Can New Jersey criminalize watching non-obscene pornography by passengers in a car?

August 28th, 2012

This article in the Times explores the sticky (no pun intended) situation of people watching pornography in public. It seems peopel watching porn on airplanes and in internet cafes is a problem.

Apparently, another problem is people watching porn on party busses, or in the back-seat of cars. Such a problem, that New Jersey wants to criminalize it!

Some legislators battle against public displays of pornographic content, at least on the roadways. A bill is pending in the New Jersey legislature to criminalize the playing of obscene material in cars — say, on seat-back DVD players or in party buses — that could viewed by, and distract or offend, others on the road. State Senator Anthony Bucco, who sponsored the bill, said people who view such videos in public “don’t care what anybody around them thinks.”

Similar laws have passed in the last decade in Tennessee, Louisiana and Virginia, and one failed last year in Pennsylvania, according to the National Conference of State Legislatures.

Is there a First Amendment challenge here?

It seems to be a content-based restriction. Other, equally distracting videos–such as violent movies (think of Saving Private Ryan)–would be permitted. It seems that only pornographic materials are banned. And pornography that is not obscene still retains constitutional protection. (And I think it is obvious that the driver cannot watch it while driving–this seems to only apply to passengers).