Southeastern Promotions, Inc. v. Conrad, Civ. A. No. 6379.

• Decision Date: 07 April 1972
• Docket Number: Civ. A. No. 6379.
• Citation: 341 F. Supp. 465
• Parties: SOUTHEASTERN PROMOTIONS, INC. v. Steve CONRAD et al.
• Court: U.S. District Court — Eastern District of Tennessee

341 F. Supp. 465

SOUTHEASTERN PROMOTIONS, INC. v. Steve CONRAD et al.

Civ. A. No. 6379.

United States District Court, E. D. Tennessee, S. D.

April 7, 1972.

COPYRIGHT MATERIAL OMITTED

John Alley and Michael M. Raulston, Chattanooga, Tenn., for plaintiff.

Eugene Collins and Randall L. Nelson, Chattanooga, Tenn., for defendants.

MEMORANDUM

FRANK W. WILSON, Chief Judge.

The plaintiff, Southeastern Promotions, Inc., seeks by this action to obtain a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 regarding the plaintiff's right to lease a municipal theater or auditorium for use in presenting a commercial theatrical production known as "Hair." Jurisdiction is averred to be based upon 28 U.S.C. §§ 1332 and 1343(3) (4). The plaintiff seeks by way of relief a mandatory injunction requiring the defendants, as members of the Municipal Auditorium Board for the City of Chattanooga, Tennessee, to lease the theater or auditorium under its management to plaintiff for a specific date, the specific date now sought being Sunday, April 9, 1972, four days from the date upon which the trial in the case was concluded.

By way of response the defendants filed a motion seeking a dismissal of the complaint upon the grounds that (1) the plaintiff was without standing to maintain the lawsuit, (2) the defendants, acting in a proprietary rather than governmental capacity, cannot be required to lease the theater facility under their management, (3) the theatrical production sought to be presented by the plaintiff would violate both the ordinances of the City of Chattanooga and the laws of the State of Tennessee and would be in violation of Paragraph (1) of the standard lease requiring compliance with such laws (Exhibit No. 3), (4) the plaintiff, being a corporation and not a natural person, would have no right to maintain this action, and (5) the complaint fails to allege a cause of action.

In order to expedite the hearing of this case, action on the motion to dismiss was reserved and the defendants were ordered to file an answer. In their answer, and among other matters, the defendants contended that the theatrical production "Hair" was a violation of municipal ordinances and state laws prohibiting nudity and obscenity in public places. A trial was held upon all issues, with the issue of obscenity being tried to an advisory jury pursuant to Rule 39 (c), Federal Rules of Civil Procedure. The jury returned a verdict finding the theatrical production "Hair" obscene within the meaning of obscenity as that term relates to freedom of speech as secured by the First Amendment and further found conduct on the part of actors apart from any speech or conduct in expression of speech (symbolic speech) to be obscene conduct.

The case is now before the Court for decision of all issues raised in the plaintiff's complaint, the defendants' motion to dismiss, the defendants' answer, the record made upon the trial of the case, the advisory verdict of the jury, and the argument of counsel. By order of the Court, and without objection of the parties, the trial of this case was held shortly after the filing of the answer and this memorandum is being written immediately upon the conclusion of the trial and under the necessity of its immediate entry if the plaintiff is to have the requested date of showing four days from this date. This opinion will serve as the Court's findings of fact and conclusions of law.

The plaintiff, Southeastern Promotions, Inc., is a corporation organized under the laws of the State of New York and with its principal offices in New York City. It is engaged in the business of presenting commercial theatrical productions and has contractual relations giving it presentation rights with the theatrical group that owns and produces a theatrical production known as "Hair" and described as a "rock musical." The defendants are the duly appointed and acting members of a municipally created body known as the Board of Directors of the Memorial Auditorium. They were appointed pursuant to an ordinance of the City of Chattanooga, Tennessee, and are charged with the management and operation of the Memorial Auditorium, a municipally owned auditorium, and the Tivoli Theater, a former motion picture theater privately owned and now under lease to the City of Chattanooga.

The plaintiff has made three previous requests of the defendants for lease of the Tivoli Theater but upon each occasion the request was denied. Following the last denial this lawsuit was filed upon November 1, 1971. A hearing upon a preliminary injunction in advance of any response by the defendants was held at that time and the injunction denied. By amendment to its complaint filed March 23, 1972, the plaintiff now seeks a mandatory injunction permitting it to lease the municipal auditorium for the presenting of its theatrical production "Hair" upon the date of Sunday, April 9, 1972. No issue exists in the case but that the municipal auditorium is not scheduled for other use on that date or that the plaintiff cannot meet the conditions of the standard lease form regularly used by the defendants in leasing of the municipal auditorium other than that condition of the lease relating to compliance with the laws of the State of Tennessee and of the City of Chattanooga.

Motion to Dismiss

Turning first to the defendants' motion to dismiss, as previously stated, that motion is predicated upon a denial of standing on the part of the plaintiff corporation to maintain this action, a denial of any duty upon the defendants while acting in a proprietary capacity to lease the municipal facilities under its management, an averment of the plaintiff's inability to comply with the lease requirement that local and state law will not be violated, an averment that the plaintiff, being a corporation and not a natural person, would have no right to maintain this action, and a general averment that the complaint fails to aver any substantial federal question or constitutional issue.

With regard to the plaintiff's standing to maintain this litigation, it is the defendants' contention that the plaintiff does not propose to make any expression or theatrical presentation itself, but rather is only a booking agent having at most only a commercial interest in the presentation of "Hair." It is contended that no right of the plaintiff to freedom of speech is involved. Citing the rule that only those whose federal constitutional rights are alleged to be involved have standing to seek judicial adjudication of those rights, the defendants deny any standing in the plaintiff to assert a First Amendment violation in this lawsuit. While the undisputed evidence now bears out that the plaintiff's interest in the lawsuit is a commercial one as booking agent and promoter, and not as an owner or performer, the testimony being that it expects to net $10,000 off of a single performance in Chattanooga, the issue of standing to sue would appear to be resolved in favor of the plaintiff by the United States Supreme Court in the case of Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L.Ed.2d 947 (1968) wherein the Court stated:

"The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions' (citations omitted)."

As stated elsewhere in that opinion, "The question of standing (i. e., in terms of constitutional limitation) is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." When viewed in light of these principles, it is apparent that the defendants' motion to dismiss for lack of standing on the part of the plaintiff to maintain this action must be denied.

It is next contended that although the defendant Board is a municipally created board with responsibility for management of municipally owned or leased theater and auditorium facilities, the Board's activities in this regard are of a proprietary and not of a governmental nature. It is therefore contended that leasing or not leasing these facilities is entirely optional with the Board, as would be true with a private owner. The defendants cite the following authorities in support of this proposition: Avins v. Rutgers State University of New Jersey, 3 Cir., 385 F.2d 151 (1967); Warren v. Bradley, 39 Tenn.App. 451, 284 S.W.2d 698 (1955); City of Knoxville v. Heth, 186 Tenn. 321, 210 S.W.2d 326; Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So.2d 153; State ex rel. v. Newton, 3 Tenn.Civ.App. 93 (1912); State of Washington ex rel. Tubbs v. City of Spokane, 53 Wash.2d 35, 330 P.2d 718 (1958); State of Ohio ex rel. White v. City of Cleveland, 125 Ohio St. 230, 181 N.E. 24, 86 A.L.R. 1172; 56 Am.Jur. 2d "Municipal Corporations" § 556; and Southeastern Promotions, Ltd. v. City of Oklahoma, (Civil Action No. 72-105, D.C.W.D.Okl., Decided March 27, 1972). Generally speaking, the foregoing line of cases deals with the distinction between proprietary and governmental action and reason by analogy that proprietary action by a governmental body is to be judged by the same rules governing private proprietary action. While this line of reasoning by analogy may appear on the surface to have validity, the analogy breaks down under more careful examination. It would appear that the defendant Board in this case does act in a proprietary capacity in its management of its theater and auditorium facilities. However, whether the Board is acting in a proprietary capacity or in a governmental capacity, it is apparent that it remains a public body. It is further apparent that as a public body it could not allow men to use the auditorium but refuse under like circumstances to permit women to use it...