Erznoznik v. City of Jacksonville
Opinion of the Court
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.
I
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.”
“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*207 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.
Appellee concedes that its ordinance sweeps far beyond the permissible restraints on obscenity, see Miller v. California, 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.
A
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 th[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.”*209 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),
“The ability of government, consonant with the*210 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,
The Jacksonville ordinance discriminates among movies solely on the basis of content.
B
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
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.
C
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 custom
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. “[Ajbove 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.
Ill
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
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.
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.
IV
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
Reversed.
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.
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).
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).
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.
In Lehman the Court sustained a municipality’s policy of barring political advertisements while permitting nonpolitical advertisements
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
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 “[ujnlike 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.
Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression. See Speiser
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.
In Ginsberg the Court adopted a variation of the adult obscenity standards enunciated in Roth v. United States, 354 U. S. 476 (1957), and Memoirs v. Massachusetts, 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).
The First Amendment rights of minors are not “co-extensive 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).
See Part III, infra.
This is not to say that a narrowly drawn nondiseriminatory 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.
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.”
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.
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).
Dissenting Opinion
with whom Mr. Justice Rehnquist joins, dissenting.
Although the Court pays lip service to the proposition that “each case ultimately must depend on its own spe
The Court’s analysis seems to begin and end with the sweeping proposition that, regardless of the circumstances, government may not regulate any form of “communicative” activity on the basis of its content. Absent certain “special circumstances,” we are told, the burden falls upon the public to ignore offensive materials rather than upon their purveyor to take steps to shield them from public view. In four short sentences ^without reasoned support, ante, at 211-212, the Court concludes that Jacksonville’s ordinance does not pass muster under its tests, and therefore strikes it down.
None of the cases upon which the Court relies remotely implies that the Court ever intended to establish inexorable limitations upon state power in this area. Many cases upheld the regulation of communicative activity and did not purport to define the limits of the power to do so. E. g., Lehman v. City of Shaker Heights, 418 U. S. 298 (1974); Rowan v. Post Office Dept., 397 U. S. 728 (1970); Breard v. Alexandria, 341 U. S. 622 (1951); Kovacs v. Cooper, 336 U. S. 77 (1949). Other cases relied upon by the Court were either expressly or impliedly decided upon equal protection grounds and, although recognizing that First Amendment interests were involved, turned upon “the crucial question . . . whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972). See also Fowler v. Rhode Island, 345 U. S. 67 (1953). Such a standard necessarily requires particularized review. Finally, yet other of the cases cited by the Court were
In short, nothing in this Court’s prior decisions justifies disregard of the admonition that “the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the [First] Amendment to the speech in question.” Lehman v. City of Shaker Heights, supra, at 302-303 (plurality opinion of Blackmun, J.). Rather, in applying this principle in contexts similar to the instant case, members of this Court have cautioned that every medium of communication “is a law unto itself,” Kovacs v. Cooper, supra, at 97 (Jackson, J., concurring), and that the “tyranny of absolutes” should not be relied upon “to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 518 (1952) (Frankfurter, J., concurring).
A careful consideration of the diverse interests involved in this case illustrates, for me, the inadequacy of the Court’s rigidly simplistic approach. In the first place, the conclusion that only a limited interest of persons on the public streets is at stake here can be supported only if one completely ignores the unique visual medium to which the Jacksonville ordinance is directed. Whatever validity the notion that passersby may protect their sensibilities by averting their eyes may have when applied to words printed on an individual’s jacket, see Cohen v. California, 403 U. S. 15 (1971), or a flag hung from a second-floor apartment window, see Spence v. Washington, 418 U. S. 405 (1974), it distorts reality to
“ 'Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisment in a position to be classified so that regulations or prohibitions may be imposed upon all within the class.’ ” Id., at 110.
No more defensible is the Court’s conclusion that Jacksonville’s ordinance is defective because it regulates only nudity. The significance of this fact is explained only in a footnote:
“Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. ... In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws.” Ante, at 211 n. 7.
Both the analogy and the distinction are flawed. Unlike 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, cf. Note, supra, 60 Yale L. J., at 707, and n. 27; nor do drivers and passengers on nearby highways see the whole of the visual display. The communicative value of such fleeting exposure falls somewhere in the range of slight to nonexistent. Moreover, those persons who legitimately desire to consider the “work as a whole” are not foreclosed from doing so. The record shows that the film from which appellant’s prosecution arose was exhibited in several indoor theaters in the Jacksonville area. And the owner of a drive-in movie theater is not prevented from exhibiting nonobscene films involving
On the other hand, assuming arguendo that there could be a play performed in a theater by nude actors involving genuine communication of ideas, the same conduct in a public park or street could be prosecuted under an ordinance prohibiting indecent exposure. This is so because the police power has long been interpreted to authorize the regulation of nudity in areas to which all members of the public have access, regardless of any incidental effect upon communication. A nudist colony, for example, cannot lawfully set up shop in Central Park or Lafayette Park, places established for the public generally. Cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973); Roth v. United States, 354 U. S. 476, 512 (1957) (Douglas, J., dissenting). Whether such regulation is justified as necessary to protect public mores or simply to insure the undistracted enjoyment of open areas by the greatest number of people — or for traffic safety — its rationale applies a fortiori to giant displays which through technology are capable of revealing and emphasizing the most intimate details of human anatomy.
In sum, the Jacksonville ordinance involved in this case, although no model of draftsmanship, is narrowly drawn to regulate only certain unique public exhibitions of nudity; it would be absurd to suggest that it operates to suppress expression of ideas. By conveniently ignoring these facts and deciding the case on the basis of
For example, in a case similar to this one the screen measured 35 feet by 70 feet and stood 54 feet above the ground. Bloss v. Paris Township, 380 Mich. 466, 157 N. W. 2d 260 (1968).
On my view of this case it is not necessary to deal with the issues discussed in Parts II-B, II-C, and III of the Court’s opinion.
Concurring Opinion
concurring.
I join wholeheartedly in the Court’s view that the ordinance in issue here is fatally overinclusive in some respects and fatally underinclusive in others. I do not doubt that under proper circumstances, a narrowly drawn ordinance could be utilized within constitutional boundaries to protect the interests of captive audiences
See Lehman v. City of Shaker Heights, 418 U. S. 298, 305 (1974) (Douglas, J., concurring in judgment); Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467 (1952) (Douglas, J., dissenting).
I adhere to my view that any state or federal regulation of obscenity is prohibited by the Constitution. Roth v. United States, 354 U. S. 476, 508-514 (1957) (dissenting); Miller v. California, 413 U. S. 15, 42-47 (1973) (dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (1973) (dissenting).
Dissenting Opinion
dissenting.
The Court asserts that the State may shield the public from selected types of speech and allegedly expressive conduct, such as nudity, only when the speaker or actor invades the privacy of the home or where the degree of captivity of an unwilling listener is such that it is impractical for him to avoid the exposure by averting his eyes. The Court concludes “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.” Ante, at 212. If this broadside is to be taken literally, the State may not forbid “expressive” nudity on the public streets, in the public parks, or any other public place since other persons in those places at that time have a “limited privacy interest” and may merely look the other way.
I am not ready to take this step with the Court. Moreover, by the Court’s own analysis, the step is an unnecessary one. If, as the Court holds in Part II-B of its opinion, the ordinance is unconstitutionally over-broad even as an exercise of the police power to protect children, it is fatally overbroad as to the population generally. Part II-A is surplusage. I therefore dissent.
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