Facts
- Jacksonville, Florida enacted an ordinance making it a punishable offense and “public nuisance” for a drive-in movie theater to exhibit films containing nudity when the screen was visible from a public street or place.
- The ordinance barred depiction of specified body parts (including bare buttocks, female breasts, and bare pubic areas) even if the film was not obscene.
- Richard Erznoznik, manager of the University Drive-In Theatre, was charged under the ordinance after showing a film visible from nearby streets that included female buttocks and bare breasts.
- Florida courts upheld the ordinance, and Erznoznik sought review in the U.S. Supreme Court on First and Fourteenth Amendment grounds.
Issues
- Whether an ordinance that prohibits drive-in theaters from showing films containing nudity when visible from public places violates the First Amendment as applied to the states through the Fourteenth Amendment.
- Whether asserted interests in protecting unwilling viewers’ privacy, shielding children, and promoting traffic safety justify a content-based restriction on protected expression.
- Whether the ordinance is unconstitutionally overbroad because it covers nonobscene and nonsexually explicit nudity.
Decision
- The Supreme Court reversed and held the ordinance facially invalid under the First Amendment.
- The ordinance discriminated among movies solely on the basis of content by singling out nudity, deterring exhibition of protected films that contain nonobscene nudity.
- The city’s privacy justification failed because passersby on public streets are not a captive audience and can avert their eyes.
- The child-protection justification failed because the ban was not limited to sexually explicit material and swept in protected expression; not all nudity is obscene even for minors.
- The traffic-safety justification failed because the ordinance was markedly underinclusive: it targeted nudity rather than other equally distracting screen content.
- No plausible narrowing construction cured the ordinance’s broad deterrent effect on protected expression.
Legal Principles
- Content-based restrictions on protected expression are presumptively unconstitutional and require a strong justification closely tied to the regulation’s scope.
- The government generally may not suppress protected speech in public spaces to protect unwilling viewers from offense when avoidance is feasible (“avert your eyes” principle), unlike contexts involving truly captive audiences.
- Regulations aimed at protecting minors must be appropriately limited; a blanket ban on all nudity is overinclusive because nonobscene nudity retains constitutional protection, including as to minors.
- A purported safety regulation that targets only one category of expressive content while leaving similarly situated distracting content unregulated may be invalid as underinclusive.
- A law that substantially chills protected expression through broad prohibitions may be invalid on its face for overbreadth.
Conclusion
The Court invalidated Jacksonville’s ordinance because it singled out nudity for suppression based on content and swept too broadly, and because the city’s asserted interests in privacy, protecting children, and traffic safety did not justify the ordinance’s overinclusive and underinclusive burdens on protected expression.