Southeastern Promotions, Ltd. v. Conrad

• Citation: 486 F.2d 894
• Decision Date: 30 May 1973
• Docket Number: No. 72-1672.,72-1672.
• Parties: SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. Steve CONRAD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.2d 894 (1973)

SOUTHEASTERN PROMOTIONS, LTD., Plaintiff-Appellant, v. Steve CONRAD et al., Defendants-Appellees.

No. 72-1672.

United States Court of Appeals, Sixth Circuit.

Argued November 28, 1972.

Decided May 30, 1973.

Rehearing and Rehearing Denied October 30, 1973.

Henry P. Monaghan, Boston, Mass., John Alley, Alley & Raulston, Chattanooga, Tenn., Gerald A. Berlin, Boston, Mass., on brief, for plaintiff-appellant.

Randall L. Nelson, Special Counsel, Chattanooga, Tenn., Eugene Collins, City Atty., Chattanooga, Tenn., on brief, for defendants-appellees.

Before WEICK and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

Rehearing and Rehearing In Banc Denied October 30, 1973.

O'SULLIVAN, Senior Circuit Judge.

This is an appeal from dismissal of plaintiff-appellant's complaint seeking a declaratory judgment and a mandatory injunction whereby to require the Municipal Auditorium Board of Chattanooga, Tennessee, to lease a municipal theatre to appellant, there to exhibit the stage play HAIR. The theatre in question was under the control of such Auditorium Board. The case was heard at Chattanooga by the Honorable Frank W. Wilson, Chief Judge of the United States District Court for the Eastern District of Tennessee, Southern Division. He denied the relief asked by plaintiff-appellant.

We affirm the judgment of the District Court on the opinion of the District Judge. Such opinion is reported as Southeastern Promotions, Inc. v. Conrad, 341 F.Supp. 465 (E.D.Tenn.1972).

While we adopt such opinion, we think it right to say this much more. After disposing of several grounds asserted by defendants to support their motion to dismiss, as without validity, the District Judge set out the controlling issues as follows:

"Trial on the Merits

"Turning to the merits of this lawsuit, the pleadings raise essentially the issue of whether the defendant Board acted within its lawful discretion in declining to lease its theater and/or auditorium facility to the plaintiff for the reason that the plaintiff\'s theatrical production `Hair\' would violate Paragraph (1) of the standard lease form requiring the lessee to comply with all state and local laws in its use of the leased premises. More specifically, the issue presented by the pleadings is whether the theatrical production `Hair\' would violate any constitutionally valid provision of the common law of Tennessee relating to indecent exposure, gross indecency, or lewdness or would violate any constitutionally valid provision of City ordinances and State statutes which, among other matters, purport to make public nudity and obscene acts criminal offenses." 341 F.Supp. at 471.

With instructions, the propriety of which appellant does not challenge, there was submitted to an advisory jury the question of whether the production was obscene. Their verdict said that it was. The judge, then reviewing the same evidence and correctly employing the governing rules, made his own finding that the play was obscene.

At the outset, we think that understanding of this decision will be aided by setting out the style, action and content of HAIR as recited in the District Court's opinion. That such recital was accurate is not here challenged by plaintiff-appellant. Here it is:

"Findings of Fact

"Turning first to the issue of obscenity, the script, libretto, stage instructions, musical renditions, and the testimony of the witnesses reflect the following relevant matters (It should be noted that the script, libretto, and stage instructions do not include but a small portion of the conduct hereinafter described as occurring in the play):

"The souvenir program as formerly distributed in the lobby (Exhibit No. 1) identified the performers by picture and biographical information, one female performer identifying herself as follows:

`Hobbies are picking my nose, fucking, smoking dope, astro projection. All that I am or ever hope to be, I owe to my mother.\'

It was testified that distribution of this program had now been discontinued. Prior to the opening of the play, and to the accompaniment of music appropriate to the occasion, a `tribe' of New York `street people' start gathering for the commencement of the performance. In view of the audience the performers station themselves in various places, some mingling with the audience, with a female performer taking a seated position on center stage with her legs spread wide to expose to the audience her genital area, which is covered with the design of a cherry. Thus the stage is set for all that follows. The performance then begins to the words and music of the song `Aquarius,' the melody of which, if not the words, have become nationally, if not internationally, popular, according to the evidence. The theme of the song is the coming of a new age, the age of love, the age of `Aquarius.' Following this one of the street people, Burger, introduces himself by various prefixes to his name, including `Up Your Burger,' accompanied by an anal finger gesture and `Pittsburger,' accompanied by an underarm gesture. He then removes his pants and dressed only in jockey shorts identifies his genitals by the line, `What is this God-damned thing? 3,000 pounds of Navajo jewelry? Ha! Ha! Ha!' Throwing his pants into the audience he then proceeds to mingle with the audience and, selecting a female viewer, exclaims, `I'll bet you're scared shitless.'

"Burger then sings a song, `Looking for My Donna,' and the tribe chants a list of drugs beginning with `hashish' and ending with `Methadrine, Sex, You, WOW!' (Exhibit No. 4, p. 1-5) Another male character then sings the lyric.

`SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY—FATHER, WHY DO THESE WORDS SOUND SO NASTY? MASTURBATION CAN BE FUN. JOIN THE HOLY ORGY, KAMA SUTRA, EVERYONE.' (Exhibit No. 4, p. 1-5)

"The play then continues with action, songs, chants, and dialogue making reference by isolated words, broken sentences, rhyme, and rapid changes to such diverse subjects as love, peace, freedom, war, racism, air pollution, parents, the draft, hair, the flag, drugs, and sex. The story line gradually centers upon the character Claude and his response and the response of the tribe to his having received a draft notice. When others suggest he burn his draft card, he can only bring himself to urinate upon it. The first act ends when all performers, male and female, appear nude upon the stage, the nude scene being had without dialogue and without reference to dialogue. It is also without mention in the script. Actors simulating police then appear in the audience and announce that they are under arrest for watching this `lewd, obscene show.'

"The second act continues with song and dialogue to develop the story of Claude's draft status, with reference interspersed to such diverse topics as interracial love, a drug `trip,' impersonation of various figures from American history,2 religion, war, and sex. The play ends with Claude's death as a result of the draft and the street people singing the song, `Let the Sunshine In,' a song the testimony reflects has likewise become popular over the Nation.

2 Lincoln is regaled with the following lyrics: `I's free now thanks to you, Massa Lincoln, emancipator of the slave, yeah, yeah, yeah! Emanci—mother fucking— pater of the slave, yeah, yeah, yeah! Emanci—mother fucking—pater of the slave, yeah, yeah, yeah!' With Lincoln responding, `Bang my ass . . . I ain't dying for no white man!'

"Interspersed throughout the play, as reflected in the script, is such `street language' as `ass' (Exhibit No. 4, pp. 1-20, 21 and 2-16), `fart' (Exhibit No. 4, p. 1-26), and repeated use of the words `fuck'3 and the four letter word for excretion (Exhibit No. 4, pp. 1-7, 9 and 41). In addition, similar language and posters containing such language were used on stage but not reflected in the script.

3 A woman taking her departure says to the tribe, `Fuck off, kids.' (Exhibit No. 4, p. 1-35). The following dialogue occurs as Claude nears his death scene:

`Burger: I hate the fucking world, don\'t you?

`Claude: I hate the fucking world, I hate the fucking winter, I hate these fucking streets.

`Burger: I wish the fuck it would snow at least.

`Claude: Yeah, I wish the fuck it would snow at least.

`Burger: Yeah, I wish the fuck it would.

`Claude: Oh, fuck!

`Burger: Oh, fucky, fuck, fuck!\' (Exhibit No. 4, p. 2-22)

"Also, throughout the play, and not reflected in the script, are repeated acts of simulated sexual intercourse. These were testified to by every witness who had seen the play. They are often unrelated to any dialogue and accordingly could not be placed with accuracy in the script. The overwhelming evidence reflects that simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse are committed throughout the play, often without reference to any dialogue, song, or story line in the play. Such acts are committed both standing up and lying down, accompanied by all the bodily movements included in such acts, all the while the actors and actresses are in close bodily contact. At one point the character Burger performs a full and complete simulation of masturbation while using a red microphone placed in his crotch to simulate his genitals. The evidence again reflects that this is unrelated to any dialogue then occurring in the play. The evidence further reflects that repeated acts of taking hold of other actors' genitals occur, again without reference to the dialogue. While three female actresses sing a song regarding interracial love, three male actors lie on the floor immediately below them repeatedly thrusting their genitals at the singers. At another point in the script (Exhibit No. 4, p. 2-22) the actor Claude pretends to have lost his penis. The action accompanying this line is to search for it in the mouths of other actors and actresses."

341 F.Supp. at 472-474 (Emphasis supplied).

The instructions which the ...