Schad v. Mount Ephraim
Decided on June 1, 1981; 452 US 61


A. Issues Discussed: Free speech

B. Legal Question Presented:

Does the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonobscene, nude dancing, violate the rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution?


A. Background:

"In 1973, appellants began operating an adult bookstore in the commercial zone in the Borough of Mount Ephraim in Camden County, NJ. The store sold adult books, magazines, and films. 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. 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. Complaints were soon filed against appellants charging that the bookstore's exhibition of live dancing violated 99-15B of Mount Ephraim's zoning ordinance...

Appellants were found guilty in the Municipal Court and fines were imposed. 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. 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. Those establishments, the court held, were permitted, nonconforming uses that had existed prior to the passage of the ordinance. 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' but was of the view that 'First Amendment guarantees are not involved' since the case 'involves solely a zoning ordinance' under which '[l]ive 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... The Supreme Court of New Jersey denied further review."

On appeal the US Supreme Court reversed and remanded the judgment of the Supreme Court of New Jersey.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging reversal by Bruce J. Ennis filed a brief for the American Civil Liberties Union et al.

Robert E. Levy argued the cause for appellants. With him on the brief was Lewis H. Robertson.

Brief of amici curiae urging affirmance by Anthony H. Atlas filed a brief for Morality in Media, Inc.

Arnold N. Fishman argued the cause and filed a brief for appellee.


"The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities. But the zoning power is not infinite and unchallengeable; it 'must be exercised within constitutional limits...'

Mount Ephraim has not adequately justified its substantial restriction of protected activity. None of the justifications asserted in this Court was articulated by the state courts and none of them withstands scrutiny. First, the Borough contends that permitting live entertainment would conflict with its plan to create a commercial area that caters only to the 'immediate needs' of its residents and that would enable them to purchase at local stores the few items they occasionally forgot to buy outside the Borough. No evidence was introduced below to support this assertion, and it is difficult to reconcile this characterization of the Borough's commercial zones with the provisions of the ordinance...

Second, Mount Ephraim contends that it may selectively exclude commercial live entertainment from the broad range of commercial uses permitted in the Borough for reasons normally associated with zoning in commercial districts, that is, to avoid the problems that may be associated with live entertainment, such as parking, trash, police protection, and medical facilities. The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems of this nature more significant than those associated with various permitted uses...

The Borough also suggests that 99-15B is a reasonable 'time, place, and manner' restriction; yet it does not identify the municipal interests making it reasonable to exclude all commercial live entertainment but to allow a variety of other commercial uses in the Borough...

Accordingly, the convictions of these appellants are infirm, and the judgment of the Appellate Division of the Superior Court of New Jersey is reversed and the case is remanded for further proceedings not inconsistent with this opinion."

The US Supreme Court reversed and remanded the judgment of the Supreme Court of New Jersey.

Justice Vote: 7 Pro vs. 2 Con

  • White, B. Pro (Wrote majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • Marshall, T. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Powell, L. Pro (Wrote concurring opinion)
  • Stevens, J.P. Pro (Wrote concurring opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as amicus curiae, urged reversal of the Supreme Court of New Jersey's judgment; the Supreme Court reversed and remanded in a 7-2 vote, giving the ACLU an apparent win.