Facts
- Southeastern Promotions, Ltd., a theatrical promoter, sought to present the rock musical Hair at the Tivoli Theater in Chattanooga, Tennessee, a privately owned venue leased and operated by the city as a municipal facility.
- A municipal board responsible for managing the city auditorium and city-leased theater denied the application based on outside reports and its view that the production was not in the community’s “best interest.”
- The board’s decision was based on the musical’s content, including reports of obscenities and nudity.
- Southeastern sought injunctive relief in federal court to compel access to the venue.
- At the preliminary-injunction stage, the district court denied relief without reviewing the merits, finding no irreparable injury.
- At the permanent-injunction stage, after a multi-day evidentiary hearing focused on the show’s content, the district court found “obscene conduct” and denied relief.
- The Sixth Circuit affirmed on the ground that the production was obscene and thus unprotected.
Issues
- Whether the city’s content-based denial of access to a municipal performance venue constituted an unconstitutional prior restraint under the First and Fourteenth Amendments.
- Whether a licensing/permission system for expressive use of a public facility must include the procedural safeguards required for prior restraints.
- Whether the lower courts could uphold the denial by relying on an obscenity determination despite the absence of constitutionally required procedures.
Decision
- The Supreme Court reversed the Sixth Circuit in a 6–3 decision.
- The Court held that the board’s content-based denial of the municipal theater was a prior restraint.
- The Court held the restraint was unconstitutional because the city’s scheme lacked the procedural safeguards required by Freedman v. Maryland.
- The Court did not decide whether Hair was obscene; the reversal rested on the absence of required procedures for imposing a prior restraint.
Legal Principles
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A government decision that blocks expression before it occurs, based on officials’ assessment of content, is a prior restraint subject to strict procedural scrutiny.
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A prior restraint is constitutionally permissible only with safeguards designed to prevent censorship abuses, including:
- the government bears the burden to initiate judicial proceedings and prove the speech is unprotected;
- any restraint pending judicial review must be limited to a specified brief period to preserve the status quo;
- prompt judicial review and a prompt final judicial determination must be assured.
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When a government makes a performance venue available for expressive activity, it may not deny access on content-based grounds through standardless or open-ended discretion.
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Post hoc litigation delays that effectively prevent a time-sensitive performance can function as a continuing restraint when no prompt review is guaranteed.
Conclusion
The Supreme Court held that Chattanooga’s content-based denial of a city-leased theater for Hair was an unconstitutional prior restraint because it lacked the procedural safeguards required for censorship systems, and it reversed without resolving the show’s obscenity status.