(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 *899dealing, 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.