Southeastern Promotions applied to the municipal board, which managed a city auditorium and a city-leased theater, to present the controversial rock musical “Hair” at the theater. Based on outside reports of the obscene nature of the musical, the municipal board concluded that the musical would not be “in the best interest of the community” and rejected Southeastern’s application. Southeastern filed a lawsuit, claiming the board’s decision denying its use of the theater violated its First Amendment rights.
The Supreme Court found that the board’s decision to prevent Southeastern from using the theater was an unconstitutional prior restraint. An unconstitutional exercise of prior restraint is found where the danger of wrongful censorship is high because officials have too much discretion over the use of a certain forum or location. The Court suggested that the board should have handled Southeastern’s application by allowing the production and then relying on law enforcement authorities to prosecute any illegal activity occurring during the performance.
Prior restraints are not automatically unconstitutional. For a prior restraint to be lawful, it must (1) rest upon one of the narrow exceptions to protected speech, such as obscenity; and (2) be subject to procedural safeguards that reduce the danger of suppressing constitutionally protected speech, such as prompt judicial review. The party wishing to restrain speech prior to its occurrence bears the burden of showing why doing so is constitutional. Without deciding whether or not the board’s decision properly rested upon the allegedly obscene nature of the musical, the Court found that procedural safeguards were missing in this case because the board’s system did not provide for prompt judicial review of its decision. Therefore, the board’s application review process did not meet the requirements for legality, and the Court ruled in favor of Southeastern.
This case is significant because it includes live performances, or acts, in the types of speech that cannot be censored prior to its occurrence without the requirements outlined above.
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