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However broad discretion the Chattanooga authorities may otherwise have, plainly they are subject to the laws against obscenity and public nudity, and the standard lease requires that productions such as "Hair" not violate the law.

In this respect, the licensing system is not without standards. As might be expected, therefore, the issue in the case, as defined by the District Court and the Court of Appeals, was not whether local authorities had undue discretion, but whether they correctly refused to license "Hair" on the ground that the production would fail to satisfy "Paragraph 1 of the standard lease form. In so framing the question, the courts below reflected the prayer of the complaint, App.

An injunction requiring local authorities to make the municipal facilities available for the production of "Hair" was also sought. The District Court and the Court of Appeals considered the issue tendered and held that the contemplated production of "Hair" did not qualify for a lease under the relevant state and local laws.

Here, the majority does not address this question, but nevertheless reverses on the ground that the Chattanooga permit system is "lacking in constitutionally required minimal procedural safeguards.

The Court's understanding of our prior cases is unexceptionable, but reaching a decision on this ground is inappropriate. In the first place, no such issue appears to have been tendered to the District Court or to have been decided by either the District Court or the Court of Appeals.

As already indicated, the complaint sought a declaration that "Hair" did not violate the relevant ordinances and statutes, as well as an injunction permitting the use of municipal facilities for the showing of the musical. Secondly, however inadequate the Chattanooga system might be under Freedman v. This Court does not now reverse or disapprove these decisions in this respect; and assuming their correctness, as is therefore appropriate, is it the Court's intention in reversing the judgment.

If this is the case, it is a very odd disposition, one which I cannot join. On the record before us, it would be error to enter any judgment the effect of which is to require the Chattanooga authorities to permit the showing of "Hair" in the municipal auditorium.

The Court asserts that "Hair" contains a nude scene and that this is "the most controversial portion" of the musical. This almost completely ignores the District Court's description of the play as involving not only nudity but repeated "simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse. Given this description of "Hair," the First Amendment, in my view, does not compel municipal authorities to permit production of the play in municipal facilities.

Whether or not a production as described by the District Court is obscene and may be forbidden to adult audiences,. Ginsberg v. All that I am or ever hope to be, I owe to my mother. 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. He then removes his pants and, dressed only in jockey shorts, identifies his genitals by the line, 'What is this God-damned thing? 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 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.

In addition, similar language and posters containing such language were used on stage but not reflected in the script. 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. The action accompanying this line is to search for it in the mouths of other actors and actresses. The producer, director, and president of petitioner, Southeastern Promotions, Ltd. His testimony, Tr. As appears from Tr. Since, on remand, the respondents are going to press obscenity as the basis for denying access to HAIR, and the lower courts are going to sustain that position, we therefore urge this Court to address itself to the question of the appropriate standards, not only to prevent a waste of resources and judicial economy, but because of widespread public interest in resolving this issue.

There are very few plays that can afford the expense of litigation all the way to this Court. Emanci -- motherfucking -- pater of the slave, yeah, yeah, yeah! The following dialogue occurs as Claude nears his death scene:.

The Court treats this case as if it were on all fours with Freedman v. Freedman dealt with the efforts of the State of Maryland to prohibit the petitioner in that case from showing a film "at his Baltimore theater," id. Petitioner here did not seek to show the musical production "Hair" at its Chattanooga theater, but rather at a Chattanooga theater owned by the city of Chattanooga.

The Court glosses over this distinction by treating a community-owned theater as if it were the same as a city park or city street, which it is not. The Court's decisions have recognized that city streets and parks are traditionally open to the public, and that permits or licenses to use them are not ordinarily required.

This right extends to the communication of ideas by handbills and literature, as well as by the spoken word. Jamison v. Texas, U. The Court has therefore held that, where municipal authorities seek to exact a license or permit for those who wish to use parks or streets for the purpose of exercising their right of free speech, the standards governing the licensing authority must be objective, definite, and nondiscriminatory. City of Birmingham, U. But until this case, the Court has not equated a public auditorium, which must, of necessity, schedule performances by a process of inclusion and exclusion, with public streets and parks.

In Pickering v. Board of Education, U. Douds, U. Mitchell, U. State Bar, U. Here we deal with municipal action by the city of Chattanooga, not prohibiting or penalizing the expression of views in dramatic form by citizens at large, but rather managing its municipal auditorium. In Adderley v. For this reason, there is no merit to the petitioners' argument that they had a constitutional right to stay on the property.

The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose. The Court avoids the impact of cases such as Adderley by insisting that the municipal auditorium and the theater were "public forums designed for and dedicated to expressive activities," ante at U.

But the apparent effect of the Court's decision is to tell the managers of municipal auditoriums that they may. Viewed apart from any constitutional limitations, such a policy would undoubtedly rule out much worthwhile adult entertainment. But if it is the desire of the citizens of Chattanooga, who presumably have paid for and own the facilities, that the attractions to be shown there should not be of the kind which would offend any substantial number of potential theatergoers, I do not think the policy can be described as arbitrary or unreasonable.

If every municipal theater or auditorium which is "designed for and dedicated to expressive activities" becomes subject to the rule enunciated by the Court in this case, consequences unforeseen and perhaps undesired by the Court may well ensue.

May an opera house limit its. May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis? These questions are real ones in light of the Court's opinion, which, by its terms, seems to give no constitutionally permissible role in the way of selection to the municipal authorities. But these substantive aspects of the Court's opinion are no more troubling than the farrago of procedural requirements with which it has saddled municipal authorities.

Relying on Freedman, the Court holds that those charged with the management of the auditorium have the burden of instituting judicial proceedings, that "restraint" prior to judicial review can be imposed only for a specified brief period, and that a prompt final judicial determination must be assured.

Ante at U. If these standards are applicable only where a lease for a production is refused on the grounds that the production is putatively obscene, the Court has performed the rather novel feat of elevating obscene productions to a preferred position under the First Amendment. If these procedures must be invoked every time the management of a municipal theater declines to lease the facilities, whether or not because of the putative obscenity of the performance, other questions are raised.

What will be the issues to be tried in these proceedings? Is the Court actually saying that, unless the city of Chattanooga could criminally punish a person for staging a performance in a theater which he owned, it may not deny a lease to that same person in order for him to stage that performance in a theater owned by the city?

A municipal theater may not be run by municipal authorities as if it were a private theater, free to judge on a content basis alone which plays it wishes to have performed and which it does not. But, just as surely, that element of it which is "theater" ought to be accorded. I think that the findings of the District Court and the Court of Appeals support the conclusion that petitioner was denied a lease for constitutionally adequate and nondiscriminatory reasons. I would therefore affirm the judgment of the Court of Appeals.

See the Court's opinion, ante at U. Limitations on the use of municipal auditoriums by government must be sufficiently reasonable to satisfy the Due Process Clause, and cannot unfairly discriminate in violation of the Equal Protection Clause. A municipal auditorium which opened itself to Republicans while closing itself to Democrats would run afoul of the Fourteenth Amendment. There is no allegation in the instant case that the auditoriums accepted equally graphic productions while unfairly discriminating against "Hair" because of its expressions of political and social belief.

The findings of fact of the District Court were reported at F. Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site.

Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Conrad Southeastern Promotions, Ltd. Conrad, U. Syllabus Case U. Supreme Court Southeastern Promotions, Ltd. Conrad No. Held: 1. Page U. I Petitioner, Southeastern Promotions, Ltd. This was to be a road company showing of the musical that had played for three Page U.

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

It concluded that conduct in the production -- group nudity and simulated sex -- would violate city ordinances and state statutes [ Footnote 5 ] making public nudity and Page U.

II 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.

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. The elements of the prior restraint were clearly set forth: "It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action.

No rights Page U. By its nature, theater usually is the acting out -- or singing out -- Page U. We have rejected the contention that the First Amendment's protection "includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. The presumption against prior restraints is heavier -- and the degree of protection Page U. In Freedman, the Court struck down a state scheme for the licensing of motion pictures, holding "that, because only a Page U.

An administrative board assigned to screening stage production -- Page U. Although the District Court commendably held a hearing on petitioner's motion for a preliminary injunction within a few days of the Page U.

The musical had been presented in two Tennessee cities, Memphis and Nashville. It contains the following: "It will be [the board's] endeavor to make [the auditorium] the community center of Chattanooga, where civic, educational, religious, patriotic and charitable organizations and associations may have a common meeting place to discuss and further the upbuilding and general welfare of the city and surrounding territory.

Offensive, indecent entertainment. Indecent exposure and conduct. Sale or loan of material to minor -- Indecent exhibits. The relevant provision of that lease reads: "This agreement is made and entered into upon the following express covenants and conditions, all and every one of which the lessee hereby covenants and agrees to and with the lessor to keep and perform:" "1.