[HISTORY: Adopted by the Common Council of the City of Linwood 5-8-1974
by Ord. No. 5-1974. Amendments noted where applicable.]
The commercial distribution or commercial display of obscene materials
or acts to anyone, including consenting adults, is hereby prohibited.
Obscene materials and acts are hereby defined as follows:
A.
Films and moving pictures. A film or moving picture is
obscene if, when considered as a whole, its calculated purpose or dominant
effect is:
(1)
Substantially to arouse sexual desires, whether natural
or unnatural, and if the probability of this effect is so great as to outweigh
whatever other merits the film may possess.
(2)
To portray acts of sexual immorality or lewdness as profitable,
desirable, acceptable or proper behavior.
(3)
To advocate the illegal use of narcotics or habit-forming
drugs.
B.
Photographs, paintings, illustrations. A photograph,
painting or illustration is obscene if it portrays human sexual intercourse,
homosexual acts, sadistic sexual acts, sexual acts between man and beast or
human sexual organs. (Breasts shall not be considered sexual organs for the
purpose of this subsection). Notwithstanding the foregoing, a photograph,
painting or illustration which portrays human sexual organs is not obscene
if it is a part of a medical textbook; or it is a work of art, the original
or a copy of which has been displayed by a museum receiving public funds,
or (if by a less-renowned artist) the subject of which is the human body as
a whole without particular emphasis on its sexual parts, and if considered
as a whole, its calculated purpose or dominant effect is not to substantially
arouse sexual desires, whether natural or unnatural, so as to outweigh whatever
other merits it may possess.
C.
Books and magazines. A book or magazine containing photographs, paintings or illustrations of the type defined as obscene in Subsection B is obscene if, considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, whether natural or unnatural, and if the probability of this effect is so great as to outweigh whatever other merits it may possess. A book or magazine containing no photographs, paintings or illustrations shall not be considered obscene for purposes of this chapter.
D.
Objects. An object is obscene if it is by itself a recognizable
reproduction of a sexual organ (including breasts) or if some part of it consists
of a recognizable reproduction of sexual organs substantially exaggerated
in size or appearance.
E.
Acts. An act is obscene if it involves the naked display
of sexual organs (including breasts), or if it is explicitly suggestive of
sexual acts or if it involves sexual acts.
A.
A commercial distribution is any transfer or possession,
whether permanent or temporary, for any valuable consideration, whether the
valuable consideration is paid by the recipient of the obscene material or
by another. Where obscene material is transferred incident to another commercial
transaction, it is a commercial distribution whether or not the parties state
that the valuable consideration is paid in part for the obscene material.
B.
A commercial display is the exhibition of obscene material
to the senses of another person for valuable consideration, whether the valuable
consideration is paid by the recipient of the exhibition or by another. Where
obscene material is exhibited incident to another commercial transaction,
it is a commercial display, whether or not the parties state that the valuable
consideration is paid in part for the obscene exhibit.
A.
Any person desiring to make commercial distribution or
commercial display of a film or moving picture which he has reason to believe
may be obscene shall first submit it for inspection by the Review Committee,
consisting of the Mayor, a consenting elected or appointed officer of the
City of Linwood and a consenting resident of said City who is registered to
vote therein; the latter two to be appointed by and to serve at the pleasure
of said Mayor without compensation, which Review Committee shall act by a
majority of the members thereof.
B.
The applicant shall give the Review Committee written
notice of his intention to submit any film or moving picture for inspection.
Said notice shall be delivered to the Review Committee or to the City Clerk
and shall contain the applicant's name, address within the City and telephone
number where he can be reached during business hours. Within 24 hours (Saturdays,
Sundays and holidays excepted) of receipt of said notice the Review Committee
shall make itself available to said applicant during business hours for the
purpose of inspecting the film or moving picture. The Review Committee shall
reasonably notify the applicant of the appointed time either by telephone
or by written notice left at the address within the City stated by the applicant.
(The failure of the applicant to cooperate in any way in arranging a time
for inspection within said 24 hours shall not relieve said applicant of the
duty to submit the film or moving picture for inspection as soon thereafter
as possible and prior to any commercial distribution or commercial display.)
The applicant shall bring the film or moving picture, together with any necessary
projector, screen and operating personnel, to the Review Committee or City
Clerk at the City Hall of the City of Linwood, Poplar Avenue and New Road,
City of Linwood, New Jersey, whereupon the applicant shall show the film or
moving picture for the inspection of the Review Committee. Within 72 hours
(Saturdays, Sundays and holidays excepted) of the termination of said inspection
the Review Committee shall either inform the applicant in writing that the
film or moving picture is not obscene and therefore that it may be commercially
distributed or commercially displayed without fear of prosecution under this
chapter, or inform the applicant in writing that the commercial distribution
or commercial display of said film or moving picture has been refused and
that the City will seek to have the same enjoined if necessary because of
its obscene character.
C.
It shall be a violation of this section to make commercial distribution or commercial display of any obscene film or moving picture prior to the expiration of said seventy-two-hour period. Nothing herein shall prevent the applicant from making commercial distribution or commercial display of said film or moving picture after the end of said seventy-two-hour period, subject to any judicial restraints imposed, and further subject to any penalties under § 187-5 of this chapter should said film or moving picture ultimately be adjudged obscene by a court of law.
Anyone having violated § 187-1 of this chapter shall be subject to imprisonment in the county jail for a period not exceeding 90 days or to a fine not exceeding $500, or both. Anyone having violated § 187-4 of this chapter, and the film or moving picture having been adjudged obscene in a court of law in the same or a separate proceedings, shall be subject to a separate penalty of imprisonment in the county jail for a period not exceeding 90 days or a fine not exceeding $500, or both. Each separate film, moving picture, photograph, painting, illustration, book, magazine, object or act (and each issue of them) which is commercially distributed or commercially displayed shall constitute a separate offense under this chapter. Each separate commercial distribution or commercial display, whether to different persons or to the same person, shall constitute a separate offense under this chapter.
Notwithstanding any other section, clause or provision of this chapter
to the contrary, the definitions of "obscene" and "obscenity," for all purposes
of interpretation and enforcement of this chapter, shall be construed in accordance
with and in no event more strictly than the criteria set forth in C. 449 L.
1971 of the Laws of New Jersey (effective February 16, 1972, as N.J.S.A. 2A:115-1.1),[1] as same shall be from time to time amended or supplemented, as
well as in accordance with and not more strictly than judicial interpretations
thereof pursuant to the Constitutions of the United States and of the State
of New Jersey finally concluded in courts of jurisdiction sufficient to render
decisions on constitutional questions having general application.
[1]
Editor's Note: Former N.J.S.A. 2A:115-1.1 was repealed by L. 1971,
c. 446.
