6. Nuisance

Part: 
Three
Chapter: 
6

The exhibition of obscene materials constitutes "a crime involving the welfare of the public at large, since it is contrary to the standards of decency and propriety of the community as a whole"[729] Thus the exhibition of obscene materials may be enjoined as a public nuisance under applicable state law or local ordinance.[730]

Nuisance abatement suits have successfully been brought to enjoin the exhibition or dissemination of specific books, magazines, or movies.[731] However, the constitutional provisions against prior restraint of presumptively protected speech is an important limitation on the use of nuisance actions.[732]

Plaintiffs in civil nuisance actions should use procedures which include procedural safeguards against invalid prior restraints.[733] The United States Supreme Court rejected the application of nuisance statutes to enjoin the future exhibition of unnamed films in an "adults only" pornographic theater.[734]

Courts have also been unwilling to enjoin the future operation of "adults only" pornographic outlets or theaters that have exhibited obscene publications or films in the past because of First Amendment concerns regarding prior restraints.[735] Other courts have upheld injunctions closing the offending establishments for a period of one year.[736]

To avoid First Amendment challenges, nuisance actions may also be brought based upon lewd activity, assignation, or prostitution occurring on the premises where the obscene material is sold or exhibited.[737]

Notes

  1. Evans Theater Corp. v. Slaton, 180 S.E.2d, (Ga. 1971), pp. 712, 715-16, cert. denied 404 U.S., p. 950.
  2. See, Paris Adult Theatre I v. Slaton, 413 U.S., (1973), pp. 49, 54-55.
  3. See, Trans-Lux Corp. v. State, 366; So. 2d, (Ala. 1979), p. 710; Sanders v. State, 203 S.E.2d, (Ga.), p. 153; Minor v. Central Ave. News, Inc., 308 N.W2d, (N.D. 1981), p. 851, app. dism. 102 (Okla.): People ex rel Busch v. Projection Room Theater, 550 P.2d, (1976), p. 600.
  4. See generally, Freedman v. Maryland, 380 U.S., (1965), p. 51; Southeastern Promotions, Ltd. v Conrad, 420 U.S., (1975), p. 546.
  5. See, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. p. 560.
  6. Vance v. Universal Amusement Co., 445 U.S., (1980), p. 308.
  7. People ex rel. Busch v. Projection Room Theater, 550 P.2d, (1976), p. 600; State v. A Motion Picture Entitled "The Bet", 547 P.2d, (Kan.), p. 760.
  8. State ex rel. Cohalan v Diversified Theatrical Corp., 229 N.W.2d, (Mich. App.), p. 389; City of Tallmadge v. Avenue Book Store, No. 10038(Ohio App. Summit County, Oct. 28, 1981) cert. denied 459 U.S., (1982), p. 997.
  9. People v. Adult World Bookstore, 108 Cal. App. 3d 404, 166 Cal. Rptr., (1980), p. 519; People v Golman, 7 III. App. 3d 253, 287 N.E.2d, (III. 1972), p. 177.