*1 SOUTHEASTERN PROMOTIONS, LTD. v. CONRAD
еt al. No. 73-1004. Argued 17, October 1974 Decided March *2 petitioner. for
Henry Monaghan P. the cause argued Alley. John him on the brief was With respondents. L. Nelson the cause for argued Randall Eugene him N. Collins.* on the brief was With opinion of the Me. Justice delivered Blackmun Cour.t. Amendment whether First case is
The issue this petitioner denied respondents when rights abridged were facility Tenn., municipal Chattanooga, the use of a “Hair.” rock musical controversial showing for the Amend Fourteenth course, established, It is Amend First applicable ment has made States City Douglas v. speech. of free guarantee ment’s Jeannette, 157, 162 319 U. S.
I is a New Promotions, Ltd., Southeastern Petitioner, promoting in the business engaged corporation York On profit. productions theatrical presenting Tivoli, use applied for the October 29, long-term under theater Chattanooga owned privately days there six “Hair” present city, lease to the road com- be a was to 23. This beginning November for three played had musical that showing pany America, Inc., League of Authors Karр a brief for the *Irwin filed urging reversal. curiae as amicus
years on Broadway, appeared had in over 140 cities in the United States.1
Respondents are the directors of the Chattanooga Me- morial Auditorium, municipal Shortly theater.2 after receiving Southeastern's application, met, directors and, after a brief discussion, to reject voted it. None of them had seen the play read the script, they but under- stood from outside reports musical, produced elsewhere, involved nudity and obscenity on stage. Al- though no conflicting engagement was scheduled for the Tivoli, respondents determined the production would not be “in the best interest of the community.” South- eastern was so notified but no written statement of provided. reasons was
On
November
*3
petitioner, alleging
respondents'
that
abridged
action
its First Amendment rights, sought pre-
a
1Twice previously, petitioner
informally had asked permission to
Tivoli,
use the
and had been refused.
In other cities, it had encoun
tered similar
resistance and
successfully
had
sought
injunctions
ordering local
permit
officials to
use of municipal
facilities. See
Southeastern Promotions,
City
Ltd. v.
Mobile, 457 F.
340
of
2d
(CA5 1972); Southeastern Promotions,
City
Ltd. v.
West Palm
of
Beach, 457
(CA5
F. 2d 1016
1972); Southeastern Promotions, Ltd.
v. Oklahoma City,
(CA10
5 Chattanooga Code:
“Sec. 6-4. Offensive,indecent entertainment. “It shall be unlawful any person to hold, carry conduct on, or or to cause or permit to held, be conducted or any carried on motion picture exhibition or entertainment any sort which is offensive to decency, or which is of an obscene, indecent or immoral nature, or suggestive so as to be offensive moral sense, or which is calculated to incite crime or riot.” “Sec. 25-28. exposure Indecent and conduct. “It shall be any unlawful for person in the city appear in a public place in a state of nudity, or to bathe in such in state daytime in the river any bayou or stream within the city within sight any street or occupied premises; or to appear in an indecent or lewd dress, or to any do lewd, obscene or indecent act any public place.”
Tennessee Code Ann. (Supp. 1971): “39-1013. Sale or loan of material to minor —Indecent exhibits. —It shall be unlawful:
“(a) for any person knowingly to sell or loan for monetary con- sideration or otherwise exhibit or make available to a minor:
“(1) any picture, photograph, drawing, sculpture, motion picture *5 conduct, criminal This offenses.6 .acts criminal obscene symbolic nor speech neither reasoned, was the court musi- from the separately viewed and to be .speech, portion or image person of a or film, representation or similar visual conduct, nudity, excess sexual body, depicts human which of the minors; to abuse, is harmful violence, and which or sado-masochistic matter, however magazine, printed “(2) any book, pamphlet, enumer- any matter recording, contains which reproduced, or sound explicit and (1) above, contains or which paragrаph hereof ated in of sexual excite- or narrative accounts descriptions detailed verbal abuse, violence, and conduct, ment, excess or sado-masochistic sexual minors; to which is harmful mone- minor for a any knowingly to exhibit
“(b) person for an admission knowingly to to a minor tary consideration, sell or premises whereon a minor to pass to admit or or otherwise ticket presentation picture, show or other exhibited motion there is conduct, nudity, excess which, part, depicts or in sexual whole abuse, is harmful to minors.” violence, and which or sado-masochistic distributing Knowingly selling, or ex- “39-3003. Obscene material — any person to hibiting Penalty.—It be a misdemeanor shall — exhibit, possess intent to sell, distribute, display, with the knowingly produce, exhibit; publish, or other- distribute, display sell, or or to any distribute, display exhibit sell, wise create with intent obscene material.” case, in this certiorari Subsequent grant petition of the to our Tennessee held that 39-3007 of Tennessee Supreme Court § material,” were used as those words “obscene Code, which defined for failure to sections, was unconstitutional and 39-3003 related in § California, requirements Miller satisfy specificity Rhodes, 510 Guild, Inc. v. State ex rel. (1973). Art Theater obscenity statute, Acts (1974). Thereafter, a new 2d 258 S. W. Legislature; by the Tennessee (Adj. S), 510, was c. enacted quoted 39-3003. the above specifically repealed 14 of that act § § production of the musical would Respondents also contended required sign. be petitioner the standard would violate lease lease reads: provision of that The relevant following upon agreement made and entered into “This every which the conditions, all and one of express covenants keep agrees hereby and with the lessor to covenants lessee perform: comply of the United States with all
“1. That lessee will laws said *6 speech cal’s elements. Being pure conduct, comparable rape or murder, it was not entitled to Amend- First ment protection. Accordingly, the court denied in- junction. 341 F. Supp. (1972).
On appeal, the United States Court Appeals of for the Sixth Circuit, a divided vote, affirmed. 486 2d 894 F. (1973). The majority relied primarily on the lower court’s reasoning. Neither the judges of the of Appeals nor the District Court saw per- the musical formed. Because the First Amendment overtones, we granted certiorari. (1974). U. S. 912 urges
Petitioner reversal on grounds (1) re- spondents’ action constituted an prior unlawful restraint, (2) the courts applied below an incorrect standard for the determination of the issue of obscenity non, vel (3) the record does not support a finding that “Hair” is obscene. We do not reach the latter two contentions, for we agree with the first. We hold respondents’ rejection of petitioner’s application use public this forum accomplished a prior system restraint a under lack- ing in constitutionally required procedural minimal safe- guards. Accordingly, on this narrow ground, we reverse.
II Respondents’ action here is indistinguishable in its censoring effect from the official consistently actions identified as restraints in long line of this Court’s decisions. See Shuttlesworth v. Birmingham, 394 U. S. Staub City 147, (1969); 150-151 v. Baxley, 355 U. S. Kunz 313, 322 York, New (1958); v. 290, 293- State, Schneider v. 294 (1951); 147, S.U. 161-162 and of the Tennessee, State of all City ordinances of the of Chatta- nooga, requirements and all rules and police depart- and fire ments other municipal City authorities of the of Chattanooga.” Exhibit 3. 451-452 303 U. S. Griffin, Lovell
(1939); provide courts to asked plaintiffs cases, In these plaintiffs had forbidden officials public where relief they say. wanted say what places to public use of officials forms, variety of took restraints places public kinds over different control exercising however, All, statutes. particular authority under the power officials the they gave in common: this had expression. actual advance aof forum deny use sys- to condemn obliged felt has the Court Invariably, authority was not of such exercise in which tems *7 reasoning standards. clear by precise bounded censorship and of danger simply, been, has freedoms Amendment First precious of our abridgment over discretion have unbridled officials where great too is censorship reflecting Our distaste usе. forum’s — a deep-written people free of a distaste natural —is law. our em- prior restraint cases the cited
In each without operating system itself, licensing in the bedded held the Court In Shuttlesworth standards. acceptable con- which ordinance Birmingham a unconstitutional power virtually absolute city commission upon ferred or “demonstra- “procession,” any “parade,” prohibit “a law ruled that ways. It public or streets tion” freedoms Amendment First exercise subjecting objective, narrow, without aof license, restraint is authority, licensing guide standards definite Hague In 150-151. atS.,U. unconstitutional.” City ordinance Jersey a (1939), CIO, without parks or the streets assembly in forbade was em- who safety, director local from the permit he opinion his upon permit refuse the powered “ disorderly disturbances 'riots, thereby prevent would ” assemblage/ was held void on its Id., face. at 516 (opinion of Roberts, J.).
In Cantwell v. Connecticut,
“It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to deter- mine whether the cause a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate aas matter of course. His decision to issue or refuse it involves appraisal of facts, exercise of judgment, and the formation opinion.” an Id., at 305. The elements of prior restraint identified in Cantwell and other cases were clearly present in the system which the Chattanooga board regulated the use of its *8 theaters. One seeking to use a theater was required to apply tо the board. The board was empowered to deter- mine whether the applicant should be granted permis- sion—in a license effect, or permit the basis of —on its review of the content of proposed the production. Ap- proval of the application depended upon the board's affirmative action. Approval was not a matter of rou- tine; instead, involved the “appraisal of facts, the exercise of judgment, and the formation of an opinion” by the board.7
7 respect With to petitioner’s musical, respondents’ determina tion was production that the would not be "in the best interest of
555 musical the effectively kept judgment board's The go to show permit the did not Respondents stage. off prosecute to authorities enforcement rely on law on and denied they Rather, occurred. that illegal anything would production that anticipation application United Co. v. Times York New See law. violate J., (1971) 735-738 (White, 713, States, S. 403 U. concurring). be restraint prior a no less was action
Respondents’ happened control their under facilities public cause Auditorium Memorial municipal theaters. be dedi for and designed forums public were Tivoli and the as question was no There activities. expressive cated produc petitioner’s facility of either usefulness to the these by the board contention no was There tion. this production a accommodate could not facilities estab an qualifying circumstances of the None size. was restraint doctrine exception lished facility a to use seeking was Petitioner present. g., Cameron e. See, use. competing serving primarily Florida, v. Adderley (1968); Johnson, 611 S. v. 131 Louisiana, 383 S.U. v. Brown (1966); S.U. based application of the rejection was (1966). Nor related manner or time, place, any regulation See users. other from facility applications or nature Poulos (1941); 569, 574 S.U. Hampshire, 312 New Cox v. rights No Hampshire, 345 U. Newv. guided may been have community.” That determination respondent words of in the requirement, (1) own their other criteria: culturally and and hеalthful “clean production be Conrad, ordi the statutes provisions of (2) 25; App. uplifting,” or not obscenity. Whether nudity prohibiting nances by law, Shuttles sufficiently controlled discretion their exercise of doubt be no (1969), can there Birmingham, U. S. worth to^the judgment as required some application an approval of production. quality of content *9 in surrounding by of individuals areas were violated noise v. any aspect production. Kovacs other See Cooper, captive no 336 U. S. There was Heights, City Lehman v. Shaker audience. See of Public Comm’n (1974); U. 306-308 Utilities 304, S. 298, Pollak, (1952) (Douglas, J., 451, 343 U. S. 467-468 dissenting). petitioner pri-
Whether have might used some other, vately city production theater in the owned, consequence. no There is reason on this to doubt any facility record whether other would have served as well these, apparently since none the seating had capacity, stage acoustical elec- features, equipment, trical service that the show if a required. pri- Even vately owned forum had been available, alone that fact justify would not an impermissible otherwise prior restraint. is not to have the of his “[0]ne exercise liberty expression in appropriate places abridged plea may it be exercised in place.” some other State, Schneider v. S., at 163.
Thus, it does not purposes matter for this case the board’s decision might not have had the effect of suppression total community. the musical' in the Denying municipal facility use of the under the circum- present here stances constituted the prior restraint.8 important, though Also conclusion, unessential to our are the classificatory aspects licensing system of the board’s decision. A suppression need not effect prior total in order to create a restraint. Dallas, In Interstate Circuit v. (1968), 390 U. S. observed prior that the evils attendant on “are restraint not rendered objectionable regulation less expression because the is one of classi suppression.” case, fication rather than direct In the Court system held that a whereby restraint was created an young administrative board in Texas classified films as “suitable persons” young persons.” or “not suitable for The “not suitable” suppressed, required were films but exhibitors were to have
557
temporary
That
restraint
final.
It
no mere
was
necessary judicial
way.9
bar
proceedings
while
were under
Only if we were to
unpro
conclude that live drama is
subject
totally
tected
the First Amendment —or
to a
applied
different standard from
to other forms
expression-
possibly
prior
we
find no
restraint here.
—could
Each medium of expression,
course,
must be assessed
purposes by
First
it,
Amendment
standards suited to
may present
for each
problems.
Joseph Burstyn,
its own
Inc. v.
Lion
Wilson, 343
Red
(1952);
U. S.
503
see
Broadcasting
FCC,
Co.
By
(1969).
In the musical unfit for board classified the as showing municipal point pub- in It did not make a facilities. finding licizing “best interest” of its “Hair” was not concerned, public, warning to all but classification stood as a general private theater owners and alike. There is little may to indicate the which the board's action the record extent to petitioner’s ability an have affected to obtain a theater and attract magnitude classification, of its audience. The board’s whatever effect, Books. unlike in Interstate Circuit and Bantam was not clearly distinguishable York, Heller v. New This case is from film, There, copy seized a of a U. state authorities Id,., temporarily, preserve as evidence. at 490. in order to restraint,’ “any in the of ‘final held that there was not form from, enjoined being or with destruc exhibition threatened sense of merely temporarily a Here, did not detain Ibid. the board tion.” Respondents reached script musical. copy libretto for the performance. to bar a final decision word, the written and frequently speech mixes live action or conduct. But that is no reason to hold subject theater drastically to a different standard. For, Burstyn, supra, was said in at 503, when the Court was faced with the question of what First Amendment applies standard to films: basic principles of speech “[T]he freedom of and the the First like press, Amendment’s command, do not *11 vary. Those principles, as they have frequently been enunciated this Court, make freedom of expression the rule. justification There is no in this case for an making exception to that rule.”
Ill
Labeling respondents’
prior
action a
does
restraint
not
end the inquiry. Prior restraints are not unconstitu-
per
tional
Books,
se. Bantam
Inc.
Sullivan,
v.
372 U. S.
58, 70 n.
(1963).
See Near v.
Olson,
Minnesota ex rel.
697,
S.
Film
(1931);
Chiсago,
Times
Corp. v.
Any system prior restraint, however, “comes to this Court bearing a heavy presumption against its constitu- validity.” tional Bantam Books, Inc. v. Sullivan, 372 U. S., 70; at New York States, Times Co. v. United 403 U. S., 714; Organization at a Better Austin Keefe, 402 U. S. 415, 419 (1971); Carroll v. Princess Anne, 393 U. 181 (1968); Near v. Minnesota ex Olson, rel. S.,U. at 716. The presumption against prior restraints is heavier —and the degree of protection imposed expression limits against that broader —than theory is a distinction Behind the penalties. by criminal law; punish society prefers free in our etched deeply they break the rights speech abuse who the few after It all others beforehand. to throttle them law than individual an in advance what know difficult to always illegitimаte legitimate between say, and the line will freewheel- risks of finely drawn that often so speech is Randall, Speiser v. See censorship are formidable. ing 357 U. S. first, action, respondents’ lawful, to be held
In order exceptions narrowly defined within one must fit second, must restraints, and, against prohibition safeguards with procedural accomplished have been constitutionally pro- suppressing danger reduce Sullivan, 372 Books, Inc. v. Bantam speech. tected perform- whether 71. We do not decide S., at U. exception whether, an such “Hair” within ance of fits for resolv- standard board’s matter, as a substantive conclude for we correct, question ing imple- been, was may have whatever standard, *12 appropriate system with under a by the board mented procedural necessary safeguards. restraint prior system a rule is that The settled place if takes only it infirmity constitutional “avoids obviate the designed to safeguards procedural under Maryland, v. Freedman system.” censorship dangers of a Thirty- States v. United (1965). Seе 51, 58 U. Blount v. (1971); 363, 402 U. S. Photographs, seven Film v. Corp. Teitel (1971); 419-421 Rizzi, 410, 400 U. S. Heller also (1968). 141-142 See Cusack, 139, 390 U. S. Bantam (1973); 489-490 York, 413 U. S. New v. Kingsley 70-71; Sullivan, at S., Inc. v. Books, In Freed Brown, 354 U. S. v. Books, Inc. li scheme for the state down a struck man the only a holding “that, because pictures, motion censing judicial determination an adversary proceeding ensures the necessary sensitivity to freedom of expression, only procedure requiring judicial determination suffices to impose a valid final restraint.” S.,U. at 58. We Freedman, held in and we here, reaffirm that a system of prior restraint afoul runs of the First if Amendment lacks certain safeguards: First, the burden of instituting judicial proceedings, and proving the material unprotected, must rest on the Second, censor. any re- straint judicial review can be imposed only for a specified period brief and only for the purpose preserv- ing the status quo. Third, a prompt judicial final deter- mination must be assured.
Although most of our cases pertained have to motion picture licensing or censorship, this Court has applied Freedman system to the by which federal agents customs seize imported United materials, States Thirty-seven v. Photographs, supra, and to that by postal which officials restrict use of the mails, Blount Rizzi, supra. In Blount we held unconstitutional provisions of postal laws designed to control use of the mails for commerce in obscene materials. The provisions enabled the Post- master General to halt delivery of mail to an individual and prevent payment of money orders to him. The ad- ministrative order became effective judicial without ap- proval, and the burden of obtaining judicial review was placed upon the user.
If a scheme that restricts access to the mails must fur- nish procedural safeguards set forth in Freedman, no less must be expected of a system that regulates use of a public forum. Respondents here had the powers same of licensing and censorship by exercised postal officials in Blount, boards and officials in other cases.
The theory underlying the requirement of safeguards *13 is applicable here with equal if greater force. An administrativе board assigned to screening stage produc cul deemed anything not stage off keeping tions —and responsive be less well may or turally uplifting healthful — government, of branch independent an court, a than expression.10 in free interests constitutionally protected reason onerous, unduly made review is judicial ifAnd prac in determination board's the otherwise, delay or of final. bemay tice under safeguards procedural rigorous on
Insistence instance special a “but is circumstances these must expression of the freedoms principle that larger Bantam adequate bulwarks.” about ringed be the Because at 66. Sullivan, S., v. Books, Inc. speech unconditionally guaranteed between line one, a close regulated legitimately may be that speech speech illegitimate from legitimate of “separation the Randall, 357 Speiser tools.” sensitive . . . calls for well are restraint perils The at 525. S.,U. nor the Board the neither where case, by this illustrated extent of the precisely have known could courts lower either musical, the even sex nudity or simulated actually performed.11 was play the before appear, would in several here lacking were safeguards Procedural proce- provide did not system The board's respects. District Although review. judicial prompt dure motion petitioner’s hearing commendably held days fewa within injunction a preliminary L. Harv. Process,” 83 “Due Amendment Monaghan, First See Re Prior Emerson, Doctrine (1970); 518, 522-524 Rev. 648, 656-659 Contemp. Prob. straint, 20 &Law differed performed testimony musical was There the show 79-80, script, App. “substantially” from different audiences different anticipated tastes of fit the varied scene, appar musical's nude country. Id., 93. The at parts varying played under portion, was controversial ently most it, perform obligation to contractual was under actor No conditions. another, performance to changed doing from one so number and the 97-98, Id., 23. at scene. duration lighting, and as did
board's decision, it did not review the merits of the decision at that time. question The аt the hearing was petitioner whether should receive preliminary e., i. relief, whether there was likelihood of success on the merits and petitioner whether would suffer irreparable injury pend- ing full review. Effective review the merits was not obtained until more than five months later. Through- out, was petitioner, not the board, that bore burden of obtaining judicial review. It petitioner that had the burden persuasion at the preliminary if hearing not at the stages later of the litigation. Respondents did not file a formal answer to the complaint for five months after petitioner sought review. During the time prior judicial determination, the restraint altered the quo. status Petitioner was forced to forgo the initial planned dates for the engagement and to seek to schedule performance at a later date. delay and uncer- tainty inevitably discouraged use the forum.
The procedural shortcomings that form the basis for
our decision are unrelated to the standard that the board
applied. Whatever
may
reasons
have been for the
board’s exclusion of the musical, it could not escape the
obligation to afford appropriate procedural safeguards.
We need not decide whether the standard of obscenity
applied by respondents or the courts below was suffi
ciently precise or substantively
correct,
whether the
production is in fact obscene. See Hamling v. United
States,
Reversed. part dissenting con- Mr. Justice Douglas, part. curring in the result ac- conclusion the Court’s I agree
While impermissible an constituted respondents tions rock petitioner’s performance upon restraint *15 in order separately write compelled I musical, am peti- upon inflicted injuries that the my view emphasize ade- be treated cannot rights Amendment First tioner’s applicatiоn simple future in the or averted quately this flaw in critical The band-aids. procedural a few of but safeguards, procedural of absence in lies, case in screening content very nature in the rather engaged. have respondents which it which path the same much today treads (1965), 51 U. S. Maryland, v. Freedman walked occasion expressed I which the sentiment and any form “I not believe do relevant: equally remains may prolonged speedy how matter censorship —no opinion). (concurring Id., 61-62 at permissible.” be—is (dissenting (1974) Preller, U. S. v. Star also See Chicago, 365 U. Corp. Film Times opinion); opinion). (dissenting (1961) expres- forum less is no municipal theater
A sidewalk; aor park, public ais than ideas sion of more may be a forum in such adopted expression forms seen typically those than structured more and expensive en- no less surely they are streets, but and parks in our as As soon Amendment. First shelter to the titled choose, and pick permitted are officials municipal those between regimes, existing socialist all they are in and cultur- healthful “clean are which productions not, are which those content uplifting” ally full which censorship under regime cleared path meet which views those only to given can be voice be. powers approval There was much testimony in the District Court con- cerning the pungent social and political commentary which the musical “Hair” against levels various sacred society: cows of our the Vietnam war, the draft, and the puritanical conventions of the Establishment. This com- mentary is undoubtedly offensive to some, but its contri- bution to social consciousness and intellectual ferment is a positive In one. this respect, the musical's often ribald humor and trenchant may social satire someday merit comparison to the highly most regarded works of Aris- tophanes, a fellow debunker of established tastes re- yet ceived wisdom, one whose offerings would doubtless meet with a similarly cold reception at the hands of Estab- lishment censors. No matter many how procedural safe- guards may be imposed, any system which permits governmental officials to inhibit or control the flow of disturbing and unwelcome ideas to threatens serious diminution of the breadth and richness of our *16 cultural offerings.
Mr. Justice White, with whom The Chief Justice joins, dissenting.
Although in II Part opinion of its the Court lectures on the evils of standardless licensing systems, understand- ably this is not the ultimate basis for decision. However broad discretion the Chattanooga may authorities other- have, wise plainly they subject are the against laws obscenity and public nudity, and the standard re- lease quires productions that such as “Hair” not the violate In law. this respect, the system licensing is not without standards. might As be expected, therefore, issue the in the case, as defined by the District Court and the Court of Appeals, was not whether local authorities had undue discretion but they whether correctly refused to license “Hair” on ground the that production the would satisfy fail to “Paragraph (1) of the standard lease form local with all state comply the lessee requiring being laws these premises,” the lеased in its use of laws display nudity, obscenity, against the laws framing the In so minors. materials to sexually oriented the prayer the reflected the courts below question, sought a declaration 13-14, which App. complaint, the First under expression protected was the musical any city ordinance, violate Amendment, did not authorities An local injunction requiring not obscene. produc- for the facilities available municipal to make sought. also tion of “Hair” was consid- Appeals the Court of District Court and contemplated and held that ered the issue tendered under lease for a qualify of “Hair” did production majority Here, and local laws. relevant state reverses but nevertheless question, this does not address system is Chattanooga permit ground proce- constitutionally minimal required “lacking under- Ante, The Court’s at 552. safeguards.” dural but reach- unexceptionable, cases is standing of our In the first inappropriate. ground a decision on this ing have been tendered appears such issue place, nо the Dis- by either have been decided Court or to District already indi- As Appeals. the Court of trict Court or “Hair” complaint sought a declaration cated, the statutes ordinances and did not violate the relevant municipal use of injunction permitting the well as an how- Secondly, showing of the musical. facilities for the be under Chattanooga system might inadequate ever parties Maryland, (1965), Freedman v. *17 has been “Hair” court; and, trial, been to after have now District by both the violative of Tennessee statutes held not does Appeals. the Court of This Court Court and respect; decisions in this disapprove reverse or these now appropri- therefore assuming correctness, their as is and reversing judgment intention in it the Court’s ate, is of the Court of Appeals to order that which “Hair,” has been held obscene after trial, must be issued a license for in showing the municipal facilities of If Chattanooga? this is the case, very it is a odd disposition, one I which cannot join. On the record us, before be would error any enter judgment the effect of which require is to the Chattanooga authorities permit showing “Hair” in the municipal auditorium.
The Court asserts that “Hair” contains a nude scene and that this is “the most portion” controversial of the musical. This almost completely ignores the District Court’s description of the play involving as only nudity but repeated “simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse . ...”
1
“‘SODOMY, NASTY? SO SOUND WORDS THESE DO THER, WHY ORGY, HOLY THE JOIN FUN. BE CAN MASTURBATION 1-5) 4, p. No. (Exhibit SUTRA, EVERYONE.’ KAMA dialogue chants, and songs, action, with continues then play “The sentences, rhyme, and words, broken by isolated making reference war, freedom, love, peace, subjects as diverse such changes to rapid drugs, and flag, hair, draft, parents, racism, pollution, air Claude character upon centers gradually line story The sex. having received his tribe response of and the response his card, he can his draft burn suggest he others notice. When draft when all act ends first upon it. urinate bring himself only stage, nude upon nude female, appear male performers, dialogue. reference without dialogue and without being had scene police simulating script. Actors mention without is also It arrest they are under announce in the audience appear then ‘lewd, show.’ obscene watching this develop the dialogue song and continues act second “The to such interspersed reference status, with draft Claude’s story of ‘trip,’ impersonation drug love, a topics as interracial diverse it is apparent to me that the State of Tennessee could constitutionally forbid exhibition of the musical to chil- *19 figures various from history, American religion, war, and sex. The play ends with Claude’s death aas result of the draft and the street people singing song, the 'Let the In,’ Sunshine a song the testimony reflects has likewise popular become over the Nation. “Interspersed throughout play,, the as reflected in the script, is such language’ (Exhibit 'street as 'ass’ 4, pp. No. 1-20, 2-16), and (Exhibit ‘fart’ 4, p. 1-26), No. repeated and use of the words 'fuck’t**3 and the four letter word for (Exhibit excretion 4, pp. 1-7, No. 9 and 41). In addition, similar language posters and containing lan- such guage were used stage on but not reflected in the script. “Also, throughout play, the and not reflected in script, the are repeated acts simulated sexual intercourse. These were testified to every witness had who seen play. the They are often unre- any lated to dialogue and accordingly placed could not be with accuracy script. in the The overwhelming evidence reflects that simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercoursе are com- mitted throughout play, the often without any dialogue, reference to song, story play. line the Such acts are committed both stand- ing up and lying down, accompanied by all bodily the movements included in acts, such all the while the actors and actresses are in bodily close contact. point At one the character Burger performs regaled “^Lincoln is following lyrics: the Ts free now thanks you, Lincoln, Massa emancipator of the slave, yeah, yeah, yeah! Emanei-—mother fucking pater of slave, yeah, —
yeah, yeah! Emanei —mother fucking pater slave, yeah, — yeah, yeah!’ With Lincoln responding, ‘Bang my ass I ain’t ... ” dying for no white man!’ “C*'X']Awoman taking departure her says to the tribe, off, ‘Fuck (Exhibit kids.’ p. 1-35). No. 4, The following dialogue occurs as Claude nears his death scene: “‘Burger: I hate fucking world, you? don’t “ ‘Claude: I hate fucking world, I hate the fucking winter, I hate these fucking streets. “ ‘Burger: I wish fuck would snow at least. Yeah, “‘Claude: I wish the fuck it would snow at least. “ ‘Burger: Yeah, I wish the fuck it would.
“ Oh, ‘Claude: fuck! “‘Burger: Oh, fucky, fuck, (Exhibit fuck!’ 4, p. No. 2-22)” (1968), York, U. S. v. New Ginsberg dren,2 produc- its auditorium may reserve Chattanooga city, the citizens to all exhibition suitable tions in this qualify does “Hair” alike. children adults improvident it is otherwise, holding and without respect, of “Hair” showing to mandate for the auditorium.3 Chattanooga red using a while of masturbation simulation complete a full evi- The genitals. simulate his in his crotch placed
microphone dialogue any then unrelated this is again reflects dence repeated reflects further evidence play. occurring in the without occur, again genitals actors’ of other taking hold acts song sing a female actresses three dialogue. While reference immedi- the floor lie actors male love, three interracial regarding singers. genitals at thrusting their repeatedly ately them below *20 2-22) the actor p. (Exhibit 4,No. script in the point At another accompanying The action penis. lost his have pretends to Claude and actors other of the mouths it in to search is this line actresses.” Southeastern petitioner, of director, president and producer, The petitioner Court in the District insist Promotions, Ltd., did not law. contrary local to to minors play exhibit to entitled was standing ordinance was “a if there 7-8, was that testimony, Tr. His by certainly abide minors, we would of the exclusion related . .” . . counsel 16-17, petitioner’s Arg. Tr. of Oral from appears As reached: must be obscenity of the issue the view of obscenity not avoided question of that the appear would “So it were used standards that the petitioner agrees with the Court if even press going are respondents remand ultimately Since on bad. the lower to HAIR access denying obscenity as the basis this urge therefore we position, going to sustain are courts standards, question appropriate itself to address Court to but judicial economy, resources prevent waste only resolving There this issue. interest widespread because litigation all expense afford that can plays very few are way to this Court.”
Mr. Justice Rehnquist, dissenting.
The Court
treats this case as if it were on all fours
with Freedman v. Maryland, U. S.
(1965), which
it is not. Freedman dealt with the efforts of the State
of Maryland
prohibit
petitioner
in that case from
showing a film “at his Baltimore
id.,
theater,”
at 52.
Petitioner here did not seek to show the musical produc-
tion “Hair” at its Chattanooga theater, but rather at a
Chattanooga theater
by
owned
the city of Chattanooga.
glosses
over this
by
distinction
treating
community-owned theater as if it were the same
city
as a
park or city street, which it is not. The Court’s decisions
recognized
have
that city streets
parks
are tradition-
ally open to the public, and that permits or licenses to
use them are not ordinarily required.
“[0]ne who
is rightfully on a street which the state has left open
to the public carries with him there as elsewhere the
right
constitutional
to express his views in an orderly
fashion.
right
This
extends to the communication of
by
ideas
handbills and literature as
well as
spoken
word.” Jamison
Texas,
In Pickering v. Board
Education,
“The no than a owner of State, less under con- power preserve property its has lawfully it is dedicated. trol for the use to which petitioners’ For there is no merit to the this reason right a constitutional argument they had stay property States Consti- on the .... United of its forbid a to control the use tution does not State nondiscriminatory property for its own lawful own purpose.” Adderley impact of
The Court avoids the cases such municipal auditorium and the the- by insisting that “public designed for and dedicated to ater were forums ante, rejection expressive activities,” at “any petitioner’s application regula- was not based tion of or manner related to the nature time, place, Ibid. facility applications from other users.” apparent But effect the Court’s decision is to tell managers municipal they may auditoriums *22 exercise no selective role whatsoever in deciding what performances may be booked. The auditoriums in ques- tion here have historically been devotеd to “clean, health- ful entertainment”;1 they have accepted only produc- tions not inappropriate for viewing by children so that might facilities serve place as a for entertaining the whole family. apart Viewed from any constitutional lim- such itations, a policy would undoubtedly rule out much worthwhile adult entertainment. ifBut it is the desire citizens Chattanooga, who presumably have paid for and own the facilities, that the attractions to be shown there should not be of the kind which would offend any substantial number potential theatergoers, I do not think the policy can be described as arbitrary or unrea- sonable.2 Whether or not the production of the version of “Hair” here under consideration is obscene, the find- ings of fact made by the District Court and affirmed on appeal do indicate is not entertainment designed for the whole family.3 If every municipal theater or auditorium which “de-
signed for and dedicated to expressive activities” becomes
subject to the rule enunciated by the Court in this case,
consequences unforeseen and perhaps undesired by the
Court may well ensue. May an opera house limit
its
1 See the Court’s opinion, ante, at 549 n. 4.
2Limitations on the use of municipal
by government
auditoriums
must be sufficiently reasonable to satisfy the Due Process Clause
unfairly
cannot
discriminate in violation of
Equal
Protection
Clause. A municipal auditorium
opened
which
itself Republicans
while closing itself to Democrats would run afoul of the Fourteenth
Amendment. There is no allegation in the instant case that
auditoriums accepted equally graphic productions while unfairly dis
criminating against “Hair” because
expressions
of its
political
social belief.
3The findings of fact of the District Court
reported
were
at 341
F. Supp. 465,
(ED
472-474
Tenn. 1972), and
repeated
were
by the
Court of Appeals at
productions season an entire devote municipal theater May a pro- any potential to book required or is it Shakespeare, questions These first served basis? come, first ducer on a which oрinion, the in of Court’s light ones are real constitutionally permissible no give by terms seems its authorities. municipal the selection to way role in of the opinion Court’s of the aspects substantive But these procedural farrago than the troubling more are no municipal author- which it has saddled requirements those Freedman, holds that the Court on Relying ities. the have auditorium management charged with the the that “restraint” instituting judicial proceedings, burden of speci- imposed only be a can judicial review prior to judicial deter- final prompt a and that period, fied brief Ante, at 560. be mination must assured. a lease where applicable only are standards
If these pro- grounds refused on the is for a production performed the Court has obscene, putatively duction elevating productions obscene novel feat rather If Amendment. under the First position preferred a the man- time every be invoked must procedures these the fa- to lease municipal theater declines of a agemеnt obscenity putative because of or not whether cilities, What raised. questions other are performance, Is proceedings? in to be tried these will issues be city Chattanooga that unless actually saying Court perform- staging a person criminally punish could may deny a lease owned, he it a theater which ance in per- stage that for him to person order same to that city? owned in a theater formance by municipal au- run may not be municipal A theater judge free to private if as it were theater, thorities per- it wishes to have plays basis which alone a content just surely, But, which does not. formed ought to be “theater” accorded of it which is element some constitutional recognition along with that element of it which is “municipal.” I do not believe fidelity to the First Amendment requires the exaggerated rigid procedural safeguards which the upon insists this I case. think the findings of the District Court and the Court of Appeals support the conclusion that petitioner was denied a lease for constitutionally ade- quate and nondiscriminatory I reasons. would therefore affirm judgment Court of Appeals.