Vance v. Universal Amusement Co., Inc., 445 U.S. 208 (1980)

The constitutionality of two Texas statutes were challenged by King Arts Theatre, which operated an indoor, adults-only motion picture theater, after the Dallas county attorney informed the operator’s landlord that the county planned to initiate action that would declare the theater a public nuisance to prevent it from showing obscene films in the future. One statute authorized injunction suits by the state against alleged public nuisances; the other provided that certain ‘‘habitual uses’’ of premises constituted public nuisances, including the ‘‘commercial exhibition of obscene material,’’ and could be enjoined.

Kings Arts Theatre filed suit in federal district court seeking an injunction and declaratory relief to forestall the county attorney’s plans. A three-judge federal district court ruled the statutes constituted invalid prior restraint and granted declaratory but not injunctive relief. On appeal, a Fifth Circuit Court of Appeals panel reversed the lower court but a rehearing en banc by an eight-to-six vote reversed the panel’s holding. The Supreme Court issued a five-to-four per curiam opinion affirming the en banc ruling, noting this was ‘‘an unusual obscenity case.’’ Burger, joined by Powell, dissented separately as did White, who was joined by Rehnquist.

The ruling distinguishes the customary and accepted use of injunctions to prevent future conduct on the basis of findings of undesirable past or present conduct from the current case where an exhibitor found to have shown obscene films in the past is prohibited from showing films in the future that, however, have not yet been found to be obscene. The basis of the distinction is Near v. Minnesota (1931), which mandated special analysis when future conduct may be protected by the First Amendment. Because the Texas statute in question ‘‘authorizes prior restraints of indefinite duration on the exhibition of motion pictures that have not been finally adjudicated to be obscene,’’ it imposed an invalid prior restraint on the operator’s First Amendment rights. The Court also agreed with the en banc ruling that the statutes lacked guarantees of prompt reviews of preliminary findings of probable obscenity as required by Freedman v. Maryland (1965).

Burger’s dissent argues the Court need not have reached the merits of the case, because the statutes had not been enforced and thus there was a ‘‘failure to present a real and substantial controversy.’’ White disagrees with the Court for equating an injunction against showing unnamed, obscene films with prior restraint. For him, the Texas statute in question seemed ‘‘functionally indistinguishable from a criminal obscenity statute’’ and thus not constitutionally suspect.

ROY B. FLEMMING

Cases and Statutes Cited

• Freedman v. Maryland, 380 U.S. 51 (1965)
• Near v. Minnesota, 283 U.S. 697 (1931)
• Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980)