A federal judge Friday denied a rock fan's motion for an injunction ordering the Utah State Fairpark to book the concert of the rock group Marilyn Manson as scheduled.
At the same time, however, U.S. District Chief Judge David K. Winder told Fairpark management it can't ban performers it doesn't like unless the content violates legal standards on pornography or presents a clear and present danger."You can't decide this is filthy stuff and it shouldn't be heard by the people of this community," Winder said, calling that kind of behavior "prior restraint."
His decision and comments allowed both sides to claim a share of the victory and may force government entities to re-evaluate their policies regarding performance facilities.
While maintaining he has not only a right but a duty to be selective, Fairpark President and CEO John Whittaker conceded after the hearing that some further legal guidance may be in order.
At issue Friday was Whittaker's decision to withdraw the Fairpark's earlier approval of a Jan. 11 concert by the rock group. In a Dec. 19 letter to concert promoters Scott Arnold and Dave Merkely, Whittaker said his decision was based on a review of the band's promotional materials and lyrics.
By then, the concert had already been heavily promoted and tickets had been on sale for about a week, though no contract with the Fairpark had been signed.
A half-dozen ticket holders, including an 18-year-old fan identified as "Armed," filed a lawsuit asserting a constitutional right to see and hear Marilyn Manson at the Fairpark. They and a small contingent of fans were on hand for Friday's hearing.
Their attorney, Brain M. Barnard, said the Fairpark is owned and operated by state government, and government can't be selective in the type of speech (or performance) allowed at its public venues.
But that wasn't the issue before the judge, said Fairpark attorney John P. Harrington. Winder was being asked to order the Fairpark to book Marilyn Manson even though neither Marilyn Manson nor the concert promoter were parties to the request.
In fact, promoter Arnold testified he preferred to accommodate the Fairpark's concerns by moving the concert somewhere else. He said he has been discussing a possible Jan. 11 performance at Wolf Mountain.
Under questioning by Harrington, Arnold said he believed the Fairpark's concerns regarding the types of performances it booked were "legitimate."
Winder found fault with that line of argument, calling it a "sad state of affairs" when an assertion of constitutional rights might cause someone offense. The judge implied that if Marilyn Manson itself were to assert those rights, he might be inclined to issue an order.
In an interview following the hearing, Barnard hinted the group may "make an appearance" in the continuing legal battle.
The last time Marilyn Manson tried to make an appearance in Utah, it was greeted with similar inhospitality. The group was barred from opening a concert by Nine Inch Nails at the Delta Center two years ago after management deemed its lyrics "unacceptable."
The group's lead singer, who now goes by the name Reverend Manson, appeared onstage at the Delta Center and ripped apart a copy of the Book of Mormon in protest of the ban.
Marilyn Manson band members use the first names of celebrities and the last names of mass murderers. Their lyrics are full of explicit sexual and violent content.
Whittaker says it's not the kind of family image the Fairpark wants to portray. And he argues that as a non-profit, public corporation that leases facilities from the state, the Fairpark has as much right as the Delta Center or the Salt Palace to select its performances.
Barnard responds that the Fairpark corporation was established by state statute and its board is appointed by the governor. He noted Winder himself called it an "arm of state government." It's an issue that will be raised again, he promised.
In addition to the free speech questions, the Fairpark is reviewing other policies and procedures, Whittaker said. For example, in the future, contracts will be signed before tickets go on sale. Also, rental rates are going up.