Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)

Mount Ephraim’s zoning ordinance prohibited all commercial uses except those specifically listed in the ordinance; one of these omitted uses was live entertainment including the commercial production of plays, musicals, and so forth, as well as nude dancing. Schad and his associates operated an adult bookstore and had an amusement license for coin-operated booths where patrons could watch films. When they added a booth for live and usually nude dancing, they were convicted and fined for violating the borough’s zoning ordinance. The lower court relied on Stevens’ majority opinion in Young v. American Mini-Theatres, Inc. (1976) that the ‘‘mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not sufficient reason for invalidating these ordinances.’’ New Jersey’s appellate courts upheld the convictions.

The Supreme Court voting seven to two reversed the convictions. White wrote the majority opinion. Brennan, Stewart, Marshall, Blackmun, and Powell joined White’s opinion. Powell, joined by Stewart, wrote a concurring opinion. Stevens concurred with the judgment. Burger, joined by Rehnquist, dissented.

Because Mount Ephraim’s zoning ordinance infringed on protected liberties, a higher standard of scrutiny or strict scrutiny is called for compared with when zoning only affects property interests. Thus, the law must be narrowly drawn and further a substantial government interest. Contrary to the lower courts’ position, Young v. American Mini Theatres, Inc. (1976) does not control this case, White declares, for three reasons. First, Detroit’s ordinance restricted only the location of adult theatres and imposed minimal burdens on protected speech. Second, the restrictions did not affect the total number of adult theatres nor were they banned from the city. Third, the city provided evidence of the secondary effects of concentrations of adult theatres or bookstores. Mount Ephraim’s ordinance, in contrast, fails on all three grounds.

The ordinance thus suffers from being overly broad; it bans all live entertainment, violating the strictures of the Court’s overbreadth doctrine. Moreover, the borough’s secondary effects argument is not internally consistent, because it does not show whether or how live nude dancing would produce more severe social problems than the films already being shown in the same establishment. Finally, its argument that the ordinance imposes reasonable time, place, and manner restrictions also falters. The borough did not explain why live entertainment would be ‘‘basically incompatible’’ with normal activities in a commercial zone; the initial question when determining the validity of time, place, and manner restrictions.

Blackmun writes in concurrence to emphasize that the customary presumption of validity granted zoning ordinances ‘‘carries little, if any, weight’’ where a zoning ordinance ‘‘trenches on rights of expression.’’ Burger, in dissent, however, takes the position that an ‘‘overconcern about draftsmanship and overbreadth should not be allowed to obscure the central question’’ before the Court: the citizens of Mount Ephraim ‘‘meant only to preserve the basic character of their community.’’

ROY B. FLEMMING

References and Further Reading

• Alexander, Donald. The Politics of Pornography. Chicago: University of Chicago Press, 1989.
• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale, IL: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Law, and Documents. Santa Barbara, CA: ABC-Clio, 2002.

Cases and Statutes Cited

• Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)
• Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)