# Wagonheim v. Maryland State Board of Censors

> Court of Appeals of Maryland · October 22, 1969 · 255 Md. 297

URL: https://www.frixlaw.com/law-library/cases/9702839

## Case

- **Full name:** WAGONHEIM, Et Al. v. MARYLAND STATE BOARD OF CENSORS
- **Court:** Court of Appeals of Maryland
- **Decided:** October 22, 1969
- **Citations:** 255 Md. 297; 258 A.2d 240; 1969 Md. LEXIS 710
- **Precedential status:** Published
- **Opinion:** Dissent by McWilliams
- **Judges:** Hammond, Marbury, Barnes, McWilliams, Finan, Singley, Smith
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

McWilliams, J.,
dissenting
I do not agree with the majority’s conclusion that the State has met its burden of satisfying the “Roth test.” We have held that the triple standard announced by the Supreme Court in Roth v. United States, 354 U. S. 476 (1957), Jacobellis v. Ohio, 378 U. S. 184 (1964) *324 (opinion of Brennan, J.), and A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U. S. 413 (1966) (opinion of Brennan, J.), is the standard to be applied in Maryland in determining whether certain writings or pictures, including motion pictures, should be afforded constitutional protection or whether they are obscene and therefore ineligible for an exhibition license. 1 Because I think the film is not “utterly without redeeming social value,” I would (reluctantly and with regret) reverse the court below.
Mr. Justice Brennan, in his opinion in Jacobellis, supra, said the Roth decision recognized
“* * * that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ and that ‘the portrayal of sex, e.g., in art, literature and scientific works, is. not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’ Id. at 484, 487 .”
Id. at 191.
*325 As a result, he said
“* * * that material dealing with sex in a manner that advocates ideas, Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684 , or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.” Id.
We cited the opinion of Mr. Justice Brennan with approval in Trans-Lux Distributing Corp. v. Maryland State Board of Censors, 240 Md. 98, 105 (1965).
In Memoirs (i.e., Fanny Hill), supra, Mr. Justice Brennan wrote that courts could not disregard the word “utterly” when applying the third element of the standard which we follow. We complied with Mr. Justice Brennan’s caveat in Hewitt v. Maryland State Board of Censors, 243 Md. 574 (1966), where we decided that the film “This Picture is Censored” was not obscene and we referred to his conclusion that the Massachusetts court had “misinterpreted the social value criterion.” We quoted the following passage of the Massachusetts court’s opinion to illustrate its application of the social value criterion :
“ ‘It remains to consider whether the book can be said to be “utterly without social importance.” We are mindful that there was ex-yert testimony, much of which was sprained, to the effect that Memoirs is a structural novel with literary merit; that the book displays a skill in characterization and a gift for comedy; that it plays a part in the history of the development of the English novel; and that it contains a moral, namely, that sex with love is su *326 perior to sex in a brothel. But the fact that the testimony may indicate this book has some minimal literary value does not mean it is of any social importance. We do not interpret the “social importance” test as requiring that a book which appeals to prurient interest and is patently offensive must be unqualifiedly worthless before it can be deemed obscene.’ (Emphasis supplied.)” Id. at 595 .
We also noted Mr. Justice Brennan’s interpretation of the criterion:
“Hence, even on the view of the court below that Memoirs [Fanny Hill] possessed only a modicum of social value, its judgment must be reversed. . . .’’Id. (Emphasis added.)
We concluded our opinion by stating that
“* * * we have no difficulty whatever concluding that, if Memoirs has ‘redeeming social value,’ then, a minori, so does the film in this case, however cheap, dull and tawdry it may be * * *. The testimony of the ‘experts’ produced by the Board support, not the finding of the trial judge, but a finding that the film is ‘not utterly without redeeming social value.’ (Emphasis supplied.) ” Id. at 596 .
As I see it, based on my reading of Roth, Jacobellis and Fanny Hill, and our own decision in Hewitt , a motion picture 2 will be constitutionally protected if there *327 is a mere presence of matters of social importance even though the matters may, in fact, be outweighed by the film’s prurient appeal. See Zeitlin v. Arnebergh, 59 Cal. 2d 901, 920 , 383 P. 2d 152, 165 , 31 Cal. Rptr. 800, 813 (1963).
Applying the above observations to this film I question that it is obscene in the technical sense. The majority found it unnecessary to detail the opinions of the many expert witnesses who testified but it seems to me that some comment should be made. The defense offered an impressive array of witnesses. Some who testified are considered to be the foremost authorities in this state on the motion picture, and of these a few have testified for the State in previous censorship cases. Dr. Richard A. Macksey, Acting Director of the Humanities Center of the Johns Hopkins University, stated that he has taught more than a dozen different courses about films and film making and that he is a member of the Board of the Maryland Film Festival. He said the film is “concerned clearly with * * * conflicts between generations,” “the doctrine of non-violence as this relates to Sweden’s particular role in Europe” and with “the kind of malaise of the so-called welfare state in Sweden, the ostensibly classless society.” The film, he continued, covered “a wide range of social attitudes” and had “artistic merit.”
Dr. Lincoln F. Johnson, Chairman of the Fine Arts Department of Goucher College, has studied motion pic *328 tures seriously for 18 years and he regularly teaches courses in the history of motion pictures and film productions. He has served also on the selection body for the American Film Festival and he views “between 100 and 150” commercial films a year. He testified that the-film has “cultural significance” and “cinematic merit.”
Dr. Peter H. Rossi, a sociologist, is Chairman of the-Department of Social Relations of the Johns Hopkins University. He has held editorial positions on three sociological journals and he has been a consultant to the Commission on Pornography and other national commissions as well. He testified that the film has “social significance” inasmuch as it is descriptive of the criticism by young people throughout the world of the present form of society. As Dr. Rossi put it:
“Part of this addresses itself to criticism of the political structure that exists throughout the world, and we can see them in the film. The woman, Lena, not only criticizes the Swedish present government, but is critical of the Chinese, the Russians and the like. It is not a very articulated message. It is a film which says there is something wrong and it is a film which says also that young people like the heroine are searching for a new type of personal freedom, which will pull together in a rather honest way both the political life of the nations they live in and their personal lives.”
Dr. Irving M. Brown, Director of the Fine Arts Program at the University of Maryland (Baltimore campus), has made a serious study of the-theater arts. He testified that the film has “artistic merit” inasmuch as-it made “a good try at some interesting forms, using a number of different frameworks and a number' of themes ; trying to do a number of things at the same time.”
Dr. Ronald H. Paulson is Professor of English and Chairman of the English Department of the Johns Hop *329 kins University. Dr. Paulson stated that he views, on the average, two films a week and that he has published works on literary criticism. He further testified that “* * * this is a film with * * * artistic esthetic merit. It holds together; it is relatively coherent, judged by the very best movies; it is dealing with an important subject, * * * [the] breakdown in the relationship between the symbols of authority and the people, between parents and children.” Moreover, he stated that the film has social merit “in the sense that it is dealing with important social problems.”
Jaromir Stephany is Chairman of the Department of Photography and Films at the Maryland Institute and he teaches courses in film making and film history. Additionally, he has been Chairman of the Maryland Film Festival and he has appeared in court on three occasions to testify for the Board of Censors. He testified that the film has artistic merit and he offered the further comment that “[i]t is rather strongly put together” and “is certainly one of the outstanding films made within the last year.”
The testimony of the State’s witnesses was less impressive. Reuben Kramer testified that the movie was “totally inartistic” inasmuch as the sex scenes “contaminated the picture.” He conceded that he does not regularly attend the movies and has no expertise in the “cinematographic art medium.” Furthermore, he stated that in his opinion very few films have any artistic merit and “are just stupid.” However, he indicated that this film “is not stupid.”
William Forshaw, Senior Subjects Specialist in the Humanities Department at the Pratt Library testified that he is “interested in the preservation of American film” and is a film consultant and historian to the Baltimore Museum of Art. He stated that in his opinion, which he described as a minority one among his colleagues, the film had no social or literary merit.
Dr. Paul Yaffe is employed by the Baltimore City Schools as Director of the Educational Testing Service. *330 He is also a part-time practicing psychologist with “more than average ability in the area of projective techniques.” He emphasized that he did “not pose as an expert of films, either from experience or study.” Dr. Yaffe testified that in his opinion the film “pretended” to have socially redeeming value. He pointed out that “the socially meaningful situation is * * * shallow and if the film were to stand on it alone it could have no real redeeming features in the sense that it would be instructional or would clarify situations, and the like.”
It is interesting to note that Judge Carter in the court below stated that he was “* * * impressed by the testimony of one witness, at least as * * * [he] interpreted it, who testified that * * * this is a serious film, strongly put together, confusing to some, but that it would not hold together without the sex scenes.”
The reviews produced by the appellant were written by prominent movie critics and they were equally impressive. Hollis Alpert, whose reviews have been noted by this Court in previous decisions, see Trans-Lux Distributing Corp. v. Maryland State Board of Censors, supra, wrote in the Saturday Review that the purpose of the film’s director was “* * * to explore and say something, through cinematic methods, about the political and social climate of his country, Sweden.” To the same effect are the reviews of Richard Schickel in Life, Vincent Canby in the New York Times, John Simon in the New York Times, Richard Atcheson in Holiday, Gregory McDonald in the Boston Evening Globe, Bernard L. Drew in The Hartford Times, Ernest Schier in the Philadelphia Bulletin and the reviewer of the National Observer. The film was reviewed unfavorably by James J. Kilpatrick in the Los Angeles Times and Rex Reed in the New York Times.
The Attorney General does not deny that the credentials of the appellant’s witnesses are impressive, but he argues that “this does not free the opinions they expressed from critical analysis.” I must agree. I am bound to say, however, that they reflect at least “a modicum of *331 social value.” Memoirs, supra; Hewitt, supra. I cannot agree with the majority, however, that the film’s social and sexual themes were not intertwined. As Judge Hays put it:
“It is even more clear that T Am Curious’ is not utterly without redeeming social value. Whatever weight we may attach to the opinions of the ‘experts’ who testified to the picture’s social importance, and whether or not we ourselves consider the ideas of the picture particularly interesting or the production artistically successful, it is quite certain that T Am Curious’ does present ideas and does strive to present these ideas artistically. It falls within the ambit of intellectual effort that the first amendment was designed to protect.” United States v. A Motion Picture Film Entitled “I Am Curious -Yellow,” 404 F. 2d 196 , 199-200 (2nd Cir. 1968).
Judge Friendly, in his concurring opinion, said he did not feel that the sexual episodes “* * * were simply lugged in and bore no relationship whatever to the theme.” Moreover, he could not “* * * conscientiously say that a connection between the serious purpose and the sexual episodes and displays of nudity is wholly wanting.” Id. at 201.
Finally, I must take issue with Judge Barnes’ suggestion that Ginzburg v. United States, 383 U. S. 463 (1966) is dispositive of this case. I should point out that Ginzburg did not involve a censorship scheme of prior restraint nor did it involve a motion picture. 3 It is difficult to see how evidence of the type of “pandering” *332 found by the Supreme Court in Ginzburg will ever be present where, as here, the film can neither be shown nor would it be advertised until it is approved and licensed by the Board of Censors. See United States v. 4400 Copies of Magazines, 276 F. Supp. 902 (D. Md. 1967). To be sure we did find evidence of pandering in our recent decision in Hewitt v. Maryland State Board of Censors, 254 Md. 179 (1969). The evidence in that case revealed that the theaters at which the film — “Odd Tastes” — was to be shown specialized in the exhibition of “sex-ploitation films.” It was evident also that the film’s title was highly suggestive per se. Evidence of this sort is not present in the case at bar. The film was scheduled to be exhibited in Baltimore at the 7 East Theatre. The type of film normally exhibited at this theater (and its sister theater — 5 West) is described in the following exchange between the appellant’s attorney and Dr. Johnson:
“Q. (Mr. Weiner) How does this film, T Am Curious (Yellow)’, fit in with the other films which are shown at those theatres? A. Well, first of all, it is a foreign film. Secondly, it is a film, in my mind of exceptional meric, and thirdly, films shown in these two theatres seriously consider serious problems. These two theatres show films which are not simply entertainment films. They are films which are important artistically, which have some cultural significance,. which raise questions of importance, and I am sure influence public opinion.
“Q. And in your opinion, does the film T Am Curious (Yellow)’ do these things that you have just described? A. Oh, yes, indeed.”
Furthermore, it is not claimed nor does it appear that the title of this film, standing alone, is suggestive of its content. Compare the evidence of pandering found by Chief Judge Murphy in Lancaster v. State, 256 A. 2d 716 (Md. App. 1969).
*333 I have no doubt that the notoriety this film has acquired has been more the result of the abundant publicity generated by the confiscatory action of the United States Customs Service, the ensuing decisions of the federal courts and the film’s financial success than any one advertisement or book. 4 1 expect the film’s reputation will not suffer as a result of the action of my brothers of the majority.
, It must not be supposed, however, that I have any enthusiasm for this film. I did not enjoy seeing it. I thought it was a crashing bore. Nevertheless it is not for us “to determine the quality of a * * * [film]. Our duty is to respect and enforce in full measure the freedom of expression guaranteed by state and federal constitutions.” McCauley v. Tropic of Cancer, 20 Wis. 2d 134, 151 , 121 N.W.2d 545, 554 , 5 A.L.R.3d 1140 , 1152 (1963).
Chief Judge Hammond and Judge Singley have authorized me to state that they concur in the views expressed in the foregoing opinion.
. I am not impressed with the argument of my brother Barnes in his concurring opinion that “we are required [emphasis added] to apply and follow the original Roth test” inasmuch as that is the only test which has been expressly approved by a majority of the Supreme Court at any one time. See Magrath, The Obscenity Cases: Grapes of Roth, 1966 Sup. Ct. Rev. 7 . It is important to note, however, that the intent of the Supreme Court when it established the “original” Roth standard was to provide “safeguards adequate to withstand the charge of constitutional infirmity.” Roth v. United States, 354 U. S. 476, 489 (1957). Mr. Justice Brennan, writing for a majority of the Court in Mishkin v. New York, 383 U. S. 502 (1966), pointed out that “[s]tates are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition * * *.” Id. at 507 . There is also little doubt that the “three-point” test favored by this Court, a plurality of justices of the Supreme Court, and by a substantial majority of the several states, see 5 A.L.R.3d 1158 (1966) and Later Case Service, is sufficiently adequate “to withstand the charge of constitutional infirmity.” We might also note that although, as Judge Barnes indicates, a majority of the Supreme Court has not agreed on any one standard since Roth , it clearly appears that the standard set forth in that case would not receive the approval of a majority of that Court today. See Redrup v. New York, 386 U. S. 767, 770-71 (1967) (per curiam).
. In its opinion the majority indicated that “* * * we cannot ignore the visual impact of a motion picture as contrasted with the printed word.” Judge Barnes in his concurring opinion seems to suggest that different standards apply to the determination of obscenity in books as opposed to motion pictures. This state, of course, has always recognized that there are differences between the two media and it has subjected motion pictures to a censorship scheme of prior restraint. The written word is not subject to such restraint although its possession may be a criminal offense if it is obscene. Code, Art. 27, §§ 417-18 (1967 Repl. Vol.). The Supreme Court has approved the prior restraint of motion pic *327 tures so long as the censorship scheme has procedural safeguards. Freedman v. Maryland, 380 U. S. 51, 60-61 (1965). However, the Supreme Court has never held that the standard applied to books as opposed to films should not be the same. As Judge Friendly-put it:
“. . . I find nothing in the Supreme Court’s opinions that would justify a lower court in embarking on such a doctrinal innovation, which might import further confusion into a subject already sufficiently confounded. Jaeobellis related to a film and neither the majority nor the dissenting opinions suggested that any stricter standard would apply. The 5-to-4 per curiam affirmance in Landau v. Fording, 388 U. S. 456 , 87 S. Ct. 2109 , 18 L.Ed.2d 1317 (1967), affords too frail a foundation to support a construction of this sort.” United States v. A Motion Picture Entitled “I Am Curious — Yellow,” 404 F. 2d 196 , 201 (2nd Cir. 1968) (concurring opinion).
. Ginzburg , of course, involved the pandering of a book and a magazine. The Supreme Court has not, to date, held that the Ginzburg doctrine is applicable to motion pictures. It is also apparent that the Court will limit Ginzburg to its facts. See Redrup v. New York, supra and Books, Inc. v. United States, 388 U. S. 449 (1967) (per curiam), noted in 19 Case W. Res. L. Rev. 748 (1968).
. According to the appellant, “[t]he film was distributed nationally and it first opened in New York City on March 10, 1969. As of July 1, 1969 * * * it has been exhibited to more than 870,000 people in the cities of New York, Philadelphia, Washington, San Francisco, Los Angeles, Houston, Atlantic City, San Antonio, Miami Beach, Seattle, Norfolk, Boston and Portland. The film is currently being shown in these places, some of which are in the jurisdictions contiguous to the State of Maryland, and contracts have also been executed with exhibitors for showing in 27 additional cities.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9702839. Public record. Not legal advice.