dissenting.
Although in Part II of its opinion the Court lectures on the evils of standardless licensing systems, understandably this is not the ultimate basis for decision. However broad discretion the Chattanooga authorities may otherwise have, plainly they are subject to the laws against obscenity and public nudity, and the standard lease requires that productions such as “Hair” not violate the law. In this respect, the licensing system is not without standards. As might be expected, therefore, the issue in the case, as defined by the District Court and the Court of Appeals, was not whether local authorities had undue discretion but whether they correctly refused to license “Hair” on the ground that the production would fail to satisfy “Paragraph (1) of the standard lease form *565requiring the lessee to comply with all state and local laws in its use of the leased premises,” these laws being the laws against obscenity, public nudity, and display of sexually oriented materials to minors. In so framing the question, the courts below reflected the prayer of the complaint, App. 13-14, which sought a declaration that the musical was protected expression under the First Amendment, did not violate any city ordinance, and was not obscene. An injunction requiring local authorities to make the municipal facilities available for the production of “Hair” was also sought.
The District Court and the Court of Appeals considered the issue tendered and held that the contemplated production of “Hair” did not qualify for a lease under the relevant state and local laws. Here, the majority does not address this question, but nevertheless reverses on the ground that the Chattanooga permit system is “lacking in constitutionally required minimal procedural safeguards.” Ante, at 552. The Court’s understanding of our prior cases is unexceptionable, but reaching a decision on this ground is inappropriate. In the first place, no such issue appears to have been tendered to the District Court or to have been decided by either the District Court or the Court of Appeals. As already indicated, the complaint sought a declaration that “Hair” did not violate the relevant ordinances and statutes as well as an injunction permitting the use of municipal facilities for the showing of the musical. Secondly, however inadequate the Chattanooga system might be under Freedman v. Maryland, 380 U. S. 51 (1965), the parties have now been to court; and, after trial, “Hair” has been held violative of Tennessee statutes by both the District Court and the Court of Appeals. This Court does not now reverse or disapprove these decisions in this respect; and assuming their correctness, as is therefore appropriate, is it the Court’s intention in reversing the judgment *566of the Court of Appeals to order that “Hair,” which has been held obscene after trial, must be issued a license for showing in the municipal facilities of Chattanooga? If this is the case, it is a very odd disposition, one which I cannot join. On the record before us, it would be error to enter any judgment the effect of which is to require the Chattanooga authorities to permit the showing of “Hair” in the municipal auditorium.
The Court asserts that “Hair” contains a nude scene and that this is “the most controversial portion” of the musical. This almost completely ignores the District Court’s description of the play as involving not only nudity but repeated “simulated acts of anal intercourse, frontal intercourse, heterosexual intercourse, homosexual intercourse, and group intercourse . ...” 1
*567Given this description of “Hair,” the First Amendment in my view does not compel municipal authorities to permit production of the play in municipal facilities. Whether or not a production as described by the District Court is obscene and may be forbidden to adult audiences, *568it is apparent to me that the State of Tennessee could constitutionally forbid exhibition of the musical to chil*569dren,2 Ginsberg v. New York, 390 U. S. 629 (1968), and that Chattanooga may reserve its auditorium for productions suitable for exhibition to all the citizens of the city, adults and children alike. “Hair” does not qualify in this respect, and without holding otherwise, it is improvident for the Court to mandate the showing of “Hair” in the Chattanooga auditorium.3
341 F. Supp. 465, 472-474 (ED Tenn. 1972):
“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 *567become 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 *568various figures from American history, 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’t**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
“^Lincoln is regaled with the following lyrics: Ts free now thanks to you, Massa Lincoln, emancipator of the slave, yeah, yeah, yeah! Emanei- — mother fucking — pater of the slave, yeah, yeah, yeah! Emanei — mother fucking — pater of the slave, yeah, yeah, yeah!’ With Lincoln responding, ‘Bang my ass ... I ain’t dying for no white man!’ ”
“C*'X']A woman taking her departure says to the tribe, ‘Fuck off, kids.’ (Exhibit No. 4, p. 1-35). The following dialogue occurs as Claude nears his death scene:
“‘Burger: I hate the fucking world, don’t you?
“ ‘Claude: I hate the fucking world, I hate the fucking winter, I hate these fucking streets.
“ ‘Burger: I wish the fuck it would snow at least.
“‘Claude: Yeah, I wish the fuck it would snow at least.
“ ‘Burger: Yeah, I wish the fuck it would.
“ ‘Claude: Oh, fuck!
“‘Burger: Oh, fucky, fuck, fuck!’ (Exhibit No. 4, p. 2-22)” *569a 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.”
The producer, director, and president of petitioner, Southeastern Promotions, Ltd., did not insist in the District Court that petitioner was entitled to exhibit the play to minors contrary to local law. His testimony, Tr. 7-8, was that if there was “a standing ordinance related to the exclusion of minors, we would certainly abide by it . . . .”
As appears from Tr. of Oral Arg. 16-17, petitioner’s counsel was of the view that the issue of obscenity must be reached:
“So it would appear that the question of obscenity is not avoided even if the Court agrees with petitioner that the standards used were ultimately bad. Since on remand the respondents are going to press obscenity as the basis for denying access to HAIR and the lower courts are going to sustain that position, we therefore urge this Court to address itself to the question of the appropriate standards, not only to prevent a waste of resources and judicial economy, but because of widespread public interest in resolving this issue. There are very few plays that can afford the expense of litigation all the way to this Court.”