The appellant challenged the facial validity of an ordinance prohibiting drive-in movie theaters with screens visible from public streets from showing films containing nudity.
A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. However, when the government undertakes selectively to shield the public from some kinds of speech on the ground that they are offensive, the First Amendment strictly limits its power.
The city ordinance prohibited exhibitions of “the human male or female bare buttocks, female breasts or human bare public areas.” The ban applied to non-obscene films. The city defended that it may protect its citizens against unwilling exposure to materials that may be offensive. Erznoznik, the appellant, challenged.
Does a city ordinance that prohibits drive-in movie theaters with screens visible from public streets from showing films containing nudity violate the Constitution?
No, the Jacksonville ordinance discriminates among movies solely based on the content. Such discrimination deters drive-in theaters from showing movies containing any nudity, however innocent or educational. Such discrimination cannot be justified as a means of preventing significant intrusions on privacy.
The majority’s proposition that government may not regulate any form of “communicative” activity based on its content regardless of the circumstances is without merits. Drive-in movie theaters are designed to attract and hold the attention of all observers. It is not unreasonable for states to believe that public nudity on a huge screen may have a tendency to divert attention from the driver’s task and cause accidents. Also, those who wish to watch the films are not foreclosed from doing so. The city ordinance at issue is narrowly drawn to regulate only certain unique public exhibitions of nudity.
The ordinance only seeks to keep films containing nudity from being seen from public places where the offended viewer readily can avert his eyes. Because 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” the limited privacy interest of persons on the public streets cannot justify the city’s censorship of protected speech on the basis of its content. Appellee argues that it has the ordinance is within its police power to protect children. Even so, the restriction is broader than permissible because it sweepingly forbids display of all films containing any uncovered breasts, irrespective of context. All nudity cannot be deemed obscene even as to minors.