Southeastern Promotions, Ltd. v. Conrad – Oral Argument – October 17, 1974

Media for Southeastern Promotions, Ltd. v. Conrad

Audio Transcription for Opinion Announcement – March 18, 1975 in Southeastern Promotions, Ltd. v. Conrad

del

Warren E. Burger:

We’ll hear arguments next in 73-1004, Southeastern Promotions against Conrad.

Mr. Monaghan, you may proceed whenever you are ready.

Henry P. Monaghan:

Thank you.

Warren E. Burger:

Mr. Chief Justice and may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

It arises out of petitioner’s unsuccessful efforts to gain access to the Chattanooga, Tennessee Municipal Auditorium, in order to exhibit the rock-musical “Hair.”

“Hair” is a rock-musical which describes the lifestyle of many young people during the late 1960s and early 1970s and their attitudes on such matters as war, the Vietnam War, racism, drugs, etcetera.

In 1967, “Hair” opened in New York.

Since then, it is performed in 140 cities in the United States and 14 cities throughout the rest of the world.

It has received widespread critical acclaim.

When petitioner began to produce “Hair” in the smaller communities in the Southeastern and Southwestern parts of the United States, it ran into considerable difficulties.

In these smaller communities, the municipal auditorium frequently holds a strategic position.

It is the only or the best available facility for the production of a major play and in these communities, many municipal officials were hostile to “Hair’s” exhibition.

In their brief, respondents put the matter as follows.

They say, “Many local officials in tune with the standards of their communities and particularly those in the so-called Bible belt, resisted the presentation of this notorious production” and claiming unlimited censorship rights to determine what should or what should not be shown in the municipal theater, these municipal officials refused “Hair” access to local auditoriums.

Federal District Courts enjoined that conduct and those courts which did not do so were reversed upon appeal.

This case began in such a fashion.

“Hair” applied for use of the municipal facility in Chattanooga and these respondents refused “Hair” access because they testified, exhibition of “Hair” would not be and I quote “in the best interest of the community” nor would it be a play which they could characterize and I quote “as clean, healthful and culturally uplifting.”

In any of these other cases that you’ve mentioned involving this production, were the proceedings brought after there had been one or more performances?

Henry P. Monaghan:

All before Your Honor.

Warren E. Burger:

All of them were excluded then?

Henry P. Monaghan:

They’re all exclusion cases and we went to the appropriate U.S. District Courts and obtained orders.

Petitioner thereupon in this case filed a complaint in the District Court for the Eastern District of Tennessee and taking the position that respondent’s refusal to permit access to the theater should be enjoined.

The District Court held an evidentiary hearing, which focused essentially on the question of obscenity.

The District Judge agreed with the finding of an advisory jury that “Hair” was obscene.

His findings are important.

The judge expressly conceded that taken as whole, “Hair” was not utterly without redeeming social value, applying the pre-Miller standard, but he held that a play must be divided into three categories first, speech; second, symbolic speech; and third, conduct.

Under the judge’s view, this last category, conduct is not within the freedom of speech protected by the Federal Constitution.

And that category, conduct, apparently includes virtually all the nonverbal aspects of a play.

Then the judge focused on “Hair’s” conduct and he concluded that it was obscene under State Law.

Henry P. Monaghan:

The Sixth Circuit affirmed over the dissenting opinion of Judge MacRae.

Writing for the panel, Judge O’Sullivan expressly approved the speech conduct reasoning of the District Court and in addition, he went considerably beyond it.

Unlike the District Judge, Judge O’Sullivan found that “Hair” speech alone was obscene.

Judge White concurred in a terse opinion simply saying that “Hair” involved only depraved sexual conduct.

A rehearing en banc was denied and the petitioner then sought and obtained a writ of certiorari in this Court.

Potter Stewart:

But wasn’t the reasoning — wasn’t the reasoning of Judge — it was Frank Wilson one of the District Judge —

Henry P. Monaghan:

Uh-huh.

Byron R. White:

— that criminal conduct was being performed on the stage, i.e., indecent exposure or whatever it’s called in Tennessee that there is an ordinance or statute making indecent exposure a criminal act and that act was being performed?

Henry P. Monaghan:

That’s right Your Honor.

His argument —

Byron R. White:

I mean that didn’t — really isn’t obscenity, is it?

It’s something else.

It’s the same as though — same reasoning as though you had —

Henry P. Monaghan:

Actual murder —

Potter Stewart:

— a play of Othello and Othello actually did strangled Desdemona —

Henry P. Monaghan:

That’s exactly right.

Potter Stewart:

— and killed her?

Henry P. Monaghan:

That’s exactly right, Your Honor.

That’s exactly the core of his reasoning that it put in a nutshell that a crime is a crime whether it’s committed in a play or not.

Potter Stewart:

Yes.

Henry P. Monaghan:

That’s the position he took and that’s obviously the position which I intend to address myself too.

At oral argument we have addressed ourselves —

Potter Stewart:

And that concept is different from an obscenity concept, isn’t it?

Henry P. Monaghan:

Well, the reason that the Judge refers to obscenity, his opinion is in fact quite confused on the point.

In the District Court, he first finds, by making this dichotomy between speech and conduct, he finds that the conduct is not protected by the free speech guarantee of the First Amendment.

It’s no different from conduct, which had occurred in the public street.

Now, from that analytical framework, what he does is he says, “Does this conduct violate any state law?”

And he finds two state laws which the conduct violates.

One is an obscenity statute.

The second is public nudity and those are the two state statutes he refers to.

Henry P. Monaghan:

But in order to do that, he has to first make this separation and to take a unitary production and divide it into its constituent parts.

At the out —

William J. Brennan, Jr.:

Well, you see — and I gather on the — viewed as a whole element of the obscenity test, is I gather too survive.

Henry P. Monaghan:

It doesn’t survive in his opinion.

It certainly survives Miller.

William J. Brennan, Jr.:

It survives Miller.

You’re going to argue that no you simply can’t break the play up this way?

Henry P. Monaghan:

That’s right.

William J. Brennan, Jr.:

If it is to be reviewed as a whole than it has to be viewed as a whole?

Henry P. Monaghan:

That’s right Your Honor.

I’m —

William J. Brennan, Jr.:

I got — and everything else that maybe.

Henry P. Monaghan:

I’m going to address myself essentially to two points.

One, that the Court was in error in considering this to be an obscenity case to start with.

William J. Brennan, Jr.:

Well, I know, but —

Henry P. Monaghan:

And secondly —

William J. Brennan, Jr.:

— (Voice Overlap) as to the obscenity, but what about the public nudity aspect of it?

Henry P. Monaghan:

Well, and with respect to public nudity, the — I’m going to argue that that’s — that criterion standing alone would be constitutionally insufficient under four decisions of this Court, squarely holding it, unless I seriously misread them.

William H. Rehnquist:

Mr. Monaghan, is this case the same for you as if the Chattanooga City ordinance that it tried to enforce against your showing in private theater which had agreed to lease it to you?

Henry P. Monaghan:

No.

It is not the same case.

William H. Rehnquist:

Well, let me ask you this then.

So, could the City of Chattanooga, if it wanted to, have an auditorium which it just said it was going to reserve for performances which were suitable for the entire family, including minors?

Henry P. Monaghan:

No.

That’s the first point.

No, my answer to that Your Honor is perhaps so — perhaps so, that’s not this case quite clearly.

But secondly, I have grave doubts about that under the decision of this Court in Butler against Michigan.

You have to bear in mind, certainly if there’s no alternative form available — certainly, there’s no alternative form available, which is often the case in the Southwestern and Southeastern parts of the United States, I don’t think it’s at all clear that you can reduce the viewing status of the public to the level of children.

William H. Rehnquist:

But Butler was not a state — it was not a municipally owned bookstore?

Henry P. Monaghan:

That’s exactly, it was not municipally owned bookstore, but it’s certainly very indicative in this case and it seems to me when you use a standard like something which is suitable for — I’d make three responses.

Henry P. Monaghan:

The third response I’d make is I’m not sure that the standard isn’t impermissibly vague.

It invites an awful lot of content discrimination on the basis of the criteria suitable for the entire family.

William H. Rehnquist:

Your answer is in effect, “No, the city couldn’t do it.”

Henry P. Monaghan:

It could not, if that were the criteria used.

The first point I make in the brief —

Byron R. White:

Do you think the city that had an ordinance forbidding minors or forbidding the producer to permit the minors to enter the showing of “Hair”?

Henry P. Monaghan:

The showing of “Hair,” no, I do not, because I think that even with respect to minors —

Byron R. White:

Let’s say under 16.

Henry P. Monaghan:

Under 16?

No, I do not although that’s not necessary for me to defend that position here.

Byron R. White:

No.

What if it were — what if the answer was that the city could?

Henry P. Monaghan:

It wouldn’t impair the — it wouldn’t impair the strength of this case.

Byron R. White:

Then why wouldn’t if the city said, “Well, we almost just relentless,” as the city said that, “Well, we just reserve our municipal facilities for events to which all the people may come and all attend it?”

Henry P. Monaghan:

Because the standard — because that’s — first of all, I’d make several responses.

First, that was not the standard that was used in this case.

The standard that was — the second response I would make is that minors have constitutional rights to freedom of speech also that’s established in Tinker against the City of Des Moines —

Byron R. White:

But that —

Henry P. Monaghan:

And it seems — excuse me.

Byron R. White:

Well, I know — that answer then goes back to saying that the city could keep minors out of this — out of the production “Hair?”

Henry P. Monaghan:

In my judgment, there is —

Byron R. White:

And then, I said that let’s assume that it could.

Henry P. Monaghan:

Let’s assume — I’m sorry, let’s assume that it could.

Yes Your Honor.

Then that would not, it seems to me in impair our case in any way.

Byron R. White:

Well, that just goes — it goes to saying that the city cannot reserve its auditorium for events to which all the people may go?

Henry P. Monaghan:

I think so Your Honor.

I would take decision —

Byron R. White:

And if you’re wrong on that, then you may be in trouble?

Henry P. Monaghan:

I don’t think I’m in trouble in this case, because that’s not — those are the facts of this case.

Henry P. Monaghan:

And I would say, Your Honor, that it’s important to understand that that’s not a criteria that you’re — it seems to me that that standard would invite an intolerable level of content discrimination.

I don’t — I don’t doubt for a second, Mr. Justice Rehnquist that the city can formulate content-free standards, some of which would exclude “Hair,” if that were the only point.

For example, it could take the position that we are not going to let our auditorium be used for any Broadway productions, but only to encourage local theater enterprises to gain access to the theater.

But I do think that the free speech guarantee of the First Amendment is badly abused if vague and indefinite standards can be used as a guise to engage in impermissible content discrimination.

William H. Rehnquist:

What if — what if the City of New York owns the — owned the Museum of Modern Art and they say “We’ll open it to private showings, but it’s limited to modern art.

We’re not going to show exhibitors of Rembrandt,” and that sort of thing.

Henry P. Monaghan:

Valid.

William H. Rehnquist:

Is that a permissible?

Henry P. Monaghan:

I think it is.

William H. Rehnquist:

Why because it doesn’t involve content —

Henry P. Monaghan:

Because —

William H. Rehnquist:

Assume it does involve content discrimination?

Henry P. Monaghan:

Well, but it doesn’t involve — it’s a question of how much it involves — it involves a line being drawn, which one cannot say a priori will result in a lot of suppression of different views, it seems to me.

I would be prepared to accept the line like that.

I could argue that the line is invalid.

It’s invalid content discrimination.

I happen to find that case acceptable.

William H. Rehnquist:

But you’re suppressing a tremendous amount there, a priori, you’re suppressing all art, but modern art?

Henry P. Monaghan:

Well, I don’t think that — I think that the point is not suppression.

I think that the point is the basis of time which the decision is made and you do not want to permit municipal officials to make decisions upon — under the — which involved a heavy amount of content discrimination, because they do not like these particular ideas being advocated and any criteria which fosters that, it seems to me is bad under the decisions of this case.

In fact, I know of no case to the contrary in this Court.

Warren E. Burger:

What if an art gallery, to pursue Mr. Justice Rehnquist’s thesis a moment, what if an art gallery — public gallery had a fixed rule that no living artist could be exhibited?

Henry P. Monaghan:

I think the rule is valid, Your Honor.

I would evoke to sustain it, because I don’t see built into that the perpetual suppression of ideas, nor do I see that it works (Voice Overlap).

Warren E. Burger:

Well, it certainly suppresses a modern contemporary expression, does it not?

Contemporary artistic —

Henry P. Monaghan:

But those ideas may be reflected in older — in older proceedings also.

I think that — I think there’s — I would think there’s a big difference or a substantial difference between both of those cases.

Both of — both lines which I find acceptable and the criteria used here, which were simply the best interest of the city and clear culturally uplifting and helpful.

I think under those standards a great deal of content discrimination would occur.

Henry P. Monaghan:

I would assume for example if the play “Jesus Christ Superstar” were turned down by — under these criteria the impermissibility of this standards would be plain.

You could make an argument that “Jesus Christ Superstar” is not clean, healthful and culturally uplifting, because it involves potentially an attack upon orthodox interpretations of Christianity.

I think these standards are fatally defective.

Now, as I understand it —

Thurgood Marshall:

Mr. Monaghan, maybe you mentioned, were children allowed under your plan?

Were the children there?

Henry P. Monaghan:

It’s — I would take the position that children have to be allowed to see “Hair,” but it’s unclear from this record what the situation was with respect to children.

Thurgood Marshall:

Why do children have to see “Hair,” be permitted to see “Hair”?

Henry P. Monaghan:

Why should they — why should they be permitted because it’s not obscene, with respect to children under the definitions that were sustained in Ginsberg against New York.

I’ve been to several performances and I’ve seen a great many children there.

Thurgood Marshall:

Oh!

But you don’t take it that any play could be shown?

Henry P. Monaghan:

No, I think that there are some plays upon which adults could see, but children could not.

Thurgood Marshall:

Right, that’s what I wanted to hear.

Henry P. Monaghan:

Yes, Your Honor.

Now, as I —

William J. Brennan, Jr.:

(Voice Overlap) If you prevail here, are you going to show “Hair” on Chattanooga?

Henry P. Monaghan:

We certainly are going to show it Your Honor.

William J. Brennan, Jr.:

Are you (Inaudible)

Henry P. Monaghan:

We’re certainly going to show it at Chattanooga.

Now, the response that’s made to this essentially standards argument is a twofold one.

The first response is that the respondents now take a position that he did not take in a District Court.

They take the position here that the standards must be adequate for constitutional purposes, but they assert that the standards are adequate.

But it’s interesting that the standards that they refer to are public nudity and obscenity.

Now, I would suggest to the Court that those standards are insufficient for two reasons.

First of all, neither nudity nor obscenity was the criterion actually used.

There is only a single passing reference to nudity and there is none whatsoever to obscenity.

Pages 16 and 17 of our brief, reprint the relevant testimony.

The criteria actually employed were something quite different.

Now, as to the single reference to nudity, not only was it not used, if it were used it would be a constitutionally insufficient basis.

Henry P. Monaghan:

The decisions of this Court, not one of which is discussed by my brothers, are very clear.

They’ve cited on page 30 of the brief, particularly Jenkins against Georgia, the recent obscenity opinion, California against LaRue where this Court recognized that there’s a great deal of difference between nudity which occurs in a barroom or a public street and nudity occurring in a play.

In my judgment, nudity relevant to a dramatic performance cannot constitute a per se basis for prohibition and it’s far too late in the day to argue otherwise.

Now, we think that what we have said entitles us to a judgment directing that the respondents make the municipal auditorium available for the production of “Hair.”

But it’s possible that on remand that this Court might conclude that the respondent’s use of improper standards does not now foreclose them from using proper standards such as obscenity.

Respondent’s counsel certainly insists upon that position and it takes the position he cannot enter into any kind of a contract with respect to quoted “obscene play.”

In the new Tennessee obscenity legislation, quoted in this brief would support them.

And so it would appear that the question of obscenity is not avoided even if the Court agrees with petitioner that the standards used were ultimately bad.

Since on remand, the respondents are going to press obscenity as a 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 waste — not only to prevent a waste of resources and judicial economy, but because of the widespread public interest in resolving this issue.

There are very few plays that can afford the expensive litigation all the way to this Court.

Potter Stewart:

Do you — do you Mr. — the question attack the constitutional validity of the criminal law or the Chattanooga City Code, Section 25-28 which makes it criminal for any person in the city to appear in a public place in a state of nudity?

Henry P. Monaghan:

Do we attack it — we attack it — we attack it as applied, yes we do.

Our position stated in the brief, Mr. Justice Stewart is that the only criteria you can use with respect to a play is obscenity and if this — I guess you’re raising two points really.

Under state law, we would think that the statute plainly applicable, we’re not in a public street, we’re not in a public place within the meaning of the statute.

Potter Stewart:

In a public place — in a public place?

Henry P. Monaghan:

If we’re in a public place then the statute that as applied, if it purports to dispense with any showing of — any showing of obscenity and the decisions of this Court already make that clear.

The decisions quoted in our brief on page 30 indicate that nudity per se can’t be treated as the equivalent of obscenity and we take the position here that no standard other than obscenity can be used.

Potter Stewart:

Well, what if — what if — one of the actors stole money from the other — from another actor on the stage.

Would the larceny statute be unconstitutional was applied?

Henry P. Monaghan:

Actually stole it?

Potter Stewart:

Yes, actually stole it.

Henry P. Monaghan:

No and I think we can distinguish that case, Your Honor.

I was going to address myself to that question when I got to the issue of obscenity.

It’s distinguishable for two reasons.

First of all, the actual stealing of money has no communicative aspect to it.

It is not expressive conduct as I understand the meaning of the term.

And secondly, if it were expressive conduct and therefore arguably within the protection of the First Amendment, there would be a compelling state interest to justify the repression of that conduct, but the position that we take with respect to nudity is that if it has dramatic significance, then the only basis upon which it can be repressed is upon a showing of obscenity.

William J. Brennan, Jr.:

In other words, the same people who might be nude for purposes of the play and when the play is shown, if they went out on the streets nude, could be —

Henry P. Monaghan:

Precisely, Your Honor.

William J. Brennan, Jr.:

— prosecuted under this ordinance, but not for the nudity on the stage play?

Henry P. Monaghan:

Precisely, Your Honor.

Potter Stewart:

Well, why would a person’s choice to walk around without any clothes on also the First Amendment right, in your view?

Henry P. Monaghan:

Because it’s never been thought Your Honor.

So we —

Potter Stewart:

Just like it — the kind of clothes, the kind of necktie a person might wear if he were — if he chose to wear clothes.

Henry P. Monaghan:

That’s the right the difference —

Potter Stewart:

Or if his hair long or short, why isn’t that protected by the First Amendment under your view on the public streets?

Henry P. Monaghan:

Because — because there’s no difference between the clothes case and the non-clothes case, as Your Honor points out, because it’s never been treated to be expressive conduct under definition.

Potter Stewart:

Hair styles have been treated by many courts to be expressive conduct?

Henry P. Monaghan:

Well, to be — the circuit courts are evenly divided on that.

Potter Stewart:

Yes, it’s been treated many, many times repeatedly in many lawsuits.

Henry P. Monaghan:

By — by several — by several Courts of Appeal but sometimes the case gets put on invasions of privacy as the First Circuit case did by Judge Coffin.

Maybe I don’t address myself directly to your point right now.

I did have one other minor point to make and that is this case is not rendered moot here by the new Tennessee obscenity legislation, which was passed after the writ of certiorari was granted in this Court because in our judgment, the difficulty in the case is not with the Tennessee statute, but with the interpretations of the constitution sustained by the lower federal courts.

To put differently, all the Tennessee statute does is it embodies the Miller criteria of what can be suppressed and we now have an authoritative ruling from the lower federal courts that this can be suppressed under Miller.

William J. Brennan, Jr.:

Can or cannot?

Henry P. Monaghan:

Can be,

William J. Brennan, Jr.:

Can be.

Henry P. Monaghan:

it can be because the rehearing petition en banc was denied.

William J. Brennan, Jr.:

After our decision in Miller?

Henry P. Monaghan:

After your decision in Miller, a petition for rehearing was filed with the U.S. Court of Appeals for the Sixth Circuit and it was — and the petition was denied.

Byron R. White:

In this case?

Henry P. Monaghan:

Yes, in this case, Your Honor.

William J. Brennan, Jr.:

What was the presentation on that petition?

Henry P. Monaghan:

We argued Miller.

We argued among other things the decision was wrong and then we argued that was even clearly wrong under Miller and the petition was denied.

Two judge — petition for rehearing en banc was denied, two judges dissenting and then the panel denied a rehearing.

So, the Sixth Circuit has expressed itself in the context of the Miller case.

Byron R. White:

What about the members of the audience that’s roaming the theater?

Henry P. Monaghan:

Not protected, it has no dramatic relevance and it’s not expressive conduct.

Warren E. Burger:

Aren’t there some — aren’t there some place in which part of the play or performance is audience participation?

Henry P. Monaghan:

I’ve never seen any at that level.

Warren E. Burger:

Well, aren’t there?

Henry P. Monaghan:

Maybe and if there are–

Potter Stewart:

Hell’s a’ poppin’

William H. Rehnquist:

Hell’s a’ poppin’, yeah.

Potter Stewart:

Hell’s a’ poppin’, and —

William H. Rehnquist:

That was before your time. (Laughter)

Henry P. Monaghan:

Maybe —

William J. Brennan, Jr.:

And before Justice Rehnquist’s time too.

Warren E. Burger:

Well, that’s not a very common thing in the drama and quite common in the world of drama?

Henry P. Monaghan:

Well, it’s beyond me, I must say I haven’t seen it.

I would like to try and address the issue —

Warren E. Burger:

Well, what about — what about it then?

Henry P. Monaghan:

I’d like to try to address that issue which I think is — which is at the core of Mr. Justice Stewart’s questioning.

I think what you have and the way I would do it as follows.

The judge found that the play was obscene because he was able, he thought to separate a play into three parts, speech by which he meant no more than the dialog, symbolic speech which he said was speech illustrative of the dialog and conduct and now there’s considerable confusion in that categorization, but if I understand them correctly, all the nonverbal aspects of the play are conduct.

In any — in any setup of this trichotomy and then he began to hold that “Hairs’” conduct was obscene.

Now, to put it differently, the judge treats a play as though were little more than a combination of a book and some conduct.

The book, that is to say the libretto was protected speech under the First Amendment, but the conduct is not.

It’s wholly outside the area of the First Amendment.

This permits the judge to view the conduct in isolation.

He doesn’t have to address himself to the dramatic relevance of the conduct.

He simply says, “This conduct whether it occurs on the stage or whether it occurs out in the public street is the same conduct.

We concede that nudity in a public street is not protected.”

Byron R. White:

But of course, a more direct approach to the case, whether the argument — what you argue to say which I assume to say it’s a conduct itself isn’t obscene?

Henry P. Monaghan:

That’s right, Your Honor, that’s the evidentiary point we take the position that the conduct itself was not obscene and in the last point of the brief we argue that there’s —

William J. Brennan, Jr.:

I know your time is running, may I just ask, do you think it can be a determination of obscenity except in your basic proposition, unless you see the play?

Henry P. Monaghan:

Do I think you can?

Henry P. Monaghan:

No, I think you can make a determination that it’s not obscene without seeing the play.

Byron R. White:

None of these judges have ever saw it?

Henry P. Monaghan:

None of the judges except Judge McRae.

Byron R. White:

Who wrote a dissent?

Henry P. Monaghan:

Who voted —

Byron R. White:

Does any of the counsel called conduct in the play that falls within that, in the area of obscenity described in the Miller and the Paris Adult cases?

Henry P. Monaghan:

I do not.

Byron R. White:

It is not hardcore?

Henry P. Monaghan:

It is not hardcore pornography, I think–

Byron R. White:

Do you think the courts were just wrong on that part?

Henry P. Monaghan:

I think that the basic error made was that the judge simply misunderstood the appropriate criteria and it led him into all sorts of errors.

He equated conduct which occurs in the theater with — and has dramatic relevance which is — which is I — as I understand it, the classic form of expressive conduct as a play.

This Court has struggled over and over with the attempts at which conduct is going to be characterized by speech and then brought into the protection of the First Amendment, I put it to the Court that theater is the classic form of expressive conduct and it seems to me that there’s no —

Byron R. White:

There shouldn’t be — there shouldn’t be — can any theater presentation be obscene?

Henry P. Monaghan:

Yes it can, Your Honor.

Byron R. White:

How — how could if the —

Henry P. Monaghan:

If it doesn’t satisfy the criteria set down in the Miller case.

The point that we’re making is that you treat the play as a unitary production first.

This doesn’t mean that what occurs in a play is beyond regulation.

A sufficiently compelling governmental interest will permit regulation of the conduct aspects of a play.

William J. Brennan, Jr.:

Any difference between motion pictures and play?

Henry P. Monaghan:

I don’t think there’s a great deal.

I mean there’s no reason to treat them as though they were totally distinct, but where the governmental interest is morality and the state regulation focuses on either nudity or simulated sex, it seems to us that obscenity criteria must be satisfied.

Now, I have expected to — to deal with the question of whether or not I would be forced to take to position that this means that actual sex has to take place on the stage.

Well, fortunately that’s not this case and I don’t find myself the best advocate for it, but I think that you can’t take — make principal distinctions between actual and simulated sex and all this case apart from its nudity involved is a simulated sex.

And I would suggest to the Court two differences, I’m not sure that they’re sound in the end, but they seem to me to be — to be very significantly different.

First, there’s no case in this Court so far as I know which holds that nudity, I mean, actual sex is protected expressive conduct under the First Amendment.

It does seem to me too late in the day to take the position that no simulated sex is protected and once you — and at least the line becomes clear what is actual sex is considerably clearer than what a simulated sex and once the concession is made that some simulated sex is protected, it seems to me that —

William H. Rehnquist:

Doesn’t Miller said that simulated sex maybe deemed —

Henry P. Monaghan:

Some — some simulated sex maybe put down if it gets to the stage are being hardcore pornography.

William H. Rehnquist:

Well, but doesn’t it — it doesn’t really say it quite in the way you said it.

Doesn’t it say that the state may proscribe scenes of actual sexual conduct, actual or simulated?

Henry P. Monaghan:

No, it does not Your Honor, because —

Warren E. Burger:

I think that’s a precise quotation from Miller?

Henry P. Monaghan:

It — what that does is to say that this kind of material can be denominated patently offensive erotic material, but you’re still left with the serious redeeming social value test.

The Miller case —

Warren E. Burger:

Where is that test now?

Henry P. Monaghan:

That test, I think, is alive and well.

It specifically retained in your opinions and if that weren’t the case, it would seem to me that the First Amendment would be virtually wiped out in the area of nonverbal descriptions of sex and I think it’s very important to make clear the serious social value test.

William J. Brennan, Jr.:

Of course, it’s we phrased as serious artistic, etcetera?

Henry P. Monaghan:

It’s serious — it satisfies all those requirements.

Warren E. Burger:

No, it is not the socially redeeming value test?

William J. Brennan, Jr.:

It’s not utterly without?

Henry P. Monaghan:

No, no, it’s not utterly.

The last point I would say is that I have that simulated sex is necessarily expressive conduct.

It’s hard to see that actual sex really is.

Ordinarily, the simulation will take care of everything which the actual sex would do.

Potter Stewart:

As you correctly say, the theater is one of the very first forms of expression, but the common quality of the plays and/or the moving pictures is basically that it is all simulated, isn’t it?

Henry P. Monaghan:

Yes, Your Honor.

Potter Stewart:

I mean, when Othello strangles Desdemona, you don’t actually, that isn’t a murder, in fact that’s a simulated murder.

Henry P. Monaghan:

That’s right, Your Honor.

Potter Stewart:

That’s the –that’s the characteristic of plays and the movies, but this was not simulated nudity.

This was —

Henry P. Monaghan:

Actual nudity, but I explained —

Potter Stewart:

Actual nudity, and did run afoul you say it perhaps didn’t because the theater wasn’t a public place by putting that to one side and assuming the theater — this theater was a public place, it directly violated an ordinance of the city of Chattanooga, not having to do with obscenity as such, but having to do with indecent exposure as it’s called.

Henry P. Monaghan:

Well, it seems to me that the response I would make is twofold.

You’ve accepted essentially the argument we’ve made with respect to simulated sex and with respect to nudity, the only standard that can be used is obscenity, the only standard that can be used —

Potter Stewart:

You mean — well, then are you saying that this ordinance is constitutionally invalid?

Henry P. Monaghan:

I’m saying it is constitutionally invalid in the context of a dramatic performance and I would cite to Your Honor the cases that are cited on page 30 of our brief, four decisions of this Court.

William H. Rehnquist:

Well, why doesn’t an individual walking in the streets have as much right to make a dramatic expression as somebody on the stage?

Henry P. Monaghan:

Because it’s never been understood.

Some line has to be drawn and some line derived from common sense, Mr. Justice Rehnquist, has to be applied with respect to the point at which you’re going to stop labeling conduct speech.

William H. Rehnquist:

Well, I agree with you (Voice Overlap).

Henry P. Monaghan:

And I would suggest to you that it seems to me that the fact is we have never treated expressive conduct — we have never treated walking around nude.

There’s no decision from this Court which would suggest the conduct like that is understood to communicate anything whereas in a play, that’s quite different, it’s a common comprehensible form of communication in a context of a dramatic performance.

Byron R. White:

I think it was Mrs. Campbell, wasn’t it who said perform in the street, might scare the horses.

Henry P. Monaghan:

In a different — there different state interest, yes.

William H. Rehnquist:

Maybe it could die?

Byron R. White:

It didn’t scare any horses.

Henry P. Monaghan:

I don’t know that anybody understand what she was doing, Mr. Justice Rehnquist.[Attempt to Laughter]

Warren E. Burger:

Mr. Nelson, you may proceed whenever you’re ready.

Randall L. Nelson:

Mr. Chief Justice and may it please the Court.

My brother started off by saying that the City of Chattanooga has asserted essentially an unlimited right of censorship.

We would say that this is simply not true in this case.

The standard form lease which the petitioner sought in the action specifically contains a clause which says that all lessees must agree to abide by the laws of the State of Tennessee, the United States and the ordinances of the City of Chattanooga.

One of those ordinances as has been pointed out, specifically prohibits public nudity, it prohibits obscene acts.

On top of that, there is the Tennessee common law criminal violation of indecent exposure or gross lewdness, all of which are violated.

Potter Stewart:

Did the petitioner refuse to sign this contract?

Did you —

Randall L. Nelson:

No sir.

What happened before the action was actually brought was never brought into the record in this case, but there has never at any time been any question about what this nudity would take place.

In fact, I believe it —

Potter Stewart:

Not if he — not if he signed the contract I suppose, you never gave him the opportunity to do it, did you?

Randall L. Nelson:

He was denied — his application was denied at the time that it was made, because it’s public knowledge that nudity would take place which was never denied by the petitioner, Your Honor.

Potter Stewart:

Well, the show never took place in this auditorium?

Randall L. Nelson:

That’s correct, Your Honor.

Potter Stewart:

So you don’t know, but you never gave him an opportunity.

You just assumed in advance that he would break his promise, is that it?

Randall L. Nelson:

Your Honor, it was stipulated in the proceedings.

Potter Stewart:

In later lawsuit, wasn’t it?

Randall L. Nelson:

Yes, Your Honor, now–

Potter Stewart:

It was stipulated that had he signed this agreement, he would not have — he would have violated it.

Randall L. Nelson:

It was stipulated that when — that the same conduct would occur in this play as has occurred in all the other plays.

It was not denied by the petitioner at any time that this public nudity took place.

Potter Stewart:

But did it take place in Chattanooga?

Randall L. Nelson:

No sir, but it would, they had agreed with that.

All down to the line, this was never an issue between the parties.

Potter Stewart:

Well, you never — so, I don’t see how you can rely on this contractual language when you never gave him an opportunity to sign the contract?

Randall L. Nelson:

Well —

Potter Stewart:

Had he signed it and then violated the contract, you would have maybe a different kind of an action or conflict?

Randall L. Nelson:

Well, then — then we get into, as you say, a different kind of action.

Warren E. Burger:

I thought Mr. Monaghan seem to say today that, yes, if the Court decided in his favor the play would be put on in Chattanooga and he made no reservation with respect to it being put on in any different way from what the stipulations suggested?

Randall L. Nelson:

That is correct, Your Honor.

That’s been their position all along.

Even in the preliminary hearing which was held two days after the complaint was filed, it was admitted by the petitioner before the desired dates that public nudity would occur on the stage.

This has never been an issue between the parties.

Now, at any rate as I say the lease form does set forth the criteria which the auditorium board uses whether or not any ordinances or laws of the state of Tennessee are violated.

As the judge found, the play opens and I would beg the pardon of the Court to use some of the languages to what happened in the play with one of the main characters coming out on stage, throwing his trousers to the audience and leaping down into the audience and going down and straddling a seat among the front rows, in front of a female patron and looking down at her and shouting at the top of his lungs “I’ll bet you’re scared, shitless!”

Now, this is the type we do get some audience participation, as Your Honors have found, or as the courts below have found.

Further, there was a question over “Hair” about the conduct in Miller.

Whether or not the conduct in “Hair” would violate the standards of Miller, the trial —

Potter Stewart:

It’s your view that the — that line — that opening line of the play that you just quoted —

Randall L. Nelson:

No Your Honor, that is —

Potter Stewart:

— violates any statute or ordinance?

Randall L. Nelson:

No Your Honor, that is — that is not our view.

Our view is that the standards in Miller as well as other as the obscenity law were violated in other portions of the play, but there was a question about audience interaction and I was directing it to that.

Potter Stewart:

I see.

Randall L. Nelson:

Now, the Court in it’s finding of the facts, found on page 41 of the petition for certiorari, specifically found that 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 any reference to any dialog, song or storyline in the play.

At one point the character Burger performs a full and complete simulation of masturbation by using a red microphone placed in his crotch to simulate his genitals.

Randall L. Nelson:

Now, this falls directly within the language of the Miller case.

My brother has taken the position that obscenity must be tolerated if it is a part of the same vehicle whereby First Amendment rights are allegedly being exercised.

We would respectfully submit that this position fails to recognize that obscenity can manifest itself in conduct as well as in the pictorial representation of conduct or in a written and oral description of conduct.

The District Court herein and the Court of Appeals both recognized this difference and applied it.

Subsequently to the District Court Judge’s finding in this case and ruling, this Court in Kaplan versus California also distinguished between the different forms of obscenity, i.e., that they could occur in conduct.

Now, this — I think we all must recognize the theatrical differs from other medium of entertainment.

From movies, from books, it’s differentiated by the fact that live conduct does occur on the stage.

This is the whole difference in the theatrical and other forms of entertainment.

Potter Stewart:

Oh!

It’s generally — it’s generally simulated conduct.

In other words the — it is human beings move, walking around and speaking —

Randall L. Nelson:

Yes Your Honor.

Potter Stewart:

— but the conduct is generally simulated conduct.

The murders are not real murders; the larcenies are not real larcenies, that’s the whole — that’s the whole —

Randall L. Nelson:

That is true and —

Potter Stewart:

— quality of drama?

Randall L. Nelson:

— but I think the difference here is when you look at the nature of the crime, we know that a murder when simulated on stage accomplishes no evil, but when an obscene act occurs on stage that act does accomplish the evil at which prohibition is aimed.

Potter Stewart:

But why — now, why is a simulated act of that kind any worse than any simulated murder which is a very serious offense in every state in the union?

Randall L. Nelson:

I would go to the concurring —

Byron R. White:

Much more serious, much heavier penalties for murder than (Voice Overlap).

Randall L. Nelson:

Well, there’s no doubt about that, Your Honor, but I would refer, Your Honor to the opinion — concurring opinion of Mr. Justice Harlan in the original Roth case, wherein he says that the state has a very real interest in preventing repeated acts of sexual obscenity from occurring and that over a period of time this can erode the moral fabric of the society.

And of course, if this is permitted to go forward then this would be just one more erosion and it’s the simulated act itself which is causing this erosion because it’s a sexual act in and off itself.

Potter Stewart:

Why isn’t that any more true of a simulated fornication or adultery which are in most states offenses, but not nearly as such serious offenses as murder.

Why is a simulated act of that kind any more demoralizing and wouldn’t it be less demoralizing than a simulated first degree murder on of the stage?

Randall L. Nelson:

I think if we had a simulated, a fully simulated act of adultery on the stage that it would embody the same sexual conduct that we’re talking about and it should be forbidden, Your Honor.

Warren E. Burger:

Well, does not Miller —

Potter Stewart:

Well, then Othello should be forbidden shouldn’t it, because that shows a first degree murder?

Randall L. Nelson:

Well, it would — no, Your Honor because the murder is not actually accomplished.

Potter Stewart:

Nor is this sexual, it’s simulated?

Randall L. Nelson:

A sexual act is not accomplished, but a — in the terms of — as Judge Wilson put it as the pregnancy being consummated or something in that nature, but a sexual act is actually done on stage where two actors or actresses embrace each other in a copulation position making all of the thrusting movements that are generally associated there with, that is a sexual act.

Warren E. Burger:

Well, didn’t the Miller case say actual or simulated —

Randall L. Nelson:

Yes, Your Honor —

Warren E. Burger:

— and you take it out the Othello strangulation?

Randall L. Nelson:

Yes, Your Honor, it did and our new Tennessee statute which has been enacted and appended to our brief —

Warren E. Burger:

But you weren’t applying Miller in this case?

Randall L. Nelson:

That’s correct.

I think we can look at the fact that there is no reason to remand because the same acts which Miller later came along and defined were found by the District Judge in this case and there would be no prejudice whatsoever to the petitioners in this case.

Warren E. Burger:

You mean even assuming — even assuming, is it your argument, even assuming the case might have to be reversed under pre-Miller and related cases, it doesn’t have to be remanded because of the intervening decisions?

Randall L. Nelson:

That would be a secondary position.

First of all we would take the position that because this conduct did occur, the public nudity and so forth and it is directed at conduct and not a Miller obscenity standards or any other obscenity standards relating to First Amendment freedoms that the case shouldn’t be remanded at all or shouldn’t even be considered.

Warren E. Burger:

In other words, you’re standing first on the violation of the public nudity that the Justice Stewart alluded to earlier?

Randall L. Nelson:

Yes, Your Honor, that’s true.

William H. Rehnquist:

Mr. Nelson, do you think your case is any better by the virtue of the fact that the petitioners sought a lease from a municipally-owned theater then if it were simply a question of him having obtained a lease in a private theater and the city seeking to ban the production?

Randall L. Nelson:

Yes, Your Honor, I do.

I think that a municipality, particularly where they’ve done this by regulation, has the duty to set an example for its constituents.

And certainly if we permit obscene acts to go forward on public property, it tends to degrade these standards that the municipality might apply to other institutions.

Now, I think also that there maybe a difference where a municipality comes forward and actually arrests somebody or confiscates some materials, here they have — we’ve not done anything of that nature.

We’ve simply refused to enter into what we consider an illegal contract, which my brother has already said, maybe if Your Honors find that the play was obscene, would be an illegal contract.

Harry A. Blackmun:

Mr. Nelson, are there any other theaters in Chattanooga?

Randall L. Nelson:

Yes, Your Honor, there — in the preliminary hearing, one of the questions which I addressed to Commissioner Conrad who is the Commissioner of Public Utilities, Grounds and Buildings within the city was directed specifically at that and there he testified that there were several other places where this could have played on the private market.

Also the University of Tennessee at Chattanooga maintains an auditorium or gymnasium where the play could have gone forward.

Harry A. Blackmun:

But that wouldn’t be private, would it?

Randall L. Nelson:

No, Your, Honor but there were private institutions, which could have been rented.

William J. Brennan, Jr.:

You mean private theaters?

Randall L. Nelson:

Yes, Your Honor.

William J. Brennan, Jr.:

Would a local license have been required to show that?

Randall L. Nelson:

No, Your Honor, we have no licensing whatsoever.

We have no censorship board within the city.

Warren E. Burger:

In Tennessee — under Tennessee law, would these so-called private theaters be considered public places for the purposes of the statute?

Randall L. Nelson:

I believe so, Your Honor, although I cannot cite you to Supreme Court decision or to anything of that nature, but it would be in my understanding that would be the case.

Warren E. Burger:

Do you think that public in a sense that anyone can get in whose got three or six or seven dollars, whatever the price is?

Randall L. Nelson:

That’s correct, Your Honor and it is open to the general public, it is not a private type of club.

Now, Judge Wilson in his original decision did not find that the play as a whole was obscene.

This was simply because and he emphasized in his opinion because he did not find the play to be quote “utterly without redeeming social value” in the text.

Potter Stewart:

He didn’t see the play?

Randall L. Nelson:

Excuse me?

Potter Stewart:

He didn’t see the play?

Randall L. Nelson:

No Your Honor, he did not see the play.

Potter Stewart:

Well, how could he find it to be purely obscene and not obscene without having ever seen it?

Randall L. Nelson:

Through the — the method by which the case was brought before the Court was that the libretto was introduced, witnesses were introduced to, who read the libretto, described the action which occurred during the various scenes of the libretto.

I think there were a total of eight different witnesses, some six of whom had seen the play and every witness who had seen the play testified that the acts which Judge Wilson found in his opinion and which I have alleged took place did actually take place.

There’s no question, but that those acts did take place.

Also I think particularly with respect to the public nudity, Judge Wilson found that many of these acts occurred outside of the theme or play line of the play.

For instance, the act involved —

Potter Stewart:

That’s pretty much after the playwright, isn’t it?

Randall L. Nelson:

Well, yes and no, Your Honor.

I think in some cases the playwright might know what he means —

Potter Stewart:

Or the director or the actors?

Randall L. Nelson:

But in this case the playwright didn’t even write the nude scene in.

It is not in the libretto, it is not in the script and yet it occurs time after time after time.

That is the point that they attempted to commercialize the nudity in order to attract the people to see it and it is this commercialized obscenity which gives the state one of its primary reasons to enforce the public morality in this case.

Warren E. Burger:

Somewhere in one of the briefs, there was a — reference to or an effort to describe the theme of the play as you recall, was that in your brief or in Mr. Monaghan’s?

Randall L. Nelson:

I believe it’s on Mr. Monaghan’s brief where he was attempting to categorize it, Your Honor.

Now, we would respectfully submit that the O’Brien case which Your Honors have decided is in point in this case.

To our knowledge, it has never been asserted that First Amendment freedoms permit nudity in public places and other phases of sexual misconduct much less require that the responsible public officials be mandated to allow them in the public’s auditorium.

In O’Brien, if Your Honors will recall a draft — a felon burned his draft card alleging that this was freedom of speech and this Court annunciated a four-part test which Judge Wilson found applied to this particular play.

He found that the state and local governments do have an interest under their respective police powers to make regulations concerning the public morals.

He held as this Court later in the Paris Adult theater case that there is a long recognized legitimate state interest involved, i.e. stemming the tide of commercialized obscenity.

He further held that the city ordinance on public nudity and obscene acts and the Tennessee common law on indecent exposure are not regulations governing communication and are unrelated to the freedom of expression.

And he further found that the incidental restriction was no greater than what was essential to the furtherance of the state’s interest.

Randall L. Nelson:

In this regard, I would point out that the city had no other means available to keep illicit conduct from occurring on stage.

Now, my brother has taken the position that before a law involving the public morals can be relied upon, it must meet obscenity standards.

We would respectfully dissent from this view.

This is because such laws as laws directed at morals are not directed at speech activities.

Now, they are therefore not within the ambit of the First Amendment out of which all of the standards for obscenity have emanated.

Thus, there can be no obscenity requirement.

The First Amendment simply provides that Congress and through the Fourteenth Amendment, the municipalities and the states shall make no laws abridging freedom of speech.

Now, the law governing public nudity is not a law governing freedom of speech.

Pubic nudity is not speech.

It is conduct and subject to the police power of the states.

My brother has suggested that we must draw a line somewhere and I would suggest that that line be drawn when you cross the line from speech to conduct as we have here done rather than breaking it off and this type of conduct is good and this type of conduct is bad.

Byron R. White:

So, you’re — essentially you’re arguing now that a city or a state may prevent any performances in a private theater if nudity is part of its performance?

Randall L. Nelson:

I think they may enact laws against public nudity which we have and —

Byron R. White:

Well, alright, you say that they might apply it to a performance in any private theater?

Randall L. Nelson:

Yes, Your Honor.

I don’t think we can go in without —

Byron R. White:

And so you’re saying — what you’re saying is that — what you’re saying is that that wouldn’t be obscene under any definition of obscenity, just nudity, but you’re saying public nudity is a — gives the — gives the state or the city another shot at prohibition.

You wouldn’t suggest that this nudity in a motion picture is obscene under the definition of —

Randall L. Nelson:

No, Your Honor.

It’s been specifically found in Jenkins versus Georgia that it’s not.

Byron R. White:

That’s right and so wouldn’t you have the same rule in a private theater?

Randall L. Nelson:

Yes, Your Honor, definitely.

Byron R. White:

So that nudity on the stage is — nudity on a stage in a private theater is not obscene?

Randall L. Nelson:

That as we have —

Byron R. White:

Well, is it or not?

Randall L. Nelson:

No, — I mean yes it is, excuse me–

Byron R. White:

Well, why not (Voice Overlap) —

Randall L. Nelson:

— because as we move — because as we move from the screen to the stage, we move from the depiction of conduct to the actual conduct itself.

Byron R. White:

So, you’re saying nudity on a stage in a private theater can be held — is obscene and maybe forbidden by state law?

Randall L. Nelson:

I didn’t say it that it is obscene.

Randall L. Nelson:

I said that it is a —

Byron R. White:

But the state may prohibit it?

Randall L. Nelson:

The state can prohibit it.

Byron R. White:

Because it’s just nudity?

Randall L. Nelson:

Because it is public nudity and —

Byron R. White:

And so it may not be obscene, it might not be preventable as obscenity, but it is preventable as public nudity?

Randall L. Nelson:

That’s correct, just as you can regulate a rape or something like this (Voice Overlap) on stage.

William J. Brennan, Jr.:

Are you saying Jenkins and Georgia might have been differently decided that at Georgia or that, I forgot the city involved, had an ordinance such as you have in Chattanooga?

Randall L. Nelson:

I think as we move from the stage to the screen that the powers of the state are correspondingly increased, because —

Potter Stewart:

So the act didn’t take place in Jenkins against Georgia, it didn’t take place in Georgia, the act took place in Hollywood, California?

Randall L. Nelson:

That’s correct, Your Honor.

Potter Stewart:

And there wasn’t an offense assuming Georgia had the same law or ordinance, it wasn’t if — it doesn’t take place within that jurisdiction?

Randall L. Nelson:

That’s correct.

William J. Brennan, Jr.:

So that, but if your ordinance in Chattanooga read actual or simulated then what?

Randall L. Nelson:

Well, the state law in Tennessee now does read actual or simulation.

William J. Brennan, Jr.:

Well that, [Attempt to Laughter] that in Jenkins and Georgia?

Randall L. Nelson:

Well, how do you simulate nudity?

When we’re speaking specifically in terms of nudity, it’s sort of like being pregnant, it’s either you are or you aren’t.

Lewis F. Powell, Jr.:

Mr. Nelson, does Tennessee law proscribed lewdness as well as nudity?

Randall L. Nelson:

Yes Your Honor, I would refer to the case of Riyal versus State of Tennessee in our brief.

Lewis F. Powell, Jr.:

Does the statute use the term lewdness in addition to nudity?

Randall L. Nelson:

No.

Potter Stewart:

It’s the word lewd.

Randall L. Nelson:

That’s the city ordinance, I think —

William J. Brennan, Jr.:

It has to be a lewd act in a public place?

Randall L. Nelson:

The city ordinance uses — obscene indecent or lewd act in a public place.

Now —

Lewis F. Powell, Jr.:

You consider lewdness to be the precises equivalent of nudity and vice versa?

Randall L. Nelson:

No Your Honor, particularly when you’re dealing with the screen, I think that lewdness has a broader category than would be nudity.

Lewis F. Powell, Jr.:

Is exception made in the law for the exhibition of nudes in your public museums?

Randall L. Nelson:

No, Your Honor.

You normally don’t find a person on display in a museum.

Lewis F. Powell, Jr.:

How about a portrayal of person?

Randall L. Nelson:

No, Your Honor.

Lewis F. Powell, Jr.:

But you think there maybe a distinction between lewdness and just plain and simple nudity?

Randall L. Nelson:

I think lewdness is much broader category.

Lewis F. Powell, Jr.:

Is there any Tennessee law in that point?

Randall L. Nelson:

No, Your Honor.

I would refer Your Honor to the case of Riyal versus the state of Tennessee mentioned in our brief.

Lewis F. Powell, Jr.:

In your brief?

Randall L. Nelson:

Which I didn’t go into facts in that case, but the case involved a situation where a man called a woman on the street and found her turning and looking he exposed himself without — just standing there and without making any indecent expressions to her, much has occurred on the stage in this play and the Tennessee Supreme Court in that case said that upon exposure of one’s genitals, all that is necessary is the intent to expose, not the intent to do so for an immoral purpose and they affirmed the conviction of the man based on gross indecency and lewdness.

Potter Stewart:

You have — some of the criminal laws in Tennessee is common law, isn’t it?

Randall L. Nelson:

Yes sir.

Potter Stewart:

Not a statutory?

Randall L. Nelson:

This is a common law offense that I’m speaking of right now.

Potter Stewart:

Yes.

William O. Douglas:

Will this case have been the same if “Hair” was not produced on the stage, but shown in the movie?

Randall L. Nelson:

No Your Honor.

Because once again our —

William O. Douglas:

How does Tennessee law govern?

Randall L. Nelson:

Well, it might be now under the post-Miller decision.

I don’t really know how far that will go as it applies to the movies as opposed to stage plays, but here we have across the line from literature and movies and so forth into actual conduct which I believe Your Honor referred to in your dissent in the Roth case.

Warren E. Burger:

At the outset of your argument, you referred I think to an opening scene or at least an early scene on the play where the man or some actor leaped off the stage and performed certain acts.

Under Tennessee law, would that conduct come under the definition of lewd conduct?

Randall L. Nelson:

I would believe so, Your Honor, although once again I cannot cite you to a definitive decision on that, but coming down and off the stage and wearing only briefs with some beads hanging down in front of him as this man did and standing or sitting himself on a seat facing a young lady and saying “I bet your scared shitless!” and then proceeding back towards the stage using these beads to simulate his genitals and going through what would amount to a masturbation, I think that under the post-Miller law that has been adopted, that that could constitute lewdness under Tennessee law.

In conclusion —

Warren E. Burger:

But it would — I take it that it would follow up from that if the same actor performed out in a local park, in front of the theater across the street that your answer would be that that would be clearly subject for prosecution?

Randall L. Nelson:

It would be a simulated masturbation which would be clearly subject to prosecution as indecent or obscene acts.

Potter Stewart:

What, with beads?[Attempt to Laughter]

Warren E. Burger:

Now, the early act you’ve just described is what you’re referring to, you were describing the act that occurred when he came off of the stage.

Warren E. Burger:

If he performed outside in the sidewalk in the public, you say that would be lewd under the Tennessee statute?

Randall L. Nelson:

The case has never been decided, but it would be my opinion.

Potter Stewart:

What act are we talking about?

Randall L. Nelson:

I would think it would be as he was saying come down off the stage and —

Potter Stewart:

He was coming down off the stage when you’re on the public sidewalk. (Voice Overlap)

Randall L. Nelson:

Yes, you can but going up and confronting a young lady out in the public and spreading your legs and wearing only a brief pair of shorts and looking down at her and saying “I think — I’ll bet you’re scared shitless!”

Potter Stewart:

And what would that violate?

Randall L. Nelson:

I think that would constitute lewd act, Your Honor.

Potter Stewart:

Accept the cannon of (Inaudible) taste.

Randall L. Nelson:

A lead act Your Honor.

Potter Stewart:

It would be what?

Randall L. Nelson:

A lewd act, an act of gross indecency.

Disrobing at least partially, so all the way down to jockey shorts or whatever you call them and confronting a young lady in such a situation.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.