The Volokh Conspiracy

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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?