423 U.S. 976 (1975)

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U.S. Supreme Court

SENDAK v. NIHISER , 423 U.S. 976 (1975)

423 U.S. 976

Theodore L. SENDAK, etc.
Clyde NIHISER, dba Movieland Drive-In Theater.
No. 74-1165.

Supreme Court of the United States

November 17, 1975

The judgment is vacated and the case is remanded to the United States District Court for the Northern District of Indiana for further consideration in light of Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.

Page 423 U.S. 976 , 977

On October 12, 1973, the prosecuting attorney for Adams County, Ind., filed in the Adams Circuit Court a petition to enjoin and abate appellee's motion picture theatre as a public nuisance. On the same day the Circuit Court entered a temporary restraining order with a notice and summons to appear for a hearing on a temporary injunction. Additionally, a subpoena duces tecum issued, ordering appellee to produce before the Court the film 'Deep Throat' and all other motion pictures in his possession, and also a list of the titles and play dates of all motion pictures exhibited by him over the past three years.

The prosecutor was proceeding under the Indiana obscenity public nuisance statute, supra. The Statute provides that a place which exhibits obscene films is a public nuisance,1 and provides for a court order requiring the closure for up to one year of any place determined to be a public nuisance. [Footnote 2] An ex parte restraining order may issue up to 10 days without any prior judicial determination of the obscenity of specific films, and a preliminary injunction may issue if after hearing the allegations of the complaint 'are sustained to the satisfaction of the court.'3 The statute further provides that at trial the 'general reputation of the place' is both admissible and prima facie evidence for proving the existence of the nuisance. [Footnote 4] If a nuisance is established at trial, an order closing the theatre for a year and confiscating all personal property and contents therein shall issue. [Footnote 5] The owner of a theatre closed by either preliminary or permanent injunction may obtain a release from the closing order [423 U.S. 976 , 978]

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