Southeastern Promotions, Ltd. v. Conrad
420 U.S. 546 (1975)
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Rule of Law:
A government entity's denial of the use of a public forum for an expressive performance, based on the content of that performance, constitutes a prior restraint that violates the First Amendment unless it is accompanied by procedural safeguards, including that the censor bears the burden of initiating prompt judicial proceedings to prove the expression is unprotected.
Facts:
- Southeastern Promotions, Ltd., a New York corporation, promotes and presents theatrical productions for profit.
- On October 29, 1971, Southeastern applied to use the Tivoli, a city-leased theater in Chattanooga, Tennessee, to present the musical 'Hair' for six days.
- The respondents, directors of the Chattanooga Memorial Auditorium, managed the theater and voted to reject the application.
- None of the directors had seen the play or read the script; their decision was based on outside reports that the production involved nudity and obscenity.
- The board determined the production would not be 'in the best interest of the community' and did not provide a written statement of reasons for the denial.
- No other conflicting event was scheduled for the Tivoli theater during the dates Southeastern had requested.
Procedural Posture:
- Southeastern Promotions, Ltd. sued the directors of the Chattanooga Memorial Auditorium in the U.S. District Court for the Eastern District of Tennessee, seeking an injunction to compel them to allow the performance of 'Hair'.
- The District Court denied a preliminary injunction.
- Following a trial on the permanent injunction, an advisory jury found the musical 'Hair' to be obscene.
- The District Court agreed with the advisory jury's finding, held that the production was obscene and constituted unprotected conduct, and denied the permanent injunction.
- Southeastern Promotions, Ltd. (appellant) appealed the decision to the U.S. Court of Appeals for the Sixth Circuit.
- A divided panel of the Court of Appeals affirmed the District Court's judgment.
- The U.S. Supreme Court granted certiorari to review the case.
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Issue:
Does a municipal board's rejection of an application to use a public theater for a musical, based on the board's judgment of the content and without providing for prompt judicial review, violate the First Amendment as an unconstitutional prior restraint?
Opinions:
Majority - Justice Blackmun
Yes, the board's rejection of the application constitutes a prior restraint that violates the First Amendment because it lacks the necessary procedural safeguards. The board's denial of a public forum based on its review of the production's content is a classic prior restraint. While prior restraints are not per se unconstitutional, they bear a heavy presumption against their validity and must be accompanied by rigorous procedural safeguards. Citing Freedman v. Maryland, the Court reaffirmed that any such system must: 1) place the burden of instituting judicial proceedings on the censor, 2) impose any pre-judicial restraint only for a brief, specified period to preserve the status quo, and 3) assure a prompt final judicial determination. The Chattanooga board's system failed on all counts, as it provided no mechanism for prompt judicial review and placed the entire burden of challenging the censorship on the petitioner.
Dissenting - Justice Douglas
Yes, the board's action was an impermissible prior restraint, but the majority's focus on procedural safeguards is insufficient. The critical flaw is not the absence of procedure, but the very nature of content screening by government officials. A municipal theater is a public forum for the expression of ideas, and allowing officials to pick and choose productions based on what they deem 'clean and healthful' creates a regime of censorship. No amount of procedural 'band-aids' can cure the fundamental First Amendment violation that occurs when the government inhibits or controls the flow of unwelcome ideas.
Dissenting - Justice White
No, the Court should not have decided this case on procedural grounds. The lower courts decided the substantive issue, holding that 'Hair' was obscene and in violation of state and local laws, which the theater's standard lease prohibited. The Supreme Court avoids this central issue and reverses on procedural grounds that were not the focus below. This creates an 'odd disposition' where the Court may be ordering the city to license a performance that has been judicially determined to be obscene. Given the lower courts' findings about the play's explicit content, the city should be allowed to reserve its auditorium for productions suitable for the entire community, including children.
Dissenting - Justice Rehnquist
No, the majority incorrectly equates a city-owned theater with a traditional public forum like a street or park. A city managing its own property, like an auditorium, acts as a proprietor, not as a sovereign lawmaker, and has greater latitude to regulate the use of its facilities. The city of Chattanooga should be permitted to enforce a policy of booking only 'clean, healthful entertainment' suitable for the whole family. The Court's imposition of rigid procedural requirements from Freedman v. Maryland is inappropriate for a municipality acting as a property manager and will lead to absurd consequences, potentially forcing a city-run opera house to book rock musicals on a first-come, first-served basis.
Analysis:
This decision significantly extends the procedural safeguards against prior restraints, established in the context of film censorship in Freedman v. Maryland, to the governmental licensing of public forums like municipal theaters. It solidifies the principle that the government cannot use its proprietary control over public facilities to engage in content-based censorship without adhering to strict procedural due process. The ruling forces government entities acting as licensors to either grant access or shoulder the burden of quickly proving in court that the contested expression is unprotected, thereby protecting speakers from the chilling effect of standardless, unreviewable administrative denials.
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