southeastern promotions conrad argued october decided march petitioner promoter theatrical productions applied respondents members municipal board charged managing city auditorium theater present musical production theater upon basis outside reports concluded production best interest community respondents rejected application petitioner subsequent motion preliminary injunction denied following hearing district review merits respondents decision concluded petitioner met burden proving irreparable injury petitioner sought permanent injunction permitting use auditorium several months later respondents filed first responsive pleading district hearing content musical concluded production contained obscene conduct entitled first amendment protection denied injunctive relief appeals affirmed held respondents denial use municipal facilities production based board members judgment musical content constituted prior restraint shuttlesworth birmingham cantwell connecticut pp system prior restraint avoids constitutional infirmity takes place procedural safeguards designed obviate dangers censorship system freedman maryland burden instituting judicial proceedings proving material unprotected must rest censor restraint judicial review imposed specified brief period preserve status quo prompt judicial determination must assured since safeguards several respects lacking respondents action violated petitioner first amendment rights pp blackmun delivered opinion brennan stewart marshall powell joined douglas filed opinion dissenting part concurring result part post white filed dissenting opinion burger joined post rehnquist filed dissenting opinion post henry monaghan argued cause petitioner brief john alley randall nelson argued cause respondents brief eugene collins irwin karp filed brief authors league america amicus curiae urging reversal justice blackmun delivered opinion issue case whether first amendment rights abridged respondents denied petitioner use municipal facility chattanooga showing controversial rock musical hair established course fourteenth amendment made applicable first amendment guarantee free speech douglas city jeannette petitioner southeastern promotions new york corporation engaged business promoting presenting theatrical productions profit october applied use tivoli privately owned chattanooga theater lease city present hair six days beginning november road company showing musical played three years broadway appeared cities respondents directors chattanooga memorial auditorium municipal theater shortly receiving southeastern application directors met brief discussion voted reject none seen play read script understood outside reports musical produced elsewhere involved nudity obscenity stage although conflicting engagement scheduled tivoli respondents determined production best interest community southeastern notified written statement reasons provided november petitioner alleging respondents action abridged first amendment rights sought preliminary injunction district eastern district tennessee respondents file answer complaint hearing held november district took evidence play content respondent conrad gave following account board decision use general terminology turning request use felt best interest community ca speak beyond board determination speak policy refer mentioned basically indicates board allow productions clean healthful culturally uplifting words effect quoted original dedication booklet memorial auditorium app southeastern weeks later pressed permanent injunction permitting use larger auditorium rather tivoli sunday april district held three days hearings beginning april issue obscenity vel non presented advisory jury took evidence consisting full script libretto production notes stage instructions recording musical numbers souvenir program testimony seven witnesses seen production elsewhere jury returned verdict hair obscene district agreed concluded conduct production group nudity simulated sex violate city ordinances state statutes making public nudity obscene acts criminal offenses criminal conduct reasoned neither speech symbolic speech viewed separately musical speech elements pure conduct comparable rape murder entitled first amendment protection accordingly denied injunction supp appeal appeals sixth circuit divided vote affirmed majority relied primarily lower reasoning neither judges appeals district saw musical performed first amendment overtones granted certiorari petitioner urges reversal grounds respondents action constituted unlawful prior restraint courts applied incorrect standard determination issue obscenity vel non record support finding hair obscene reach latter two contentions agree first hold respondents rejection petitioner application use public forum accomplished prior restraint system lacking constitutionally required minimal procedural safeguards accordingly narrow ground reverse ii respondents action indistinguishable censoring effect official actions consistently identified prior restraints long line decisions see shuttlesworth birmingham staub city baxley kunz new york schneider state lovell griffin cases plaintiffs asked courts provide relief public officials forbidden plaintiffs use public places say wanted say restraints took variety forms officials exercising control different kinds public places authority particular statutes however common gave public officials power deny use forum advance actual expression invariably felt obliged condemn systems exercise authority bounded precise clear standards reasoning simply danger censorship abridgment precious first amendment freedoms great officials unbridled discretion forum use distaste censorship reflecting natural distaste free people law cited cases prior restraint embedded licensing system operating without acceptable standards shuttlesworth held unconstitutional birmingham ordinance conferred upon city commission virtually absolute power prohibit parade procession demonstration streets public ways ruled law subjecting exercise first amendment freedoms prior restraint license without narrow objective definite standards guide licensing authority unconstitutional hague cio jersey city ordinance forbade public assembly streets parks without permit local director safety empowered refuse permit upon opinion thereby prevent riots disturbances disorderly assemblage held void face opinion roberts cantwell connecticut unanimous held invalid act proscribed solicitation money valuable thing alleged religious charitable philanthropic cause unless cause approved secretary public welfare council elements prior restraint clearly set forth noted however act requires application secretary public welfare council state empowered determine whether cause religious one issue certificate depends upon affirmative action finds cause religion solicit becomes crime issue certificate matter course decision issue refuse involves appraisal facts exercise judgment formation opinion board judgment effectively kept musical stage respondents permit show go rely law enforcement authorities prosecute anything illegal occurred rather denied application anticipation production violate law see new york times white concurring respondents action less prior restraint public facilities control happened municipal theaters memorial auditorium tivoli public forums designed dedicated expressive activities question usefulness either facility petitioner production contention board facilities accommodate production size none circumstances qualifying established exception doctrine prior restraint present petitioner seeking use facility primarily serving competing use see cameron johnson adderley florida brown louisiana rejection application based regulation time place manner related nature facility applications users see cox new hampshire poulos new hampshire rights individuals surrounding areas violated noise aspect production see kovacs cooper captive audience see lehman city shaker heights public utilities pollak douglas dissenting whether petitioner might used privately owned theater city production consequence reason doubt record whether facility served well since none apparently seating capacity acoustical features stage equipment electrical service show required even privately owned forum available fact alone justify otherwise impermissible prior restraint ne exercise liberty expression appropriate places abridged plea may exercised place schneider state thus matter purposes case board decision might effect total suppression musical community denying use municipal facility circumstances present constituted prior restraint restraint final mere temporary bar necessary judicial proceedings way conclude live drama unprotected first amendment subject totally different standard applied forms expression possibly find prior restraint medium expression course must assessed first amendment purposes standards suited may present problems joseph burstyn wilson see red lion broadcasting fcc nature theater usually acting singing written word frequently mixes speech live action conduct reason hold theater subject drastically different standard said burstyn supra faced question first amendment standard applies films basic principles freedom speech press like first amendment command vary principles frequently enunciated make freedom expression rule justification case making exception rule iii labeling respondents action prior restraint end inquiry prior restraints unconstitutional per se bantam books sullivan see near minnesota ex rel olson times film chicago rejected contention first amendment protection includes complete absolute freedom exhibit least every kind motion picture even film contains basest type pornography incitement riot forceful overthrow orderly government system prior restraint however comes bearing heavy presumption constitutional validity bantam books sullivan new york times organization better austin keefe carroll princess anne near minnesota ex rel olson presumption prior restraints heavier degree protection broader limits expression imposed criminal penalties behind distinction theory deeply etched law free society prefers punish abuse rights speech break law throttle others beforehand always difficult know advance individual say line legitimate illegitimate speech often finely drawn risks freewheeling censorship formidable see speiser randall order held lawful respondents action first must fit within one narrowly defined exceptions prohibition prior restraints second must accomplished procedural safeguards reduce danger suppressing constitutionally protected speech bantam books sullivan decide whether performance hair fits within exception whether substantive matter board standard resolving question correct conclude standard whatever may implemented board system appropriate necessary procedural safeguards settled rule system prior restraint avoids constitutional infirmity takes place procedural safeguards designed obviate dangers censorship system freedman maryland see thirtyseven photographs blount rizzi teitel film cusack see also heller new york bantam books sullivan kingsley books brown freedman struck state scheme licensing motion pictures holding judicial determination adversary proceeding ensures necessary sensitivity freedom expression procedure requiring judicial determination suffices impose valid final restraint held freedman reaffirm system prior restraint runs afoul first amendment lacks certain safeguards first burden instituting judicial proceedings proving material unprotected must rest censor second restraint prior judicial review imposed specified brief period purpose preserving status quo third prompt final judicial determination must assured although cases pertained motion picture licensing censorship applied freedman system federal customs agents seize imported materials photographs supra postal officials restrict use mails blount rizzi supra blount held unconstitutional provisions postal laws designed control use mails commerce obscene materials provisions enabled postmaster general halt delivery mail individual prevent payment money orders administrative order became effective without judicial approval burden obtaining judicial review placed upon user scheme restricts access mails must furnish procedural safeguards set forth freedman less must expected system regulates use public forum respondents powers licensing censorship exercised postal officials blount boards officials cases theory underlying requirement safeguards applicable equal greater force administrative board assigned screening stage productions keeping stage anything deemed culturally uplifting healthful may well less responsive independent branch government constitutionally protected interests free expression judicial review made unduly onerous reason delay otherwise board determination practice may final insistence rigorous procedural safeguards circumstances special instance larger principle freedoms expression must ringed adequate bulwarks bantam books sullivan line unconditionally guaranteed speech speech may legitimately regulated close one separation legitimate illegitimate speech calls sensitive tools speiser randall perils prior restraint well illustrated case neither board lower courts known precisely extent nudity simulated sex musical even either appear play actually performed procedural safeguards lacking several respects board system provide procedure prompt judicial review although district commendably held hearing petitioner motion preliminary injunction within days board decision review merits decision time question hearing whether petitioner receive preliminary relief whether likelihood success merits whether petitioner suffer irreparable injury pending full review effective review merits obtained five months later throughout petitioner board bore burden obtaining judicial review petitioner burden persuasion preliminary hearing later stages litigation respondents file formal answer complaint five months petitioner sought review time prior judicial determination restraint altered status quo petitioner forced forgo initial dates planned engagement seek schedule performance later date delay uncertainty inevitably discouraged use forum procedural shortcomings form basis decision unrelated standard board applied whatever reasons may board exclusion musical escape obligation afford appropriate procedural safeguards need decide whether standard obscenity applied respondents courts sufficiently precise substantively correct whether production fact obscene see hamling jenkins georgia lewis city new orleans miller california gooding wilson standard whatever may must implemented system assures prompt judicial review minimal restriction first amendment rights necessary circumstances reversed footnotes musical presented two tennessee cities memphis nashville code city chattanooga board members appointed mayor confirmed city board commissioners chairman respondent conrad commissioner public utilities grounds buildings neither file time formal motion dismiss motion made later november time initial hearing answer finally filed pursuant order march memorial auditorium completed dedicated memory chattanooga citizens offered lives world war booklet referred entitled souvenir dedication soldiers sailors auditorium chattanooga tenn contains following board endeavor make auditorium community center chattanooga civic educational religious patriotic charitable organizations associations may common meeting place discuss upbuilding general welfare city surrounding territory operated profit effort obtain financial returns actual operating expenses permitted instead purpose devoted cultural advancement clean healthful entertainment make upbuilding better citizenship exhibit chattanooga code sec offensive indecent entertainment shall unlawful person hold conduct carry cause permit held conducted carried motion picture exhibition entertainment sort offensive decency obscene indecent immoral nature suggestive offensive moral sense calculated incite crime riot sec indecent exposure conduct shall unlawful person city appear public place state nudity bathe state daytime river bayou stream within city within sight street occupied premises appear public indecent lewd dress lewd obscene indecent act public place sale loan material minor indecent exhibits shall unlawful person knowingly sell loan monetary consideration otherwise exhibit make available minor picture photograph drawing sculpture motion picture film similar visual representation image person portion human body depicts nudity sexual conduct excess violence abuse harmful minors book pamphlet magazine printed matter however reproduced sound recording contains matter enumerated paragraph hereof contains explicit detailed verbal descriptions narrative accounts sexual excitement sexual conduct excess violence abuse harmful minors person knowingly exhibit minor monetary consideration knowingly sell minor admission ticket pass otherwise admit minor premises whereon exhibited motion picture show presentation whole part depicts nudity sexual conduct excess violence abuse harmful minors obscene material knowingly selling distributing exhibiting penalty shall misdemeanor person knowingly sell distribute display exhibit possess intent sell distribute display exhibit publish produce otherwise create intent sell distribute display exhibit obscene material respondents also contended production musical violate standard lease petitioner required sign relevant provision lease reads agreement made entered upon following express covenants conditions every one lessee hereby covenants agrees lessor keep perform said lessee comply laws state tennessee ordinances city chattanooga rules requirements police fire departments municipal authorities city chattanooga exhibit respect petitioner musical respondents determination production best interest community determination may guided criteria requirement words respondent conrad production clean healthful culturally uplifting app provisions statutes ordinances prohibiting public nudity obscenity whether exercise discretion sufficiently controlled law shuttlesworth birmingham doubt approval application required judgment content quality production also important though unessential conclusion classificatory aspects board decision licensing system need effect total suppression order create prior restraint interstate circuit dallas observed evils attendant prior restraint rendered less objectionable regulation expression one classification rather direct suppression case held prior restraint created system whereby administrative board texas classified films suitable young persons suitable young persons suitable films suppressed exhibitors required special licenses advertise classification order show similarly bantam books sullivan held system informal censorship working exhortation advice sufficiently inhibited expression constitute prior restraint warrant injunctive relief held unconstitutional system commission charged reviewing material manifestly tending corruption youth direct regulatory suppressing functions operated persuasion intimidation informal methods found effective present case board classified musical unfit showing municipal facilities make point publicizing finding hair best interest public classification stood warning concerned private theater owners general public alike little record indicate extent board action may affected petitioner ability obtain theater attract audience board classification whatever magnitude effect unlike interstate circuit bantam books case clearly distinguishable heller new york state authorities seized copy film temporarily order preserve evidence held form final restraint sense enjoined exhibition threatened destruction ibid board merely detain temporarily copy script libretto musical respondents reached final decision bar performance see monaghan first amendment due process harv rev emerson doctrine prior restraint law contemp prob testimony musical performed differed substantially script app show varied fit anticipated tastes different audiences different parts country musical nude scene apparently controversial portion played varying conditions actor contractual obligation perform number changed one performance another lighting duration scene justice douglas dissenting part concurring result part agree conclusion actions respondents constituted impermissible prior restraint upon performance petitioner rock musical compelled write separately order emphasize view injuries inflicted upon petitioner first amendment rights treated adequately averted future simple application procedural critical flaw case lies absence procedural safeguards rather nature content screening respondents engaged today treads much path walked freedman maryland sentiment expressed occasion remains equally relevant believe form censorship matter speedy prolonged may permissible concurring opinion see also star preller dissenting opinion times film chicago dissenting opinion municipal theater less forum expression ideas public park sidewalk forms expression adopted forum may expensive structured typically seen parks streets surely less entitled shelter first amendment soon municipal officials permitted pick choose existing socialist regimes productions clean healthful culturally uplifting content path cleared regime censorship full voice given views meet approval powers much testimony district concerning pungent social political commentary musical hair levels various sacred cows society vietnam war draft puritanical conventions establishment commentary undoubtedly offensive contribution social consciousness intellectual ferment positive one respect musical often ribald humor trenchant social satire may someday merit comparison highly regarded works aristophanes fellow debunker established tastes received wisdom yet one whose offerings doubtless meet similarly cold reception hands establishment censors matter many procedural safeguards may imposed system permits governmental officials inhibit control flow disturbing unwelcome ideas public threatens serious diminution breadth richness cultural offerings justice white chief justice joins dissenting although part ii opinion lectures evils standardless licensing systems understandably ultimate basis decision however broad discretion chattanooga authorities may otherwise plainly subject laws obscenity public nudity standard lease requires productions hair violate law respect licensing system without standards might expected therefore issue case defined district appeals whether local authorities undue discretion whether correctly refused license hair ground production fail satisfy paragraph standard lease form requiring lessee comply state local laws use leased premises laws laws obscenity public nudity display sexually oriented materials minors framing question courts reflected prayer complaint app sought declaration musical protected expression first amendment violate city ordinance obscene injunction requiring local authorities make municipal facilities available production hair also sought district appeals considered issue tendered held contemplated production hair qualify lease relevant state local laws majority address question nevertheless reverses ground chattanooga permit system lacking constitutionally required minimal procedural safeguards ante understanding prior cases unexceptionable reaching decision ground inappropriate first place issue appears tendered district decided either district appeals already indicated complaint sought declaration hair violate relevant ordinances statutes well injunction permitting use municipal facilities showing musical secondly however inadequate chattanooga system might freedman maryland parties trial hair held violative tennessee statutes district appeals reverse disapprove decisions respect assuming correctness therefore appropriate intention reversing judgment appeals order hair held obscene trial must issued license showing municipal facilities chattanooga case odd disposition one join record us error enter judgment effect require chattanooga authorities permit showing hair municipal auditorium asserts hair contains nude scene controversial portion musical almost completely ignores district description play involving nudity repeated simulated acts anal intercourse frontal intercourse heterosexual intercourse homosexual intercourse group intercourse given description hair first amendment view compel municipal authorities permit production play municipal facilities whether production described district obscene may forbidden adult audiences apparent state tennessee constitutionally forbid exhibition musical children ginsberg new york chattanooga may reserve auditorium productions suitable exhibition citizens city adults children alike hair qualify respect without holding otherwise improvident mandate showing hair chattanooga auditorium supp ed findings fact turning first issue obscenity script libretto stage instructions musical renditions testimony witnesses reflect following relevant matters noted script libretto stage instructions include small portion conduct hereinafter described occurring play souvenir program formerly distributed lobby exhibit identified performers picture biographical information one female performer identifying follows hobbies picking nose fucking smoking dope astro projection ever hope owe mother testified distribution program discontinued prior opening play accompaniment music appropriate occasion tribe new york street people start gathering commencement performance view audience performers station various places mingling audience female performer taking seated position center stage legs spread wide expose audience genital area covered design cherry thus stage set follows performance begins words music song aquarius melody words become nationally internationally popular according evidence theme song coming new age age love age aquarius following one street people burger introduces various prefixes name including burger accompanied anal finger gesture pittsburger accompanied underarm gesture removes pants dressed jockey shorts identifies genitals line thing pounds navajo jewelry ha ha ha throwing pants audience proceeds mingle audience selecting female viewer exclaims bet scared shitless burger sings song looking donna tribe chants list drugs beginning hashish ending methadrine sex wow exhibit another male character sings lyric sodomy fellatio cunnilingus pederasty father words sound nasty masturbation fun join holy orgy kama sutra everyone exhibit play continues action songs chants dialogue making reference isolated words broken sentences rhyme rapid changes diverse subjects love peace freedom war racism air pollution parents draft hair flag drugs sex story line gradually centers upon character claude response response tribe received draft notice others suggest burn draft card bring urinate upon first act ends performers male female appear nude upon stage nude scene without dialogue without reference dialogue also without mention script actors simulating police appear audience announce arrest watching lewd obscene show second act continues song dialogue develop story claude draft status reference interspersed diverse topics interracial love drug trip impersonation various figures american history religion war sex play ends claude death result draft street people singing song let sunshine song testimony reflects likewise become popular nation interspersed throughout play reflected script street language ass exhibit pp fart exhibit repeated use words fuck four letter word excretion exhibit pp addition similar language posters containing language used stage reflected script also throughout play reflected script repeated acts simulated sexual intercourse testified every witness seen play often unrelated dialogue accordingly placed accuracy script overwhelming evidence reflects simulated acts anal intercourse frontal intercourse heterosexual intercourse homosexual intercourse group intercourse committed throughout play often without reference dialogue song story line play acts committed standing lying accompanied bodily movements included acts actors actresses close bodily contact one point character burger performs full complete simulation masturbation using red microphone placed crotch simulate genitals evidence reflects unrelated dialogue occurring play evidence reflects repeated acts taking hold actors genitals occur without reference dialogue three female actresses sing song regarding interracial love three male actors lie floor immediately repeatedly thrusting genitals singers another point script exhibit actor claude pretends lost penis action accompanying line search mouths actors actresses lincoln regaled following lyrics free thanks massa lincoln emancipator slave yeah yeah yeah emanci mother fucking pater slave yeah yeah yeah emanci mother fucking pater slave yeah yeah yeah lincoln responding bang ass ai dying white man woman taking departure says tribe fuck kids exhibit following dialogue occurs claude nears death scene burger hate fucking world claude hate fucking world hate fucking winter hate fucking streets burger wish fuck snow least claude yeah wish fuck snow least burger yeah wish fuck claude oh fuck burger oh fucky fuck fuck exhibit producer director president petitioner southeastern promotions insist district petitioner entitled exhibit play minors contrary local law testimony tr standing ordinance related exclusion minors certainly abide appears tr oral arg petitioner counsel view issue obscenity must reached appear question obscenity avoided even agrees petitioner standards used ultimately bad since remand respondents going press obscenity basis denying access hair lower courts going sustain position therefore urge address question appropriate standards prevent waste resources judicial economy widespread public interest resolving issue plays afford expense litigation way mr treats case fours freedman maryland freedman dealt efforts state maryland prohibit petitioner case showing film baltimore theater petitioner seek show musical production hair chattanooga theater rather chattanooga theater owned city chattanooga glosses distinction treating theater city park city street decisions recognized city streets parks traditionally open public permits licenses use ordinarily required ne rightfully street state left open public carries elsewhere constitutional right express views orderly fashion right extends communication ideas handbills literature well spoken word jamison texas therefore held municipal authorities seek exact license permit wish use parks streets purpose exercising right free speech standards governing licensing authority must objective definite nondiscriminatory shuttlesworth city birmingham case equated public auditorium must necessity schedule performances process inclusion exclusion public streets parks pickering board education recognized government employer viewed differently government lawmaker citizenry general gainsaid state interests employer regulating speech employees differ significantly possesses connection regulation speech citizenry general state less private owner property power preserve property control use lawfully dedicated reason merit petitioners argument constitutional right stay property constitution forbid state control use property lawful nondiscriminatory purpose every municipal theater auditorium designed dedicated expressive activities becomes subject rule enunciated case consequences unforeseen perhaps undesired may well ensue may opera house limit productions operas must also show rock musicals may municipal theater devote entire season shakespeare required book potential producer first come first served basis questions real ones light opinion terms seems give constitutionally permissible role way selection municipal authorities substantive aspects opinion troubling farrago procedural requirements saddled municipal authorities relying freedman holds charged management auditorium burden instituting judicial proceedings restraint prior judicial review imposed specified brief period prompt final judicial determination must assured ante standards applicable lease production refused grounds production putatively obscene performed rather novel feat elevating obscene productions preferred position first amendment procedures must invoked every time management municipal theater declines lease facilities whether putative obscenity performance questions raised issues tried proceedings actually saying unless city chattanooga criminally punish person staging performance theater owned may deny lease person order stage performance theater owned city municipal theater may run municipal authorities private theater free judge content basis alone plays wishes performed surely element theater accorded constitutional recognition along element municipal believe fidelity first amendment requires exaggerated rigid procedural safeguards insists upon case think findings district appeals support conclusion petitioner denied lease constitutionally adequate nondiscriminatory reasons therefore affirm judgment appeals see opinion ante limitations use municipal auditoriums government must sufficiently reasonable satisfy due process clause unfairly discriminate violation equal protection clause municipal auditorium opened republicans closing democrats run afoul fourteenth amendment allegation instant case auditoriums accepted equally graphic productions unfairly discriminating hair expressions political social belief findings fact district reported supp ed repeated appeals