452 U.S. 61 (1981)
In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, New Jersey.1 The store sold adult books, magazines, and films.2 Amusement licenses shortly issued permitting the store to install coin-operated devices by virtue of which a customer could sit in a booth, insert a coin, and watch an adult film.3
In 1976, the store introduced an additional coin-operated mechanism permitting the customer to watch a live dancer, usually nude, performing behind a glass panel.4 Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated section 99-15B of Mount Ephraim's zoning ordinance.5 That ordinance described the permitted uses in a commercial zone as offices and banks, taverns, restaurants and luncheonettes for sit-down dinners only and with no drive-in facilities, automobile sales, retail stores such as but not limited to food, wearing apparel, millinery, fabrics, hardware, lumber, jewelry, paint, wallpaper, appliances, flowers, gifts, books, stationery, pharmacy, liquors, cleaners, novelties, hobbies and toys, repair shops for shoes, jewels, clothes and appliances, barbershops and beauty salons, cleaners and laundries, pet stores, and nurseries, plus motels.6 Section 99-4 of the Borough's code provided that all uses not expressly permitted in this chapter are prohibited.7
Appellants were found guilty in the Municipal Court and fines were imposed.8 Appeal was taken to the Camden County Court, where a trial de novo was held on the record made in the Municipal Court and appellants were again found guilty.9 The County Court first rejected appellants' claim that the ordinance was being selectively and improperly enforced against them because other establishments offering live entertainment were permitted in the commercial zones.10 The court held that those establishments were permitted, nonconforming uses that had existed prior to the passage of the ordinance.11 In response to appellants' defense based on the First and Fourteenth Amendments, the court recognized that live nude dancing is protected by the First Amendment.12 The court was of the view that First Amendment guarantees are not involved.13 The case involves solely a zoning ordinance under which live entertainment is simply not a permitted use in any establishment, whether the entertainment is a nude dance or some other form of live presentation. The Appellate Division of the Superior Court of New Jersey affirmed appellants' convictions in a per curiam opinion essentially for the reasons given by the County Court.14 The Supreme Court of New Jersey denied further review.15
Appellants appealed to the United States Supreme Court.16 Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonobscene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution.17 The Supreme Court noted probable jurisdiction and set aside appellants' convictions.18
Whether the imposition of criminal penalties under a zoning ordinance prohibiting all live entertainment, including nonobscene nude dancing, violates rights of free expression under the First and Fourteenth Amendments?19
Zoning ordinances restricting protected First Amendment expression must be narrowly drawn to further a sufficiently substantial government interest, and municipalities bear the burden of justifying such restrictions with evidence rather than speculation or unsupported assertions.20
Yes. The Borough of Mount Ephraim's zoning ordinance, as construed by the state courts, prohibits all live entertainment throughout the commercial zones.21 Appellants were convicted and fined for introducing coin-operated live nude dancing in their adult bookstore in 1976 after previously operating with amusement licenses for adult films.22 The Borough asserted interests in preserving commercial areas for residents' immediate needs and mitigating problems such as parking and trash collection, yet introduced no evidence that live entertainment creates greater difficulties than permitted uses like restaurants, motels, or retail stores, and the ordinance is not narrowly tailored to address any distinctive concerns.23
The County Court and Appellate Division upheld the convictions by treating the matter as a routine zoning regulation without requiring the Borough to demonstrate narrow tailoring or substantial justification under First Amendment standards.24
The imposition of criminal penalties under the ordinance violates appellants' rights of free expression under the First and Fourteenth Amendments.25
Related opinions on this issue
Justice Blackmun stressed that the presumption of validity that traditionally attends a local government's exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.26 He emphasized that the zoning authority must articulate and support a reasoned and significant basis for its decision rather than relying on minimal scrutiny.27 Justice Blackmun further observed that a locality cannot eliminate access to protected expression merely because similar opportunities exist in nearby communities.28
Residents should not depend on political decisions made in other jurisdictions for the exercise of their rights.29
Joined by Justice Stewart
Justice Powell agreed that Mount Ephraim failed to justify its broad restriction of protected expression.30 He noted that some communities remain free by a more carefully drawn ordinance to regulate or ban all commercial public entertainment.31 A residential community that excludes all commercial activity or limits establishments to essential neighborhood services could validly adopt such an ordinance.32
The Borough of Mount Ephraim failed to follow these paths, as the ordinance before the Court was not carefully drawn and proved both overinclusive and underinclusive.33
Whether a municipality may exclude a broad category of protected expression from all commercial uses throughout the borough without sufficient justification?34
When a zoning ordinance infringes on protected liberties such as free expression, it must be narrowly drawn and further a sufficiently substantial government interest, requiring courts to examine both the importance of the asserted interests and the extent to which the regulation serves them.35
No. Mount Ephraim excluded the entire category of live entertainment from its commercial zones, which permit a wide array of other uses including banks, offices, automobile sales, hardware stores, motels, and restaurants, without presenting evidence that live entertainment poses unique problems or that less intrusive alternatives would fail to address any legitimate concerns.3637 The state courts resolved the ordinance's ambiguity by declaring live entertainment impermissible but did not require the Borough to meet the heightened scrutiny applicable to restrictions on protected expression.38
A municipality may not exclude a broad category of protected expression from all commercial uses throughout the borough without sufficient justification that satisfies First Amendment requirements.39
Related opinions on this issue
Justice Stevens concluded that the opaque record and open-ended ordinance placed the burden on the Borough to demonstrate that appellants' introduction of live entertainment had an identifiable adverse impact on the neighborhood.40 He observed that the absence of narrowly drawn content-neutral standards meant the prosecution effectively targeted protected expressive activity without adequate justification.41
Neither the text of the zoning ordinance nor the evidence in the record indicated that Mount Ephraim applied narrowly drawn content-neutral standards to the appellants' business.42
Whether live entertainment is basically incompatible with permitted commercial uses in the borough's zoning scheme?43
Time, place, and manner restrictions must serve significant state interests, be narrowly tailored, and leave open adequate alternative channels, with the initial inquiry being whether the manner of expression is basically incompatible with the normal activity of the particular place.44
No. The Borough offered no evidence establishing that live entertainment is incompatible with permitted commercial uses such as restaurants, taverns, and retail stores along the Black Horse Pike.4546 The record shows that several other establishments in the same commercial zones have long offered live music and performances as nonconforming uses predating the ordinance.47 The ordinance excludes live entertainment while allowing numerous other commercial activities that generate comparable demands for parking and services.48 The Borough failed to show that live entertainment cannot coexist with the normal pattern of activity in its commercial zones.49
Live entertainment is not basically incompatible with the permitted commercial uses in the borough's zoning scheme.50
Related opinions on this issue
Joined by Justice Rehnquist
Chief Justice Burger dissented on the ground that a small residential community may employ its police power to preserve a tranquil setting.51 He argued that the Borough could ban activities such as nude dancing that it deems incompatible with the basic character of the town.52 He maintained that the ordinance as applied to appellants' bookstore validly protected the community's choice to shape its environment.53
Citizens should remain free to decide that factories, gas stations, sports stadia, bookstores, and live nude shows will not be allowed without trivializing First Amendment values.54