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Law School Case Brief

Schad v. Mount Ephraim - 452 U.S. 61, 101 S. Ct. 2176 (1981)


Entertainment, as well as political and ideological speech, is protected by the First Amendment; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Nor may an entertainment program be prohibited solely because it displays the nude human figure. Nudity alone does not place otherwise protected material outside the mantle of the First Amendment. Furthermore, nude dancing is not without its First Amendment protections from official regulation


After an adult bookstore located in a borough's commercial zone introduced a coin-operated mechanism that permitted customers to watch a live dancer, usually nude, performing behind a glass panel, complaints were filed against the bookstore operators charging that the exhibition of live dancing violated the borough's zoning ordinance, which governed uses permitted in a commercial zone. The bookstore operators were found guilty in a municipal court, and were also found guilty on appeal in the Camden, New Jersey, County Court. In response to the bookstore operators' defense based on the First and Fourteenth Amendments, the court recognized that live nude dancing was protected by the First Amendment, but ruled that First Amendment guarantees were not involved. The Superior Court of New Jersey, Appellate Division, affirmed the bookstore operators' convictions, and the Supreme Court of New Jersey denied further review.


Were the defendants’ convictions invalid under the First and Fourteenth Amendments?




The United States Supreme Court held that the convictions of the operators of the adult bookstore were constitutionally infirm in violation of rights guaranteed under the First and Fourteenth Amendments, the borough having failed to advance sufficient justification, as required by the First Amendment, for the exclusion of a broad category of expression long held to be within the Amendment's protection. According to the Court, the borough's contention that permitting live entertainment would conflict with its plan to create a commercial area catering to the "immediate needs" of its residents was patently insufficient. Moreover, the borough presented no evidence in support of its argument that it may selectively exclude commercial live entertainment from permitted commercial uses because such entertainment poses problems of a unique nature, especially where the ordinance was not narrowly drawn to respond to such distinctive problems and it was not clear that a more selective approach would fail to address such problems. The Court further averred that the borough, in attempting to establish that the ordinance was a reasonable "time, place, and manner" restriction, did not identify municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the borough, and did not present evidence establishing that live entertainment was incompatible with the uses presently permitted by the borough.

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