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S. E. Promotions, Ltd. v. Conrad

Supreme Court of the United States · 1975 · Constitutional Law

Constitutional LawFirst AmendmentPrior RestraintFree SpeechProcedural Safeguardsprior restraintmunicipal theaterpublic forum

Facts

Southeastern Promotions, Ltd., a theatrical promoter, applied to use the Tivoli, a privately owned Chattanooga theater under long-term lease to the city, to present the musical "Hair" for six days. The Chattanooga Memorial Auditorium board denied the application after a brief discussion, even though none of the directors had seen the play or read the script, because they understood from outside reports that the musical involved nudity and obscenity and concluded it was not in the community's best interest. The board gave no written reasons, and its chairman later referred to a policy of allowing productions that were "clean and healthful and culturally uplifting." Petitioner sued, but effective judicial review on the merits did not occur until more than five months later, during which the original scheduled engagement was lost.

Issue

Whether Chattanooga officials' denial of petitioner's application to use a municipal theater for the performance of "Hair" constituted an unconstitutional prior restraint. More specifically, the question was whether the city's system for denying access to that public forum lacked the minimum procedural safeguards required by the First Amendment.

Rule

A system that gives public officials power to deny use of a public forum in advance of expression constitutes a prior restraint. Such a system is constitutionally valid only if it includes the procedural safeguards identified in Freedman: the censor must bear the burden of going to court and proving the expression unprotected, any restraint before judicial review must be limited to a specified brief period solely to preserve the status quo, and a prompt final judicial determination must be assured.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The City of Denver operates the Red Mesa Playhouse, a municipal theater built for concerts, plays, and dance performances. When producer Lena Ortiz applies to stage a new drama, the theater board refuses permission after reviewing a plot summary and deciding the show is "not appropriate for the community," even though no scheduling conflict or facility concern exists.

Which is the strongest constitutional characterization of the board's refusal?

Explanation. A system is a prior restraint when public officials can deny use of a forum before expression occurs and do so by judging content. The majority treated municipal theaters designed for expressive activity as public forums for this purpose. It also rejected the ideas that theater gets a drastically different standard, that availability of another private venue matters, or that absence of prosecution avoids prior-restraint analysis. (Derived from S. E. Promotions, Ltd. v. Conrad (n.d.).)