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Schad v. Borough of Mount Ephraim

Supreme Court of the United States · 1981 · Constitutional Law

Constitutional LawFirst AmendmentZoningFreedom of ExpressionFirst Amendmentzoninglive entertainmentnude dancing

Facts

Appellants operated an adult bookstore in Mount Ephraim's commercial zone, selling adult books, magazines, and films and using coin-operated booths to show adult films. In 1976 they added coin-operated live nude dancing behind a glass panel. The Borough charged them with violating its zoning ordinance, which the New Jersey courts construed to prohibit live entertainment in any establishment in the Borough. Appellants argued that applying criminal penalties under that ordinance violated their rights of free expression.

Issue

Whether a borough may, consistent with the First and Fourteenth Amendments, enforce a zoning ordinance construed to prohibit all live entertainment throughout the borough, including nonobscene nude dancing. More specifically, the question was whether criminal penalties could be imposed on appellants under such an ordinance.

Rule

When a zoning law infringes protected liberty under the First Amendment, it must be narrowly drawn and must further a sufficiently substantial governmental interest. A municipality may not broadly exclude protected expression, including live entertainment, without adequate justification, and any time, place, and manner restriction must serve significant interests and leave open adequate alternative channels of communication.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The city council of Fairview, Ohio permits restaurants, hardware stores, banks, motels, repair shops, and gift stores in its commercial district. It also enacts a rule that no business anywhere in the city may present any live performance, including music, comedy, theater, or dance, explaining only that live shows could create parking and litter concerns.

If a theater owner challenges the ordinance under the First Amendment, how should a court most likely rule?

Explanation. The majority held that live entertainment is protected expression and that when zoning infringes protected liberty, the regulation must be narrowly drawn and must further a sufficiently substantial governmental interest. A total ban on live entertainment across the municipality is a substantial restriction, and generalized assertions about parking and trash, unsupported by evidence and untailored to the problem, are inadequate.