ERZNOZNIK v. CITY OF JACKSONVILLE

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Argument of William H. Maness

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1942, Erznoznik against Jacksonville.

Mr. Maness, you may proceed whenever you're ready.

Mr. William H. Maness: Mr. Chief Justice and may it please the Court.

This is an appeal from a judgment of the highest court of the State of Florida in which a decision could be hand which decision upheld the unconstitutionally of the Jacksonville City ordinance.

Which makes it unlawful ad provides, it is hereby declared a public nuisance to exhibit for certain persons to exhibit.

Any motion picture in which the human male or female bare buttocks, human female bare breast or human bare pubic areas are shown if such motion picture is visible from any public street or public place.

My client, Richard Erznoznik is the manager of the University Drive-In Theater.

In 1972 shortly after the passage of this ordinance, he was charge with knowingly exhibiting a motion picture in which the human female buttocks and bare breast was shown said scenes being visible from a public street or a public place, and it was summons to appear in Court April 6, 1972.

He appeared and by stipulation, the prosecution was stayed in order that we might test the constitutionality of this ordinance by an action for declaratory judgment in the Circuit Court of two-old-county which is the highest trial court.

We filed that complaint, we had our trial.

The trial court upheld the constitutionality of the statute the District Court of Appeals affirmed relying upon the Chemline case from the First Circuit Court of Appeals and the Supreme Court of Florida denied certiorari by 4-3 vote.

Now, little more that it be said than has been said in my brief and the brief of amicus Motion Picture Association of America.

What I would like to emphasize is the total failure of those who drafted this ordinance and the Florida Courts that have construed it to sharpen its focus and confine its proscriptions, so as not to censor or punish protected speech.

We do not question the basic constitutional panel of the states and the cities to enact laws which punish or inhibit unprotected speech or which protect unwilling persons against obtrusive public displays of explicit sexual material which are both grossly offensive and unavoidable.

But we do contend that such laws must be carefully drawn or authoritatively construed, so that they are not susceptible to application to speech protected by the First and the Fourteenth Amendment.

Justice Lewis F. Powell: Mr. Maness, Sir.

Mr. William H. Maness: Yes.

Justice Lewis F. Powell: If this still had been shown in a close theater, you wouldn’t be here would you?

Mr. William H. Maness: I would not.

Justice Lewis F. Powell: So?

Mr. William H. Maness: This was an ‘R’ rated film, the class of 74.

Justice Lewis F. Powell: Yes.

I was wondering while this isn’t in a time and place issue rather than the First Amendment one.

Mr. William H. Maness: Well, the reason, we don't think it’s a time and place issue.

We did plead that and announce it for declaratory decree is because basically, it gets down to whether or not the city council has the power to declare whatever it pleases a public nuisance.

And in this instance, they've chosen to declare the mere showing of these anatomical parts a nuisance.

So that it seems to me --

Justice Lewis F. Powell: Public, public showing is the issue?

Mr. William H. Maness: As showing on an outdoor movie screen visible from a public place.

Justice Potter Stewart: Wait, Mr. Maness, what if the ordinance merely provided that it would be an offense to exhibit any movie of any kind that was visible from any public street or public place.

Would that be more objectionable or constitutionally or less so?

Mr. William H. Maness: I would say it's be equally objectionable because that seeks to in -- assuming that it's declared a public nuisance also.

Justice Potter Stewart: Yes, the same ordinance as what you have except that it just says any movie of any kind.

Mr. William H. Maness: I would say it's an unlawful infringement on protected speech, visual portrayals because --

Justice Potter Stewart: Why wouldn't it be a perfectly good ordinance regulating traffic safety, you don't want people driving down the street looking at movies?

Mr. William H. Maness: Well, if it were related to traffic safety --

Justice Potter Stewart: And why wouldn't --

Mr. William H. Maness: Then, well it wouldn’t be unless it was so construed.

If by its very language it just says, “It shall be unlawful to exhibit on an outdoor screen visible from a public place of movie.”

Justice Potter Stewart: Yes, visible from any public street.

Mr. William H. Maness: A movie.

Justice Potter Stewart: I think any movie, yes.

Mr. William H. Maness: Well, I think you’d have to show that there’s some relationship between --

Justice Potter Stewart: Oh, wouldn't there be for a rational relationship?

Mr. William H. Maness: I don't think so.

Unless you said, where the exhibition is visible from a traveled highway and there is a showing --

Justice Potter Stewart: But, generally public streets are traveled, aren't they?

Mr. William H. Maness: Well?

Justice Potter Stewart: More or less.

Mr. William H. Maness: I would not -- I would say there's no relationship.

The social benefit to be derived from prohibiting any movie visible from any public place, it seemed to me is not outweighed in the traffic sense.

It does not out weigh the First Amendment --

Justice William H. Rehnquist: Well, -- for the legislature to make or initially as to which social benefit weighs most heavily if it’s acting rationally?

Mr. William H. Maness: Well, if it is -- yes, if it's acting rationally.

Yes, if there’s --

Justice Lewis F. Powell: Why I suppose if the matters if this ordinance could not be applied as the motion picture for example, that was exhibited at the time was Snow White, could it?

Mr. William H. Maness: No, it could not.

Justice Lewis F. Powell: So, to that extent, there's a distinction going would suggest that the purpose of this ordinance does not traffic safety.

Mr. William H. Maness: Correct.

I was answering the speculated question but the purpose of this ordinance is definitely not traffic safety.

Justice Potter Stewart: So this ordinance, we would say is more objectionable under the First and the Fourteenth Amendment then it might have it after all it would be.

Mr. William H. Maness: Much more.

As I would -- If I get that far, as I --

Justice William H. Rehnquist: Well, let me ask you another question.

How can you be that positive if it's not traffic safety?

Isn't it permissible for the Jacksonville City Council to say that bare breast and bare buttock maybe more distracting to drivers along the highway than the picture of Snow White?

Mr. William H. Maness: Yes, if they'd said that or if the Courts had construed that into it, maybe.

Justice William H. Rehnquist: Well, but why they -- why does the legislature have to say all the reasons behind it?

I mean, if an argument can now be advanced that supports the rationality, but what more does this Court need?

Mr. William H. Maness: Well, the same rationale that we've been talking about in defining word cases.

That is that while you may construe that way and uphold its validity, it may not be applied that way by the police officer or the prosecutor who makes the charge.

He may bring the prosecution simply because he's opposed to nudity in any form, in any time, in any place.

Justice William H. Rehnquist: Well, what do you think of the motives?

Chief Justice Warren E. Burger: What do we care about the motives?

Mr. William H. Maness: Well --

Chief Justice Warren E. Burger: Not his motive --

Mr. William H. Maness: If we are, as I understand the protect -- protection we afford speech in this country.

We are concerned about the motives of the persons who seek to inhibit it by some means other than no ordinance or a law that’s narrowly drawn or authoritatively construed to get at only unprotected speech or unprotected conduct.

Now, if you can put a law of books that can be construed in a half of dozen ways, then we violate that principle.

If that principle is to be violated, then this Court can say so.

But, it seems to me if you compare this to the defining words cases, you have to say, if the City of Jacksonville wants to do that.

They've got to draw this ordinance more carefully or it's got to be authoritatively construed not to infringe on otherwise protected speech.

Justice William H. Rehnquist: Would you say that the City of Jacksonville could go beyond what has been called obscene by this Court and make a broader proscription.

And just obscenity when you're talking about projecting it beyond the theater walls to the public?

Mr. William H. Maness: Yes, I think they'd probably could something more obscene then mere nudity.

Justice William H. Rehnquist: Well, something less obscene than what this Court has said can be prohibited by the State within the walls of the theater where everybody is consented to see it.

Mr. William H. Maness: Well, that's a very difficult question to answer because I have tried to figure out how this ordinance could have been authoritatively construed in the Florida Courts to achieve a purpose that does not trench upon protected speech and I don’t see how it can.

I don't see how you can draw such an ordinance.

Justice William H. Rehnquist: What is protected speech as you're using it?

Is it anything that's not obscene?

Mr. William H. Maness: No.

It's anything that this Court has held unprotected such as lewd and obscene, profane, libelous, insulting, confiding words, words which are very arrogant, not words portray or portrayals or pictures that tend to insight immediate breach of the peace or something of that sort.

Justice William H. Rehnquist: But then you're saying that Jacksonville can't prohibit in an outdoor movie that's projected beyond the walls that of the theater.

Anything that it couldn't prohibit in an indoor movie?

Mr. William H. Maness: No, I'm not really saying that.

I don't intend to say that.

I intend -- what I intend to say is that if they relate it to something that isn't in fact a nuisance.

They can prohibit images on a screen that would create dangers to the citizens.

But --

Justice Lewis F. Powell: But don't you think Mr. Maness, for example that there are circumstances in which a state might say as to an open-air movie.

Now, that even an exhibition of a picture in which react to simply recite the First Amendment.

Mr. William H. Maness: They could prohibit it just like they could prohibit outdoor and in other words, they could prohibit outdoor theaters.

Justice Lewis F. Powell: In the interest to safety?

Mr. William H. Maness: I suppose they could.

But until they decide to prohibit outdoor theaters that --

Justice Harry A. Blackmun: Can we be so very sure that is what you're talking about?

Mr. William H. Maness: Well, I think so, there's we have

Justice Byron R. White: What about that, what about the nude performances in the public park.

Let's say there's a summer play series in the public park where and it's a municipal -- it's in the park and -- but there's a law that says as long as you’re showing it in an open-air and people can come and go unless it's public, no nudity.

No nudes in this summer plays in the park, is that too bad?

Mr. William H. Maness: Well, as I read.

I think it's a question of -- I think the city fathers could decide that question like they've decided they don't own some of the beaches down in Florida but they even had a vote as to whether or not --

Justice Byron R. White: So, you would say that’s acceptable?

Mr. William H. Maness: Acceptable with the proper words --

Justice Byron R. White: But it's saying, if you're going to walk down the street, wear some clothes.

Mr. William H. Maness: Yes, at this point in history.

I think it probably is.

Chief Justice Warren E. Burger: Do you think the City could have an ordinance prohibiting soundtracks from operating during hours, let us say after 10 o’clock at night?

Mr. William H. Maness: Yes, I think so.

Chief Justice Warren E. Burger: Or at anytime that the sound level was over a certain decibel level?

Mr. William H. Maness: I think so.

Chief Justice Warren E. Burger: But what if -- what if the candidates running for public office and he wants to make a speech?

That's one of the highest forms of the First Amendment right, isn't it?

Mr. William H. Maness: It is but you know, it's the question who's making the judgment in a --

Chief Justice Warren E. Burger: But you concede that if it annoys, if it's loud enough so that rationally it can be said that this annoys a lot of people and maybe affects their hearing but then it can be prohibited.

Mr. William H. Maness: Mr. Chief Justice, I'm under the impression that under the rules laid down by this Court that such an ordinance could be narrowly drawn authoritatively construed and upheld.

Eventhough, it does in trench strongly on First Amendment rights.

But I don't really see the parallel between that and mere nudity on an outdoor movie screen if you’re going to have any films of any kind.

Justice Byron R. White: But if the city fathers that what you view the screen is that it's all located that anybody wants to have nice speech of stop and watch the entire movie.

And the fact is that at this corner the children gather --

Mr. William H. Maness: If there was --

Justice Byron R. White: To watch the movies and if they're going -- if you want your screen in that location, just don't show x-rated movies.

If the kids are going to -- you're going to let the kids gather outside and watch this -- this -- if you want to just keep -- just clean up your movies a little bit.

Mr. William H. Maness: Well, if they passed an ordinance such as you're speaking of and related it specifically to traffic problems --

Justice Byron R. White: That's not what I'm talking about.

I'm talking about children.

Mr. William H. Maness: Alright, if they related the ordinance to children?

I think they might very well come up with an ordinance that could stand constitutional master.

But this ordinance is no related to any of those things.

Justice Byron R. White: What would happen to the case as that -- who is watching these movies?

Mr. William H. Maness: That, yes, but the children would be outside watching the movies if it was Mary Poppins

Justice Byron R. White: Oh, I know.

That and nobody objects to that saying, City Council --

Mr. William H. Maness: No.

Right.

Justice Byron R. White: Agrees to that showing is -- the parents in town object to the screen showing x-rated movies to their children?

Mr. William H. Maness: Well, we're not talking about x-rated movie.

We're talking about one hour movie, the class of ’74.

This is not a --

Justice Byron R. White: Oh, I know but your position covers all -- covers x-rated movies or any other related movie, so let's don’t --

Justice Thurgood Marshall: So that is an ‘R’ rated movie up to the time to decide whether the child goes or not?

Mr. William H. Maness: Yes.

Yes, under 17.

Justice Thurgood Marshall: Well, the child and the parent had no jurisdiction of whether the child stands on the corner, will see it?

Mr. William H. Maness: Well, you know we have other laws that such as laws against trespass and littering, and other ways of permitting those who are inside the theater to see what they want to see without interference from those outside the theater.

Justice Thurgood Marshall: But this is restricted to be outside?

Mr. William H. Maness: This ordinance is restricted, so restricted yes.

Justice Thurgood Marshall: And it merely says that you shouldn't show this picture to children without their parent's consent?

Mr. William H. Maness: Mr. Justice Marshall, it doesn't mentioned children.

Justice Thurgood Marshall: I know it doesn't but that’s what happened.

Mr. William H. Maness: Well, I doubt it that’s what happened.

Justice Thurgood Marshall: But you don't say children are interested in watching ‘R’ rated movies.

Mr. William H. Maness: I think the children go in and they want to see it.

You know, they get their parents permission, they get in car and they go in.

But that’s beside the point, of course --

Justice Thurgood Marshall: It is beside the point because mine is when the parents say, “Don’t go to that theater.”

And then the child said, “Where, well I won’t go to the theater to see it.”

And he just goes to the corner and looks for free.

Mr. William H. Maness: Well --

Justice Thurgood Marshall: This is right--

Mr. William H. Maness: That happens.

Justice Thurgood Marshall: And that’s part of what this ordinance is aimed at.

Mr. William H. Maness: But if he was looking at this --

Justice Thurgood Marshall: It isn't part of what this ordinance is aimed at?

Mr. William H. Maness: Yes.

And if he were looking at a travel law of foreign lands, or art museums, or a health picture, or even a news room, he might also see a bare female breast, or bare male or female buttocks and that would be the end of the movie.

So, the point is, can the movie be suppress simply and solely because it has scenes of this anatomical parts in it regardless of the context.

And it seems to me that this case falls right in with the whole line of cases of this Court --

Justice Thurgood Marshall: Let's get back to my Brother Rehnquist's point.

I mean, the average person driving on the street if he sees a bare buttocks on the wall over there, he’s going to look at it.

Mr. William H. Maness: Well, if he recognizes it as such.

Justice Thurgood Marshall: Well, I would assume that the average person can recognize this.

Mr. William H. Maness: Well, I've driven by these movie screens.

And I am only speaking from my own experience and I have seen figures on the screen and not really known what they were.

I didn't give that much of an attention to it.

You see movement, you see flashes, and you see color.

Chief Justice Warren E. Burger: You're suggesting that in order to sustain one statute it must be demonstrated that it's reaches perfect candidate to either that or in combination with other statutes.

All such conduct is completely prescribed and prohibited while there's no such doctrine of laws out, is there?

Mr. William H. Maness: No.

Not that broad.

Chief Justice Warren E. Burger: Statutes against murder is to survive eventhough in murders are continued at a very great rate.

Mr. William H. Maness: And we define the degrees of murder, first, second, third, manslaughter, justifiable or excusable homicide.

But we don't define the degrees of offense that we commit when one scene of nudity comes on the screen.

Justice Byron R. White: Mr. Maness, what is the consequence of under this ordinance if the establishment is declared a nuisance?

Is it just that he is convicted of maintaining a public nuisance?

Is it a misdemeanor?

Mr. William H. Maness: It's a low grade misdemeanor.

But it's not a matter of establishing the theater as being a nuisance.

It just simply --

Justice Byron R. White: Showing of --

Mr. William H. Maness: It subjects the projectionist or the manager or ticket taker, someone of those to a criminal penalty.

Justice Byron R. White: Well, so that the word nuisance in there is sort of passage in the sense the ordinance could've said, whoever shows on a screen visible to the public street commits a misdemeanor?

Mr. William H. Maness: I would say that that's pretty much correct but --

Justice Byron R. White: But it doesn't -- I mean, it doesn't have the consequence, ordinary consequence with news of being able to shut it down?

Mr. William H. Maness: No.

It does not.

Justice Byron R. White: It doesn't permit the city to shut down --

Mr. William H. Maness: It says, it's unlawful and hereby declared a public nuisance to do this.

But the public nuisance doctrine, I think is the justification for inhibiting it.

Justice Byron R. White: But usually you're beating nuisances.

Mr. William H. Maness: Right.

Justice Byron R. White: But indeed it does --

Mr. William H. Maness: It's the right.

They usually do but in this --

Justice Byron R. White: But the only thing that's a nuisance is that that single showing or whatever it is?

Mr. William H. Maness: Well, I don't think that's not even a nuisance.

That's just the basis on which they justify make another penalty.

Justice Byron R. White: Okay, thank you.

Mr. William H. Maness: This -- well, I started to say, we do not -- but we do contend that such laws must be carefully drawn or authoritatively construed and I want to point out some of the reach to this ordinance.

It manifests no particular concern for persons in the privacy of their homes and yards, only persons in public streets of places.

It does not deal with captive audiences, audiences who cannot escape looking or being bombarded or who cannot escape being force to confront a situation.

It manifests no concern for highway safety or traffic hazards.

It is not concern with public displays of scenes depicting explicit sexual activity and is not related to obscenity or pornography.

It does not deal with materials so grossly offensive or emotionally disturbing to a non-unwilling audience as to be the proper subject of criminal proscription.

It takes no account of the duration or the context of such nudity whether the scenes are from a travel log, etcetera and the ordinance classes violently, I think, with the long lying of cases in this Court which have drawn a distinction between protected and unprotected speech, the fighting word cases.

What is been said by this Court in the majority and the dissenting opinions in those cases from Cohen versus California to Caroline versus City of Cincinnati.

I think it applies to this case and condemned this ordinance.

For example, the Court said in Cohen versus California, “The ability of Government to shut off this course, solely to protect others from hearing it is dependent upon showing that substantial privacy interest of being invaded in an essentially intolerable manner.”

This ordinance has not been so construed.

Now, even the decent in by Mr. Justice Powell with whom the Chief Justice and Mr. Justice Blackmun joined in Rosenfeld versus New Jersey.

If you take those principles and apply them to this case, this ordinance cannot stand constitutional master because it does nothing and says nothing to inhibit the traditionally unprotected speech, and on the other hand where movies are concerned.

It can never be said that the Chief and the child are no essential part of the exposition of ideas or that such as positions have so slight social value as to be step to truth that any benefit that make -- that maybe derive from them is clearly outweighed by the social interest in order and morality.

Though perhaps implied, in the city's brief and truth, their ordinance in question does not even concern itself with children, children littering or trespassing, and at least the Florida Courts have not so construed it in this Court must take it on its phase.

I'll save the rest of my time.

Chief Justice Warren E. Burger: Very well, Mr. Maness.

Mr. Allen?

Argument of William Lee Allen

Mr. William Lee Allen: Mr. Chief Justice and may it please the Court.

Sitting with me at the counsel table is Harry Shorstein, the general counsel of the city, I am the assistant counsel.

And most of the cases set forth in the appellant's brief and the argument made here today would suggest that what we’re dealing with is obscenity.

But our position is at this particular ordinance deals solely with a public nuisance which has been long recognized to be the power and the duty of municipalities at common law to obey.

Now, there's been some discussion at the ordinance, it doesn't deal specifically with children and doesn’t deal specifically with traffic.

Normally, ordinances are not written in a; whereas, whereas, whereas form like a resolution.

I think Court's know and this Court knows what everyone else knows and that is as one drives along the highway, one can see driving screen, screens, raises up in the air.

And if we see something and catches our eye, we tend to look at it and it could distract us and cause us problems.

I think we know as the file judge did in this case that children make up a percentage, a growing percentage that a population in this country.

Certainly, the ordinance does not purport to regulate obscenity, only nudity and I certainly would suggest traffic.

The willful and intentional exposure of one's private parts is been a crime at the common law.

One of the cases sided in our brief dealt with some swimmers in the national forest who had been swimming in the nude.

Then they decided they want to get him some watermelons into relying upon the riverbank in the nude eating watermelons.

Their conviction was upheld by the Tenth Circuit and I think properly so.

Certainly, if you cannot prohibit this at the driving, you cannot prohibit it at the Hollywood Bowl or any place out in the public.

You could not prohibit people walking around in the nude on public streets.

Justice Potter Stewart: What's this ordinance say this perhaps not important but it goes -- it doesn't apply only to people in the nude.

It didn't apply to the same kind address that people wherein on bathing beaches like clearly some of them.

Mr. William Lee Allen: Well, Mr. Justice Stewart I suggest that people don't walk around on bathing beaches most places with bare female breast or with bear buttock showing or with the pubic areas showing in but --

Justice Potter Stewart: No.

But they do is and there’s some of the saw the language but I don't really think it's very important.

Mr. William Lee Allen: Yes.

Some of the bathing suits that are seen, we may reach that point almost but not quite.

Justice Potter Stewart: In many bathing suits reach to the point covered by some of this language.

Mr. William Lee Allen: Yes.

Now, from the Bloss case which is --

Justice Harry A. Blackmun: And now on it, there were displayed copies of the freezes around this room.

What if we're going to follow the ordinance?

Mr. William Lee Allen: Well, Your Honor, Mr. Maness -- I don't -- there maybe some that Mr. Maness --

Justice Harry A. Blackmun: Well, up there is one and you an unclothed figure and there's one back there?

Mr. William Lee Allen: Well, this probably would serve Mr. Maness says put some pictures in the brief that is submitted to the Court showing on the wall of the do all kind of courthouse.

Justice and a male along with her and of course, they have grapes across the pubic areas and they are no bare buttocks and her bare breast are showing and some of these would run a foul but normally small children I would submit Your Honor are not the present day in this --

Justice Harry A. Blackmun: Although,--

Mr. William Lee Allen: Sir?

Justice Harry A. Blackmun: Look again.

Mr. William Lee Allen: Your Honor, I see a few.

I would never further agree to bunch out on these smaller children Your Honor.

But if --

Justice Harry A. Blackmun: But if he asked, how are your ordinance protects children standing in an adjacent private yard, adjacent to the movie theater complex.

Mr. William Lee Allen: I think those are intent Mr. Justice Blackmun, is the evidence shows and the record shows.

There are several private streets with private residences and there was one lady testifying in the case that she could sit down on her front porch and actually watch the movie.

There are pictures in there but answered before this Court showing the screen.

Justice Harry A. Blackmun: Yes, but they are not in a public place.

Mr. William Lee Allen: While the streets have been held to be a public places Your Honor.

Justice Harry A. Blackmun: But if she's in a -- it says is visible from many public street or public place.

Suppose the backyard adjoins the parking place for the theater?

Mr. William Lee Allen: I would submit sir, that the backyard would not be a public place.

Justice Harry A. Blackmun: And the youngsters are all lined up there along the fence.

Your ordinance doesn't protect them in any way?

Mr. William Lee Allen: No, sir.

And in the Bloss case cited in my brief gave some idea of the size screen there.

I think they help us realize what were talking about, 35 feet by 70 feet and 54 feet above the ground.

So, if we have a nude breast or bare buttocks or pubic areas, they're magnified considerably.

I think the example use in our brief was that of a strict which our fad is fizzled out to some extent.

But you'd have a king-size streakier, streaking across the end and if there's -- if you can't prohibit this, as we again indicate you could put home movies out in your backyards.

Suppose you and your family belong the nudist camp.

You took some films at the nudist camp.

You wanted to show those and they would be visible from the street.

You got to set up out in the front yard.

I submit this would be clearly violent.

We sight the Hoffman case where a go-go dancer was nude.

Dancing and displaying her private parts.

Now, this Court dismissed the appeal.

There again, this was a matter of nudity which I submit that municipalities certain have not only the right that the obligation to maintain.

Certainly, speaking of growing an ordinance narrowly to protect juveniles, it isn't like prior censorship or books that can be bought at bookstores or films that can be bought, there’s no way.

Mr. Maness spoke of this and he's a former State Circuit Judge.

There's no way you could draw an ordinance spelling all this out.

It would to submit it would be so long and involve and contradictory in terms that it would just be no way that it could be done.

Now, I might touch on what this Court has said from time to time about these matters in the Burstyn case in which the Court first held freedom of speech to apply to movie theaters.

The Court said at page 502, “It does not follow that the constitutional requires absolute freedom to exhibit every motion picture of every kind at all times and all places, that’s what we have here.”

Then the Redrup case spoke about protecting juveniles.

In Stanley versus Georgia, this Court spoke of the danger of juveniles finding things.

Now, the appellant in his brief says, “Well, that most parents if they are honest will admit that they don’t know what is proper.

Well, that’s something that a parent cannot advocate his responsibility.

Where you're conflicting testimonies from various child experts, to Dr. Spock and others and possible to some of the permissiveness that does emerge the greatest part of the problem.

But it's a parent's right, I think, we're speaking of constitutional rights.

It's his duty to see what his children see and don't see.

And I would like to talk about the Rabeck case decided most recently by this Court, which I think this is what we're talking about and its only opinion of this Court that I could find dealing with driving-in theaters.

The question there was these sexually frank scenes but the statute did not make it clear that there would be punishment for showing it at the drive-in, whereas you would be permitted at the close-type theater.

But as said by the Chief Justice joined by Mr. Rehnquist in the separate concurring opinions, public displays of explicit material such as are described in this record are not significantly different from any noxious public nuisance, traditionally within the power of the states to regulate and prohibit, and in my view involved no significant countervailing First Amendment considerations, an offensive nuisance.

Certainly, it's something that has to be considerably weighing of the interest of the public is against the right of the man showing the movie.

They're not prohibited from showing nude movies.

They're not prohibited from having consenting adults or others coming in.

They only provision of the ordinance is if you're going to show a movie which is visible from a public street or a public place.

Then, you have to not show a movie which has bare breast, bare buttocks or the bare pubic hairs.

Thank you.

Justice Harry A. Blackmun: And that would include the picture of a fairly newly born baby in given about and some about a man?

Mr. William Lee Allen: Well, Mr. Justice Blackmun, this would be the Harris story that Mr. Maness is raising his brief, the little girl that we've all seen in the Coppertone Sunshine advertisements where the dog's pulling their swimming trunks down.

Justice Harry A. Blackmun: This is the subject to a family affection.

Mr. William Lee Allen: Yes.

Justice Harry A. Blackmun: And I just -- I think we're talking about over breaths here primarily.

Mr. William Lee Allen: Well, I would suggest that I -- this cannot conceived of anyone being prosecuted if they showed a babies bare buttocks that someone was powdering.

Chief Justice Warren E. Burger: You have any further Mr. Maness?

Rebuttal of William H. Maness

Mr. William H. Maness: Mr. Chief Justice and if it please the Court.

I would like to just to add this argument.

I realized that we can draw legal nice it is about the words -- was and the word force in unparticular like Mr. Justice -- Mr. Chief Justice, language in Reed versus Washington where he said, “I for one would be unwilling to hold that the First Amendment prevents a State from prohibiting such a public display of scenes depicting explicit sexual activities, if the State undertook to do so under a statute narrowly drawn to protect the public from such potential exposure.

I don't think we are quarrelling with that language ourselves.

What I'm saying is, the City claims the power to declare and abate nuisances and that is determination is conclusive and binding on the Court.

And if such be so, while which we deny, it is a short step from declaring mere nudity a public nuisance when exhibited on an outdoor movie screen visible from a public place regardless of its context of his presentation and from there declaring movies with unpopular themes or ideas without nudity of public nuisance.

To delete one scene from any movie without regarding to its relation to the rest of the movie because the city council brands that scene, a public nuisance is to give the counsel the unbridle power of censorship of ideas and the power to suppress.

Perhaps, the one idea that just might help society solved the hang-ups that inhibit so many people in relationships with others, particularly between the sexes and among the sexes and for that matter races.

The city council does not speak for me when it determines that a bare human female breast on an outdoor movie screen is a public nuisance and it smacks of the male chauvinism then I think it is.

Women and men can be beautiful, ugly, good, bad, angels or devils, dressed or undress and the full range of human emotions maybe stirred, calmed, excited, and inspired by variety of events and all stages of dress and undress.

People are humans; different, funny, sad, good, and depicting life in the movies, is and can be educational, entertaining and even inspirational.

One who denies the beauty of the human species or its potential for beauty simply because its form is not draped in clothing?

We have device for our own creature comforts sends to impress others denies God’s handy work and has never strolled the beaches on a hot summer day.

Do clothes make the women or the woman or does the woman make the clothes?

Just as we are free to choose our dress or undress on the beach so, moviemakers and exhibitors on outdoor screen should not be denied the full range of their creativity simply because someone may look without paying or be offended without understanding.

The public nuisance doctrine is inappropriate.

The ordinance is overbroad and not carefully drawn or authoritatively construed and does reach there -- and it is not limited to unprotected speech.

Chief Justice Warren E. Burger: Mr. Maness.

Thank you gentlemen.

The case is submitted.