Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)

2012-09-06 22:22:11

The municipal board responsible for managing and leasing two theaters in Chattanooga, Tennessee, denied Southeastern Promotions, a theatrical production company, use of the theaters to present Hair, a rock musical that played for three years in New York City and toured to more than 140 cities. Southeastern Promotions’ request for injunctive relief was denied twice by the federal district court; the second time a jury decided Hair was obscene because it included nudity and simulated sexual conduct in violation of city and state laws. The Circuit Court of Appeals, by a divided vote, sustained the lower court.

The Supreme Court by a six-to-three vote reversed the lower court decision. Blackmun wrote the majority opinion and was joined by Brennan (who as senior associate judge in the majority assigned the opinion to Blackmun as part of Brennan’s efforts to encourage Blackmun’s drift toward more liberal positions) plus Steward, Marshall, and Powell. Douglas concurred with the judgment but consistent with his absolutist view regarding the First Amendment disagreed with the majority’s substantive ruling. White’s dissent was joined by Burger; Rehnquist dissented separately.

Both the majority and dissenters ignored the question of whether the jury and lower courts properly interpreted the Miller standard. The decision turned instead on differing views as to whether the Chattanooga board exercised prior restraint when it refused to lease the city’s theaters to Southeastern Promotions. If prior restraint did occur, the question then hinges on whether the process of denying the lease included adequate constitutional safeguards to protect Southeastern Promotions’ First Amendment rights. Because the majority agreed with the petitioner’s first contention that prior restraint had been exercised, it did not consider Southeastern Promotions’ other claims that Miller had been wrongly followed.

Blackmun thus frames his opinion in terms of whether prior restraint had occurred in light of pertinent previous Supreme Court decisions and explains why when First Amendment issues are involved that the presumption against constitutional validity becomes weightier. The absence of proper procedural safeguards in administrative processes that broach censorship concerns was mandated by Freedman v. Maryland (1965). The majority, concluding the process in Chattanooga lacked these safeguards, accordingly reversed the decision denying Southeastern Promotions the opportunity to present Hair.

The dissenters criticized the majority’s willingness to impose on Chattanooga’s board what Rehnquist referred to as a ‘‘farrago of procedural requirements’’ that overlook the board’s responsibilities under its standard lease agreement that required the board to comply with state and local laws, including those pertaining to public nudity and obscenity. The lower court proceedings, the dissenters argue, were sufficient guarantees that board’s decision to deny the lease was constitutionally adequate and nondiscriminatory. As Rehnquist puts it, ‘‘I do not believe fidelity to the First Amendment requires the exaggerated and rigid procedural safeguards which the Court insists upon in this case.’’


Cases and Statutes Cited

  • Freedman v. Maryland, 380 U.S. 51 (1965)
  • Miller v. California, 413 U.S. 15 (1973)
  • Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975)