RESPONDENT: Steve Conrad et al.
LOCATION: Tivoli Theater
DOCKET NO.: 73-1004
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Sixth Circuit
CITATION: 420 US 546 (1975)
ARGUED: Oct 17, 1974
DECIDED: Mar 18, 1975
Henry P. Monaghan - argued the cause for the petitioner
Randall L. Nelson - argued the cause for the respondents
Facts of the case
Southeastern Promotions was a theatrical production company that requested to use the Tivoli Theater in Chattanooga, Tennessee to present the musical "Hair." "Hair" was a controversial musical that contained obscenities and nudity. The Tivoli was privately owned, but was leased to the city of Chattanooga. The city rejected Southeastern's request based on the controversial content in the production. Southeastern challenged the decision in the United States District Court for the Eastern District of Tennessee, alleging that Chattanooga's denial of its request violated the free speech clause of the First Amendment. The District Court ruled for Chattanooga and found that the musical contained obscene content that was not constitutionally protected. The United States Circuit Court of Appeals for the Sixth Circuit affirmed that decision.
Was Chattanooga's denial of Southeastern's request in violation of the free speech clause of the First Amendment?
Media for Southeastern Promotions, Ltd. v. ConradAudio Transcription for Oral Argument - October 17, 1974 in Southeastern Promotions, Ltd. v. Conrad
Audio Transcription for Opinion Announcement - March 18, 1975 in Southeastern Promotions, Ltd. v. Conrad
Warren E. Burger:
The judgment and opinion of the Court in 73-1004, Southeastern Promotions against Conrad will be announced by Mr. Justice Blackmun.
Harry A. Blackmun:
This case comes to us from the United States Court of Appeals for the Sixth Circuit.
The petitioner is a promoter of theatrical productions.
It desired to present the musical “Hair” at Chattanooga and specifically to show it in a theater operated by the city.
On the basis of outside reports, the municipal board charged with managing the theater concluded that the production would not be what it called in the best interest of the community and it rejected the application.
The petitioner sought petitioner sought preliminary injunctive relief in federal court, this was denied.
And then the petitioner sought a permanent injunction and several months later, when the city finally filed its first responsive pleading, the District Court held a hearing on the content of the musical concluded that it contained obscene conduct not entitled the First Amendment protection and denied relief.
The Court of Appeals by a divided vote affirmed.
In an opinion filed today, we reversed the Court of Appeals.
We hold that under the facts of this case, the board's denial constituted a prior restraint.
A system of prior restraint avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.
Those safeguards include the placement of the burden of instituting judicial proceedings and the burden of proof on the censor, a limitation to a brief period of any restraint before judicial review and the assurance of a prompt judicial determination.
Those safeguards in several respects were lacking here and we therefore conclude that the action of the board violated the petitioner's First Amendment rights.
It is to be emphasized as we do in the opinion that this is a decision based on prior restraint procedure.
We make no judgment as to whether the musical is or is not obscene or as to whether the courts below applied an incorrect standard for the determination of the issue of obscenity.
Mr. Justice Douglas has filed a dissenting opinion but agreeing with the Court's conclusion.
Mr. Justice White has filed a dissenting opinion and is joined in it by the Chief Justice.
And Mr. Justice Rehnquist has filed a separate dissenting opinion.
Warren E. Burger:
Thank you Mr. Justice Blackmun.