Erznoznik v. City of Jacksonville 8212 1942

• Citation: 422 U.S. 205,95 S.Ct. 2268,45 L.Ed.2d 125
• Decision Date: 23 June 1975
• Docket Number: No. 73,73
• Parties: Richard ERZNOZNIK, etc., Appellant, v. CITY OF JACKSONVILLE. —1942
• Court: United States Supreme Court

422 U.S. 205

95 S.Ct. 2268

45 L.Ed.2d 125

Richard ERZNOZNIK, etc., Appellant,

v CITY OF JACKSONVILLE.

No. 73—1942.

Argued Feb. 26, 1975.

Decided June 23, 1975.

Syllabus

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.

William H. Maness, Jacksonville, Fla., for appellant.

William Lee Allen, Jacksonville, Fla., for appellee.

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.

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.'¹ 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 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 public 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.² The Florida Supreme Court denied certiorari, three judges dissenting. 294 So.2d 93 (1974). We noted probable jurisdiction,³ 419 U.S. 822, 95 S.Ct. 37, 42 L.Ed.2d 46 (1974), and now reverse.

II

Appellee concedes that its ordinance sweeps far beyond the permissible restraints on obscenity, see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and thus applies to films that are protected by the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (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, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Breard v. Alexandria, 341 U.S. 622, 641—645, 71 S.Ct. 920, 932—934, 95 L.Ed. 1233 (1951); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (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.'

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (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, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (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, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Kovacs v. Cooper, supra, 336 U.S., at 97, 69 S.Ct., at 458 (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, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970),⁴ 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.⁵ As Mr. Justice Harlan cautioned:

'The ability of government, consonant with the 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, 91 S.Ct., at 1786.

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 fror many purposes.' Rowan v. Post Office Dept., supra, 397 U.S., at 736, 90 S.Ct., at 1490. 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,⁶ the burden normally falls upon the viewer to 'avoid further bombardment of (his) sensibilities simply by averting (his) eyes.' Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786. See also Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).

The Jacksonville ordinance discriminates among movies solely on the basis of content.⁷ Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational.⁸ This 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, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (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.⁹

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...