Request By:
Hon. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Drive-in movie theatres in Jessamine County are presenting a problem to the traveling public. You describe it and raise the following questions:
"Drive-in movie theatres in Jessamine County exhibit x-rated movies that can be seen by the traveling public from the adjoining public highway. Is it lawful for x-rated film to be shown without shielding from the view of families and minors using the highway?
"Does the county have the authority to adopt an ordinance requiring a shield for drive-in movies as a matter of safety? Must such an ordinance be adopted as a part of the zoning ordinance of the county?"
You informed us that complaints have come to county government from parents of children under 18, which children from time to time, while riding along Highways No. 27 and No. 68 (state and federal roads), view from the motor vehicle portions of x-rated movies being projected on the nearby screen of drive-in theatres.
Motion pictures cannot be advertised unless the rating assigned to that particular motion picture by the Motion Picture Coding Association of America is included. See KRS 436.575.
It is our understanding that an x-rated movie is one which cannot be seen by any person under 18 years of age, whether or not accompanied by a parent or other adult. The rating is apparently not given in terms of the precise nature of the movie or of portions thereof.
In the 1972 Kentucky legislative session, five pieces or legislation concerning x-rated movies snown in drive-in theatres were introduced. Only one was enacted, resulting in KRS 436.575 (advertising or movie ratings) , mentioned above. Senate Bill No. 241, (not enacted) Section 2, provided that "It is declared to be a public nuisance for the operator, owners or projectionist of a drive-in theatre to display or project movies upon the viewing screen such movies as depict undity, intimate sexual contact or relationships, or otherwise material depicting and inciting racial, ethnic or religious prejudice and hatred when such viewing screen is observable by parties or persons not patrons or otherwise upon the premises owned and used as the drive-in theater, in the normal course of their daily activities." House Bill No. 366 (not enacted) contained the same provision.
The answer to your first question is that there is no kentucky statute requiring a shield from the view of families and minors using the two highways in question. The drive-in movies are operating on land outside of the highway rights of way. Thus, unless a particular film meets the legal definition of pornography, it is presently lawful for x-rated film to be shown in those theatres without any shields or screening-off devices relating to viewing by minors using the highways near the theatres.
The second question is whether the fiscal court has the authority to adopt an ordinance requiring shields for the drive-in movies as a matter of safety. We assume the theatres and the roads in question are in the unincorporated portion or the county.
In
Erznoznik v. City of Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975), a Jacksonville, Florida, ordinance prohibited showing of films containing nudity by a drive-in movie theatre when its screen is visible from a public street or place. The ordinance provided that "It shall be unlawful and it is hereby declared a public nuisance for any ticket seller, usher, motion picture projection machine operator, manager, owner, or any person connected with or employed by any drive-in theatre in the city to exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare public areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place. Violation of this section shall be punishable as a Class C offense." The trial court upheld the ordinance as a legitimate exercise of the city's police power, and ruled that it did not infringe upon appellant's First Amendment rights. The District Court of Appeals affirmed, and the Florida Supreme Court denied certiorail. The movie in question was rated "R" (minors admitted only when accompanied by parents). The parties agreed that the movie included pictures of uncovered female breasts and buttocks.
The Supreme Court in reversing observed that "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." (Emphasis added).
The Supreme Court, in Erznoznik, wrote this specifically about the Jacksonville ordinance (45 L. Ed. 2d 132):
"The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justitied as as means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not 'so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.'
Redrup v. New York, 386 US 767, 18 L Ed 2d 515, 87 S Ct 1414 (1967). Thus, we conclude 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."
The court, in Erznoznik, in saying that the ordinance would deter drive-in theatres from snowing movies containing any nudity, however educational or innocent, wrote in a footnote that such a deterrent is a restraint on free expression. It idas that the record does not indicate how much it would cost to block public view of appellant's theatre. Such costs generally will vary with circumstances. In one case the expense was estimated at approximately a quarter million dollars. See Olympic Drive-In
Theatre, Inc. v. City of Pagedale, 441 S.W.2d 5, 8 (Mo. 1969).
The city argued that the ordinance was a trailic regulation. It claimed that the nudity on a drive-in movie sereen distracts motorists, thus increasing the likelihood of accidents. The court, in striking that argument down, wrote this (45 L. Ed. 2d 134):
"Nothing in the record or in the text of the ordinance suggests that it is aimed at traific regulation. Indeed, the ordinance applies to movie screens visible from public places as well as public streets, thus indicating that it is not a traffic regulation. But even if this were the purpose of the ordinance, it nonetheless would be invalid. By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety or other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist. "
Thus the basic holding in Erznoznik is that an, ordinance which regulates movies on the basis of their content, whether by an obscenity standard or by some other criterion, impermissibly intrudes upon the rights of free speech as guaranteed by the First and Fourteenth Amendments of the Federal Constitution.
Because of Erznoznik, above, it does not appear that a county ordinance requiring a shield from the viewing of the screen from the highway would be constitutional.
Finally, as concerns a shield provision as a part of a zoning ordinance, we have already pointed out the infirmities of a salelding provision based upon content. However, the court, in Erznoznik, above, in a footnote, merely suggested that a properly drawn zoning ordinance restricting the location of drive-in theatres or with a nondiscriminatory nuisance ordinance "designed to protect the privacy of persons in their homes" from the visual and audible intrusions of such tacatres might be valid. (Emphasis added). However, that would not seem to solve your problem.
Of course, you still have available KRS Chapter 531 (pornography criminal statutes) as to a particular film.