Vance v. Universal Amusement Co.

445 U.S. 308, 100 S. Ct. 1156, 63 L. Ed. 2d 413, 1980 U.S. LEXIS 91

Opinions

Per Curiam.

The question presented in this unusual obscenity case is whether the United States Court of Appeals for the Fifth Circuit correctly held a Texas public nuisance statute unconstitutional. The Court of Appeals read the Texas statute as authorizing a prior restraint of indefinite duration on the exhibition of motion pictures without a final judicial determination of obscenity and without any guarantee of prompt review of a preliminary finding of probable obscenity. Cf. Freedman v. Maryland, 380 U. S. 51 (1965); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975). In this Court, appellants argue that such a restraint is no more serious than that imposed by Texas’ criminal statutes and that it is therefore constitutional. We find appellants’ argument unpersuasive and affirm the judgment of the Court of Appeals.

In 1973, appellee King Arts Theatre, Inc. (hereafter ap-pellee), operated an indoor, adults-only motion picture theater. In October of that year, appellee’s landlord gave notice that the theater’s lease would be terminated. The notice stated that the County Attorney had informed the landlord that he intended to obtain an injunction to abate the theater as a public nuisance in order to prevent the future showing of allegedly obscene motion pictures. Appellee responded by filing suit in the United States District Court for the Northern District of Texas seeking an injunction and declaratory relief to forestall any action by the County Attorney under the Texas nuisance statutes. The case was transferred to a three-judge District Court sitting in the Southern District of Texas for consolidation with a number of other pending obscenity cases.

Two different Texas statutes were in issue at that point. The first, Tex. Rev. Civ. Stat. Ann., Art. 4666 (Vernon 1952),¹ authorizes injunction suits in the name of the State against alleged nuisances. If successful, “judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year,” unless certain conditions are met. The second nuisance statute, Art. 4667 (a) (Vernon Supp. 1978), provides that certain habitual uses of premises shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen. Among the prohibited uses is “the commercial manufacturing, commercial distribution, or commercial exhibition of obscene material.” ²

The three-judge District Court held that both of these statutes authorize state judges, on the basis of a showing that obscene films have been exhibited in the past, to prohibit the future exhibition of motion pictures that have not yet been found to be obscene. 404 F. Supp. 33 (1975). Recognizing that it is not unusual in nuisance litigation to prohibit future conduct on the basis of a finding of undesirable past or present conduct, the District Court read Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), to require a special analysis when the prohibited future conduct may be protected by the First Amendment.³ The routine abatement procedure, which the District Court characterized as “the heavy hand of the public nuisance statute,” was considered constitutionally deficient in the First Amendment context.

Specifically, the District Court noted that a general prohibition would operate as a prior restraint on unnamed motion pictures, and that even orders temporarily restraining the exhibition of specific films could be entered ex parte.4 Moreover, such a temporary restraining order could be extended by a temporary injunction based on a showing of probable success on the merits and without a final determination of obscenity.⁵ The District Court concluded that the nuisance statutes, when coupled with the Texas Rules of Civil Procedure governing injunctions, operate as an invalid prior restraint on the exercise of First Amendment rights.

Because the three-judge District Court granted only declaratory and not injunctive relief, the State appealed to the United States Court of Appeals for the Fifth Circuit. See Gerstein v. Coe, 417 U. S. 279 (1974). A divided panel of that court reversed. 559 F. 2d 1286 (1977). The panel majority acknowledged that if Art. 4666 authorized the closing of a motion picture theater for all uses for a year, it “would pose serious first amendment questions,” 559 F. 2d, at 1290, but held that the District Court had misconstrued Art. 4666 in that it was not intended to apply to obscenity cases.⁶

The panel majority disagreed more fundamentally with the District Court’s view of Art. 4667 (a). It held that the injunction procedure authorized by that statute was “basically sound” in. its application to an establishment such as appellee’s:

“The statute authorizes an injunction against the commercial manufacture, distribution or exhibition of obscene material only. Because the injunction follows, rather than precedes, a judicial determination that obscene material has been shown or distributed or manufactured on the premises and because its prohibitions can apply only to further dealings with obscene and unprotected material, it does not constitute a prior restraint.” 559 F. 2d, at 1292 (emphasis in original).

Further, the panel majority found no problem under Freedman v. Maryland, 380 U. S. 51 (1965), because any temporary restraint entered pending a final adjudication on the issue of obscenity would be imposed by a judge, not an administrative censor. The judgment of the District Court was therefore reversed.⁷

The Court of Appeals granted rehearing en banc, and reversed the panel’s holding that Art. 4667 (a) is constitutional. 587 F. 2d 159 (1978).⁸ The 8-to-6 majority found the statute objectionable because it “would allow the issuance of an injunction against the future exhibition of unnamed films that depict particular acts enumerated in the state’s obscenity statute,” id., at 168, and “lacks the procedural safeguards required under Freedman v. Maryland, 380 U. S. 51. . . .” Id., at 169.⁹ The dissenters wrote that a pragmatic assessment of the statute’s operation indicated that once the contemplated injunction was in effect, it would impose no greater a prior restraint than a criminal statute forbidding exhibition of materials deemed obscene under Miller v. California, 413 U. S. 15 (1973).¹⁰

The Texas defendants appealed to this Court, and we noted probable jurisdiction. 442 U. S. 928. We limit our review to the two arguments advanced in appellants' brief:¹¹ first, that an “obscenity injunction” under Art. 4667 (a) (3) constitutes no greater a prior restraint than any criminal statute and, second, that the Court of Appeals erroneously held that no prior restraint of possible First Amendment materials is permissible.

I

The Court of Appeals was quite correct in concluding both (a) that the regulation of a communicative activity such as the exhibition of motion pictures must adhere to more narrowly drawn procedures than is necessary for the abatement of an ordinary nuisance,¹² and (b) that the burden of supporting an injunction against a future exhibition is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication.¹³

As the District Court and the Court of Appeals construed Art. 4667 (a), when coupled with the Texas Rules of Civil Procedure, it authorizes prior restraints of indefinite duration on the exhibition of motion pictures that have not been finally adjudicated to be obscene.¹⁴ Presumably, an exhibitor would be required to obey such an order pending review of its merits and would be subject to contempt proceedings even if the film is ultimately found to be nonobscene.¹⁵ Such prior restraints would be more onerous and more objectionable than the threat of criminal sanctions after a film has been exhibited, since nonobscenity would be a defense to any criminal prosecution.

Nor does the fact that the temporary prior restraint is entered by a state trial judge rather than an administrative censor sufficiently distinguish this case from Freedman v. Maryland. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963) (emphasis added)! That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work- is obscene does not change the unconstitutional character of the restraint if erroneously entered.

Accordingly, we agree with the Court of Appeals’ conclusion that the absence of any special safeguards governing the entry and review of orders restraining the exhibition of named or unnamed motion pictures, without regard to the context in which they are displayed, precludes the enforcement of these nuisance statutes against motion picture exhibitors.

II

Contrary to appellants’ second argument, the Court of Appeals did not hold that there can never be a valid prior restraint on communicative activity. The Court of Appeals simply held that these Texas statutes were procedurally deficient, and that they authorize prior restraints that are more onerous than is permissible under Freedman v. Maryland and Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975).

Because we find no merit in the contentions advanced on behalf of appellants, the judgment is affirmed.

It is so ordered.

Footnotes

1

“Art. 4666. Nuisance; prosecution

“Whenever the Attorney General, or the district or county attorney has reliable information that such a nuisance exists, either of them shall file suit in the name of this State in the county where the nuisance is alleged to exist against whoever maintains such nuisance to abate and enjoin the same. If judgment be in favor of the State, then judgment shall be rendered abating said nuisance and enjoining the defendants from maintaining the same, and ordering that said house be closed for one year from the date of said judgment, unless the defendants in said suit, or the owner, tenant or lessee of said property make bond payable to the State at the county seat of the county where such nuisance is alleged to exist, in the penal sum of not less than one thousand nor more than five thousand dollars, with sufficient sureties to be approved by the judge trying the ease, conditioned that the acts prohibited in this law shall not be done or permitted to be done in said house. On violation of any condition of such bond, the whole sum may be recovered as a penalty in the name and for the State in the county where such conditions are violated, all such suits to be brought by the district or county attorney of such county.”

In the early stages of the litigation the parties appear to have assumed that this statute applied to the exhibition of obscene motion pictures; at least the District Court so understood the statute. The Court of Appeals, however, read Art. 4666 as applicable only to the types of nuisance specified in Art. 4664 none of which relates to obscenity. See n. 6, infra.

2

“Art. 4667. Injunctions to abate public nuisances

“(a) The habitual use, actual, threatened or contemplated, of any premises, place or building or part thereof, for any of the following uses shall constitute a public nuisance and shall be enjoined at the suit of either the State or any citizen thereof:

“(1) For gambling, gambling promotion, or communicating gambling information prohibited by law;

“(2) For the promotion or aggravated promotion, of prostitution, or compelling prostitution;

“(3) For the commercial manufacturing, commercial distribution, or commercial exhibition of obscene material;

“(4) For the commercial exhibition of live dances or exhibition which depicts real or simulated sexual intercourse or deviate sexual intercourse;

“(5) For the voluntary engaging in a fight between a man and a bull for money or other thing of value, or for any championship, or upon result of which any money or anything of value is bet or wagered, or to see which any admission fee is charged either directly or indirectly, as prohibited by law.”

3

“In its defense the state has tided to distinguish the instant case from Near v. Minnesota, supra, but the attempt is not successful. In both cases the state made the mistake of prohibiting future conduct after a finding of undesirable present conduct. [When that future conduct may be protected by the first amendment, the whole system must fail because the dividing line between protected and unprotected speech may be 'dim and uncertain.’ Bantam Books v. Sullivan, 372 U. S. [58, 66 (1963)]. The separation of these forms of speech calls for ‘sensitive tools,’ Speiser v. Randall, 357 U. S. 513 . . . (1958), not the heavy hand of the public nuisance statute.” 404 F. Supp., at 44.

4

In dissent, Mr. Justice White incorrectly assumes that it is “undisputed that any injunction granted under Art. 4667 (a) will be phrased in terms of the Miller v. California, 413 U. S. 15 (1973), definition of obscenity.” Post, at 321. This is by no means necessarily so. Under the Texas statutes a temporary injunction prohibiting the exhibition of specific named films could be entered on the basis of a showing of probability of success on the merits of the obscenity issue. Even if it were ultimately determined that the film is not obscene, the exhibitor could be punished for contempt of court for showing the film before the obscenity issue was finally resolved.

5

"The specific requirements of obtaining an injunction in Texas, which would presumably be utilized in actions pursuant to article 4667, leave much to be desired if they are used in the obscenity context. Rules 680-693a of the Texas Rules of Civil Procedure provide the injunction procedures for Texas. Pursuant to those rules, the state could obtain a temporary restraining order lasting up to ten days, ex parte. As soon as possible, within that ten days, however, a hearing on a temporary injunction is obtainable. The temporary injunction is not a final adjudication on the merits but, once it is obtained, there is no provision for treating the case any differently from any other civil case. The lack of a provision for a swift final adjudication on the obscenity question raises serious doubts of the constitutional usability of the injunction process in Texas for an obscenity situation.” 404 F. Supp., at 46.

6

The panel interpreted the “such a nuisance” language in the first sentence of Art. 4666, see n. 1, supra, as referring to the definition of “common nuisance[s]” in Art. 4664 (Vernon Supp. 1978): gambling houses, houses of prostitution, and places where intoxicating liquors are kept.

7

Judge Thomberry, dissenting in part, relied on the reasoning of the three-judge District Court:

“As the district court wrote:

‘Pursuant to [Rules 680-693a of the Texas Rules of Civil Procedure], the state could obtain a temporary restraining order lasting up to ten days, ex parte. As soon as possible, within that ten days, however, a hearing on a temporary injunction is obtainable. The temporary injunc tion is not a final adjudication on the merits but, once it is obtained, there is no provision for treating the [obscenity] case any differently from any other civil case. The lack of a provision for a swift final adjudication on the obscenity question raises serious doubts of the constitutional usability of the injunction process in Texas for an obscenity situation.’” 559 F. 2d, at 1303.

8

It accepted the panel majority’s construction of Art. 4666, i. e., that it was inapplicable in obscenity cases.

9

In Freedman, the Court gave three reasons for holding Maryland’s censorship procedures unconstitutional:

“It is readily apparent that the Maryland procedural scheme does not satisfy these criteria. First, once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination.” 380 U. S., at 59-60.

10

The dissenters also relied on the panel majority’s distinction between a temporary restraint entered by a judge and one entered by an administrative censor.

11

The brief is confined to an attack on the Court of Appeals’ holding that Art. 4667 (a) is unconstitutional as applied to allegedly obscene material. At oral argument, appellants’ counsel invited us also to review issues relating to Art. 4666 and the question whether the District Court should have abstained. Since the former contention would require us to review a construction of Art. 4666 which all members of the en banc Court of Appeals ultimately accepted, and since the latter contention was not raised in the Court of Appeals, we decline the invitation.

12

Emphasizing the difference between a regulation touching freedom of expression and the regulation of ordinary commercial activity, in Freedman v. Maryland, the Court wrote:

“In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by.a properly drawn statute, and whether or not he applied for a license. ‘One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it.’ Thornhill v. Alabama, 310 U. S. 88, 97; see Staub v. City of Baxley, 355 U. S. 313, 319; Saia v. New York, 334 U. S. 558; Thomas v. Collins, 323 U. S. 516; Hague v. CIO, 307 U. S. 496; Lovell v. City of Griffin, 303 U. S. 444, 452-453. Standing is recognized in such cases because of the ‘. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.’ NAACP v. Button, 371 U. S. 415, 433; see also Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-76, 80-81, 96-104 (1960).” 380 U. S., at 56.

13

“Any system of prior restraint, however, ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ Bantam Books, Inc. v. Sullivan, 372 U. S., at 70; New York Times Co. v. United States, 403 U. S. [713, 714 (1971)]; Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971); Carroll v. Princess Anne, 393 XJ. S. 175, 181 (1968); Near v. Minnesota ex rel. Olson, 283 U. S. [697, 716 (1931)]. The presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. See Speiser v. Randall, 357 U. S. 513 (1958).” Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 558-559 (1975).

14

Those courts believed that a short-lived temporary restraining order could be issued on the basis of an ex parte showing, and that a temporary injunction of indefinite duration could be obtained on the basis of a showing of probable success on the merits.

We accept their, construction of Texas law for purposes of decision. See Bernhardt v. Polygraphic Co., 350 U. S. 198, 204-205 (1956).

15

Cf. Walker v. City of Birmingham, 388 U. S. 307, 317-321 (1967) ; United States v. Mine Workers, 330 U. S. 258, 293 (1947).