40-Year anniversary of decision invalidating ‘prior restraint’ of musical

Hair

Original Broadway poster for the musical “Hair.” (Michael Butler)

Forty years ago this month, the U.S. Supreme Court struck a blow for artistic freedom and against censorship when it ruled that the directors of a municipal theater in Chattanooga, Tenn., violated the First Amendment by denying an application to stage the rock musical “Hair.”

Southeastern Promotions, Ltd. had petitioned for an application to stage the play in the Tivoli, a privately-owned theater under long-term lease with the city.  The company later applied to use a larger municipal facility.  The musical had been performed in Memphis and Nashville, the two most populous cities in Tennessee.

However, municipal officials denied the requests, determining that the showing of “Hair” would not be “in the best interest of the community.” The company challenged this rejection in federal district court.  City officials responded the rejection was valid in part because the nudity and simulated sex in the musical were obscene.  An advisory jury determined the musical was obscene.

After losing on appeal before an intermediate appellate court, Southeastern took its case to the U.S. Supreme Court.   The court avoided the question of obscenity but determined that the way in which city officials denied the application amounted to an unconstitutional prior restraint on expression.

In Southeastern Promotions, Ltd. v. Conrad (1975), the court said “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.”   The court also determined that government officials must put in place procedural safeguards before denying applications for use of public forums, including the opportunity for prompt judicial review.  This means that an applicant whose permit is denied can challenge or seek review of that decision.

The Chattanooga scheme gave municipal officials unbridled discretion to deny the application simply because they feared the rock musical would be too controversial or offensive.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

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