Erznoznik v. City of Jacksonville



422 U.S. 205

Erznoznik v. City of Jacksonville


No. 73-1942 Argued: February 26, 1975 --- Decided: June 23, 1975
A Jacksonville, Fla., ordinance making it a public nuisance and a punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place, held facially invalid as an infringement of First Amendment rights. Pp. 208-217.

(a) The ordinance, by discriminating among movies solely on the basis of content, has the effect of deterring drive-in theaters from showing movies containing any nudity, however innocent or even educational, and such censorship of the content of otherwise protected speech cannot be justified on the basis of the limited privacy interest of persons on the public streets, who, if offended by viewing the movies, can readily avert their eyes. Pp. 208-212.

(b) Nor can the ordinance be justified as an exercise of the city's police power for the protection of children against viewing the films. Even assuming that such is its purpose, the restriction is broader than permissible. since it is not directed against sexually explicit nudity or otherwise limited. Pp. 212-214.

(c) Nor can the ordinance be justified as a traffic regulation. If this were its purpose, it would be invalid as a strikingly underinclusive legislative classification, since it singles out movies containing nudity from all other movies that might distract a passing motorist. Pp. 214-215.

(d) The possibility of a narrowing construction of the ordinance appears remote, particularly where appellee city offered several distinct justifications for it in its broadest terms. Moreover, its deterrent effect on legitimate expression in the form of movies is both real and substantial. Pp. 215-217.

288 So.2d 260, reversed.

POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 218. BURGER, C.J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 218. WHITE, J., filed a dissenting opinion, post, p. 224. [p206]


No. 73-1942 Argued: February 26, 1975 --- Decided: June 23, 1975
MR. JUSTICE POWELL delivered the opinion of the Court.

This case presents a challenge to the facial validity of a Jacksonville, Fla., ordinance that prohibits showing films containing nudity by a drive-in movie theater when its screen is visible from a public street or place.


Appellant, Richard Erznoznik, is the manager of the University Drive-In Theatre in Jacksonville. On March 13, 1972, he was charged with violating § 330.313 of the municipal code for exhibiting a motion picture, visible from public streets, in which "female buttocks and bare breasts were shown." [n1] The ordinance, adopted January 14, 1972, provides:

330.313 Drive-In Theaters, Films Visible From Public Streets or Public Places. It shall be unlawful and it is hereby declared a public nuisance for any ticket seller, ticket taker, usher, motion picture projection machine operator, manager, owner, or any [p207] other person connected with or employed by any drive-in theater in the City to exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place. Violation of this section shall be punishable as a Class C offense.

Appellant, with the consent of the city prosecutor, successfully moved to stay his prosecution so that the validity of the ordinance could be tested in a separate declaratory action. In that action, appellee, the city of Jacksonville, introduced evidence showing that the screen of appellant's theater is visible from two adjacent public streets and a nearby church parking lot. There was also testimony indicating that people had been observed watching films while sitting outside the theater in parked cars and in the grass.

The trial court upheld the ordinance as a legitimate exercise of the municipality's police power, and ruled that it did not infringe upon appellant's First Amendment rights. The District Court of Appeal, First District of Florida, affirmed, 288 So.2d 260 (1974), relying exclusively on Chemline, Inc. v. City of Grand Prairie, 364 F.2d 721 (CA5 1966), which had sustained a similar ordinance. [n2] The Florida Supreme Court denied certiorari, three judges dissenting. 294 So.2d 93 (1974). We noted probable jurisdiction, [n3] 419 U.S. 822 (1974), and now reverse. [p208]


Appellee concedes that its ordinance sweeps far beyond the permissible restraints on obscenity, see Miller v. California, 413 U.S. 15"]413 U.S. 15 (1973), and thus applies to films that are protected by the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); 413 U.S. 15 (1973), and thus applies to films that are protected by the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Jenkins v. Georgia, 418 U.S. 153 (1974). Nevertheless, it maintains that any movie containing nudity which is visible from a public place may be suppressed as a nuisance. Several theories are advanced to justify this contention.


Appellee's primary argument is that it may protect its citizens against unwilling exposure to materials that may be offensive. Jacksonville's ordinance, however, does not protect citizens from all movies that might offend; rather, it singles out films containing nudity, presumably because the lawmakers considered them especially offensive to passersby.

This Court has considered analogous issues -- pitting the First Amendment rights of speakers against the privacy rights of those who may be unwilling viewers or auditors -- in a variety of contexts. See, e.g., Kovacs v. Cooper, 336 U.S. 77 (1949); Breard v. Alexandria, 341 U.S. 622, 641-645 (1951); Cohen v. California, 403 U.S. 15 (1971); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974). See generally Haiman, Speech v. Privacy: Is There A Right Not To Be Spoken To?, 67 Nw.U.L.Rev. 153 (1972). Such cases demand delicate balancing because:

In the [e] sphere of collision between claims of privacy and those of [free speech or] free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society. [p209]

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).

Although each case ultimately must depend on its own specific facts, some general principles have emerged. A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. See Kovacs v. Cooper, supra; Cox v. Louisiana, 379 U.S. 536, 554 (1965); Adderley v. Florida, 385 U.S. 39 (1966). But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972); Fowler v. Rhode Island, 345 U.S. 67 (1953); Kovacs v. Cooper, supra at 97 (Jackson, J., concurring). Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, see Rowan v. Post Office Dept., 397 U.S. 728 (1970), [n4] or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. See Lehman v. City of Shaker Heights, supra. [n5] As Mr. Justice Harlan cautioned:

The ability of government, consonant with the [p210] Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.

Cohen v. California, 403 U.S. at 21.

The plain, if at times disquieting, truth is that, in our pluralistic society, constantly proliferating new and ingenious forms of expression, "we are inescapably captive audiences for many purposes." Rowan v. Post Office Dept., supra, at 736. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent the narrow circumstances described above, [n6] the burden [p211] normally falls upon the viewer to "avoid further bombardment of [his] sensibilities simply by averting [his] eyes." Cohen v. California, supra, at 21. See also Spence v. Washington, 418 U.S. 405, 412 (1974).

The Jacksonville ordinance discriminates among movies solely on the basis of content. [n7] Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational. [n8] This [p212] discrimination cannot be justified as a means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not "so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." Redrup v. New York, 386 U.S. 767, 769 (1967). Thus, we conclude that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content. [n9]


Appellee also attempts to support the ordinance as an exercise of the city's undoubted police power to protect children. Appellee maintains that, even though it cannot prohibit the display of films containing nudity to adults, the present ordinance is a reasonable means of protecting minors from this type of visual influence.

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker [p213] v. Des Moines School Dist., 393 U.S. 503 (1969), and only in relatively narrow and well defined circumstances may government bar public dissemination of protected materials to them. See, e.g., Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968).

In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit, as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene, even as to minors. See Ginsberg v. New York, supra. [n10] Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable [p214] for them. In most circumstances, [n11] the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors. See Tinker v. Des Moines School Dist., supra. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943). Thus, if Jacksonville's ordinance is intended to regulate expression accessible to minors, it is overbroad in its proscription. [n12]


At oral argument, appellee, for the first time, sought to justify its ordinance as a traffic regulation. It claimed that nudity on a drive-in movie screen distracts passing motorists, thus slowing the flow of traffic and increasing the likelihood of accidents.

Nothing in the record or in the text of the ordinance suggests that it is aimed at traffic regulation. Indeed, the ordinance applies to movie screens visible from public places, as well as public streets, thus indicating that it is not a traffic regulation. But even if this were the purpose of the ordinance, it nonetheless would be invalid. By singling out movies containing even the most fleeting and innocent glimpses of nudity, the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary [p215] screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist.

This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See, e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression.

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Police Dept. of Chicago v. Mosley, 408 U.S. at 95. Thus, "under the Equal Protection Clause, not to mention the First Amendment itself," id. at 96, even a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinctions. See also Cox v. Louisiana, 379 U.S. 559, 581 (1965) (opinion of Black, J.). Cf. Williams v. Rhodes, 393 U.S. 23 (1968); Shapiro v. Thompson, 394 U.S. 618 (1969).

Appellee offers no justification, nor are we aware of any, for distinguishing movies containing nudity from all other movies in a regulation designed to protect traffic. Absent such a justification, the ordinance cannot be salvaged by this rationale. [n13]


Even though none of the reasons advanced by appellee will sustain the Jacksonville ordinance, it remains for us to decide whether the ordinance should be invalidated on [p216] its face. This Court has long recognized that a demonstrably overbroad statute or ordinance may deter the legitimate exercise of First Amendment rights. Nonetheless, when considering a facial challenge, it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program. In accommodating these competing interests, the Court has held that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, see Dombrowski v. Pfister, 380 U.S. 479, 497 (1965), and its deterrent effect on legitimate expression is both real and substantial. See Broadrick v. Oklahoma, 413 U.S. 601, 612-615 (1973). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970).

In the present case, the possibility of a limiting construction appears remote. Appellee explicitly joined in this test of the facial validity of its ordinance by agreeing to stay appellant's prosecution. [n14] Moreover, the ordinance, by its plain terms, is not easily susceptible of a narrowing construction. [n15] Indeed, when the state courts were presented with this overbreadth challenge, they made no effort to restrict its application. Compare Coates v. City of Cincinnati, 402 U.S. 611, 612-613 [p217] (1971), and Brandenburg v. Ohio, 395 U.S. 444, 448-449 (1969), with Cox v. New Hampshire, 312 U.S. 569, 575-576 (1941), and Chaplinsky v. New Hampshire, 315 U.S. 568, 572-573 (1942). In these circumstances, particularly where, as here, appellee offers several distinct justifications for the ordinance in its broadest terms, there is no reason to assume that the ordinance can or will be decisively narrowed. See Gooding v. Wilson, 405 U.S. 518, 520-527 (1972). Cf. Grayned v. City of Rockford, 408 U.S. 104, 111-112 (1972); Time, Inc. v. Hill, 385 U.S. 374, 397 (1967)

Moreover, the deterrent effect of this ordinance is both real and substantial. Since it applies specifically to all persons employed by or connected with drive-in theaters, the owners and operators of these theaters are faced with an unwelcome choice: to avoid prosecution of themselves and their employees, they must either restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable. [n16] Cf. Lake Carriers' Assn. v. MacMillan, 406 U.S. 498, 513 (1972) (POWELL, J., dissenting).


In concluding that this ordinance is invalid, we do not deprecate the legitimate interests asserted by the city of Jacksonville. We hold only that the present ordinance does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake, we have repeatedly emphasized that precision of drafting and clarity [p218] of purpose are essential. These prerequisites are absent here. Accordingly, the judgment below is


1. The movie, "Class of '74," had been rated "R" by the Motion Picture Association of America. An "R" rating indicates that youths may be admitted only when accompanied by a parent or guardian. See generally Friedman, The Motion Picture Rating System of 1968: A Constitutional Analysis of Self-Regulation by the Film Industry, 73 Col.L.Rev. 185 (1973). Although there is nothing in the record regarding the content of the movie, the parties agree that it includes pictures of uncovered female breasts and buttocks.

2. The only other United States Court of Appeals to consider this question reached a contrary result. See Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F.2d 1297 (CA7 1973).

3. A local ordinance is deemed a state statute for purposes of invoking this Court's jurisdiction under 28 U.S.C. § 1257(2). See King Mfg. Co. v. City Council of Augusta, 277 U.S. 100 (1928).

4. Rowan involved a federal statute that permits a person receiving a "pandering advertisement" which he believes to be "erotically arousing or sexually provocative" to instruct the Postmaster General to inform the sender that such mail is not to be sent in the future. The Court upheld the statute, emphasizing that individual privacy is entitled to greater protection in the home than on the streets, and noting that "the right of every person ‘to be let alone' must be placed in the scales with the right of others to communicate." See 397 U.S. at 736-738.

5. In Lehman, the Court sustained a municipality's policy of barring political advertisements while permitting nonpolitical advertisements on city buses. The issue was whether the city had created a "public forum," and thereby obligated itself to accept all advertising. While concluding that no public forum had been established, both the plurality and concurring opinions recognized that the degree of captivity and the resultant intrusion on privacy is significantly greater for a passenger on a bus than for a person on the street. See 418 U.S. 298, 302-304 (opinion of BLACKMUN, J.), and id. at 306-308 (DOUGLAS, J., concurring). See also Public Utilities Comm'n v. Pollak, 343 U.S. 451, 467 (1952) (DOUGLAS, J., dissenting).

6. It has also been suggested that government may proscribe, by a properly framed law, "the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience." Rosenfeld v. New Jersey, 408 U.S. 901, 905 (1972) (POWELL, J., dissenting). Cf. Ginzburg v. United States, 383 U.S. 463 (1966). In such cases, the speaker may seek to "force public confrontation with the potentially offensive aspects of the work." Id. at 470. It may not be the content of the speech as much as the deliberate "verbal [or visual] assault," Rosenfeld, supra at 906, that justifies proscription. See Redrup v. New York, 386 U.S. 767, 769 (1967). In the present case, however, appellant is not trying to reach, much less shock, unwilling viewers. Appellant manages a commercial enterprise which depends for its success on paying customers, not on freeloading passersby. Presumably, where economically feasible, the screen of a drive-in theater will be shielded from those who do not pay.

7. Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U.S. 15, 24 (1973); Kois v. Wisconsin, 408 U.S. 229 (1972). In this respect, such nudity is distinguishable from the kind of public nudity traditionally subject to indecent exposure laws. See Roth v. United States, 354 U.S. 476, 512 (1957) (DOUGLAS, J., dissenting) ("No one would suggest that the First Amendment permits nudity in public places"). Cf. United States v. O'Brien, 391 U.S. 367 (1968).

THE CHIEF JUSTICE's dissent, in response to this point, states that,

[u]nlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the "whole work" for the simple reason that they see, but do not hear, the performance. . . .

Post at 222 (emphasis in original). At issue here, however, is not the viewing rights of unwilling viewers, but rather the rights of those who operate drive-in theaters and the public that attends these establishments. The effect of the Jacksonville ordinance is to increase the cost of showing films containing nudity. See n. 8, infra. In certain circumstances, theaters will avoid showing these movies rather than incur the additional costs. As a result, persons who want to see such films at drive-ins will be unable to do so. It is in this regard that a motion picture must be considered as a whole, and not as isolated fragments or scenes of nudity.

8. Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression. See Speiser v. Randall, 357 U.S. 513, 518-519 (1958). The record does not indicate how much it would cost to block public view of appellant's theater. Such costs generally will vary with circumstances. In one case, the expense was estimated at approximately a quarter million dollars. See Olympic Drive-In Theatre, Inc. v. City of Paledale, 441 S.W.2d 5, 8 (Mo.1969).

9. We are not concerned in this case with a properly drawn zoning ordinance restricting the location of drive-in theaters or with a nondiscriminatory nuisance ordinance designed to protect the privacy of persons in their homes from the visual and audible intrusions of such theaters.

10. In Ginsberg, the Court adopted a variation of the adult obscenity standards enunciated in Roth v. United States, 354 U.S. 476"]354 U.S. 476 (1957), and 354 U.S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S. 413"]383 U.S. 413 (1966) (plurality opinion). In Miller v. California, supra, we abandoned the Roth-Memoirs test for judging obscenity with respect to adults. We have not had occasion to decide what effect Miller will have on the Ginsberg formulation. It is clear, however, that, under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene, "such expression must be, in some significant way, erotic." 383 U.S. 413 (1966) (plurality opinion). In Miller v. California, supra, we abandoned the Roth-Memoirs test for judging obscenity with respect to adults. We have not had occasion to decide what effect Miller will have on the Ginsberg formulation. It is clear, however, that, under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene, "such expression must be, in some significant way, erotic." Cohen v. California, 403 U.S. 15, 20 (1971). See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107 (1973) (BRENNAN, J., dissenting).

11. The First Amendment rights of minors are not "coextensive with those. of adults." Tinker v. Des Moines School Dist., 393 U.S. 503, 515 (1969) (STEWART, J., concurring).

[A] State may permissibly determine that., at least in some precisely delineated areas, a child -- like someone in a captive audience -- is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.

Ginsberg v. New York, 390 U.S. 629, 649-650 (1968) (STEWART, J., concurring). In assessing whether a minor has the requisite capacity for individual choice, the age of the minor is a significant factor. See Rowan v. Post Office Dept., 397 U.S. at 741 (BRENNAN, J., concurring).

12. See Part III, infra.

13. This is not to say that a narrowly drawn nondiscriminatory traffic regulation requiring screening of drive-in movie theaters from the view of motorists would not be a reasonable exercise of police power. See Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98 (1972), and cases cited.

14. In this respect, the present case arises in a posture that differs from most challenges to a statute or ordinance considered by this Court. Typically in such cases, the issue arises in a context where the statute or ordinance has been applied to allegedly unprotected activity. Thus, we are able to consider the constitutionality of the statute "as applied," as well as "on its face."

15. The only narrowing construction which occurs to us would be to limit the ordinance to movies that are obscene as to minors. Neither appellee nor the Florida courts have suggested such a limitation, perhaps because a rewriting of the ordinance would be necessary to reach that result.

16. In this case, appellant himself is a theater manager. Hence, the statute's deterrent effect acts upon him personally; he is not seeking to raise the hypothetical rights of others. See Breard v. Alexandria, 341 U.S. 622, 641 (1951).