Free Speech

Can Public Display of Pictures of Nudity Be Criminalized?

It turns out the Supreme Court has dealt with the question, in Erznoznik v. City of Jacksonville (1975).

|The Volokh Conspiracy |

A commenter on the aborted fetus sign thread asks,

What about a sign showing images of naked women?

It turns out that the Supreme Court has decided this very question, though in a case that nearly all laypeople (and, I suspect, most lawyers) haven't heard of—Erznoznik v. City of Jacksonville (1975). A Jacksonville ordinance barred the display of films containing nudity on drive-in theater screens (remember those?) that were visible from a public street. Unconstitutional, the Court said, notwithstanding the offense this might cause to passersby, the likelihood that children will see it, or the risk that drivers will be distracted (giant breast! moving! in full color!) and get into accidents.

Now a law restricting the display of "obscene-as-to-minors" material—the test is complicated, but basically we're talking about material considerably more sexually themed than mere nudity—might be permissible. But display of nude images by itself is fully constitutionally protected, including in public places.

The careful reader might be asking: What about bans on actually being naked in a public place? Those are constitutional, though bans on pictures of naked people are not. The Court treats images as a protected form of expression, but a person's physical presence as unprotected. You can debate whether that's a sensible line to draw. (There are other similar lines—for instance, architecture is generally unprotected by the First Amendment, except insofar as it contains murals and the like, which is why aesthetic zoning rules are viewed as constitutional; but sculpture is protected.) But here I'm just reporting what the law is.

Finally, the very creative reader might be asking: What if someone appears in public fully dressed, but in a skintight nontransparent garment that looks exactly like a human body?

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  1. Woody Allen has already given us a giant moving breast in color.

  2. The last question and a related one (“What if someone is partially clothed and is appearing in a science exhibit?”) arise periodically in the DC metro area. A friend of mine (Steve) was a science teacher (and coach, of among many things, his school’s competitive break dancing team) who agreed to appear as part of a science exhibit [see the absolutely-safe-for-work photos at http://jenseidel.com/gallery/m…..dy-worlds/ ] but encountered the problem.

    1. Even with the codpiece they gave him?

  3. In answer to your last question about being dressed in a skintight garment — it does make a very effective halloween outfit especially when coupled with an old raincoat.

  4. “Finally, the very creative reader might be asking: What if someone appears in public fully dressed, but in a skintight nontransparent garment that looks exactly like a human body?”

    The even more creative reader would ask: What if someone appears in public fully dressed, but has a life-sized nude photograph of their actual body taped to their clothes that gives the appearance of them being nude?

  5. Animals are displayed naked in public all the time, and even walk around. Why the double standard?

    1. I had plans to go out this afternoon. Now reconsidering.

    2. JordanW: Shameless hussies.

  6. If this is the case, how can porn be criminalized in Utah? Unlike sodomy laws that can’t be enforced even though they are still on the books, this is routinely enforced.

    1. JoeGoins: Interesting — I took a quick look, and the statute you cite looks unconstitutionally overbroad, but I couldn’t find any cases in which it was enforced. Can you point me to some? Thanks!

      1. @EugeneVolokh ? I left Utah after grad school in 2011, and they have since changed everything! The broader law was challenged in two suits: The King’s English v. Shurtleff and Florence v. Shurtleff. The former was dismissed in 2007, but the latter was settled in 2012. In the settlement, the state’s Attorney General agreed to decrease the scope of the law. The source material can be found here.

    2. Well, porn is criminalized to some degree almost everywhere. For us First Amendment types, the worst is that people have been convicted in fairly recent years of writing porn fiction — yes, mere stories! — and posting them on sex story sites, at least in one case behind a pay wall.

      See the H. Jekyll essay “Sex Stories on the Internet” at the erotic story site Literotica.

      I’d provide a working link but don’t know how to do it here, and this site tells me I’m just using a word that is too long. It’s probably not viewpoint discrimination.

      1. Do you know how to do HTML tags?

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