People ex rel. Gow v. Mitchell Bros.' Santa Ana Theater

This is the third appeal between these parties to be decided by this court within the last 15 months. 1 In this case, as in the previous two, the Santa Ana City Attorney brought suit, pursuant to Code of Civil Procedure section 731, against the owners and operators of the defendant movie theater to abate a public nuisance. The public nuisance was alleged to be the exhibition of obscene films. 2 In the present case, the defendants appeal from an order granting a preliminary injunction. By that order, the defendants are currently prevented from exhibiting or selling 50 named films and film previews and the video tape cassettes of those films and previews. The preliminary injunction was issued when the trial court determined, after an adversary hearing, that the films and previews were obscene by clear and convincing evidence.

The defendants’ threshold argument is that the issuance of a preliminary injunction in accordance with the standards of the Code of Civil Procedure is constitutionally invalid in cases involving the exhibition of motion pictures, an activity protected by the First Amendment. The applicable law was stated by the Supreme Court in Southeastern…