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A state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. But when the government, acting as censor, undertakes selectively 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. Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
Jacksonville, Fla., Ordinance 330.313 (January 14, 1972), entitled "Drive-In Theaters, Films Visible From Public Streets or Public Places, prohibited showing films containing nudity by a drive-in movie theater when its screen is visible from a public street or place. Appellant Richard Erznoznik, the manager of University Drive-In Theatre in Jacksonville, after having been charged with violating the ordinance, brought a declaratory action in the Circuit Court, Duval County, Florida, alleging that the ordinance violated his First Amendment rights. The trial court upheld the ordinance as a legitimate exercise of the municipality's police power. The District Court of Appeal, First District of Florida, affirmed and the Florida Supreme Court denied certiorari.
Did Jacksonville, Fla., Ordinance 330.313 violate the First Amendment?
The Court reversed the lower court's decision and held that the ordinance was facially invalid. It did not protect citizens from all movies that might be offensive, rather, it singled out movies that contained nudity. In addition, it did not distinguish between nudity that might be viewed as offensive and nudity that would be acceptable. The Constitution did not permit government to decide which types of otherwise protected speech were sufficiently offensive to require protection for the unwilling listener or viewer. The ordinance was found to impermissibly discriminate against movies based solely on content. The Court found that there was no possibility of a limiting construction that would save the ordinance and that the deterrent effect of the ordinance was both real and substantial because it required the theater operators to either stop showing the movies or construct adequate protective fencing which could have been extremely expensive or even physically impracticable.