WHITE, J., Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

422 U.S. 205

Erznoznik v. City of Jacksonville

APPEAL FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

MR. JUSTICE WHITE, dissenting.

The Court asserts that the State may shield the public from selected types of speech and allegedly expressive conduct, such as nudity, only when the speaker or actor invades the privacy of the home or where the degree of captivity of an unwilling listener is such that it is impractical for him to avoid the exposure by averting his eyes. The Court concludes

that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.

Ante at 212. If this broadside is to be taken literally, the State may not forbid "expressive" nudity on the public streets, in the public parks, or any other public place, since other persons in those places at that time have a "limited privacy interest," and may merely look the other way.

I am not ready to take this step with the Court. Moreover, by the Court's own analysis, the step is an unnecessary one. If, as the Court holds in Part II-B of its opinion, the ordinance is unconstitutionally overbroad even as an exercise of the police power to protect children, it is fatally overbroad as to the population generally. Part II-A is surplusage. I therefore dissent.

1. For example, in a case similar to this one, the screen measured 35 feet by 70 feet and stood 54 feet above the ground. Bloss v. Paris Township, 380 Mich. 466, 157 N.W.2d 260 (1968).

2. In my view of this case, it is not necessary to deal with the issues discussed in Parts II-B, II-C, and III of the Court's opinion.