By David L. Hudson, Jr.

T he U.S. Supreme Court has refused to hear Hamilton Amusement Center v. Verniero, a case involving a challenge to a New Jersey law limiting the number of signs adult businesses can display.

The Supreme Court's inaction means that the July 1998 decision of the New Jersey Supreme Court stands -- a decision that shows how commercial and sexual speech are treated as stepchildren in First Amendment jurisprudence.

In 1995, the New Jersey legislature passed a law providing that "no sexually oriented business shall display more than two exterior signs, consisting of one identification sign and one sign giving notice that the premises are off-limits to minors." The law also regulated the size of the identification sign.

The legislature claimed the law furthered two compelling state interests: traffic safety and the protection of minors.

A group of adult businesses challenged the law in state court under the First Amendment and the New Jersey Constitution's free-speech provision. The businesses contended the law was a content-based restriction on speech that must be subjected to strict scrutiny.

In 1995, a trial judge ruled in favor of the adult businesses, finding that the state had failed to establish the legitimacy of its asserted interests. However, a state appeals court reversed that decision in 1997, finding the law constitutional in part because it affected only commercial speech.

The New Jersey Supreme Court employed similar reasoning in its July 1998 opinion. The court began its analysis by determining whether the signs conveyed commercial speech or commercial and noncommercial (i.e., political) speech.

"Although outdoor signs are often used to convey political, social, and commercial ideas, plaintiffs have made no showing of actual noncommercial use," the New Jersey high court wrote.

The New Jersey Supreme Court's opinion treated commercial speech as a form of low-value speech. First it noted that the First Amendment provides only a "limited measure of protection" to commercial speech and quoted the oft-cited language from the U.S. Supreme Court's decision in Ohralik v. Ohio State Bar Association that commercial speech has a "subordinate position in the scale of First Amendment values."

The court determined that regulations on adult businesses' commercial speech rights should be analyzed under the "closely intertwined" standards established by the U.S. Supreme Court in Central Hudson (commercial speech regulations) and Clark v. Community for Creative Non-Violence (time, place, and manner restrictions).

According to the New Jersey Supreme Court, the law furthered the state's substantial interests in traffic safety and protection of minors. The court also noted that the limitation of adult businesses' signs directly advanced the government's substantial interest in reducing the harmful secondary effects allegedly associated with such businesses, such as "neighborhood deterioration and concentration of crime."

The businesses had argued that the statute failed to directly and materially advance the state's interest in traffic safety (the third prong of Central Hudson) because it singled out only the signs of adult businesses. However, "the Legislature could reasonably conclude that the nature and content of the signs of sexually oriented businesses could cause greater distraction to motorists than other commercial signs," the New Jersey Supreme Court wrote.

Finally, the New Jersey high court found the law no more extensive than necessary to serve the state's interests for several reasons:

• The law allows two posted signs.
• The law does not affect other types of advertising.
• The law does not limit advertising within the store.
• The law does not restrict the content of the outdoor signs.