dissenting, with whom McCREE, Circuit Judge, joins:
One of the “basic guidelines” recently reaffirmed by the Supreme Court in relation to the determination of a charge of obscenity is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 2615, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). See also Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
In this ease the Municipal Auditorium Board of the City of Chattanooga has refused to rent the auditorium for the presentation of the play “Hair.” A United States District Court has refused to grant relief from the board’s decision on the ground that “Hair” is obscene. A panel of this court has affirmed the District Court, also holding that “Hair” is obscene. And the majority of our court has now rejected a motion to rehear the case in banc. All of this has been accomplished without any one of those participating in rejecting the play ever having seen it.1 And at no level has any board member or judge entered a finding that the play “lacks serious literary, artistic, political, or scientific value.”
While I would agree that at least some of the acts described so vividly in the opinions of the District Court (Southeastern Promotions, Ltd. v. Conrad et al., 341 F.Supp. 465 (E.D.Tenn.1972)) and of this court (Southeastern Promotions, Ltd. v. Conrad et al., 486 F.2d 894 (6th Cir. 1973)) could, if viewed separately, appropriately be labelled obscene under the present standards of the United States Supreme Court (see Miller v. California, supra, 413 U.S. at 24, 93 S.Ct. at 2615.) I do not agree that the play may be judged obscene, unless it is “taken as a whole” for purposes of that judgment. Thus far we have signally failed to do this. Taking words and sentences out of context, taking gestures employed in a play without reference to the rest of the play as has been done herein does not comply with the standard2 set out in Miller, supra, and Roth, supra.
Over and above the first amendment violation described above the procedures employed to ban this play amounted to unconstitutional prior restraint on speech. See Paris Adult Theatre v. Sla-ton, -U.S.-, 93 S.Ct. 2628, 37 L.Ed. 2d 446 (1973) ; Blount v. Rizzi, 400 U.S. 410, 417, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968); Freedman v. Mary*904land, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
Additionally the standards employed by the Municipal Auditorium Board in rejecting the application for rental at the theatre are clearly unconstitutionally vague.3
Unless the Supreme Court grants cer-tiorari, this case will represent a final adjudication that the play “Hair” is obscene and subject to being banned under state obscenity laws in Michigan, Ohio, Kentucky and Tennessee — and this, we repeat, without any board member or judge so holding ever having seen the play.
My colleagues Judges Weick and O’Sullivan appear to dispute the accuracy of the paragraph above. I will let the record speak for itself.
Judge O’Sullivan’s opinion, in which Judge Weick concurred, said:
We affirm the judgment of the District Court on the opinion of the District Judge.
The opinion of the District Court held:
This Court is accordingly of the opinion that the theatrical production “Hair” contains conduct, apart from speech or symbolic speech, which would render it in violation of both the public nudity ordinances of the City of Chattanooga and the obscenity ordinances and statutes of the City and of the State of Tennessee.
Reviewing the evidence independently, Judge O’Sullivan’s opinion held:
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.
. Judge McCree who did see the play dissented from the majority opinion characterizing it as obscene.
. “A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S. [229], at 230 [92 S. Ct. 2245, at 2246, 33 L.Ed.2d 312] (1972), quoting Roth v. United States, supra, 354 U. S., at 489 [77 S.Ct, at 1311] (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.
. The Chattanooga Commissioner in charge of the municipal theatre testified before the District Court that the theatre was refused for presentation of “Hair” because the city permitted only productions which are “clean and healthful and culturally uplifting.”