Erznoznik v. Jacksonville

Supreme Court of United States
422 U.S. 205 (1975)

ELI5:

Rule of Law:

A government ordinance that selectively bans non-obscene nudity in films shown at drive-in theaters, based on the content of the expression, is an unconstitutional violation of the First Amendment as it is not justified by the limited privacy interests of passersby, the protection of minors, or traffic safety.

Facts:

Richard Erznoznik was the manager of the University Drive-In Theatre in Jacksonville, Florida.
The screen of the drive-in theater was visible from two adjacent public streets and a nearby church parking lot.
The City of Jacksonville had an ordinance making it a public nuisance and a criminal offense for a drive-in theater to exhibit any motion picture showing "human male or female bare buttocks, human female bare breasts, or human bare pubic areas" if the screen was visible from a public street or place.
On March 13, 1972, Erznoznik managed the exhibition of the R-rated film "Class of '74," which contained scenes showing female bare breasts and buttocks.
These scenes were visible from the adjacent public streets.
People had been observed watching films from outside the theater in parked cars and on the grass.

Procedural Posture:

Richard Erznoznik was charged in a Florida municipal court with violating Jacksonville City Code § 330.313.
The criminal prosecution was stayed by agreement to allow Erznoznik to file a separate civil action seeking a declaratory judgment on the ordinance's constitutionality.
The Florida trial court upheld the ordinance as a valid exercise of police power.
Erznoznik, as appellant, appealed to the District Court of Appeal of Florida, First District (an intermediate appellate court), which affirmed the trial court's ruling.
Erznoznik then sought review from the Florida Supreme Court (the state's highest court), which denied certiorari.
Erznoznik appealed to the U.S. Supreme Court, which noted probable jurisdiction to review the case.

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Issue:

Does a city ordinance that prohibits drive-in movie theaters from showing films containing any nudity, if the screen is visible from a public street or place, violate the First and Fourteenth Amendments?

Opinions:

Majority - Mr. Justice Powell

Yes, the ordinance violates the First Amendment. A city ordinance that bans the showing of all films containing nudity at drive-in theaters visible from a public street is an unconstitutional content-based restriction on speech. The government's power to selectively shield the public from offensive speech is limited to narrow circumstances, such as protecting the privacy of the home or a truly captive audience. The limited privacy interest of individuals on a public street, who can readily avert their eyes, does not justify such censorship. The ordinance is also facially overbroad; it is not narrowly tailored to protect minors, as it bans all nudity regardless of context, and it is impermissibly underinclusive as a traffic regulation because it singles out nudity while ignoring other potentially distracting content.

Concurring - Mr. Justice Douglas

Yes, the ordinance violates the First Amendment. The ordinance is unconstitutional because it impermissibly discriminates among movies on the basis of their content. Legitimate interests like promoting highway safety or protecting captive audiences cannot justify content-based regulation. Any ordinance that regulates movies based on content, whether by an obscenity standard or any other criterion, violates the First Amendment.

Dissenting - Mr. Chief Justice Burger

No, the ordinance does not violate the First Amendment. The ordinance is a constitutional exercise of the city's police power. The majority misapplies the principle of "averting one's eyes," which is not practical when confronted with the unique, massive, and intrusive nature of a drive-in movie screen that dominates the public view. The ordinance is narrowly drawn to regulate only public exhibitions of nudity, not to suppress ideas, and the state has a legitimate interest in regulating such displays for reasons of public mores and traffic safety.

Dissenting - Mr. Justice White

Yes, the ordinance violates the First Amendment, but for different reasons. While the ordinance is unconstitutional, the majority's reasoning in Part II-A is overly broad and unnecessary. The Court's assertion about the limited privacy interests on public streets could be interpreted to forbid any regulation of public nudity. The ordinance should have been struck down solely on the narrower ground that it is unconstitutionally overbroad as a measure to protect children, as it bans all nudity irrespective of context, making the broader discussion about general public privacy rights surplusage.

Analysis:

This case significantly reinforces the high constitutional barrier against content-based restrictions on speech in public forums. It narrowly construes the "captive audience" doctrine, clarifying that it does not apply to passersby on a public street who can easily avoid the message by looking away. The decision solidifies the principle from Cohen v. California that the burden is on the unwilling viewer to avert their eyes, not on the government to censor offensive but otherwise protected speech. Furthermore, it demonstrates that government justifications for content discrimination, such as protecting minors or ensuring traffic safety, will be subject to strict scrutiny and must be narrowly tailored to survive a First Amendment challenge.

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