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 |
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:
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:
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, 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.'
2 Lincoln is regaled with the following lyrics: 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:
341 F.Supp. at 472-474 (Emphasis supplied).
The instructions which the ...
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...those safeguards in several respects were lacking here, respondents' action violated petitioner's First Amendment rights. Pp. 558-562. 6 Cir., 486 F.2d 894, Henry Paul Monaghan, Boston, Mass., for petitioner. Randall L. Nelson, Chattanooga, Tenn., for respondents. Mr. Justice BLACKMUN deliv......
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