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

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Petitioner, a promoter of theatrical productions, applied to respondents, members of a municipal board charged with managing a city auditorium and a city leased theater, to present a musical production at the theater. Upon the basis of outside reports from which it concluded that the production would not be "in the best interest of the community," respondents rejected the application. Petitioner’s subsequent motion for a preliminary injunction was denied following a hearing by the District Court, which did not review the merits of respondents’ decision but concluded that petitioner had not met the burden of proving irreparable injury. Petitioner then sought a permanent injunction permitting it to use the auditorium. Several months later, respondents filed their first responsive pleading, and the District Court, after a three-day hearing on the content of the musical, concluded that the production contained obscene conduct not entitled to First Amendment protection, and denied injunctive relief. The Court of Appeals affirmed.

Held:

1. Respondents’ denial of use of the municipal facilities for the production, which was based on the board members’ judgment of the musical’s content, constituted a prior restraint. Shuttlesworth v. Birmingham, 394 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296. Pp. 552-558.

2. A system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system," Freedman v. Maryland, 380 U.S. 51, 58, viz., (1) the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor; (2) any restraint before judicial review can be imposed only for a specified brief period and only to preserve the status quo; and (3) a prompt judicial determination must be assured. Since those safeguards in several respects were lacking here, respondents’ action violated petitioner’s First Amendment rights. Pp. 558-562.

486 F.2d 894, reversed.

BLACKMUN, J, delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed an opinion dissenting in part and concurring in the result in part, post, p. 563. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 564. REHNQUIST, J., filed a dissenting opinion, post, p. 570.