Freedom of speech and press are not unqualified rights in that obscenity is not protected. Further, a state may regulate the well-being of the children and protect them from potential harm.
A drive-in theatre displayed an X-rated film containing nudity, apparent heterosexual intercourse, female homosexual acts, and female autoeroticism. The movie screen was visible from nearby public highways, streets, rights-of-way, residences, and business establishments, and children were able to see the film from outside the theatre. Upon complaint, trial court dismissed the obscenity claim on the ground that § 13-535 did not apply to motion picture films, but enjoined the showing of the film and others like it as a public nuisance.
Was an injunction against a pornographic drive-in movie theater proper on the basis of public nuisance but not under the local obscenity statute?
The court affirmed, holding that there was no need to show damage to justify the injunction, as the activity was considered to be a public nuisance per se. But even if the claim of damages were justified, there was evidence that films of that type were harmful to children, offensive to nearby residents, and distracting to motorists. The injunction was not a denial of due process, nor an encroachment of free speech, because the state is well within its powers in regulating the well-being of children and protect them from potential harm. It was thus the correct remedy in the adjustment of the respective rights involved.