Chapter 6 Nuisance 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. Thus the exhibition of obscene materials may be enjoined as a public nuisance under applicable state law or local ordinance.730 729 00 an 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 important limitation on the use of nuisance actions.732 Plaintiffs in civil nuisance actions should use procedures which include procedural safeguards against invalid prior 729 Evans Theatre Corp. v. Slaton, 180 S.E.2d 712, 71516(Ga. 1971), cert. denied 404 U.S. 950. 730 See, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 5455(1973). 731 See, Trans-Lux Corp. v. State, 366; So. 2d 710(Ala. 1979); Sanders v. State, 203 S.E.2d 153(Ga.); Minor v. Central Ave. News, Inc., 308 N.W.2d 851(N.D. 1981), app. dism. 102 (Okla.); People ex rel. Busch v. Projection Room Theatre, P.2d 600(1976). v. 550 Maryland, 380 U.S. 732 See generally, Freedman 51(1965); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546(1975). 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 theatres 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.737 733 at 560. 734 See, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. Vance v. Universal Amusement Co., 445 U.S. 308(1980). People ex rel. Busch v. Projection Room Theater, 550 P.2d 600(1976); State v. A Motion Picture Entitled "The Bet, 547 P.2d 760(Kan.). 736 State ex rel. Cahalan v. Diversified Theatrical Corp., 229 N.W.2d 389(Mich. App.); City of Tallmadge v. Avenue Book Store, No. 10038(Ohio App. Summit County, Oct. 28, 1981) cert. denied 459 U.S. 997(1982). 737 People v. Adult World Bookstore, 108 Cal. App. 3d 404, 166 Cal. Rptr. 519(1980); People v. Golman, 7 Ill. App. 3d 253, 287 N.E.2d 177(111. 1972). Chapter 7 Anti-Display Laws Anti-display laws regulate the method by which pornographic materials can be publicly displayed. Statutes or ordinances may be enacted to restrict the display of sexually explicit materials to minors. In order to withstand constitutional challenges, such laws should apply only to materials that are obscene as to minors.7 738 The regulations also should contain reasonable time, place, and manner restrictions.739 In M.S. News Co. v. Casado,740 the United States Court of Appeals for the Tenth Circuit upheld a Wichita, Kansas, ordinance which restricted the display of material "harmful to minors."741 The Wichita ordinance defined "harmful to minors" as any description, exhibition, presentation or (a) The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest in sex to minors; and 738 739 63(1976). See, Ginsberg v. New York, 390 U.S. 629, 645-47(1968). 740 741 721 F.2d 1281(10th Cir. 1983). Wichita, Kan., Ordinance no. 36-172, S5.68 156(1985). (b) The average adult person applying (c) The material or performance lacks serious The ordinance also provided criminal penalties. The penalties may be imposed when any person having (a) display material which is harmful to minors The court of appeals found that the definition of "harmful to minors" properly tracked the standards enunciated in Ginsberg V. New York 744, and Miller v. California.745 The requirement that the lower two-thirds of the material be covered was neither Overbroad nor vague.746 While the ordinance did restrict an adult's opportunity to view the materials, it did not prevent an adult from purchasing them.747 The Court found the ordinance to be a reasonable time, place, and manner restriction justified by the government's interest in protecting minors.748 A Minneapolis, Minnesota, ordinance 749 which was more restrictive than the one enacted in Wichita withstood a constitutional challenge in Upper Midwest Booksellers v. City of Minneapolis.750 The Minneapolis Ordinance provided, It is unlawful for any person commercially and (a) It is also unlawful for any person covers, or packaging, standing alone, is 749 750 Minneapolis, Minn., Ordinances S385.131(1985). 602 F. Supp. 1361(D. Minn. 1985). |