In Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980), the Supreme Court affirmed a ruling by the Fifth Circuit Court of Appeals, finding that an injunction issued by Texas under its public nuisance statute against the King Arts Theatre, Inc., an adult entertainment establishment, was unconstitutional prior restraint in violation of the First Amendment.

Court said Texas law stopping showing of obscene films violated First Amendment

The case revolved around a Texas public nuisance statute that was interpreted as allowing state judges to stop the showing of films not yet found to be obscene in theaters that had previously shown obscene films. The Court’s per curiam opinion held “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” and 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.”

The Court majority also rejected the attempt to distinguish this case from Freedman v. Maryland (1965) on the basis that a judge rather than an administrator had issued the injunction. Citing Southeastern Promotions, Ltd. v. Conrad (1975), the Court concluded that the prior restraints were “more onerous than is permissible.”

Dissenters said case did not present immediate controversy

Chief Justice Warren E. Burger and Justice Lewis F. Powell Jr. dissented on the basis that the case did not present an immediate controversy that the Court should hear. Justice Byron R. White wrote a dissent, joined by Justice William H. Rehnquist, denying that the injunction constituted a prior restraint and arguing that the procedures employed at the contempt proceeding were in compliance with the First Amendment.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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