736 (1996); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L. Ed. 1213, 1218 (1940).

Article I, Paragraph 6 of the New Jersey Constitution provides: “Every 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 or abridge the liberty of speech or of the press.” N.J. Const, art. I, ¶ 6. Because we ordinarily interpret our State Constitution’s free speech clause to be no more restrictive than the federal free speech clause, Shelton College v. State Bd. of Educ., 48 N.J. 501, 518, 226 A.2d 612 (1967), “[w]e rely on federal constitutional principles in interpreting the free speech clause of the New Jersey Constitution.” Karins v. City of Atlantic City, 152 N.J. 532, 547, 706 A.2d 706 (1998); see Bell v. Township of Stafford, 110 N.J. 384, 393, 541 A.2d 692 *265(1988) (stating that constitutional approach taken by United States Supreme Court when examining commercial speech conforms to our own). Two exceptions to the general rule, which are not involved here, are political expressions at privately-owned-and-operated shopping malls, New Jersey Coalition v. J.M.B., 138 N.J. 326, 650 A.2d 757 (1994), and defamation, Sister v. Gannett Co., 104 N.J. 256, 271, 516 A.2d 1083 (1986).

-A-

Our decision whether N.J.S.A. 2C:34-7e regulates only commercial speech will in turn determine the appropriate level of scrutiny to be applied. Plaintiffs argue that both commercial and political speech are impacted by the statute. They contend that even under the Appellate Division’s construction of the statute to allow the posting of temporary political signs, they are prohibited from conveying political messages on the identification sign, from posting non-temporary political signs, and from posting signs related to religion or “everyday problems.” Plaintiffs also contend that because the statute distinguishes between sexually oriented businesses and other businesses, strict scrutiny is appropriate. We find those arguments to be unpersuasive.

We begin our analysis by defining commercial speech. Commercial speech is “expression related solely to the economic interests of the speáker and its audience.” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 2349, 65 L. Ed.2d 341, 348 (1980). It is “ ‘speech proposing a commercial transaction.’” Id. at 562, 100 S.Ct. at 2349, 65 L. Ed.2d at 348 (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L. Ed.2d 444 (1978)); see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67, 103 S.Ct. 2875, 2880-81, 77 L. Ed.2d 469, 477-78 (1983) (holding that combination of following characteristics of communication “provides strong support” for conclusion that communication is “properly characterized as commercial speech”: advertisement, mention of specific product, and economic motivation).

*266N.J.S.A. 2C:34-7e restricts, rather than prohibits altogether, the signs that sexually oriented businesses may display. We find nothing to suggest that the statute restricts more than commercial speech, or that the Legislature contemplated that its application would extend beyond the commercial context. Although outdoor signs are often used to convey political, social, and commercial ideas, plaintiffs have made no showing of actual noncommercial use. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L. Ed.2d 800, 811 (1981). On the contrary, the record reveals the messages conveyed on plaintiffs’ signs that predated the litigation are limited to business identification, the types of products sold, business hours, location of the video rental sections of the businesses, location of entrances, and parking information. Although plaintiffs could conceivably use their signs to convey noncommercial messages, they have not done so. We therefore decline to discuss political speech in a hypothetical case that is not before us. Furthermore, nothing in the legislative history suggests that the Legislature intended that the statute restrict political speech. We hold, therefore, that the statute applies only to commercial speech.

-B-

Our conclusion that N.J.S.A. 2C:34-7c has as its purpose the regulation of commercial speech does not mean that no constitutional protection is afforded to plaintiffs. On the contrary, the First Amendment protects commercial speech when the threshold requirements are met: that the speech is not misleading and relates to lawful activity. Central Hudson, supra, 447 U.S. at 563-64, 100 S.Ct. at 2350, 65 L. Ed.2d at 349; see Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 2180-81, 68 L. Ed.2d 671, 678-79 (1981) (recognizing First Amendment protection for sexually explicit speech that is not “obscene”); In re Anis, 126 N.J. 448, 456, 599 A.2d 1265 (1992). It is a limited measure of protection, however, because the First Amendment “accords less protection to commercial speech than to other consti*267tutionally-guaranteed expression.” Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 72, 494 A.2d 804 (1985); Town Tobacconist v. Kimmelman, 94 N.J. 85, 125, 462 A.2d 573 (1983). The limited measure of protection afforded commercial speech is “ ‘commensurate with its subordinate position in the scale of First Amendment values.’” Metromedia, supra, 453 U.S. at 506, 101 S.Ct. at 2892, 69 L. Ed.2d at 814 (quoting Ohralik, supra, 436 U.S. at 456, 98 S.Ct. at 1912, 56 L. Ed.2d at 444); Central Hudson, supra, 447 U.S. at 562-63, 100 S.Ct. at 2349-50, 65 L. Ed.2d at 348-49.

Central Hudson articulated a four-part test for determining when regulating commercial speech does not violate the First Amendment:

[I]t at least must concern lawful activity and not be misleading. [2] Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine [3] whether the regulation directly advances the governmental interest asserted, and [4] whether it is no more extensive than is necessary to serve that interest.
[Central Hudson, supra, 447 U.S. at 566, 100 S.Ct. at 2350, 65 L. Ed.2d. at 351.]

Subsequently, in 44 Liquormart, the Supreme Court held that Rhode Island’s complete ban on liquor price advertising violated the First Amendment. 44 Liquormart, supra, 517 U.S. at 516, 116 S.Ct. at 1515, 134 L. Ed.2d at 736. Similarly, Central Hudson involved a total ban of forms of commercial advertising found to violate the First Amendment because the government failed to demonstrate that a more limited speech regulation would not have adequately served the governmental interest.

Although the present case does not involve a total ban on commercial expression, the governmental regulation must be examined under both the Central Hudson standard and the time, place, and manner test articulated in Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L. Ed.2d 221, 227 (1984). The time, place, and manner restrictions on protected speech are valid provided they “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication *268of the information.” Ibid. Because the Central Hudson and Clark standards are closely intertwined in this case, we will conduct the two analyses simultaneously. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 54-55,106 S.Ct. 925, 928, 932, 89 L. Ed.2d 29, 37, 42 (1986).

In addition to concluding that N.J.S.A. 2C:34-7c targets only commercial speech, we are also persuaded that the statute is content-neutral. A statute or ordinance is considered to be content-neutral when the legislature’s predominant concern is with adverse secondary effects, such as those caused by sexually oriented businesses, and not with the content of the speech being restricted. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L. Ed.2d 661, 675 (1989). An incidental effect on some speech does not change the content-neutral characterization. Ibid.

Having concluded that N.J.S.A. 2C:34-7c targets only commercial speech and that such speech is provided a limited measure of protection under the First Amendment, we are required to engage in an intermediate scrutiny of the restrictions imposed by N.J.S.A. 2C:34-7c. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 2375-76, 132 L. Ed.2d 541, 549 (1995). Moreover, courts have generally analyzed statutes and ordinances restricting sexually oriented businesses under an intermediate level of scrutiny because of the unique secondary effects associated with those businesses. Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L. Ed.2d 310, 326 (1976).

The intermediate scrutiny will be conducted pursuant to Central Hudson and Clark. “Unlike rational basis review [applied by the trial court in the present case], the Central Hudson [intermediate] standard does not permit [a court] to supplant the precise interests put forward by the State with other suppositions.” Edenfield v. Fane, 507 U.S. 761, 768, 113 S.Ct. 1792, 1798, 123 L. Ed.2d 543, 553 (1993). In this case, that means that the State cannot substitute another substantial interest for its assertion that N.J.S.A. 2C:34-7c is required to protect minors and to *269promote traffic safety. It may, however, advance other substantial interests in addition to those two.

-C-

Under a commercial speech analysis, first we must determine whether the speech at issue merits protection by examining whether the speech concerns lawful activity that is not misleading. Central Hudson, supra, 447 U.S. at 566, 100 S.Ct. at 2350, 65 L. Ed.2d at 351. There has been no suggestion that the commercial advertising challenged here is misleading or involves unlawful activity or obscene material. Therefore, under the threshold prong of the Central Hudson test the case before us involves protected commercial speech.

Next, we focus on Central Hudson’s second prong, namely whether a substantial governmental interest is advanced by regulating the commercial speech involved here. We will combine that discussion with our analysis under the first prong of the time, place, and manner test: whether the regulation is justifiable without reference to content. In the trial court, the State argued that the statute served two substantial state interests: (1) traffic safety; and (2) the welfare of minors. Before the Appellate Division, the State expanded the list of secondary effects it sought to address with N.J.S.A. 2C:34-7c, arguing that sexually oriented businesses, as well as the signs that advertise their existence, generally detract from neighborhood stability and contribute to prostitution, crime, juvenile delinquency, deterioration in property values, and lethargy in neighborhood improvement efforts.

The burden is on the State to establish the existence of the substantial governmental interest it sought to advance through the signage regulation. To assist in meeting this burden, the State relies on an established rule of statutory interpretation:

Consistent with the judicial predisposition in favor of the validity of legislation, courts will readily impute a proper governmental purpose or interest as the object to be served by the enactment, and, if need be, infer an adequate factual basis to *270support legislative regulations, even in the absence of particular purposes or specific findings being expressed by the lawmakers.
Nevertheless, if an enactment directly impinges on a constitutionally protected right, the presumption in favor of its validity disappears. Courts are far more demanding of clarity, specificity and restrictiveness with respect to legislative enactments that have a demonstrable impact on fundamental rights.
[Bell, supra, 110 N.J. at 394-95, 541 A.2d 692 (citations omitted).]

The government’s failure to sufficiently substantiate its alleged substantial interests can be constitutionally fatal to a regulation. See, e.g., id. at 396, 541 A.2d 692 (striking down ordinance because of failure to reveal objectives or factual underpinnings); Basiardanes v. City of Galveston, 682 F.2d 1203, 1215-16 (5th Cir.1982) (finding that city had failed to prove justifiable interest in regulation prohibiting advertising by adult theaters because there was no evidence that city conducted careful study of effects of adult theaters). The First Amendment, however, does not require a legislative body “to conduct new studies or produce evidence independent of that already generated by other cities” before enacting a regulation affecting sexually oriented businesses, “so long as whatever evidence the [legislative body] relies upon is reasonably believed to be relevant to the problem” addressed. City of Renton, supra, 475 U.S. at 51-52, 106 S.Ct. at 931, 89 L. Ed.2d at 40. In Renton, the United States Supreme Court found that although the city had not conducted its own hearings on its locational zoning ordinance, it was entitled to rely upon another city’s studies that had been placed in the record. Ibid. Unlike the city in Renton, however, when enacting N.J.S.A. 2C:34-7c, the Legislature did not place into the record the studies of this or any other jurisdiction; nor is there evidence that lawmakers relied on such studies. Similarly, the record does not reflect that the Legislature relied on decisional law from this or any other jurisdiction that discusses the detrimental secondary effects of sexually oriented businesses. Nonetheless, we will consider the precedents. Viewed collectively, a national consensus emerges regarding the secondary effects of sexually oriented businesses.

Both the United States Supreme Court and this Court have held that the government does not have a heavy burden to satisfy the *271substantial governmental interest prong of the Central Hudson standard. That burden may be satisfied in a variety of different ways. As recently as 1995, the Supreme Court stated that

we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information. Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, see City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-51, 106 S.Ct. 925, 89 L. Ed.2d 29 (1986); Barnes v. Glen Theatre, Inc. 501 U.S. 560, 584-585, 111 S.Ct 2456, 115 L. Ed.2d 504 (1991) (Souter, J., concurring in the judgment), or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and “simple common sense,” Burson v. Freeman, 504 US. 191, 211, 112 S.Ct. 1846, 119 L. Ed.2d 5 (1992). Nothing in Edenfield, supra, a case in which the State offered no evidence or anecdotes in support of its restriction, requires more.
[Florida Bar, supra, 515 U.S. at 628, 115 S.Ct. at 2378, 132 L. Ed.2d at 552.]

The Supreme Court has recognized that sexually oriented businesses can cause concrete and non-speculative side effects that government can target. These effects include promoting juvenile delinquency, contributing to an overall increase in crime, creating an environment that leads to the general deterioration of neighborhoods, and lowering property values. City of Renton, supra, 475 U.S. at 51, 106 S.Ct. at 931, 89 L. Ed.2d at 40.

Additionally, this Court has held that a zoning ordinance need not articulate its objectives but may be sustained against constitutional challenge on the presentation in court of evidence supporting the governmental interest advanced by the ordinance. Zilinsky v. Zoning Bd. of Adjustment, 105 N.J. 363, 371, 521 A.2d 841 (1987). Thus, the substantial governmental interest prong can be satisfied by reference to studies pertaining to other jurisdictions, legislative history, consensus, and even common sense. The State maintains that the legislative history reflecting the State’s substantial interest in ameliorating the negative effects of sexually oriented businesses consists of a position report submitted by Concerned Women for America, a floor speech given by the bill’s sponsor, Assemblywoman Crecco, and the legislative history of N.J.S.A. 2C:33-12.2.

The Assembly Judiciary, Law and Public Safety Committee considered the Concerned Women report. That report focuses on *272the connection between violent, sexually explicit material and violent crime, but does not mention signage. The report does not address traffic safety or harm to minors; nor does it address the additional effects that were presented to the Appellate Division.

Assemblywoman Crecco’s speech supports the State’s assertion that the Legislature was concerned with the protection of minors and the reduction of traffic hazards. She explained that “[s]ign restrictions would be advantageous because multiple signs distract motorists and cause accidents.” Creceo also referred to the welfare of minors twice in her speech. First, she mentioned minors in reference to buffer planting, but not in reference to signage restrictions. Second, she stated that “[w]e need to put the brakes on these sorts of element [sic] in all municipalities____ Parents are concerned about their children being exposed to these types of perverted establishments and their sordid activities.” Assemblywoman Crecco, however, did not offer evidentiary support for her conclusions.

Further support for the proposition that N.J.S.A. 2C:34-7c was enacted to protect the welfare of minors can be found in the text of the statute itself: N.J.S.A. 2C:34-7c requires a sign indicating that the premises are off-limits to minors. Moreover, because N.J.S.A. 2C:34-7c and N.J.S.A 2C:33-12.21 were part of the same package, consideration of the legislative history of the latter statute is appropriate. In Chez Sez VIII, Inc. v. Poritz, the Appellate Division held that N.J.S.A. 20:33-12.2 was constitutional, relying on the pre-enactment evidence regarding private viewing booths. 297 N.J.Super. 331, 688 A.2d 119, certif. denied, 149 N.J. 409, 694 A.2d 194, and cert. denied, — U.S. —, 118 S.Ct. 337, 139 L. Ed.2d 262 (1997). The history of N.J.S.A. 20:33-12.2 was not a part of the record in this case at the trial level, but the State introduced it before the Appellate Division. The State has requested this Court to take judicial notice of that history to *273establish that the Legislature had a factual basis for enacting N.J.S.A. 2C:34-7c.

The legislative history of N.J.S.A. 2C:33-12.2 indicates that, generally, the State was concerned with the negative effects caused by sexually oriented businesses, particularly businesses that operate private viewing booths. The history demonstrates that the Legislature was specifically informed about those effects when it simultaneously enacted N.J.S.A. 20:33-12.2 and N.J.S.A. 2C:33-7c.

Furthermore, in an unpublished opinion, a federal district court upheld the 1995 amendments to N.J.S.A 2C:34-2 to -7 against First and Fourteenth Amendment challenges. Internationally Hott II v. City of Elizabeth, Civ. No. 96-1447 (D.N.J. Apr. 9, 1997). The District Court found the statutes constitutional and determined that a memorandum submitted to the Senate Judiciary Committee, Deputy Attorney General Etzweiler’s testimony before the Assembly Judiciary Committee, and Assemblywoman Crecco’s statement “detail[ed] the need for these types of narrowly tailored statutes to combat the secondary effects of sexually oriented businesses.” Id. at 13.

We conclude that the pre-enactment evidence that was before the Legislature when it enacted N.J.S.A. 2C:33-12.2 and N.J.S.A. 2C:34-7c, and the legislative history as a whole sufficiently establish that the Legislature was genuinely concerned with mitigating the adverse secondary effects of sexually oriented businesses to improve traffic safety, to limit harm to minors, and to reduce prostitution, crime, juvenile delinquency, deterioration in property values, and lethargy in neighborhood improvement efforts. Whether viewed separately or collectively, they represent substantial governmental interests. See American Mini Theatres, supra, 427 U.S. at 80, 96 S.Ct. at 2457, 49 L. Ed.2d at 332 (Powell, J., concurring) (finding interests in zoning adult movie theaters substantial because “[wjithout stable neighborhoods, both residential and commercial, large sections of a modern city quickly can deteriorate into an urban jungle with tragic consequences to *274social, environmental, and economic values”); Metromedia, supra, 453 U.S. at 507-08,101 S.Ct. at 2892, 69 L. Ed.2d at 815 (“Nor can there be substantial doubt that the twin goals that the ordinance seeks to further — traffic safety and the appearance of the city— are substantial government goals.”); Borrago v. City of Louisville, 456 F.Supp. 30, 33 (W.D.Ky.1978) (finding no doubt that regulation of adult entertainment furthers “important and substantial” interests); City of Pasco v. Rhine, 51 Wash.App. 354, 753 P.2d 993, 997 (1988) (finding that government had substantial interest in mitigating secondary impacts of adult theater’s “location in an area not suitable for such theaters”).

-D-

The third prong of the commercial speech inquiry is whether the regulation directly advances the government’s asserted interests. Central Hudson, supra, 447 U.S. at 566, 100 S.Ct. at 2350, 65 L. Ed.2d at 351. This inquiry requires us to determine whether the elimination or reduction of the asserted negative effects of sexually oriented businesses can be achieved by regulating the number of signs, sign content, and sign size.

“[A] governmental body ... must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, supra, 507 U.S. at 770-71,113 S.Ct. at 1800, 123 L. Ed.2d at 555. Therefore, sign regulations are permissible if the government can “show that the particular restrictions on signs in fact relate to the stated goal.” State v. Miller, 83 N.J. 402, 415, 416 A.2d 821 (1980).

In American Mini Theatres, the United States Supreme Court found that a municipality’s conclusion that the concentration of sexually oriented businesses, unlike other businesses, “causes the area to deteriorate and become a focus of crime” was “a factual basis” for the conclusion that dispersal requirements would “have the, desired effect." American Mini Theatres, supra, 427 U.S. at 71 & n. 34, 96 S.Ct. at 2452-53 & n. 34, 49 L. Ed.2d at 326 *275& n. 34. Similarly, we hold that the limitation of the signs promulgated in N.J.S.A. 2C:34-7c directly advances the government’s interests in limiting negative secondary effects, such as neighborhood deterioration and concentration of crime. The limitation of signage may reduce the effects generated by the presence of sexually oriented businesses, particularly in conjunction with the other provisions of N.J.S.A. 2C:34-7, dispersal requirements, locational restrictions, and perimeter buffers. N.J.S.A. 2C:34-7a to -7b.

In Metromedia, the Supreme Court found that the goal of increased traffic safety was furthered by the limitation of off-site advertising billboards. Metromedia, supra, 453 U.S. at 508-09, 101 S.Ct. at 2893, 69 L. Ed.2d at 815-16. The Court explained that “ ‘[billboards are intended to, and undoubtedly do, divert a driver’s attention from the roadway.’ ” Ibid, (quoting California Supreme Court decision in same case). The same is true of the on-site advertising signs limited by N.J.S.A. 2C:34-7e. “Unlike oral speech, signs take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 2041, 129 L. Ed.2d 36, 42-43 (1994) (emphasis added). The Legislature could reasonably conclude that the nature and content of the signs of sexually oriented businesses cause greater distraction to motorists than other commercial signs. But cf. Rappa v. New Castle County, 18 F.3d 1043, 1082 (3d Cir.1994) (Garth, J., concurring and dissenting) (“[T]he allowance of some signs, but not others, is evidence that the government’s asserted interests in traffic safety and aesthetics are not sufficiently compelling to justify disparate treatment between classes of speech.”).

We also conclude that the sign limitations serve the State’s interest in protecting the welfare of minors. The Legislature has chosen to criminalize the sale, distribution, rental, or exhibition of obscene material to minors. N.J.S.A. 2C:34-3. The requirement that sexually oriented businesses post signs indicating that the businesses are off-limits to minors helps to ensure that minors will *276be excluded from the premises. Furthermore, we find that the limitations on the identification sign reduce the ability of sexually oriented businesses to attract minors. Moreover, the other goals that we have determined are advanced by N.J.S.A. 2C:34-7c, such as limiting neighborhood deterioration and crime and promoting traffic safety, undoubtedly contribute to the welfare of minors who live in, or pass through, the vicinity of sexually oriented businesses.

-E-

The final prong of the commercial speech test is whether the regulation is no more extensive than necessary to serve the State’s asserted interests. Central Hudson, supra, 447 U.S. at 566, 100 S.Ct. at 2350, 65 L. Ed.2d at 351. That inquiry is similar to that part of the time, place, and manner test requiring the narrow tailoring of the regulation and leaving open ample alternative means of communication. Clark, supra, 468 U.S. at 293, 104 S.Ct. at 3069, 82 L. Ed.2d at 227. Therefore, we must determine whether N.J.S.A. 2C:34-7c is narrowly tailored to serve the State’s asserted interests. We combine the narrow tailoring discussion with our analysis under the final prong of the time, place, and manner test, whether the regulation leaves open ample alternative means of communication. Clark, supra, 468 U.S. at 293, 104 S.Ct. at 3069, 82 L. Ed.2d at 227.

N.J.S.A. 2C:34-7c is not substantially broader than neces sary because it: (1) allows two signs to be posted; (2) does not proscribe other modes of advertisement; (3) does not inhibit the material that may be displayed within the store; and, (4) does not place any significant limitation on what might be advertised on the two signs. The statute does not ban advertising completely, and sexually oriented businesses have a reasonable opportunity to advertise in the print and electronic media. SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1278 (5th Cir.1988), cert. denied sub nom M.E.F. Enters., Inc. v. City of Houston, 489 U.S. 1052, 109 S.Ct. 1310, 103 L. Ed.2d 579 (1989); see also State v. J. & J. Painting, *277167 N.J.Super. 384, 386, 400 A.2d 1204 (App.Div.1979) (regulation “leaves unaffected all other means [for businesses] to advertise their business services — newspapers, telephone directories, radio and electronic media[, and word of mouth]”). The State “has gone no further than necessary in seeking to meet its ends. Indeed it has stopped short of fully accomplishing its ends: It has not prohibited all” signs. Metromedia, supra, 453 U.S. at 508, 101 S.Ct. at 2893, 69 L. Ed.2d at 815.

Furthermore, to satisfy Central Hudson and the narrow tailoring requirement of Clark, the regulation need not be the least restrictive means of serving the State’s content-neutral substantial interest. Ward, supra, 491 U.S. at 797, 109 S.Ct. at 2757, 105 L. Ed.2d at 679. “[T]he requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation’ ” and the means chosen does not “burden substantially more speech than is necessary to further” the State’s content-neutral interest. Id. at 799, 109 S.Ct. at 2758, 105 L. Ed.2d at 680-81 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L. Ed.2d 536 (1985)).

Several other courts examining the same issue found regulations that are more restrictive than N.J.S.A. 2C:34-7c to be sufficiently tailored. For example, in Excalibur Group, Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir.1997), cert. denied, U.S. —, 118 S.Ct. 855, 139 L. Ed.2d 755 (1998), signs were prohibited in windows, a one-square-foot identification sign was permitted on the entrance door, and another identification sign equal to one-square foot for each foot of lot frontage on the street was allowed. All signs had to be flat, wall signs. That meant that a sexually oriented business with a twenty-five foot frontage could have one five-feet-by-five-feet sign. In the present case, a sign for the same frontage could be eight feet by five feet. The signage regulation was found not to be too restrictive because it limited only the outside of the businesses and the city could reasonably conclude that this limitation was best able to buffer the visual and *278other impacts of those businesses on the neighborhood. Id. at 1222.

SDJ involved an ordinance requiring sexually oriented business to use “simple signs.” SDJ, supra, 887 F.2d at 1278. Although the opinion does not contain a definition of “simple signs,” the Fifth Circuit found that the signage requirements did not violate the First Amendment.

Similarly, in Borrado, supra, a district court upheld, an ordinance that restricted adult entertainment establishments from having more than one outside sign, not to exceed ten feet in length and three feet in width, and “not to contain any emphasis, either by wording or picture or otherwise, on matters relating to sexual activities.” 456 F.Supp. at 31. The court concluded that the restrictions were no greater than essential

in fight of the findings ... that the showing and advertising of adult entertainment attracts an undesirable quantity and quality of transients, causes an increase in crime, and encourages residents and businesses to move elsewhere. The findings, as to the undesirability of the transients who are attracted to this type of entertainment and as to the resulting increase in crime, justify the City in imposing strict controls over the persons who manage and control these types of businesses and also justify the restrictions on advertising.
[M at 33.]

The signage regulation in Borrago limiting a sign to no more than thirty square feet was more restrictive than the forty square feet limitation at issue here.

We conclude that although there is no history to explain why the Legislature selected forty square feet as the size limitation, the choice of sign size falls within the ambit of Renton’s legislative discretion. “ ‘It is not [the] function [of the Court] to appraise the wisdom of [the governmental regulation because the government] ... must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.’ ” Renton, supra, 475 U.S. at 52, 106 S.Ct. at 931, 89 L. Ed.2d at 42 (quoting American Mini Theatres, supra, 427 U.S. at 71, 96 S.Ct. at 2440, 49 L. Ed.2d at 310). A sign that contains forty square feet represents a reasoned compromise between serving the State’s asserted goals *279and allowing some advertisement. Forty square feet is an adequate amount of space for a business to announce its presence given the secondary effects of sexually oriented business that are unrelated to the content of the signs.

Furthermore, we conclude that the State has an interest in regulating the signage of sexually oriented businesses rather than leaving that function to municipalities. In addressing the goals of protecting minors and increasing traffic safety, a decision to regulate at a statewide level is rational because it creates uniformity, rather than relying on the various municipalities to regulate individually in their own ways.

Ill

Next, we consider plaintiffs’ vagueness argument. N.J.S.A. 2C:34-7e permits a sexually oriented business to display an “identification sign” that does not exceed forty square feet in size. The trial court held the sign statute void for vagueness because the word “identification” could mean more than name only. The Appellate Division interpreted the statute to mean that “an identification sign may communicate not only the name of the establishment, but also the street number, telephone number, operating hours and general nature of the establishment in order to identify the business.” 298 N.J.Super. at 242, 689 A.2d 201. Based on that interpretation, the court found the statute was not vague. Ibid. Plaintiffs contend that the Appellate Division’s interpretation of the statute has enhanced its vagueness. We disagree.

A statute may be challenged as being either facially vague or vague “as applied.” State v. Maldonado, 137 N.J. 536, 563, 645 A.2d 1165 (1994); State v. Cameron, 100 N.J. 586, 593, 498 A.2d 1217 (1985). Plaintiffs maintain that the statute is facially vague. The vagueness doctrine involves procedural due process considerations of fair notice and adequate warning. Karins, supra, 152 N.J. at 544, 706 A.2d 706. A law is void if it is so vague that persons ‘“of common intelligence must necessarily *280guess at its meaning and differ as to its application.’” Town Tobacconist, supra, 94 N.J. at 118, 462 A.2d 573 (quoting Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L. Ed. 322, 328 (1926)).

‘When a statute’s constitutionality is doubtful, a court has the power to engage in ‘judicial surgery,’” construing the statute in a constitutional way. Town Tobacconist, supra, 94 N.J. at 104, 462 A.2d 573. When a statute is vague, the court’s “‘power and obligation to narrow imprecise statutory language ... to render it constitutional is beyond question.’ ” State v. Mortimer, 135 N.J. 517, 533, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L. Ed.2d 351 (1994) (quoting State v. Ramseur, 106 N.J. 123, 200, 524 A.2d 188 (1987)). That power and obligation exist because the court “ ‘begins with the assumption that the legislature intended to act in a constitutional manner.’ ” Id. at 534, 641 A.2d 257 (quoting Right to Choose v. Byrne, 91 N.J. 287, 311, 450 A.2d 925 (1982)). Therefore, we must construe N.J.S.A. 2C:34-7c in a constitutional manner if it is reasonably susceptible to such a construction. Ibid. In the past, this Court has engaged in “ ‘judicial surgery’ to excise a constitutional defect or engraft a needed' meaning.” Right to Choose, supra, 91 N.J. at 311, 450 A.2d 925; see Mortimer, supra, 135 N.J. at 534-35, 641 A.2d 257 (excising unconstitutionally vague language from statute on bias crimes); Town Tobacconist, supra, 94 N.J. at 104, 462 A.2d 573 (excising unconstitutionally vague portion of “drug paraphernalia” definition in Drug Paraphernalia Act); New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm’n, 82 N.J. 57, 75-81, 411 A.2d 168 (1980) (limiting election financing reporting act to avoid over-breadth); Borough of Collingswood v. Ringgold, 66 N.J. 350, 357, 331 A.2d 262 (1975), appeal dismissed, 426 U.S. 901, 96 S.Ct. 2220, 48 L. Ed.2d 826 (1976) (limiting ordinance requiring prior registration of canvassers and solicitors to door-to-door activity on private property); Comarco v. City of Orange, 61 N.J. 463, 466, 295 A.2d *281353 (1972) (limiting anti-loitering ordinance to interference with others in public places or threats of immediate breach of peace).

In State v. DeSantis, 65 N.J. 462, 323 A.2d 489 (1974), the Court considered the New Jersey criminal laws dealing with obscenity. These laws did not define “obscenity” with the specificity required by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L. Ed.2d 419 (1973). DeSantis, supra, 65 N.J. at 472, 323 A.2d 489. The Court weighed whether it should judicially salvage the statute:

[I]t is entirely likely that the Legislature will expeditiously deal with the subject in light of all of the opinions in Miller and the related and ensuing cases both federal and state. In the meantime, however, we are confronted with the choice of nullifying L. 1971, c. 449, thereby leaving an interim void ... or supplying a stopgap constitutional interpretation____ [W]e take the latter course which we consider the more consonant with the legislative goals and our precedential judicial expressions.
[Id. at 472-73, 323 A.2d 489.]

Accordingly, the Court engrafted the Miller definition of obscenity onto New Jersey’s obscenity laws. Id. at 473-74, 323 A.2d 489.

Furthermore, the Legislature has explicitly authorized courts to. interpret terms contained in the New Jersey Code of Criminal Justice (Code); for example, N.J.S.A. 2C:1-2 provides principles of construction to guide courts in interpreting Code provisions. N.J.S.A. 2C:1-2(e) (“The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this section and the special purposes of the particular provision involved.”).

Courts, however, will not unquestioningly construe statutes. In State v. Miller, for example, this Court declined to perform judicial surgery or to adopt a narrow construction of an ordinance prohibiting homeowners from posting signs containing political messages because the ordinance “so directly cuts to the heart of the First Amendment.” State v. Miller, 83 N.J. 402, 414, 416 A.2d 821 (1980).

The Appellate Division’s construction of N.J.S.A. 2C:34-7c was appropriate for several reasons. The Appellate Division *282complied with its obligation to supply a definition of the type of identification sign that is lawful in order to “restore the statute to health.” Town Tobacconist, supra, 94 N.J. at 104, 462 A.2d 573. That interpretation was necessary to prevent the statute from being unconstitutionally vague. The term “identification” could mean the establishment’s name only, the establishment’s name combined with a general description of the nature of its business, or its address, or both. Given that the Legislature enacted N.J.S.A. 2C:34-7c as part of a comprehensive package regulating sexually oriented businesses, it is reasonable to conclude that the Legislature would prefer the Court to adopt a “stopgap constitutional interpretation” rather than nullify the statute. Unlike the ordinance at issue in Miller, supra, N.J.S.A. 2C:34-7c does not “so directly cut[] to the heart of the First Amendment” because N.J.S.A. 2C:34-7c primarily concerns commercial, rather than political, speech. Furthermore, unlike the homeowners in Miller, sexually oriented businesses have multiple commercial means of expression available.

Consistent with N.J.S.A. 2C:1-2(e), which authorizes courts to interpret vague terms in the criminal code, the Appellate Division’s construction gives “fair warning of the nature of the conduct proscribed.” N.J.S.A 2C:1-2(a)(4). As a result, sexually oriented businesses will not have to speculate as to what is permitted on their signs.

Additionally, the Appellate Division’s construction of “identification” is consistent with several items used to identify businesses: name, location, description of location, description of premises, identity of proprietors and operators, hours of operation, and the type of business performed. The Appellate Division’s interpretation allows a sexually oriented business to display the basic elements and function of its commercial identity.

Hamilton argues that the Appellate Division exacerbated the statute’s vagueness by failing to define the “general nature of the business,” the length of time in posting a political sign that is “temporary,” and what constitutes a political sign. We conclude *283that N.J.S.A. 2C:34-7c as construed is sufficiently clear and gives adequate notice to sexually oriented businesses to withstand this pre-enforcement challenge. A common sense interpretation of “general nature of the business” allows the establishment to advertise that it is a sexually oriented business and that it sells such products to adults.

We also hold that the term “temporary political sign” is not vague. “Temporary” denotes both physical and temporal impermanence. A person of average intelligence would understand “temporary political signs” to include signs that are not permanently affixed to the establishment’s property and that speak to matters relating to the activities of the government, a politician, a political party, or a political issue. For those reasons, the statute is not facially unconstitutional.

IV

Plaintiffs argue that N.J.S.A. 2C:34-7c is impermissibly under-inclusive because it exempts all businesses that are not sexually oriented. Therefore, according to plaintiffs, the statute violates their rights to equal protection by discriminating among speakers based solely upon the content of their speech. We disagree.

The Fourteenth Amendment to the United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. “Of course, the equal protection claim in this ease is closely intertwined with First Amendment interests.” Police Dep’t v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L. Ed.2d 212, 216 (1972). “[T]he notion that a regulation of speech may be impermissibly under-inclusive is firmly grounded in First Amendment principles.” City of Ladue, supra, 512 U.S. at 51, 114 S.Ct. at 2043, 129 L. Ed.2d at 45 (emphasis in original).

The Legislature may legitimately distinguish between the speech of sexually oriented businesses and non-sexually oriented businesses because “society’s interest in [the former] type of *284expression is of a wholly different, and lesser magnitude than the interest of untrammeled political debate.” American Mini The-atres, supra, 427 U.S. at 70, 96 S.Ct. at 2456, 49 L. Ed.2d at 326. Thus, a state “may legitimately use the content of [sexually oriented] materials as the basis for placing them in a different classification from other motion pictures.” Id. at 70-71, 96 S.Ct. at 2456, 49 L. Ed.2d at 326. This reasoning applies equally to the signs of sexually oriented businesses as to adult films. We conclude, therefore, that N.J.S.A. 2C:34-7c is not constitutionally infirm based on either equal protection or underinclusiveness concerns.

V

Finally, plaintiffs contend that N.J.S.A. 2C:34-7c acts as a prior restraint. In general, “[t]he term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ ” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L. Ed.2d 441, 450 (1993) (quoting M. Nambour, Nambour on Freedom of Speech § 4.03 at 4-14 (1984)); Murray v. Lawson, 138 N.J. 206, 221-22, 649 A.2d 1253 (1994), cert. denied, 515 U.S. 1110, 115 S.Ct. 2264, 132 L. Ed.2d 269 (1995). “The Supreme Court and lower federal courts have frequently noted that traditional concerns about prior restraint raised by forms of prepublieation review such as the review procedure we permit today do not apply with the same force in the commercial speech context.” IMO Petition of Felmeister & Isaacs, 104 N.J. 515, 550 n. 20, 518 A.2d 188 (1986).

One of the factors considered in determining if a restriction is a prior restraint is whether it “prevents the expression of a message. Thus, the Supreme Court has consistently found (often without discussion) that injunctions are prior restraints if they forbid entirely the publication of a message.” Murray, supra, 138 N.J. at 222, 649 A.2d 1253. N.J.S.A. 2C:34-7c does not act as a prior restraint, however, because it does not *285prohibit plaintiffs from expressing their message entirely. Rather, they are simply prohibited from expressing it on signs larger than those permitted by the statute. See id. at 223, 649 A.2d 1253 (finding that injunction did not act as prior restraint because it only “prohibited [defendants] from expressing [message] by picketing within the 300-foot zone that the injunction establishes”). More importantly, there is no prior restraint here because plaintiff has sought to restrain enforcement of the statute while the government has taken no specific act to restrain plaintiffs’ expressions.

VI

The power of this Court to declare a statute unconstitutional must be delicately exercised. Harvey v. Board of Chosen Freeholders, 30 N.J. 381, 388, 153 A.2d 10 (1959). The strong presumption of constitutionality that attaches to a statute can be rebutted only upon a showing that the statute’s “repugnancy to the Constitution is clear beyond a reasonable doubt.” Ibid.; Franklin v. New Jersey Dept. of Human Servs., 111 N.J. 1, 17, 543 A.2d 1 (1988); New Jersey Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 8-9, 292 A.2d 545 (1972). An observation made by Justice Holmes nearly a century ago is applicable to the present case. “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas, & Texas Ry. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L. Ed. 971, 973 (1904).

We conclude that the strong presumption of the validity of N.J.S.A. 2C:34-7c has not been rebutted. We hold that the statute is constitutional. The judgment of the Appellate Division is therefore affirmed.

N.J.S.A. 2C:33-12.2 expanded the criminal offense of maintaining a nuisance to cover sexually oriented businesses in certain circumstances.