Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)

A Jacksonville, Florida, ordinance prohibited drive-in theaters (and only drive-in theaters) from exhibiting any films that contained nudity visible from a public street or place. Erznoznik, manager of a drive-in theater, was charged with showing an R-rated film, Class of ’74, which ran afoul this law. The theater’s screen was visible from the street and a church parking lot. Florida’s courts upheld the ordinance after Erznoznik challenged its constitutionality. Although the film was not declared obscene, this case is one of several related to the Court’s emerging secondary-effects doctrine dealing with nudity.

Jacksonville argued that it could protect its children and citizens against unwilling exposure to offensive material. At oral argument, the city added that the ordinance prevented displays of nudity which might affect traffic safety. In a six-to-three decision, the Supreme Court struck down the ordinance as both overbroad and not content-neutral. Powell, writing for the majority, was joined by Brennan, Douglas, Stewart, Marshall, and Blackmun. Burger, joined by Rehnquist, dissented as did White. The conference vote had been deadlocked at four to four because Douglas was in the hospital. At conference, Powell and Stewart voted to uphold the ordinance but later switched their votes; White, it appears, changed his vote after Powell circulated his opinion.

The ordinance, according to Powell, ‘‘sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness.’’ As examples, he mentions a ‘‘baby’s buttocks, the nude body of a war victim . . . newsreel scenes of the opening of an art exhibit.’’ The problem thus arises that when a government, acting as a censor, decides 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.’’ Moreover, the ordinance ‘‘discriminates among movies solely on the basis of content . . . however innocent or educational’’ the nudity might be in the films; the ordinance was not content-neutral, as films without nudity could be just as distracting or disturbing for people in nearby areas or driving motor vehicles.

White’s brief dissent objects to Powell’s conclusion in Part IIA of his opinion, where Powell writes, ‘‘Thus, we conclude that the limited privacy interests of persons on the public streets cannot justify [Jacksonville’s] censorship of otherwise protected speech on the basis of its content.’’ White states this ‘‘broadside’’ goes too far if it means expressive nudity on public streets or in other public places cannot be banned because of the limited privacy rights of other persons in those places who may ‘‘merely look the other way.’’ White, however, agrees that the ordinance is fatally overbroad, and if the majority had limited itself to this conclusion he may not have dissented.

ROY B. FLEMMING

References and Further Reading

• Dickson, Del. The Supreme Court in Conference (1940– 1985). New York: Oxford University Press, 2001.
• Woodward, Bob, and Scott Armstrong. The Brethren. New York: Simon and Schuster, 1979.