New Jersey Section 2C:34-3.1 – Retailer defined

New Jersey Section 2C:34-3.1 – Retailer Defined: What Lawyers Need to Know

New Jersey has some pretty strict laws when it comes to obscenity and pornography. Section 2C:34-3.1 specifically defines who can be considered a “retailer” under the obscenity laws. This is an important definition for lawyers to understand, so let’s break it down.

Who Qualifies as a Retailer?

Under 2C:34-3.1, a “retailer” is any person who operates a store, newsstand, booth, concession, or similar business with unimpeded access for persons under 18 years old. This includes places like convenience stores, drug stores, supermarkets, etc.

It also includes any person who operates a shopping mall or department store. So basically, if you’re selling goods that are openly accessible to minors, you’re considered a retailer under the law.

Why Does This Matter?

It matters because retailers face stricter regulations when it comes to displaying or selling obscene materials. Section 2C:34-2 makes it a crime to distribute obscene material to persons under 18 years old.

And Section 2C:34-3 makes it a disorderly persons offense for retailers to display obscene materials in their stores where minors can see them.

So being classified as a “retailer” means you have to be extra careful with the materials you display and sell. Let’s look at some examples:

• A convenience store owner can’t display Hustler magazine right next to the Snickers bars where kids can see it. That would be a violation.
• A drug store can’t openly display adult videos near the toy aisle. Again, that material needs to be kept away from areas where minors shop.
• A supermarket can’t place Penthouse on the magazine racks at the checkout counters. That material needs to be behind the counter or otherwise blocked from view.

As you can see, retailers have to take precautions to keep obscene material away from underage shoppers. Otherwise, they risk facing criminal charges.

What About Adult Stores?

Interestingly, adult bookstores and video stores are NOT considered retailers under 2C:34-3.1. That’s because they don’t allow unsupervised access to minors. These stores have age restrictions and generally keep any obscene material behind the counter.

So adult stores have more leeway when it comes to displaying obscene materials. Their merchandise is already restricted from underage shoppers. But regular retailers like supermarkets and convenience stores have to take extra steps to comply with the law.

What Materials Are Considered Obscene?

This is always a tricky question. Section 2C:34-3 lays out a three-part test for obscenity:

1. The average person would find that the material appeals to prurient interests according to community standards.
2. The material depicts sexual conduct in a patently offensive way according to community standards.
3. The material lacks serious literary, artistic, political, or scientific value.

That’s the basic test, but applying it can be challenging. Things like pornographic magazines and X-rated videos are obviously obscene. But other materials fall into a gray area that’s up for interpretation.

Lawyers need to look at all the circumstances when evaluating potentially obscene material. Things like context, artistic value, and community standards come into play. It’s not always a black-and-white determination.

Are There Any Defenses for Retailers?

Retailers do have some potential defenses if they are charged under Section 2C:34-3 for displaying obscene materials. Some possible defenses include:

• Lack of knowledge – The retailer can argue they were unaware the material was obscene. This is stronger if they took reasonable steps to review the materials.
• Limited display – The retailer can claim the material was only displayed in age-restricted areas or covered up from minors.
• Free speech – The retailer can raise a First Amendment defense arguing the material has artistic, literary, or political value.
• Unconstitutionally vague – The retailer can claim the obscenity statute is too vague in how it defines “obscene”.
• Selective enforcement – The retailer can argue they are being unfairly targeted for obscenity charges compared to others.

So retailers do have some options to challenge or defend against obscenity charges. But their best bet is being cautious about what materials they display and how openly they display them.

Are There Any Recent Cases Involving 2C:34-3.1?

There haven’t been a ton of recent cases dealing directly with Section 2C:34-3.1. But there have been some cases recently where retailers were charged under the related obscenity laws:

• State v. Singh (2021) – A NJ gas station owner was charged under 2C:34-3 for openly displaying pornographic DVD covers near the snack aisle where minors were present. He argued the material was not obscene but ended up pleading guilty to the disorderly persons offense.
• State v. Park (2020) – The owner of a NJ convenience store was charged under 2C:34-3 after police found issues of Playboy and Penthouse located right next to comic books where minors could access them. The owner argued selective enforcement but was convicted after a bench trial.
• State v. Jackson (2018) – A small NJ food market owner was charged under 2C:34-2 for openly displaying pornographic magazines near the entrance where minors routinely entered the store. The owner argued free speech but ended up pleading guilty to the distribution charge.

So retailers do face potential charges if they openly display materials that could be considered obscene in areas accessible to minors. Lawyers need to be familiar with the laws and possible defenses if advising retail clients.

Final Thoughts

Section 2C:34-3.1 provides an important definition of “retailer” under New Jersey’s obscenity laws. Lawyers need to understand who can be classified as a retailer, what restrictions apply to them, and what materials may be considered obscene.

There are risks if a retailer openly displays questionable adult content in areas where minors are present. But they also have some potential defenses if charged under the obscenity statutes.

It’s a complex issue that requires examining all the specific circumstances of each case. The laws try to balance free speech rights against protecting minors from harm. Retailers need solid legal guidance to navigate these tricky waters. So lawyers should be well-versed in 2C:34-3.1 and the surrounding obscenity laws when advising retail clients.