                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-10-1997

US Sound & Ser Inc v. Brick
Precedential or Non-Precedential:

Docket
97-5089




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"US Sound & Ser Inc v. Brick" (1997). 1997 Decisions. Paper 240.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/240


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Filed October 10, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-5089

U.S. SOUND & SERVICE, INC.,
a corporation of the State of New Jersey

v.

TOWNSHIP OF BRICK; PLANNING BOARD OF BRICK
TOWNSHIP; GREGORY VOCATURO; PAMELA VOCATURO;
RON LEVENDUSKY

       U.S. Sound & Service, Inc.,
       and James Restaino,
       Appellants

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 96-cv-02353)

Argued: August 14, 1997

BEFORE: STAPLETON, GREENBERG and COWEN,
Circuit Judges

(Opinion Filed October 10, 1997)

       Lewis H. Robertson (Argued)
       Evans, Osborne, Kreizman & Bonney
       P.O. Box BB
       Red Bank, NJ 07701
       Attorney for Appellant




       Shawn P. McCarthy (Argued)
       Cucci & McCarthy
       1500 Route 88 West
       P.O. Box 1609
       Brick, NJ 08723
       Attorney for Appellee
       Township of Brick

       Robert D. Ford   (Argued)
       Russo, Secare,   Ford, Delanoy &
        Martino
       616 Washington   Street
       Toms River, NJ   08753
       Attorney for Appellee
       Planning Board of Brick Township

OPINION OF THE COURT

STAPLETON, Circuit Judge:

U.S. Sound & Service, Inc. ("U.S. Sound") asserts that the
Township of Brick, New Jersey ("the Township"), and its
Planning Board ("the Board") violated U.S. Sound's First
Amendment right to free expression by imposing unjustified
conditions on its right to operate a video store in the
Township. The district court denied U.S. Sound's motion for
a partial summary judgment as to liability, denied its
alternative application for a preliminary injunction, and
granted summary judgment for the Township and the
Board. We will reverse and remand for further proceedings.

I. Background

In November 1995, U.S. Sound contracted to purchase
property in Brick, New Jersey, which it planned to use as
a video store offering "sales and rentals with video preview
booths, books, magazines and sundries." App. at 273. The
property is located within 600 feet of a structure that, since
September 1996, has been used to house all of the
kindergarten and most of the first grade classes in Brick,
and it is also within 1500 feet of the Brick High School. An
Ocean Ice Palace, which is frequented by young customers,

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stands across the street, and not far away is the only
branch of the Ocean County Public Library in Brick.

U.S. Sound intended to convert the property from its
then current use as a hair salon; therefore, it had to apply
to the Planning Board for a "change of use." Its application
included a simple floor plan showing a 1000-square-foot
single room with display racks and several booths for
previewing movies available for rent. It described its
projected video collection as including "rated and unrated
titles in a broad range of categories such as drama,
comedy, action, classical, documentary, musical, sports,
nature and adult-theme videos in order to attract as broad
a patronage as possible." App. at 88.

The Board approved the change of use subject to the
following conditions, among others that are not challenged
before us:

       There shall be no private viewing of movies within an
       enclosed area anywhere upon the premises or within
       the structure. Movies may, however, be previewed
       without barriers, obstructions or privacy provided the
       movies are not rated R, X, and NC and/or NC 17 or
       any other rating other than G or PG.

       . . .

        In the event that the applicant chooses to sell books,
       magazines, periodicals or other printed material or
       photographs, films, motion pictures, video cassettes,
       slides or other visual representations [described in New
       Jersey's "Sexually Oriented Business Law" 1] then the
_________________________________________________________________

1. The law encompasses printed and recorded media that "depict or
describe a `specified sexual activity' or `specified anatomical area.' "
Specified sexual activity includes "(1) The fondling or other erotic
touching of covered or uncovered human genitals, pubic region, buttock
or female breasts; or (2) Any actual or simulated act of human
masturbation, sexual intercourse or deviate sexual intercourse."
Specified anatomical areas include "(1) Less than complete and opaquely
covered human genitals, pubic region, buttock or female breasts below
a point immediately above the top of the areola; or (2) Human male
genitals in a discernibly turgid state even if covered." Chapter 230, Laws
of 1995 (codified at N.J. Stat. Ann. 2C:34-6 (West Supp. 1997)).

                                3



       sale of such materials can only take place in an area of
       the premises that is separated, separately walled
       through which admission can only be gained by a
       separate door which shall have a sign affixed to it
       stating that admission is only to those persons over
       eighteen years of age. Such area shall not consume
       more than ten percent of the square floor area of the
       structure.

App. at 228-29.

Dissatisfied with these conditions, U.S. Sound filed suit
in the district court against the Board and the Township
under 42 U.S.C. S 1983 alleging that the Board's blanket
prohibition of preview booths and its content-based
restriction of adult-theme materials to 100 square feet
inhibited U.S. Sound's free expression in violation of the
First Amendment.

After the Township and the Board answered,   U.S. Sound
moved for partial summary judgment and, in   the
alternative, for a preliminary injunction.   In response, the
Township and the Board moved for a summary   judgment in
their favor. In support of their own motion and in
opposition to those of U.S. Sound, the Township and the
Board advanced only one justification for the challenged
conditions: the protection of minors from exposure to adult
entertainment materials. U.S. Sound acknowledged that
this was a "compelling state interest" for purposes of the
strict scrutiny test and a "substantial state interest" for
purposes of the intermediate scrutiny test. It insisted,
however, that this legitimate interest of the Township and
the Board did not justify the conditions imposed under
either test.

Relying on City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986), the district court subjected the Township's
regulation of U.S. Sound's proposed activities to
intermediate scrutiny and held that it survived that
scrutiny. Accordingly, it denied U.S. Sound's motions for
partial summary judgment and a preliminary injunction
and granted the motion of the Township and the Board.
With no federal claims left pending before it, the court
declined to exercise supplemental jurisdiction over several

                                4



state claims asserted by U.S. Sound and dismissed those
claims without prejudice.

The district court properly exercised jurisdiction under
28 U.S.C. S 1331, and this court has appellate jurisdiction
to review the district court's final order under 28 U.S.C.
S 1291.

II. Discussion

"Speech, be it in the form of film, live presentations, or
printed matter, that is sexually explicit in content but not
`obscene' is protected under the First Amendment." Phillips
v. Borough of Keyport, 107 F.3d 164, 172 (3d Cir. 1997). If
the government regulates non-obscene expression based on
its sexually explicit content, the restrictions imposed pass
constitutional muster only if they survive "strict scrutiny"--
that is, only if they serve a compelling state interest in a
manner which imposes the least possible burden on
expression. Sable Communications, Inc. v. FCC, 492 U.S.
115, 126 (1989). On the other hand, if the government acts
to ameliorate the undesirable "secondary effects" of sexually
explicit expression, its regulation is regarded as "content-
neutral" and enjoys a more deferential standard of
"intermediate," rather than "strict," scrutiny. City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41 (1986)(applying
intermediate scrutiny to a zoning ordinance designed "to
prevent crime, protect the city's retail trade, [and] maintain
property values"); see also Ben Rich Trading, Inc. v. City of
Vineland, 1997 WL 567320, at *5 (3d Cir. 1997); Phillips,
107 F.3d at 172. Content-neutral governmental regulation
survives this "intermediate scrutiny" if it is narrowly
tailored to serve a substantial governmental interest and
leaves open ample alternative channels for communication
of the restricted expression. As we noted in Phillips,

       [w]hile the requirement of narrow tailoring does not
       mean that the ordinance must be the least restrictive
       means of serving the Borough's substantial interests,
       "[g]overnment may not regulate expression in such a
       manner that a substantial portion of the burden on
       speech does not serve to advance its goals." Ward v.
       Rock Against Racism, 491 U.S. 781, 799; 109 S. Ct.
       2746, 2758, 105 L.Ed.2d 661 (1989).

                                5



Id. at 174.

The Township and the Board persuaded the district court
that although the regulation imposed by the Board's
resolution singles out adult entertainment for special
treatment, it is content-neutral because it is aimed not at
the sexually explicit content but rather at the "secondary
effects" of that entertainment on children. Accordingly, the
court applied the intermediate scrutiny test of Renton.
Intermediate scrutiny was not appropriate, however,
because "[l]isteners' reactions to speech are not the type of
`secondary effects' . . . referred to in Renton." Boos v. Barry,
485 U.S. 312, 321 (1988). As the Supreme Court explained
in Boos:

       To take an example factually close to Renton, if the
       ordinance there was justified by the city's desire to
       prevent the psychological damage it felt was associated
       with viewing adult movies, then analysis of the
       measure as a content-based statute would have been
       appropriate. The hypothetical regulation targets the
       direct impact of a particular category of speech, not a
       secondary feature that happens to be associated with
       that type of speech.

Id. at 321.

The impact of protected speech on minors is a direct,
rather than a secondary, effect, and a regulation that
singles out non-obscene sexually explicit material because
of its impact on minors is not content-neutral. This is clear
from the Supreme Court's recent decision in Reno v.
American Civil Liberties Union, 117 S. Ct. 2329 (1997),
where the Court struck down two provisions of the
Communications Decency Act of 1996 (CDA). The Attorney
General urged that the challenged provisions should be
subjected to intermediate scrutiny under Renton because
the Act was designed to protect minors from exposure to
"indecent" and "patently offensive" speech on the Internet.
The Court rejected this position:

        In Renton, we upheld a zoning ordinance that kept
       adult movie theatres out of residential neighborhoods.
       The ordinance was aimed, not at the content of the
       films shown in the theaters, but rather at the

                                6



       "secondary effects"--such as crime and deteriorating
       property values--that these theaters fostered:" `It is
       th[e] secondary effect which these zoning ordinances
       attempt to avoid, not the dissemination of "offensive"
       speech.' " . . . [T]he purpose of the CDA is to protect
       children from the primary effects of "indecent" and
       "patently offensive" speech, rather than any
       "secondary" effect of such speech. Thus, the CDA is a
       content-based blanket restriction on speech, and, as
       such, cannot be "properly analyzed as a form of time,
       place, and manner regulation." 475 U.S., at 46, 106 S.
       Ct. at 928. See also Boos v. Barry, 485 U.S. 312, 321,
       108 S. Ct. 1157, 1163, 99 L.Ed.2d 333 (1988)
       ("Regulations that focus on the direct impact of speech
       on its audience" are not properly analyzed under
       Renton); Forsyth County v. Nationalist Movement, 505
       U.S. 123, 134 (112 S. Ct. 2395, 2403, 120 L.Ed.2d 101
       (1992) ("Listeners' reaction to speech is not a content-
       neutral basis for regulation").

Id. at 2342-43 (citation omitted).

Because the Township and the Board seek to justify the
Board's resolution on the sole basis of a desire to protect
minors from exposure to adult entertainment, Reno
requires that we subject that resolution to strict scrutiny.
Our conclusion would not be different, however, if we were
persuaded that Renton supplies the appropriate test. While
protecting minors from exposure to adult entertainment
can accurately be characterized as a compelling and a
substantial governmental interest, the regulation imposed
by the Board's resolution is neither the least restrictive
means of furthering that interest nor narrowly tailored to
serve that interest. Accordingly, we conclude that the
Board's resolution restricted protected speech in violation of
U.S. Sound's right to free expression under the First
Amendment.
When the Township and Board's regulation of protected
speech was challenged, they bore the burden under both
the strict and intermediate scrutiny tests of identifying the
governmental interest or interests that motivated the
Board's resolution and of coming forward with facts which
would support a conclusion that the resolution was

                                7



sufficiently narrowly drawn to serve that interest or those
interests. Phillips, 107 F.3d at 172-73.2 They have failed to
do so.

There is no question that the Constitution allows the
Township to foreclose display and distribution of adult
materials to minors. Indeed, U.S. Sound acknowledges that
the Township can promote its compelling state interest in
protecting minors from exposure to adult entertainment by
requiring U.S. Sound to market adult materials only in
segregated space to which minors are denied access. But
U.S. Sound objects to the additional burdens on its
expressive activities. As U.S. Sound stresses, even under
Renton, the Township may not regulate its expressive
activities in such a way that "a substantial portion of the
burden . . . does not serve to advance" the professed goal
of preventing exposure of minors to adult entertainment.
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).

While the Township and the Board have identified the
governmental interest they purport to be serving, they
cannot explain why, having denied minors access to the
only area in which adult entertainment can be marketed,
the risk of minors' exposure to adult material will be
reduced by limiting that area to ten percent of the floor
space of the facility. Nor can they explain why, having
denied minors access to the only area in which adult
entertainment can be marketed, the risk of minors'
exposure to adult material will be reduced by eliminating
private previewing booths from the segregated area, or, for
that matter, from the space to which access is not
restricted. It necessarily follows that the motion of the
Township and the Board for summary judgment should
have been denied and that U.S. Sound's motion for partial
summary judgment should have been granted.
_________________________________________________________________

2. The Township and the Board complain that U.S. Sound, prior to filing
suit, never volunteered to segregate its adult materials. U.S. Sound
disputes this, and the record does not resolve this controversy.
Nonetheless, regardless of what U.S. Sound did or did not propose, the
Board had an affirmative duty when undertaking to restrict protected
speech to confine its restrictions within constitutional limits.

                                8



Because the Township and the Board have sought to
justify the entire burden of their regulations of protected
speech on the sole basis that minors should not be exposed
to adult entertainment, our holding is a very narrow one.
We do not hold that a municipality may not regulate private
viewing booths for adult entertainment where it perceives
serious secondary effects from their use that can be
ameliorated only by such regulation. See, e.g., Ben Rich
Trading, Inc. v. City of Vineland, 1997 WL 567320, at *10-
*11 (3d Cir. 1997); Mitchell v. Commission on Adult
Entertainment Est., 10 F.3d 123, 133 (3d Cir. 1993). Nor do
we hold that a municipality is powerless to limit the
amount of adult entertainment marketed by a video store
where it can prove that a store with a higher percentage of
adult material will have serious secondary effects on the
residential neighborhood that surrounds the store. Nor do
we suggest that where a video store that will be patronized
by minors elects to screen previews on a public screen, a
municipality cannot prohibit public exhibition of previews
of adult entertainment.

III.

The premises on which U.S. Sound wishes to conduct its
video business are currently occupied by another
proprietor, and the owner of those premises disputes that
U.S. Sound has a right to possession. Indeed, the owner
disputes whether U.S. Sound has had a right to possession
at any point after the Board's resolution of March 13, 1996.
Whether or not U.S. Sound has a right to present
possession is, of course, highly relevant to whether there is
a current need for injunctive relief. Moreover, the period
during which it has had a right to such possession may be
relevant in determining what, if any, damages are
recoverable by U.S. Sound. It is clear, based on the
summary judgment record, however, that U.S. Sound is at
least entitled to a declaratory judgment that the Board's
resolution of March 13, 1996 violated its rights under the
First Amendment. Accordingly, we will reverse the judgment
of the district court with instructions that it enter such a
declaratory judgment and that it conduct such further

                                9



proceedings consistent with this opinion as may be
necessary.
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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