| Erznoznik v. City of Jacksonville
(No. 73-1942)
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| Syllabus
| Opinion
[ Powell ] | Concurrence
[ Douglas ] | Dissent
[ Burger ] | Dissent
[ White ] |
| HTML version
PDF version | HTML version
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Erznoznik v. City of Jacksonville
APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE REHNQUIST joins, dissenting.
Although the Court pays lip service to the proposition that "each case ultimately must depend on its own specific [p219] facts," ante at 209, it strikes down Jacksonville City Code § 330.313 by a mechanical application of "general principles" distilled from cases having little to do with either this case or each other. Because I can accept neither that approach nor its result, I dissent.
The Court's analysis seems to begin and end with the sweeping proposition that, regardless of the circumstances, government may not regulate any form of "communicative" activity on the basis of its content. Absent certain "special circumstances," we are told, the burden falls upon the public to ignore offensive materials, rather than upon their purveyor to take steps to shield them from public view. In four short sentences without reasoned support, ante at 211-212, the Court concludes that Jacksonville's ordinance does not pass muster under its tests, and therefore strikes it down.
None of the cases upon which the Court relies remotely implies that the Court ever intended to establish inexorable limitations upon state power in this area. Many cases upheld the regulation of communicative activity and did not purport to define the limits of the power to do so. E.g., Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); Rowan v. Post Office Dept., 397 U.S. 728 (1970); Breard v. Alexandria, 341 U.S. 622 (1951); Kovacs v. Cooper, 336 U.S. 77 (1949). Other cases relied upon by the Court were either expressly or impliedly decided upon equal protection grounds, and, although recognizing that First Amendment interests were involved, turned upon "the crucial question . . . whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). See also Fowler v. Rhode Island, 345 U.S. 67 (1953). Such a standard necessarily requires particularized review. Finally, yet other of the cases cited by the Court were [p220] decided on vagueness and overbreadth. E.g., Cox v. Louisiana, 379 U.S. 536 (1965). Again, application of these doctrines requires scrutiny of the specific statute and activity involved, rather than reliance upon generalizations. See, e.g., id. at 544-558.
In short, nothing in this Court's prior decisions justifies disregard of the admonition that
the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the [First] Amendment to the speech in question.
Lehman v. City of Shaker Heights, supra at 302-303 (plurality opinion of BLACKMUN, J.). Rather, in applying this principle in contexts similar to the instant case, members of this Court have cautioned that every medium of communication "is a law unto itself," Kovacs v. Cooper, supra at 97 (Jackson, J., concurring), and that the "tyranny of absolutes" should not be relied upon
to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities.
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 518 (1952) (Frankfurter, J., concurring).
A careful consideration of the diverse interests involved in this case illustrates, for me, the inadequacy of the Court's rigidly simplistic approach. In the first place, the conclusion that only a limited interest of persons on the public streets is at stake here can be supported only if one completely ignores the unique visual medium to which the Jacksonville ordinance is directed. Whatever validity the notion that passers-by may protect their sensibilities by averting their eyes may have when applied to words printed on an individual's jacket, see Cohen v. California, 403 U.S. 15 (1971), or a flag hung from a second-floor apartment window, see Spence v. Washington, 418 U.S. 405 (1974), it distorts reality to [p221] apply that notion to the out-size screen of a drive-in movie theater. Such screens are invariably huge; [n1] indeed, photographs included in the record of this case show that the screen of petitioner's theater dominated the view from public places including nearby residences and adjacent highways. Moreover, when films are projected on such screens, the combination of color and animation against a necessarily dark background is designed to, and results in, attracting and holding the attention of all observers. See Note, Motion Pictures and the First Amendment, 60 Yale L.J. 696, 707-708 (1951). Similar considerations led Mr. Justice Brandeis, writing for the Court in Packer Corp. v. Utah, 285 U.S. 105 (1932), to conclude that there is a public interest in regulating billboard displays which may not apply to other forms of advertising:
"Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class."
Id. at 110. [p222]
So here, the screen of a drive-in movie theater is a unique type of eye-catching display that can be highly intrusive and distracting. Public authorities have a legitimate interest in regulating such displays under the police power; for example, even though traffic safety may not have been the only target of the ordinance in issue here, I think it not unreasonable for lawmakers to believe that public nudity on a giant screen, visible at night to hundreds of drivers of automobiles, may have a tendency to divert attention from their task and cause accidents.
No more defensible is the Court's conclusion that Jacksonville's ordinance is defective because it regulates only nudity. The significance of this fact is explained only in a footnote:
Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. . . . In this respect, such nudity is distinguishable from the kind of public nudity traditionally subject to indecent exposure laws.
Ante at 211 n. 7.
Both the analogy and the distinction are flawed. Unlike persons reading books, passers-by cannot consider fragments of drive-in movies as a part of the "whole work" for the simple reason that they see, but do not hear, the performance, cf. Note, supra, 60 Yale L.J. at 707, and n. 27; nor do drivers and passengers on nearby highways see the whole of the visual display. The communicative value of such fleeting exposure falls somewhere in the range of slight to nonexistent. Moreover, those persons who legitimately desire to consider the "work as a whole" are not foreclosed from doing so. The record show that the film from which appellant's prosecution arose was exhibited in several indoor theaters in the Jacksonville area. And the owner of a drive-in movie theater is not prevented from exhibiting nonobscene films involving [p223] nudity so long as he effectively shields the screen from public view. Thus, regardless of whether the ordinance involved here can be loosely described as regulating the content of a certain type of display, it is not a restriction of any "message." Cf. Police Dept. of Ohio v. Mosley, supra at 408 U.S. 95"]95-96; 95-96; Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). The First Amendment interests involved in this case are trivial, at best.
On the other hand, assuming arguendo that there could be a play performed in a theater by nude actors involving genuine communication of ideas, the same conduct in a public park or street could be prosecuted under an ordinance prohibiting indecent exposure. This is so because the police power has long been interpreted to authorize the regulation of nudity in areas to which all members of the public have access, regardless of any incidental effect upon communication. A nudist colony, for example, cannot lawfully set up shop in Central Park or Lafayette Park, places established for the public generally. Cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973); 413 U.S. 49, 67 (1973); Roth v. United States, 354 U.S. 476, 512 (1957) (DOUGLAS, J., dissenting). Whether such regulation is justified as necessary to protect public mores or simply to insure the undistracted enjoyment of open areas by the greatest number of people -- or for traffic safety -- its rationale applies a fortiori to giant displays which through technology are capable of revealing and emphasizing the most intimate details of human anatomy.
In sum, the Jacksonville ordinance involved in this case, although no model of draftsmanship, is narrowly drawn to regulate only certain unique public exhibitions of nudity; it would be absurd to suggest that it operates to suppress expression of ideas. By conveniently ignoring these facts and deciding the case on the basis of [p224] absolutes, the Court adds nothing to First Amendment analysis, and sacrifices legitimate state interests. I would affirm the judgment of the Florida Court of Appeal. [n2]
