Cinecom Theatres Midwest St., Inc. v. City of Fort Wayne

• Citation: 473 F.2d 1297
• Decision Date: 29 January 1973
• Docket Number: No. 71-1727.,71-1727.
• Parties: CINECOM THEATERS MIDWEST STATES, INC., Plaintiff-Appellant, v. The CITY OF FORT WAYNE et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

473 F.2d 1297 (1973)

CINECOM THEATERS MIDWEST STATES, INC., Plaintiff-Appellant, v. The CITY OF FORT WAYNE et al., Defendants-Appellees.

No. 71-1727.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 1972.

Decided January 29, 1973.

Vern E. Sheldon, Martin T. Fletcher, Fort Wayne, Ind., for plaintiff-appellant.

Leonard E. Eilbacher, David B. Keller, Fort Wayne, Ind., for defendants-appellees.

Before DUFFY, Senior Circuit Judge, KILEY, Circuit Judge, and CAMPBELL, Senior District Judge.^*

CAMPBELL, Senior District Judge.

The plaintiff, Cinecom Theaters, owns and operates two drive-in motion picture theaters located in the City of Fort Wayne, Indiana. The defendants include the City of Fort Wayne and certain of its officials who are charged with the responsibility of enforcing the City's ordinances. On February 16, 1971, the plaintiff filed its complaint in the Indiana State Court seeking declaratory and injunctive relief against an ordinance of the City of Fort Wayne. Upon the defendant's petition, the cause was removed to the District Court for the Northern District of Indiana. Following an extensive hearing at which both medical and lay testimony was heard, the district court granted in part and denied in part the relief sought by the plaintiff.¹ Only the plaintiff has appealed and only those portions of the ordinance which the district court found to be constitutional are involved in this appeal.

The ordinance makes it unlawful to exhibit certain types of material in drive-in movie theaters if the material can be seen from any public street or highway. The proscribed material includes any exhibit in which "bare buttocks or the bare female breasts of the human body are shown." Upon a conviction, the ordinance provides that there be a mandatory suspension of the theater operator's license for a period of thirty days.

The plaintiff maintains that the ordinance is void by reason of its overbreadth; that it proscribes the visual presentation of material which is not obscene with reference either to adults or children and, therefore, falls squarely within the protection of the First Amendment. The City of Fort Wayne raises two justifications for proscribing the movie exhibition of "bare buttocks and bare female breasts." The first, and the one on which greater emphasis is placed, is the protection of children or minors from harmful material. The second is the protection of neighbors or passers-by from having offensive scenes unwillingly thrust upon them. In upholding the constitutionality of the ordinance, the district court adopted the City's contentions, relying principally on the authority of Chemline, Inc. v. City of Grand Prairie, 364 F.2d 721 (5th Cir. 1966), and Redrup v. New York, 386 U. S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).

At the outset it should be observed that when subjected to the standards set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), the material here sought to be kept from the public streets and highways would not be considered obscene when viewed by adults.² This much the City has admitted and inasmuch as the ordinance proscribes all forms of nudity, regardless of context, the accuracy of the City's forthright concession cannot be doubted.

A threshold problem concerning the ordinance and the purported parens patriae justification for it is that its application is not restricted to minors or children. The visual presentations prohibited by the ordinance necessarily remain unavailable to the adult as well as the juvenile population. In slightly differing context, the Supreme Court has twice held that a State's acknowledged interest in preventing the dissemination of material harmful to children does not justify its total suppression. Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964).

We do not conclude, however, that the failure specifically to limit the effect of this ordinance to children is fatal. Although expression by means of motion pictures clearly falls within the ambit of the First and Fourteenth Amendments, "it does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). The Court has recognized that each medium of communication presents its own peculiar problems and that, therefore, they are not all subject to identical rules. In Burstyn the Supreme Court implicitly acknowledged that the characteristics of a particular method of expression are relevant in determining the "permissible scope of community control." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Cf. Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).

A drive-in movie theater is indeed a unique form for communication. The visual images exhibited on the screen can be easily observed beyond the confines of the theater itself. All persons within visual range of the theater, children and adults alike, are of necessity exposed to the scenes. The size and character of the potential audience is unlimited and can not be controlled or restricted by the theater operator. Because of these unusual qualities, we conclude that the scope of a community's permissible regulation over the operation of these facilities is broader than it would be with respect to ordinary movie houses.

Notwithstanding that a city might regulate these facilities through an ordinance narrowly drawn to achieve that objective, Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), we must now consider whether the ordinance in question exceeds that authority. Although the evidence presented by both sides was extensive, it is not very helpful to our determination of the constitutionality of this ordinance. Lengthy testimony was heard from two psychiatrists concerning the effects of simple nudity upon children. The psychiatrist who testified on behalf of the plaintiff expressed the opinion that simple nudity was not harmful to children except to a very small number of them who were reared in what he described as an ultra conservative family environment. The testimony of the City's psychiatrist does not differ substantially except that, as the district court found, his testimony leads to the conclusion that premature exposure to nudity "in an improper context" can be destructive to certain children. Indeed most of the City's evidence and testimony was directed to a child's exposure to nudity "in an improper context" The problem with this testimony for our purposes is that the ordinance does not prohibit the exhibition of nudity only when in an improper context, but proscribes the showing of most forms of human nudity. On the authority of Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), it is clear that a city in order to protect the interests of its children could restrict a child's exposure to nudity in an obscene context, and could define obscenity as it relates only to children. The ordinance before us, however, is much broader. The prohibited presentations would include such innocuous and even culturally beneficial exhibitions as the art objects found in many museums, visual portrayals of underdeveloped or "backward" cultures and serious movies such as "Ulysses."

A state or a city because of its strong and abiding interest in its youth is not without the authority to limit the access to minors of material which would be objectionable as to them, but which would not be obscene in its appeal to adults. Interstate Circuit v. Dallas, 390 U.S. 676, 690, 88 S.Ct. 1298, 20 L. Ed.2d 225 (1968); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L. Ed.2d 195 (1968). In Ginsberg, the Supreme Court upheld the constitutionality of a New York obscenity statute which prohibited the sale to minors under seventeen years of age of material defined to be obscene on the basis of its appeal to them. The New York statute incorporated the three-prong obscenity test of Roth and Memoirs. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L. Ed.2d 1498 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). Obscenity was thus defined by reference to its appeal to minors, whether or not it would be obscene as to adults. The New York Court of Appeals had previously upheld the "Legislature's power to employ variable concepts of obscenity." People v. Tannenbaum, 18 N.Y.2d 268, 270, 274 N.Y.S.2d 131, 133, 220 N.E.2d 783, 785 (1966).

In deciding Ginsberg the Supreme Court expressly avoided considering "the impact of the guarantees of freedom of expression upon the totality of the relationship of the minor and the State." Cf. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). As the court stated:

"It is enough for the purposes of this case that we inquire whether it was constitutionally impermissible for New York . . . to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see."

Ginsberg v. New York, 390 U.S. 629, 636-637, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195 (1968). Having so defined the issue, the Court then concluded that the New York statute, by employing the concept of variable obscenity did not invade the area of freedom of expression constitutionally secured to minors.

The statute before us, however, is more troublesome since it does not employ the three-prong Roth-Memoirs test of obscenity as it relates to minors. As the district judge here recognized, this is not an obscenity case in the typical sense. The material proscribed by the ordinance would not be obscene even under an application of the concept of...