Justia Federal District Court Opinions

This is an appeal from dismissal of plaintiff-appellant's complaint seeking a declaratory judgment and a mandatory injunction whereby to require the Municipal Auditorium Board of Chattanooga, Tennessee, to lease a municipal theatre to appellant, there to exhibit the stage play HAIR. The theatre in question was under the control of such Auditorium Board. The case was heard at Chattanooga by the Honorable Frank W. Wilson, Chief Judge of the United States District Court for the Eastern District of Tennessee, Southern Division. He denied the relief asked by plaintiff-appellant.

We affirm the judgment of the District Court on the opinion of the District Judge. Such opinion is reported as Southeastern Promotions, Inc. v. Conrad, 341 F.Supp. 465 (E.D.Tenn.1972).

While we adopt such opinion, we think it right to say this much more. After disposing of several grounds asserted by defendants to support their motion to dismiss, as without validity, the District Judge set out the controlling issues as follows:

"Trial on the Merits

"Turning to the merits of this lawsuit, the pleadings raise essentially the issue of whether the defendant Board acted within its lawful discretion in declining to lease its theater and/or auditorium facility to the plaintiff for the reason that the plaintiff's theatrical production 'Hair' would violate Paragraph (1) of the standard lease form requiring the lessee to comply with all state and local laws in its use of the leased premises. More specifically, the issue presented by the pleadings is whether the theatrical production 'Hair' would violate any constitutionally valid provision of the common law of Tennessee relating to indecent exposure, gross indecency, or lewdness or would violate any constitutionally valid provision of City ordinances and State statutes which, among other matters, purport to make public nudity and obscene acts criminal offenses." 341 F.Supp. at 471.

With instructions, the propriety of which appellant does not challenge, there was submitted to an advisory jury the question of whether the production was obscene. Their verdict said that it was. The judge, then reviewing the same evidence and correctly employing the governing rules, made his own finding that the play was obscene.

At the outset, we think that understanding of this decision will be aided by setting out the style, action and content of HAIR as recited in the District Court's opinion. That such recital was accurate is not here challenged by plaintiff-appellant. Here it is:

"Findings of Fact

"Turning first to the issue of obscenity, the script, libretto, stage instructions, musical renditions, and the testimony of the witnesses reflect the following relevant matters (It should be noted that the script, libretto, and stage instructions do not include but a small portion of the conduct hereinafter described as occurring in the play):

"The souvenir program as formerly distributed in the lobby (Exhibit No. 1) identified the performers by picture and biographical information, one female performer identifying herself as follows:

'Hobbies are picking my nose, fucking, smoking dope, astro projection. All that I am or ever hope to be, I owe to my mother.'

It was testified that distribution of this program had now been discontinued. Prior to the opening of the play, and to the accompaniment of music appropriate to the occasion, a 'tribe' of New York 'street people' start gathering for the commencement of the performance. In view of the audience the performers station themselves in various places, some mingling with the audience, with a female performer taking a seated position on center stage with her legs spread wide to expose to the audience her genital area, which is covered with the design of a cherry. Thus the stage is set for all that follows. The performance then begins to the words and music of the song 'Aquarius,' the melody of which, if not the words, have become nationally, if not internationally, popular, according to the evidence. The theme of the song is the coming of a new age, the age of love, the age of 'Aquarius.' Following this one of the street people, Burger, introduces himself by various prefixes to his name, including 'Up Your Burger,' accompanied by an anal finger gesture and 'Pittsburger,' accompanied by an underarm gesture. He then removes his pants and dressed only in jockey shorts identifies his genitals by the line, 'What is this God-damned thing? 3,000 pounds of Navajo jewelry? Ha! Ha! Ha!' Throwing his pants into the audience he then proceeds to mingle with the audience and, selecting a female viewer, exclaims, 'I'll bet you're scared shitless.'

"Burger then sings a song, 'Looking for My Donna,' and the tribe chants a list of drugs beginning with 'hashish' and ending with 'Methadrine, Sex, You, WOW!' (Exhibit No. 4, p. 1-5) Another male character then sings the lyric.

'SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY-FATHER, WHY DO THESE WORDS SOUND SO NASTY? MASTURBATION CAN BE FUN. JOIN THE HOLY ORGY, KAMA SUTRA, EVERYONE.' (Exhibit No. 4, p. 1-5)

"The play then continues with action, songs, chants, and dialogue making reference by isolated words, broken sentences, rhyme, and rapid changes to such diverse subjects as love, peace, freedom, war, racism, air pollution, parents, the draft, hair, the flag, drugs, and sex. The story line gradually centers upon the character Claude and his response and the response of the tribe to his having received a draft notice. When others suggest he burn his draft card, he can only bring himself to urinate upon it. The first act ends when all performers, male and female, appear nude upon the stage, the nude scene being had without dialogue and without reference to dialogue. It is also without mention in the script. Actors simulating police then appear in the audience and announce that they are under arrest for watching this 'lewd, obscene show.'

"The second act continues with song and dialogue to develop the story of Claude's draft status, with reference interspersed to such diverse topics as interracial love, a drug 'trip,' impersonation of various figures from American history,² religion, war, and sex. The play ends with Claude's death as a result of the draft and the street people singing the song, 'Let the Sunshine In,' a song the testimony reflects has likewise become popular over the nation.

"Interspersed throughout the play, as reflected in the script, is such 'street language' as 'ass' (Exhibit No. 4, pp. 1-20, 21 and 2-16), 'fart' (Exhibit No. 4, p. 1-26), and repeated use of the words 'fuck'³ and the four letter word for excretion (Exhibit No. 4, pp. 1-7, 9 and 41). In addition, similar language and posters containing such language were used on stage but not reflected in the script.

"Also, throughout the play, and not reflected in the script, are repeated acts of simulated sexual intercourse. These were testified to by every witness who had seen the play. They are often unrelated to any dialogue and accordingly could not be placed with accuracy in the script. The overwhelming evidence reflects that simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse are committed throughout the play, often without reference to any dialogue, song, or story line in the play. Such acts are committed both standing up and lying down, accompanied by all the bodily movements included in such acts, all the while the actors and actresses are in close bodily contact. At one point the character Burger performs a full and complete simulation of masturbation while using a red microphone placed in his crotch to simulate his genitals. The evidence again reflects that this is unrelated to any dialogue then occurring in the play. The evidence further reflects that repeated acts of taking hold of other actors' genitals occur, again without reference to the dialogue. While three female actresses sing a song regarding interracial love, three male actors lie on the floor immediately below them repeatedly thrusting their genitals at the singers. At another point in the script (Exhibit No. 4, p. 2-22) the actor Claude pretends to have lost his penis. The action accompanying this line is to search for it in the mouths of other actors and actresses."

341 F.Supp. at 472-474 (Emphasis supplied).

The instructions which the District Judge gave to the jury are also set out in his opinion. While appellant, as a second position, asserts that the play HAIR is not in fact obscene, the principal thrust of its address to us is that the producer's First Amendment right to free speech forbids any interference with the exhibition of the play. They fault the District Judge for allegedly considering the obscene conduct in the play independently from its "speech." Their argument appears to be that obscenity must be tolerated if it is a part of the same vehicle whereby First Amendment rights are allegedly being exercised. They say:

"These forms of communication [motion pictures or plays] are to be treated for what they are, not artificially carved into speech and 'something else.' * * *

"We think it apparent then that the judge's attempt to draw an artificial distinction between speech and conduct is wholly without support in either reason or authority."

We agree with the District Judge that free speech cannot be used as a vehicle to carry obscenity-thus to allow, without limit, public exhibition of obscenities. We must be aware that the speech of the play is employed to give meaning to the physical conduct of the players. While it is not necessary to affirmance of the District Judge, we are persuaded that the play's language-its speech-is itself obscene. Whether the play is considered separately as to its speech and its conduct, or they are joined, it is obscene.

Appellant's brief does not provide a succinct expression of a message conveyed by HAIR. From our reading of the witnesses who found, and attempted explanation of its message, we assume, the message was to expose the "hypocrisy" of today's middle class, middle aged society, in its attitude toward sex. We do not think that any society can be charged with hypocrisy for finding less than beautiful,

"SODOMY, FELLATIO, CUNNILINGUS, PEDERASTY-FATHER, WHY DO THESE WORDS SOUND SO NASTY?

MASTURBATION CAN BE FUN. JOIN THE HOLY ORGY, KAMA SUTRA, EVERYONE."

The foregoing is a part of the lyrics of one of the play's songs. We are not persuaded that the First Amendment can be construed as providing that "anything goes" so long as a message is claimed to be given.

Appellant emphasizes the success that has attended the showing of HAIR, saying:

"HAIR is a musical which deals with the life styles of many young people and their attitudes on the Vietnam war, racism, sex, drugs, pollution, etc. It has been produced in 140 American cities and in fourteen cities throughout the remainder of the world. HAIR is the most popular box office attraction in the history of American theatre." (Emphasis supplied.)

One of appellant's witnesses, in speaking of HAIR's message, said that the play expresses "the hoped for cleansing and rebirth of this society," (Emphasis supplied). It was asserted by another, who compared HAIR with the musical "Oklahoma":

"It [HAIR] brought a new kind of music to the theatre and a new seriousness even beyond that of 'Oklahoma"'.

Two college professors supported the claim that HAIR expressed a worthwhile message. A player identified himself as follows: "George Burger, Unzipped Burger, Pull 'em down Burger, Up Your Burger," and as recited by the District Judge, this was accompanied by an anal finger gesture. One of the professors said of this, "I think in some context it can have redeeming social value."

We ponder whether HAIR's box office success supports appellant or merely portrays that those charged with enforcing the law have now despaired of success in attempts to frustrate the obscenity and pornography which is being thrust upon today's total society.

Appellant says that the few district courts which have denied relief to the producers of HAIR were reversed on appeal, citing Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F. 2d 1016 (5th Cir. 1972); Southeastern Promotions, Ltd. v. Oklahoma City, Oklahoma, 459 F.2d 282 (10th Cir. 1972); and Southeastern Promotions, Ltd. v. City of Mobile, Alabama, 457 F.2d 340 (5th Cir. 1972). It will be sufficient to say that in none of these cases was obscenity vel non in issue.

We consider that the District Judge's opinion adequately discusses and disposes of all of the issues before him.

Judgment affirmed.

WEICK, Circuit Judge (concurring).

I concur in Judge O'Sullivan's opinion. I would add only a few comments.

Ordinarily, an owner of real property may rent it to whomever he pleases. He would have the right to decide whether he ought to rent his property to persons who desire to exhibit conduct which is not in good taste. Certainly no court should order him under the First Amendment to exhibit offensive conduct portraying immoral sexual acts of the worst sort.

The auditorium involved in this case belonged to the City, which is a political subdivision of the State. It was constructed with taxpayers' money. It goes without saying that the city fathers could not be compelled to rent the auditorium to a person who desired to operate therein a house of ill fame, in violation of state law. Yet the conduct exhibited by the film in the present case is even worse as it portrays obscene sexual acts which could be committed only by depraved persons.

We do not consider here the right of a person to exhibit such a film on his own property or on property which he has rented. Our case involves only the question whether a federal court has any right to order the state to permit the exhibition for profit of filthy, obscene, sexual material on state property. Federal Courts ought not take over the operation of state facilities.

In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Court upheld the right of the state to prohibit the exhibition of obscene material in a private saloon. Here, we are dealing, not with private property, but with public property and with police power of the state.

As pointed out in LaRue, the First Amendment protects "expression", not "action". Our case involves only depraved sexual action.

We would doubt that a Federal Court would ever attempt to compel the Federal Government to rent its property for any such immoral purpose. It is also inconceivable that a Federal Court would order such an exhibition to be held in the Eisenhower Theatre located in the John F. Kennedy Center for the Performing Arts at the Capitol. State facilities should be treated with the same respect as federal facilities.

No one has a constitutional right to exhibit obscene sexual acts in public buildings.

McCREE, Circuit Judge (dissenting).

I respectfully dissent. I believe Judge Edenfield correctly stated the test to be applied in determining whether a play is obscene in his opinion in Southeastern Promotions, Ltd. v. City of Atlanta, 334 F.Supp. 634, 639 (N.D.Ga.1971), in which an official of the Atlanta Civic Center refused to lease the auditorium for the exhibition of "Hair":

The court cannot accept the proposition that stage productions may be dissected into 'speech' and 'non-speech' components as those terms have been used by the Supreme Court. The nonverbal elements in a theatrical production are the very ones which distinguish this form of art from literature. It may be true that First Amendment protections vary in different media, but a musical play must be deemed a unitary form of constitutionally protected expression. The court concludes that the entire musical play 'Hair' is speech and entitled to First Amendment protection.

The District Judge in our case sought unsuccessfully to distinguish Judge Edenfield's opinion by stating:

The fallacy of that position is readily apparent, however, if any crime other than the crime of obscenity were committed in the course of a live state production. That Court would doubtless have no difficulty in disecting [sic] speech and nonspeech components if the crime committed on the stage were the crime of rape or homicide, even though called for in the script. It is a false and dangerous doctrine that the First Amendment forbids all regulation of conduct so long as that conduct masquerades under the guise of the theatrical.

Southeastern Promotions, Ltd. v. Conrad, 341 F.Supp. 465, 476 (E.D.Tenn. 1972). It begs the question to call an act viewed in isolation as criminal when the constitutional test of criminality vel non requires it to be examined in context. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1956); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

As Mr. Justice Marshall stated in his dissent in California v. LaRue, 409 U.S. 109, 130, 93 S.Ct. 390, 402, 34 L.Ed.2d 342 (1972):

If, as these many cases hold, movies, plays and dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is 'speech' within the meaning of the First Amendment, but that the individual gestures of the actors are 'conduct' which the State may prohibit.

The majority opinion in LaRue implicitly rejected the technique of excerpting and censoring specific conduct from a protected vehicle. In observing that "[t]he state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in the context of licensing bars and nightclubs to sell liquor by the drink," 409 U.S. at 114, 93 S.Ct. at 395, the Court acknowledged that some of the performances banned by the regulations from presentation in establishments licensed to sell liquor by the drink would have been protected if offered in a theater:

We do not disagree with the District Court's determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U.S. 372 [78 S.Ct. 365, 2 L.Ed.2d 352] (1958) rev'g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this case was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O'Brien (United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672) supra.