420 U.S. 546 (1975), 73-1004, Southeastern Promotions, Ltd. v. Conrad

Docket Nº:No. 73-1004
Citation:420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448
Party Name:Southeastern Promotions, Ltd. v. Conrad
Case Date:March 18, 1975
Court:United States Supreme Court

Page 546

420 U.S. 546 (1975)

95 S.Ct. 1239, 43 L.Ed.2d 448

Southeastern Promotions, Ltd.



No. 73-1004

United States Supreme Court

March 18, 1975

Argued October 17, 1974




Petitioner, a promoter of theatrical productions, applied to respondents, members of a municipal board charged with managing a city auditorium and a city leased theater, to present a musical production at the theater. Upon the basis of outside reports from which it concluded that the production would not be "in the best interest of the community," respondents rejected the application. Petitioner's subsequent motion for a preliminary injunction was denied following a hearing by the District Court, which did not review the merits of respondents' decision but concluded that petitioner had not met the burden of proving irreparable injury. Petitioner then sought a permanent injunction permitting it to use the auditorium. Several months later, respondents filed their first responsive pleading, and the District Court, after a three-day hearing on the content of the musical, concluded that the production contained obscene conduct not entitled to First Amendment protection, and denied injunctive relief. The Court of Appeals affirmed.


1. Respondents' denial of use of the municipal facilities for the production, which was based on the board members' judgment of the musical's content, constituted a prior restraint. Shuttlesworth v. Birmingham, 394 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296. Pp. 552-558.

2. A system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system," Freedman v. Maryland, 380 U.S. 51, 58, viz., (1) the burden of instituting judicial proceedings, and of proving that the material is unprotected, [95 S.Ct. 1241] must rest on the censor; (2) any restraint before judicial review can be imposed only for a specified brief period and only to preserve the status quo; and (3) a prompt judicial determination must be assured. Since those safeguards in several respects were lacking here, respondents' action violated petitioner's First Amendment rights. Pp. 558-562.

486 F.2d 894, reversed.

Page 547

BLACKMUN, J, delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part and concurring in the result in part, post, p. 563. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 564. REHNQUIST, J., filed a dissenting opinion, post, p. 570.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

The issue in this case is whether First Amendment rights were abridged when respondents denied petitioner the use of a municipal facility in Chattanooga, Tenn. for the showing of the controversial rock musical "Hair." It is established, of course, that the Fourteenth Amendment has made applicable to the States the First Amendment's guarantee of free speech. Douglas v. City of Jeannette, 319 U.S. 157, 162 (1943).


Petitioner, Southeastern Promotions, Ltd., is a New York corporation engaged in the business of promoting and presenting theatrical productions for profit. On October 29, 1971, it applied for the use of the Tivoli, a privately owned Chattanooga theater under long-term lease to the city, to present "Hair" there for six days beginning November 23. This was to be a road company showing of the musical that had played for three

Page 548

years on Broadway, and had appeared in over 140 cities in the United States.1

Respondents are the directors of the Chatanooga Memorial Auditorium, a municipal theater.2 Shortly after receiving Southeastern's application, the directors met, and, after a brief discussion, voted to reject it. None of them had seen the play or read the script, but they understood from outside reports that the musical, as produced elsewhere, involved nudity and obscenity on stage. Although no conflicting engagement was scheduled for the Tivoli, respondents determined that the production would not be "in the best interest of the community." Southeastern was so notified, but no written statement of reasons as provided.

On November 1, petitioner, alleging that respondents' action abridged its First Amendment rights, sought a preliminary

Page 549

injunction from the United States District Court for the Eastern District of Tennessee. Respondents did not then file an answer to the complaint.3 A hearing was held on November [95 S.Ct. 1242] 4. The District Court took evidence as to the play's content, and respondent Conrad gave the following account of the board's decision:

We use the general terminology in turning down the request for its use that we felt it was not in the best interest of the community, and I can't speak beyond that. That was the board's determination.

Now, I would have to speak for myself, the policy to which I would refer, as I mentioned, basically indicates that we will, as a board, allow those productions which are clean and healthful and culturally uplifting, or words to that effect. They are quoted in the original dedication booklet of the Memorial Auditorium.

App. 25.4 The court denied preliminary relief, concluding that petitioner had failed to show that it would be irreparably

Page 550

harmed pending a final judgment since scheduling was "purely a matter of financial loss or gain," and was compensable.

Southeastern some weeks later pressed for a permanent injunction permitting it to use the larger auditorium, rather than the Tivoli, on Sunday, April 9, 1972. The District Court held three days of hearings beginning April 3. On the issue of obscenity vel non, presented to an advisory jury, it took evidence consisting of the full script and libretto, with production notes and stage instructions, a recording of the musical numbers, a souvenir program, and the testimony of seven witnesses who had seen the production elsewhere. The jury returned a verdict that "Hair" was obscene. The District Court agreed. It concluded that conduct in the production -- group nudity and simulated sex -- would violate city ordinances and state statutes5 making public nudity and

Page 551

obscene acts criminal offenses.6 This criminal conduct, the court reasoned, was neither speech nor symbolic speech, and was to be viewed separately from the musical's

Page 552

speech elements. Being pure conduct, comparable to rape or murder, it was not entitled to First Amendment protection. Accordingly, the court denied the injunction. 341 F.Supp. 465 (1972).

On appeal, the United States Court of Appeals for the Sixth Circuit, by a divided vote, affirmed. 486 F.2d 894 (1973). The majority relied primarily on the lower court's reasoning. Neither the judges of the Court of Appeals nor the District Court saw the musical performed. Because of the First Amendment overtones, we granted certiorari. 415 U.S. 912 (1974).

Petitioner urges reversal on the grounds that (1) respondents' action constituted an unlawful prior restraint, (2) the courts below applied an incorrect standard for the determination of the issue of obscenity vel non, and (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 that respondents' rejection of petitioner's application to use this public forum accomplished a prior restraint under a system lacking in constitutionally required minimal procedural safeguards. Accordingly, on this narrow ground, we reverse.


Respondents' action here is indistinguishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of this Court's decisions. See Shuttlesworth v. Birmingham, 394 U.S. 147, 150-151 (1969); Staub v. City of Baxley, 355 U.S. 313, 322 (1958); Kunz v. New York, 340 U.S. 290, 293-294 (1951); Schneider v. State, 308 U.S. 147, 161-162

Page 553

(1939); Lovell v. Griffin, 303 U.S. 444, 451-452 (1938). In these cases, the plaintiffs asked the courts to provide relief where public officials had forbidden the plaintiffs the use of public places to say what they wanted to say. The restraints took a variety of forms, with officials exercising control over different kinds of public places under [95 S.Ct. 1244] the authority of particular statutes. All, however, had this in common: they gave public officials the power to deny use of a forum in advance of actual expression.

Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorship -- reflecting the natural distaste of a free people -- is deep-written in our law.

In each of the cited cases, the prior restraint was embedded in the licensing system itself, operating without acceptable standards. In Shuttlesworth, the Court held unconstitutional a Birmingham ordinance which conferred upon the city commission virtually absolute power to prohibit any "parade," "procession," or "demonstration" on streets or public ways. It ruled that

a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.

394 U.S. at 150-151. In Hague v. CIO, 307 U.S. 496 (1939), a Jersey City ordinance that forbade public assembly in the streets or parks without a permit from the local director of safety, who was empowered to refuse the permit upon his opinion that he would thereby prevent "`riots, disturbances or disorderly


To continue reading