Southeastern Promotions, Ltd. v. City of West Palm Beach

• Decision Date: 12 April 1972
• Docket Number: No. 71-3220.,71-3220.
• Citation: 457 F.2d 1016
• Parties: SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. CITY OF WEST PALM BEACH et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

457 F.2d 1016 (1972)

SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. CITY OF WEST PALM BEACH et al., Defendants-Appellees.

No. 71-3220.

United States Court of Appeals, Fifth Circuit.

March 22, 1972.

Rehearing Denied April 12, 1972.

Oth Miller, Amarillo, Tex., Henry P. Monaghan, Boston, Mass., Ronald Sales, Palm Beach, Fla., Gerald A. Berlin, Boston, Mass., for plaintiff-appellant.

Walton, Lantaff, Schroeder, Carson & Wahl, James Knight, James W. Vance, Farish & Farish, West Palm Beach, Fla., for Boyes.

Thomas F. Choyce, Associate City Atty., Henry L. Bowden, Atlanta, Ga., amici curiae.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

This is a classic case involving the principle that our government is one of laws and not of men. The City of West Palm Beach, Florida, acting through a duly authorized official, refused a license to the promoter of the musical "Hair" to display the production in a municipal auditorium on the basis that the musical does not constitute "family entertainment." Finding that subjective authoritarianism in the denial of First Amendment rights is constitutionally intolerable, we conclude that the dictate of the auditorium manager in this case cannot withstand the mildest breeze emanating from the Constitution.

In 1966 the defendant City of West Palm Beach, Florida, constructed a municipal auditorium and by ordinance granted supervisory and management authority of the new facility to the city commission. To manage the auditorium the city commission hired the defendant Ralph J. Boyes, Jr. To assist the city commission in the management of the defendant city's various municipal facilities an Auditorium Advisory Board was established, which from time to time advised the city commission concerning the management of the auditorium. While the advisory board and the commission were charged with the duty of overseeing the operation of the auditorium, it is undisputed that both organizations accorded the defendant Boyes a free hand in operating the facility. Charged with the responsibility of planning and scheduling programs for the auditorium, defendant Boyes decided that the facility would be open to any divertisement which could be considered "family entertainment." Thus, since opening day in 1966, the municipal auditorium of the City of West Palm has staged an assortment of family entertainment, including circuses, professional and amateur sports, theatricals, and operas.

In 1971, the plaintiff, Southeastern Promotions, Ltd., approached the defendant Boyes and sought permission to rent the auditorium for the purpose of showing the musical "Hair." Without having seen the musical or even reading the script, Boyes refused to license the auditorium to the plaintiff for the sole reason that in his judgment the production was not family-type entertainment.¹ The promoter then appealed Boyes' decision to the advisory board, which unanimously approved the manager's denial of a license.

Pursuant to 28 U.S.C.A. § 1343(3) and (4),² the plaintiff instituted this action in federal district court against Boyes and the City of West Palm Beach, claiming deprivation of rights secured by the First and Fourteenth Amendments of the Constitution of the United States. Plaintiff specifically requested the court (1) to declare the actions of the defendants unconstitutional, (2) to enter an order enjoining the defendants from censoring or otherwise interfering in any way with the booking and presentation of "Hair," and (3) to enjoin the defendants from refusing to reserve and contract with plaintiff for the use of the city auditorium during the spring of 1972. After holding an evidentiary hearing, the district court dismissed the plaintiff's complaint, concluding that the rental of the city's auditorium was a matter to be left solely to the unfettered judgment of the defendants. The plaintiff, of course, appealed this decision. Concluding that the banning of "Hair" has neither First Amendment rhyme nor Fourteenth Amendment reason, we reverse the judgment of the trial court.

It is settled law that theatrical productions can be staged under the protective cupola of the First Amendment. See Schacht v. United States, 1970, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44. The court below concluded that "Hair" did not enjoy First Amendment privileges for essentially two reasons. First, the district court determined that the plaintiff had failed to show that it possessed any right to use the city's auditorium, and second, the trial court decided that "a city has the freedom to exercise business judgment in choosing the programs to be presented in a municipal auditorium that has been built for the purpose of providing entertainment for all members of the community." In other words, the district judge concluded (1) that the defendant city operated its municipal auditorium outside the limitations imposed by the First and Fourteenth Amendments, and (2) that even if the City of West Palm Beach were subject to the strictures of those constitutional guarantees the municipality's particular mode of operation was not constitutionally offensive. Without addressing ourselves to the absolutism of free expression, we have no hesitancy in proclaiming that the defendant Boyes' denial of the showing of "Hair" invoked such a sieve upon the protective penumbra of the First Amendment that cloture in this case has trespassed constitutional boundaries and made a mockery of that Amendment's benign embraces.

We first turn our attention to the issue of whether or not the defendant city, and its operation of the auditorium, is subject to the limitations of the First Amendment. As noted above, this municipal facility was constructed by the citizens of West Palm Beach and funded with public monies. In addition, the auditorium is maintained at the expense of the taxpayers, and it is managed by the duly elected and appointed officials of the city. Therefore, it is undisputed that the West Palm Beach Municipal Auditorium is a public facility. However, the determination of ownership of property is not the sole judicial inquiry when the exercise of First Amendment rights is at issue. The crucial query is whether or not the particular public facility involved in this litigation constitutes an appropriate place for the exercise of First Amendment rights. In order to answer this issue we consider the following factors relevant:

"does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance."

Wolin v. Port of New York Authority, 2 Cir. 1968, 392 F.2d 83, 89, cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275.

Applying the above criteria to the defendant city's auditorium, we think it quite evident that this particular public facility is a highly appropriate site for First Amendment activities. The essential purpose and character of the municipality's auditorium is the promotion of communication and expression for the benefit of the general citizenry in and surrounding West Palm Beach, Florida. More important, in addition to horse shows, basketball games, and ice spectaculars, the auditorium has housed many plays, musicals, and operas. Therefore, it is obvious that the West Palm Beach Municipal Auditorium has been employed as a forum in which many ideas and opinions, however mundane and jejune, have been ventilated for the past six years. Decisions of the Supreme Court and lower federal courts have held that First Amendment rights are not surrendered when one enters a public school, Tinker v. Des Moines Independent Community School District, 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, a public library, Brown v. Louisiana, 1966, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, or a public bus terminal, Wolin v. Port of New York Authority, supra. Therefore, how can First Amendment activities be constitutionally suppressed in a public facility which is dedicated as a forum for expression?

Notwithstanding the above precedents, the defendants suggest that a municipality should be permitted to silence free expression in those facilities which the city operates in its proprietary capacity. We think this position clearly untenable. Aside from the fact that the traditional proprietary/governmental dichotomy would hardly serve as a workable standard for applying the First Amendment or any other constitutional provision, the city has advanced neither a rationale nor any case authority to support its position. Its failure in this regard can only be attributed to the fact that in those cases in which the issue has been present, the "proprietary" nature of the governmental function has not in any manner prevented the particular governmental unit from being subjected to the full impact of a constitutional provision. See, e. g., Watson v. City of Memphis, 1963, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (various recreational facilities); Burton v. Wilmington Parking Authority, 1961, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (parking garage and restaurant); Holmes v. City of Atlanta, 1955, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (city golf course); United States Servicemen's Fund v. Shands, 4 Cir. 1971, 440 F.2d 44 (county auditorium); Wolin v. Port of New York Authority, supra, (public bus terminal); Trujillo v. Love, D.Colo.1971, 322 F. Supp. 1266 (college newspaper); Zucker v. Panitz, S.D.N.Y.1969, 299 F.Supp. 102 (high school newspaper); Kissinger v. New York City Transit Authority, S.D. N.Y.1967, 274 F.Supp. 438 (city subway).

We conclude that the defendant city cannot escape its constitutional obligation of making its auditorium available to the general public, including the plaintiff, on a basis consistent with the First Amendment. Furthermore, we emphasize that the plaintiff...