Appendix — Grove Press, Inc. v. Maryland Bd. of Censors

Supreme Court brief1971

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_ Greye Press, Ixc.; Hlowarp WacoxHEm & ee er:

ON “ly West Ameusemenr (o.. be Sees * > Be

{bare ee Shee haem one Ciel Boe Appellants}. 3

was ; 6 Ve . : a fre : £5,

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Zi i ‘MARYLAND State ‘Boarn’ or. @'ENSoRS, « Ay ee dk a er

ae eae . dt yl anes Appellee, -

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Ra « * 3 . PS > y is; * ; ; x Bm

ON APREAL FROM. THE COURT*OF APPEALS OF MARYLAND -

bd eres: : |

-. Pocket Entries eee 1, Weegee!

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Notice of Appeal to the Supreme Court. of the-United a: ean

° oe A a States w ms, . “si : } o* 3 ”

Sceek ars ; Pes; 5 ey

Motion Po Stay Issuance of Mandate Pending Review =

by the Supreme Court of the United States....... 3 .-

ae le oe Pet OR ORE MeO OH Ee 2 Bo Ss ss

Order ."...., a Ft Lee Taree 4." : a

~~ . Motion oe Extend Time for Filing, of a Motion, To

“Affirm the Judgment of the Court of Appeals of -° —° ”

-“ Maryland . s sieges:

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Opinion ~...

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‘ July 15-1969—

sae objeétion..

q einen! bicluan Laat eee mAs

° ot.

Dockit Entries os

aig 11, "1969—Petition for review. ae

July 15, 1969—A p. of - Defendant by their: Solrs. ‘Arnold

M. Weiter, oseph S. Kaufman and Edward deGrazia.

-. Answers ‘to Interrogatories. hte bp yee

ition. of. Defendant to shorten’ time. for.

July 15, 1969—Motion « of Defendant raising ° preliminary

ww a hy

July 15; 1969-—Memorandum i in support of Motion: raising

préliminary objection. .

; ‘J july 15, 1969—Order of Court denying Motion raising pe

liminary objection.

July 16, 1969—Demurrer to Petition, ieee :

‘July 16, 1969--Motion of Defendant for — ‘of deposi

tion. «. 1

_ taking of Deposition. _

July .16, 1969—Order of Court overiiling Demurrer,,

July 16, 1969—Answer of Respondents to ‘Petition. .

Tuy 17, “1969—-Summons Defendant’ s Witness.

July. 18, " 1969—Summone Defendant’ s Witness, = g

| duly. 23, 19¢0—Depositions filed. x a | 8

July 23, 1969—Order of Court denying, Motion re inter-

r ogatories.

‘July 31, 1969 —Memoranifain Doiuisn of Cobrt and. @rder |

of Court disapproving. for liceiising the film “T Am ~

es ; r ‘ oa ~~,

July 16, 1969—Order of ae denyadg Motion permitting

9 «

ne July 31, 196 o-Respondents Order. for Appeal. “ais bg

Sppe al from the » Cienit, Court: ‘of Baltimore Citys ie Ee Sd

F iled: August , 25,. 1969. Renney a _ a ae

v September 4; 1969-—-Motion to dittiies appe: il filed. (riety

i October 22; 1969—Order affirmed, appellants té pay costs,

as: NacsaieeteBir 960 —Opinion by Finan, ax Barnes, a » CQNCUTS,

ve \ Hammond, C.J. MeW liams and Ningley,, J. F.: dissent, i

October az. 1969— Concurring opinion by: Batenés, F,

. =

re ‘Deinher 22, 1960:..Dissenting opinion by. McW iiams, ce

. \inw ltich Hammond, Od, Gnd Ringley, i concur.

Novémber 5, 1969--Notice of ‘ippeal’ to the Supreme C fount

ee of. the United, St ates filed.

es £ : tens |

Nuscusliag 0, 1965 )..-Motianyae. stay” issu nce of mandaje. :

; _ pending foview by the Supreme Court of the United .

States filed es P

—_—

Nov. 5, 1969_—Motion for Certification anid tubinatnittal of :

a original eoord 1 to the Supreme Court. of .the United : -

States. ' $ > é ere : : to by eke

Q . ea

Nov émber. 10, 1969 Motion io May issue’ of ;mandate

granted, efe. « 7

e rie _@

. :

aber Nisei of. the United States, granted,

Jur isdictionat State ment giled.

, = “December. 10, 1969—Motion to ealend eae for filing of ‘a

motion to affirm the Sndgment of sey Court of Appeals

of Maryland.

"January 10, 1970—Matigin to dismiss. or ‘Affine. filed.

January 19, 1970 -Appellants: reply memorandutit filed.

‘March: ae 1970—P robable jurisdiction noted’ “and - case

placed on Summary ‘Calendar. ele: i ai,

Nov ‘ember 10, 1969—Motion to tvanainit original record to.

. - *)

. ~ o.

( Title ‘Omitted i in. ; Prinititie) z .

“ Notice of Appeal to. the Supreme Court of the United States -

Notice i is hereby SiVON that’ ‘Floward Wagonheim, Agent,

Grove Press; Ine., and 5.W ast. Annise ynent Co, Ine., the. .

Aw eee *bove-named, hereby! appeal to” “the: Supreme E

Bets Court-of fhe, United” ‘States from tlie ‘final judgnient of- the

Court of: Appeals: of ‘Maryland,’ é firming, the. Order of’ the

6 ‘Weuit Court. of. Baltimore City yentered la this action on

~ October 22; me "This appeitl is: taken _purshant to. -28-

U.S.C A, See. 1257(2). ) ie

“GS ‘rtificate of: Service Omitted cin: Printing) 7

. . “

rd Re

hak ae

f Chee ta _ (Title ‘Omitted in Printing),

— To Stay. Issuance of Mandate. Pendin Review by the

’ ; Supreme Court of the United ates.”

Howard W agonheim, Agent, Grove: Preak, Ine,,- and ae

Wed: Amusement ‘Co., Ine: Appellants;. ‘by: Arngld M.

Weiner, Joseph S: Kaufman, Isaac M. Ne Merger, Melni- -

| >. cove, ; Asch, Greeiberg: and ‘Kaufman,, “dward DA Grazia

and Nathan Lewin, their attorneys, thove, _ pursuant to.

> Maryland Rule) 876b, that ‘the! issuance: of the mandate:

States, The grounds of the motion are as follows’

Fy Nppellaiits ‘intend’ to ile a’ tithely appeal and a 1. peti-

Shen States. oe ) seen hes

2, T he appeal and -petition. for: certiorari’ will present

* substantial federal constitutional questions, which,“or the

, reasons heretofore «argued at length before this Court,

—*. are sufficiently: important and debatable. as to raise a rea-

sonable:prospect that at least four members of thie’ Supreme

2. .( ‘ourt would vote, to review the CANS. PS,

he ‘vein. be stayed pe nding “application for review of the | |

Yt of this C aurt biy the Supreme Court of the United -

-tion for: certiorari to. the Supreme ‘Court oF the United

5. The need for orderly. conduct of these proceedings

suggests that issuance of the mandate and éxecution of

the judgment of this Court be ae: ‘until ‘the case is

ternfinated finally. 1

Oe)

-Meuixcove, Agcu,

. egceve Oceav~ereanse @ereceeosve 2 sé .e

; NatHan Lewin

* iy" Attorneys for Appellants

(Certificate of Service Omitted’ in Pvening) ,

vas t 3

' (Title Omitted in Printing) .

° . “= p :

It is this’ day of November, 1969

Onpverep, that the issuance of .the mandate herein is

stayed until January 20, 1970, and if a Jurisdictional

Statement. ot Petition for Certiorari has ‘then been filed ©

by any or all of the Appellants herein, for such further

time as may be necessary for the Supréme Court of the

United States to act thereon, and if probable jurisdiction

is noted, then further until.the case ha# been finally dis-

posed of by the Supreme Court of the United States,

peeves deoneee pee e8egeee ge

, ” ot *-

ee Omitted i in Printing) rat Be

bith’ ‘oe Wiekidil hin Na tai leans deg lias We dilitn,

‘the Judgment of the Court of Appeals of Maryland

Now cofnes, the Maryland State Board of Cefisors, by

oe rane is B. Bureh, Attornty General, a, Thomis N. Biddi-

on, Jrf Assistant Attorney General, its counsel, and moves

thet the time for filing a motion ‘to affirm the Suignent

of the Court of Appeals of Maryland in answer to’ the

jurisdictional ssatement Tiled by Appellants be iner@ased

from thirty m0) days fo sixty (60) days, for*that:

+ Appellants raise five constitutional questions ‘which

Pic claim ‘are substantial ; a

. Your Petitioner is nnable to fully anaype-there q ques-

lisesi tlie. thirty day period -provided for by Rule 36

of the Supreme Court Riles for the following reasons:

(a) The questions 1 ‘ased are essentially novel in

character and require substantial | research prepara-

- tion in order to proyerly answer ihem;

(b) The court helow attacked the eonstitutionality

of the Maryland statute merely for jurpdictional pur-

poses, The issue Was nejther briefed nor roneere

below, and it requires substantial preparation in ordér:

» to be py ‘oper ly pr esdiyted ; °

le) The thirty day pital running from, Decenber

. 1969, ene ompasses a holiday period during which

thon’ the’ appropriate research tools will de unavail-

able: * | _

(dl) Your Petitioner scheduled three lengthy judicial

@ocecdings’ during this period inasmuch +as your ’

Petitioner was given no prior notice by the Appellants

_ that they iitendel to file their jurisdictional statement

= substantial period of time before it was due

4 EEN,

“-

Asp Tuenevonr, Your Petitioner prays that an order le

pilssed granting a thirty day “extension: within which to.

answer the jurisdictional Statement, .

ees re eps ece o's

a Frascis B. Bureu

Attorney General

Thomas N. Browse, te .

Assistant Cp srem tanga

, a Connsel for Petitioner

(Certificate of Service Onviitted in Printing)

€ - >

dlowsary Waco ite, Aces: Grove “Press, Ixe.;

> Weve Amusement Co.wdxe.

. Vv.

; © Marvoanp Stave, Bovrp of Cexsons

oe bd No, pg be ° n

‘ ‘ ‘ourt of” Kimcalh of M: aryland |

et, 22, 1m)

The Cirenit. Coart of Baltimore City, Joseph. BR. ¢ ‘arter,

I, dirveted that ‘motion picture film a disapproved for

an nsing- as being obscene, and appeal was taken. The.

Court of Appeals, Finan, J.. held that movie which had

dominant theme whentaken as whole appealing to-prurient

interest in sex and which was patently offensive in affront-."

ing gontemporary community standards relating to dese rip

tion or representation of sexual matters: and which was

uiterly without ‘redeeming soe ‘al value would “be _ disap

proved for licensing ‘ax heing obscene,

Order aflirmed. . ‘

Hammond, (. J,. MeWilliame atid Singley, II. dixsented,

6G es P ry

‘the Courts * 7%, Fei.

Curious (Yellow;

, | 7

Arnold. M. Wei ‘iner (Joseph Ss. Kaufman, ‘Tsaae M. Nen-

berger, Melnicove, Asch, Greenberg & Kiitfmin, Sieur,

and Kdward deGrazia, W ashington, D: €., on the brief),

for appellants. - * h era, Sos

Dy ae : y ttt

Francis B. Burch, Atty. Gen, and Thomas N. Biddison,

Jr. Asst. Atty. Gen. Baltimore, for. appellee. -

— Before Hasmoxp. CO. , and Marsery, Barxes, McW1r-

tiams, Mixan, Sinévey and Saairu, JJ.

“FINA, Judge. ie Ds y

This ix an appeal from an order oT tite Circuit Court

of Baltimore City (Carter, J.) directing that the motion

~~ pietire tin entitled, "1 An Curions (Yellow)? be dis-

approve ed for licensing as being in violation of the pro-

visions of Code (1957), Art. 66A, $6, in that the film

“meets the tests of obscenity. previoukly laid down by

a a | F

'On July 11, 1969, the Maryland State Board of Censors filed a

petition pursuant to Section 19 of Article 66A of the*Annotated

Code of Maryland. (1967 Replacement Volume) for judicial -de-

termination as to whether a certain motiofi picture,titled “I Am

’ ‘is ‘entitled to be exhibited ‘within the’ State

of Maryland considermg the provisions of Section 6 of Article 66A

of the said Code. This filut was submétted to the Board for exam-

ination and licensing on Jubky 1, $969, hy the applicant, Noward

Wagon)eini ‘and Grove Press, Ine., “manufacturer ”’ The Board

viewed the film on July 8, 1969, disapproved it ‘under the provisions

of Section 6 of Article (6A of the Code. The Order of disapproval. |

read as follows: '

“After reviewing the entir®, film, and considering it as A

whole, the Board finds that the. film goes substantially beyond

customary limits of candor in ‘description ‘and. representation

of sex, that ‘it deals purposely and effectively with sex in a

manner which appeals to the prurient interest, that it is with-

out social.importanc®, and that it lacks any identifiable artistic, -

enltural, thematic or other value which might be considered

redemptive. pa : . s

The lower court viewed thy film dnd listened to the testimony of |

witnesses for approximately two weeks and reviewed the film a

"oe

ia , 8 ° - ; 2

The -primary issue before this Court is whether this.

‘film is protected matter under the First Amendment of

the United States Constitution. We think not and_aceord-

ingly affirm the action of the lower court.

This ilm’ was produced by Sandrew, ‘a Swedish studio,

_ and: was directed by Vilgot Sjornan, a protégé of. Ingmar

sereman.* Its predueers would claim that it, represents a

kaleidoscopi¢ portrait of Sweden, portraying problems aiid

trends on ‘the contemporary social and political scene. “An

‘effort las been made to develop the fitm: along two story

lings which strive to merge.toward the” end of the film,

but never quite make it. The total effect is that-the wh6le,

presents more_of-a frameworkthanplot= Phe tiny was

the subject of a decision by the Wuited States Court of

Appeals for the Second: Circuit in U uiled States v. Al Mo-

second. time prior to sesdeviie its sceageeah The film Was need

by this Court as required by Art: 66A, $ 19(a) on Septenrker 8,

1969, prior to hearing argument by sy Bacio répresentingethe ap-

pellants, Howard Wagonheim, Agent; ‘Grove Press, Ine.; 5 West

Amusement Co., Ine., and the appellee, Maryland, State Board of

Censors. . a ‘

*The main characters in the film are *‘Lena,”’.a young: drama-

“student, ‘* Borje,’’ a young actor, and *‘ Vilgot,’’ the director. The

three are making a film together. In making the film Lena, having

become interested in’ Borje. finally leaves, the director, to whose _

apartment. she has ready aecess, to take up—-with-Borje, In’ the

meantime the-film-gradually” reveals her life as a -voung girl who

‘lives with her frustrated father in a ‘picture frame shop. Lena is

disillusioned with her father, who. in his idealistie youth’ went to

fight in the civil war in Spain and who became frightened and

baal

P °

fled. Lena endeavors fo convey the impression that she is carrying |

on the protest which her father gave up and much of the filmi shows

her’ scurrying about. Sweden intervi iewing people about political

and ethical attitudes. She pickets and protests some of the politival

and social situations, seeks sexual freedom of a sort enjoyed by

men, amd in one sequence rebels’ violently against Borje. who con-

ceals from her his love life with other women. Th a dream fantasy

she shoots him and then castrates him. All of this is-put together

$n collage form. ; :

‘ °

: 9

Vion Picture Film Entitled “1 Am Curious—Yellow,”” 404

‘P.2nd 196 (1968). | The court in a two: to one decision

found it to be consti itutionally protected. “Judge Hays, in

writing the majorit¥ opinion, made the. apt comment that:

‘As with many other contemporary cartistic productions

there can be a diffgrence of opinion as # avhat the picture

is fabout’.”? Jd. at 198. Various critics and experts who

have written and testified concerning the film characterize

it as ai quest for identity with Fenlity, on the part of the.

young herone,, amidst the-shifting sands of social, moral,

political, economic, and cultural transition. Her search

~ for identity has been billed as re nresentative of te younger’

_generation in Sweden, their_hope_for—a_cassless—society,—

their adherence to non- violence, and their. demonstr able

hostility against the Franco-type totalitarian stgte.

The film.in reaching for its social message employs: the ©

‘than, on the: strect’? interview -format, with Lena ae-

‘costing persons from all walks of life, questioning them

abont their social and political beliefs. However, when

the viewer ultimately, realizes that the sexual scenes ‘have

little or nothing to do with wh: it wae developed by the

“cinema, verité” technique, not only do the sexyal sequen-

ces appear artificially interjected into the film, but in retro-

_Speet the miny interviews. sétm a contrived ruse to give

the movie ‘social value, As one of the expert witnesses

alle by the State, Dr. Paul Yaffe, tersely. put -it |

‘Basically you have two themes running parallel, one 4

never touching the other. , Basieally, one. is this. phony

setting of class:valués and class structures and class prob- ..

lems. The’ other is the: sexual activity ‘of an episodic

** . .

pature. , . ; ~ '

The matter of the plot. wax also the subject of comment

by Chief Judge Lambard in his dissent in’ the Second

Circuit opinion wherein he stated: “The sexual aspect

of the film does Ot arise from the plot, as that’ is non-

eristent (emphasis supplied) ; it-arises from the .decision

a ; 10 ~m. Ne Si

by the director, Vilgot Sjornan, 49 produce.a film which | -

- -would shock the audience. Ile testified that in. making

* the. film he deliberately broke sexual taboos or cliches

- knowing that this woulil he: shocking 16. ihe public. ie Bs

at 205. ret +“ eae # he

There are’ several brief interviews with the late Dr:

Martin Luther King, wherein he comments on his non-

te - violent nlethods, ‘and with -the Russian poet Yevgeny’

: Yevtushenko. Llowe¥er, these appear to be part. of a facade

for fhe, mail objec Live ‘of the picture, iamely to purvey’

’ shocking aid titillating sexual sequences. As Judge

Friendly stated. in his coneurring opinion’ in the Sécond

“‘Caregit ***.** "py ‘Goals pornographic “film would not_be

~-reseued by’ inclusiois of a few-yerses from ,the -Psalms.’’

a Id. at 201. eee: cetera This ie tone

_- AGAIN, quoting from Judge Hay~ inthe Second Crreuit

‘opinion: : ;

“Tt seems. to be ‘conceded that the sexual content

‘of the film i is presented with greater explicitness than

has been seen in-any other film produced for general. .

viewing, The question ‘for decision is whether , ging

farther in, this direction than any’ previons ediuclino,

the film exceeds the limits established by the courts. fe

Id. at 198.

Actually, the film vividly depicts six - different acts of

séxual intercourse in various positions arid locales. Among

_ the more unusual scenes is an episode of copulation in the

. ke . crook of'a tree; a second occurs on’the balustrade of the

royal palace in Stockholm in rhythm to the Swedish na-

tional anthem, while a distraught sentry eydeavors to staid —

at attention as he views the efforts of. the two out of ‘the,

corner of his eye.. This ix considered one of the hiimorous’ -

episodes of the film. There are a number of Séehes de- —

picting complete nudity of the inale and female. leads, ‘in-

; chiding numerous views of both the female, and male geni-

ere I ae

tals. There are re presentations of. fellatio and éonnilingus;

as: wel as the suggestion * of, sodomy” in one, of the in-

tercourse scenes, and of astrption in the fantasy scene,

The dialogue is entirely ih Swedigh with English sub-’™

viral . ‘ ° hy eee 1 : ° .

fitles. The English translation 6f the Swedish dialogue,

as-contained in the scenario: which was filed as ‘an exhibit,

reveals that the translation in many instances goes beyond

that contained in the Mnglish perce aie from the standpoint

of use, of Lasei ivious @xpression.® =" :

*The Attorney General in his brief for the appellee lists the eS

following instances of uncommon sex in the moy fe:

(1) Lena’ s singing ‘‘In Rio de Janeiro you can fuck for free’?

2) the display, of erotic Indian sculpture depicting a man

with his hand on a womanr’s vagina; (3) the discussion be-

tween Lena and another girl about © diffe revit methods of

masturbation; (4) Lena’s dialogue, ‘‘Are you. that fire ‘king ,

stupid ?’’; (5) detailed Joyvemakitig scene: in Lena’s room *:

showing both parties completely naked, exposing the male

genity! area, showing attempted intercourse standing against

with his. tongue; (6)..seene depicting sexual intercotirse be-

-fween Borje and Lena on the palace balustrade “in. which,

although the parties are clothed, the act of: intercourse is

vividly displayed; (8) scenes of nudity at the retreat - and -

scene depicting Leia Woking at a sexual manual, showing vari- -

ous unusnal positions for sexual intercourse; (9) scene at the

fetréat showing. Borje' throwing Lena €o, the ground and com-

mitting aw act of cunnilingus, followed’ by a scene der picting

the parties both corfipletely vude with Lena’ kissing Borje’ S-

penis as he caresses, her vagina; (10) a discussion regarding

Sex Which ‘ ‘‘makes ‘them both horny’’; (11) scene depicting

intercourse ‘in the water: (12). scene depicting sexual inter-

course ina tree between Lena and Borje; (13 scene showing -

‘fully the naked ae of the two Iving on the’ floor engaged

ee either sodomy or '

the woman. This..scene also- dramatically emphasizes the

erotic effects of the copulation; (14) followed by a scene fully

slowing Borje’s genitals, followed by a’ scene. in which the

nude Borje cliasés the nude Lena from one room to another,

throws her to the floor and mounts her in a position of sexual

a wall and also a se ene of Borje caressing. the girl’s breasts. .

sexual-intercourse with the-maw behind.

. , : . Mf , . oie a

In fairness, to the frm it should be: stated that the ‘re are

times when the love seones are rmtroduced with some er; Yous

and a discussion | of them in an opinion might tend: to

represent - them too crude ty oul of context. Tlowever, the

‘ove rriding theme is sex-per se, although pe srhaps not pre

sented with the abr uptness as inight appewr from the

written word. arnt ’

Bess Court in [fe will Vv. Maryland State Board of Cen

ei sors, 24D Mad. 179, Bo - A.2d 203° (1969), ense in which the

-film *'Odd ‘Pastes’ 2 Was disapproved for licensing, had

oceastou, to again set forth the legal test for obscene Aiea.

Judge. I: IPn@s AV ing tle opinion | for ‘the. Court Mica:

F Ade = —

BS aE Our definition “al ohsconity “the Rh eget

)

Was) restated. with, somewhat different emy

perhaps, ‘by the Supreme ‘Courtcin tf -Book Named

‘John Cleland’s Memoirs: of -A°> Woman of Pleasure’

Atforniy General, 383 US. 413) 418) 86 8, 64 975.

SIS *

977, 16 Lie Md. 2d 1, 5-6 (1966), hereinafter referred |

to as Memeirs, in Which Mr Justice Brennan, for the

Supreme Court stated:

>We. defined obscenity: in Roth in the following

terms: {Whether to. the average person, applying

contemporary community standards, the dominant

theme of the mater rial taken as.a whole appeals to.

prurient. interest.’” 354 U.S. af 489. Under this

detinition, as‘ elaborated in subsequent cases, three*

elements must coalesce: it mtist be established that

(a) the dominant thenie of the material taken as cn

Tye AU edie 0

intercourse. They then are’ shown with loins ~ entangled,

copulating on the floor;’ (14) fantasy seéne in whieh Lena

shoots Borje and castrates him with a knife; (16). Lena's

dialogie : ‘He's a big fucking shit and I’ kill him when 1

ein ‘get hold of him. I'll ent. off his coek*’; (17) tyidity at’ the

- ¢linie with again an emphasis on the genital area of the male

Sand female. ne

whole ‘ippeals to a prurient interest in sex; (b) the

ematerdal bs patently offensive because it) affronts

contemporary community standards relatirig to’ the

dyse ription or representi ion of sexual matters ;

and (@) the material is utterly. without. redeeming

SOC hale ‘value eee -. sear Fa ;

eo |

“We peetenine’ anal “applied this latest statement

of the appheable rule. in Sane v. Maryland Stale

Board of Censors, 245 Mak bY, a2 27, 226 A.2d 317,

es B2O21 (1967), tr whielbave eta fig the Cireuit Court

cand the Board in their Aspen ceytain films; shown

inanarenade in ‘the. Block:in Baltimore, were oseene, -

SEO Eis PO 4

See also Redrup v. New York, O86 u Ss. 767, 70, 771 196%),

Applymg the tridentated fest of A Book it onsetedt ‘olen:

Consérs, 285 Md.-319, 226. A, A AT (1967),;and set forth

~(Lumbard: J ais dissenting) ; Krecdinan Vv. Maryland, 380)

“US. 51 (1965). Cf Landan vy. Fording, 245 Cal: App. 2d

ChetrmbPsHreinoirs of a tt onan of. Pleasure’? v. Attorney:

General, 383. US. 403. oe): ax adopted by this Court

in Mewill, supra, and Sancza v. Maryland Slate Board -ofe . *:

‘above, we find the® fil qualifies as obscene under all three

entegories. En arriving af this conclusion we ‘annot ig-:

nore the visial imipact ofa, motion picture as contrasted” |. .

with the printed word. © 1. An Curious- Yellow, Supra

$20, D4-Cal. Rptr 177. (1966), aff * = curiam, 388. U. 5.

456 41967 iy

It pices he noted That- this is not a case wherein we

are hound to follow the ruling of the lower court unless

werfind it to be clearly erroneous (Maryland Rile 8X6 a),

but rather fhe duty of this Court is to make an independent

constitutional judgment on a mixed question of law and

fact; as to whether the subject matter before us is ob-

sceic. This obligation was cogently expressed by Judge

7 *: i

. hi :

* ¥. ; ?

‘

Oppenhei Ime, Writing the opinion of this ( Court in Saucy

~.%

supra, Wherein he SE ited: Ke

“Tn dete rmiinine Whether the films are aheioteex we,

are deeply iindful of ane’, “obligation to Tn: ake 2 | Se

+ ae depende nt. eonstityvmeon: al jiidgiment on ‘the facets of ".

the Gase, davobellis, supra, at BTS ELS. 190, and that

the admipist ration of a censorship systenr for “motion:

* pletures presents pecntiar challenges @o « constitution: ally

protected speeeh. Ereedman, supra, al 380 US. 57. e

We are void tual, too that’ ‘weoare judges, not literary

Oxperts or historians. or philosophers,’ Fanny Till,

SUPP, CONC ULTINg epi niontof May Justice Douglas at |

OSA IS, 427, ‘and Mat ordimirily:neither-theejidee who

mays Sit i ain the eireuit court. rewiew the action of the: ™ > bs

; Board nor the judges oF this Court. “would he quali” |

‘ 2 tied to determine. whe theresa’ film f: ils fo: moot the. throe 7

tests laid down in Roth Alberts without, enkightening =

re ~ testimony. . Sali eset 240 Maat 255. ‘s Td. at 330,

z ; . . .

. ge addition to. viewing the film we have peianied take

testimony of the many experts Coutiined in. the Fecord

represonting views, both -pro ahd von, as to-the social,

Cartistie and: enltural attributes of fhe filth -or, the Taek

thereof, The witnesses for the petitioners, aye well as the,

exhibitor were individuals Who possessed respected artis-

* ‘tic, educational gimd cultural Dbacktromds in dhe Baltimore

area: We seve little treed-to repeat their epitions but want

Jt known that we have considered them in. rene hing our

‘eonelusions. .— °,

« .

, This Court has Kittle diffientty in finding that the domi

‘nant theme of the filmy *taken’ as a ‘whole, appeals to a

prurient ‘iiterest iy sex and is patently offensive. in, that

if affronts contemporary: COMMIATLY staiidards relating:

to the desetiption or representation of sexnal anatters, — It

» is only with regard tw thee third element of fhe: “Roth.

‘Alberts’ * test iis set’ “forth ip eh Book vy, Afforicy freneral,

Ff supra. which, must conlesce with the: other two statudliinds.

—_L gene) Po «

which presenits ANY Occasion ‘for pause, - filowever, after

reviewing all of the V1 TCE ina light most favorable to.-

the appellants? contention that the Tim does: hyve some-

thine of sogial vadue, ileis ovr judge nt thats if is-utterly

“without redoerggiss social value. We have ‘previously, in

this opinion, stated that the attempts of the film makers

tor. Use: social questions to’ depict ‘the restlessness of youth

sand: its search Tor- identity, against. an infellectnal sambi-

oice, was) patently prataclt and contriyed. We do not.

“think that Lena's concern with) social ang political. prob

Joms, so artific ially depie ed, supplies | the redeeming esocial

yoke required le Sustain the film. We som nome uning-

? lAventy three lovers, ha Wits stated hy oa Eighid n

iS dissent ‘dn fb Am C urto

’

8, supra: eS

“36

a ye

“Whatever one can Whoiit, the aWercd sig rniifi-

~ eahce of the film, which £0 @ids is captive onlooker Was

‘See ne

a confimueus and wnircheyed: boredom except for’ the

sexual seenes, it is simoatimposaible to remember

anything about if Phe only impact the ‘picture. Has

and the: onby imipact it was designed to have are. the

sexual scenes; its only interest to | the viewer arjses

from the aucertainty of the method. of amutual sexual

eratification in whieh chero ane heroine will next if >

: dulge.. : | x es ; A

Yor Ovtobur 6, BIG), the United States District Court for the

-Distriet of Kansas hited. before it the cases of Grove Press, Ine.

Kansas and duakeside Drive tn Theatre, Ine. v. Menghini, «4 a

(Nos. KC 2992 and KC897)) wilerein the Sante statutes ‘of

Kansas werree hallenged and* injunctious. were sought. to enjoin *

proceedings pending. ij in the Distriet. Courts of Johnson County: and

Yyandotte County, Kansas, and which proceedings concern the

question of the application of the Kansas statutes to the film ‘7:

Am Curious (Yellow), “i The Court found the statutes constitue-

tional and did not reach ‘the obscenity question,’ However, the

Corrt stated that “CAI Judges jon the wig Court agree with

Judge Lumbard’s. statement {dissent |. bait Abecanse we. did ‘got.

reach the question, we do not so hold.’ ‘

8 / .

. * ft : 5 ec ,

-o +. : * 16 ~~

Ags “While the sex ix heterosexual, the participants

indulge in acts of fellatio and cunnilingus. Needless

Ke 4 .

- folsay these act< bear no conceivable relevance to ‘ahy

social value, except that of box-office appeal. More. ,

over, the sexual scenes have nothing whatever to do

with thy remainder of the picture.” Id. at 203. r

- or as Judge Murphy, who presided in’the United States

District Court for the Southern District of New York at

Mo the trial of Uuited States vo A Motion Piclure Film Ene

titled “A Am Curidus—Y ellow,”” 285 F. Supp. 465" (1968)

. observed: | agi ;

= “If the filni tas a message, whether it ix public

poll taking on the social structure of the Swedish

society or the advocacy of non-violence or anti-Franco-

| ixni, | would suspect if is merely dross, providing

e vehicle for portraxing sexual deviation and hardcore

pornography.” Id. at 472. .

Findiggg nothing iy thix film that merits The protection

. of the First’ Amendinent of the United States Constitution,

. ‘we are of jhe opinion that it. should be disapproved. for

- licensing under Maryland Code, Arficle"B6A, 6.

| al nature

‘The appellants raise offier issues of a techn

<? . . ad

which we shall proveed*to discuss,

The appellants complain that at the hearing in the lower

court, the tral judge refused to order the Attorney Gen-

eral’s office to disclose the names of all the experts whieh

they requested to view the film? An analogy ix made to

the situation where due prptexs of law requires that the

State, upon request, divulge all evidence favorable to

the defense. Broadus. Maryland, 373 US, 83 (1963) ; Giles

v. Maryland, 386, US. 6611967); Barbee v. Warden, 331 ‘3

F.2d 842 (4th Cpr. 1964) “Vvited States v. Poole, 379 F.2d 4 *

645 (7th Cir, 1h67 ): Speiser v. Randall; 357 US. 513, 525

(1958). 7 ae 0 | ae | i

--¢g It ix not disputed that the hearing before the lower court

Ses 2 Sin censorship cases is-of an-adversary nature. In the

‘ = # GC.

* s ,

° - .

: , . _ *

eee F

instant case the appellants requested not only the names

of the actual witnesses: which the State proposed to. use

at the hearing, but all of the individuals who may have

heen requested hy the, State to view the film for the pos-

sible purpose of being used asa witness, or for‘ con-

. sultation with the State conc erning the obscene “aspects

of the film. We do not’ Paink that discovery in tivil c@ses .

as promulgated by. Maryland Rule 417 goes to that which

ix in essence the work p oduct of the attorney accumulated

in the preparation of the ease, Furthernere, if it were

to be contended that Marylind Rule T28 relating to dis-

covery in criminal cases were applieable, we think the

opinion ofthis Court in Kardy v. Shogk, J., 237, Md., 524,

40, 207 A283 (1965) dispositive of the issue, wherein

Pre scout, ('.J., writing for the A ‘ourt stated: ‘

cicada Aud, nm W iRiams: 7 tr State, 226 Md. 614; we

held that where a demand for a bill of partienlars ‘went °

fer hoyoud what was required under Rule 728 and way)

calculated, not’-o much to amplify the: allegations o

“indictment, but *to require complete di@osure ‘by the

State of the evidence: it relied upon,’ Mhe court was

- justified in ststaining the State's exevptigns to tire

demuind.”” © Id. at 540. ’

The appell: ints alxo attac sked the constitutionality of the

“prior restraint procedure provided by the Maryland Stat-

ote (Art. GOA). We think. these contentions werg gen-

erally answered by this Court in eee Distrib. Corp.

ov: Slate Board of Censors, 240 Md, 98, 215 A.2d 235 (1965),

which reviewed the Maryland Statute in light of its amend: |

‘ment by Chapter 598 of the Aet= of 1965, witch amend-

nett had the effect of revix<ir Section 19-0f NXrticle 66A

to conform to the guidelines suggested bythe United |

States Supfeme Court in Free dnan Ve-Maryland, 380 7 S.

a1 (1965). ; :

The appellants further contend that the. Boarid avted

“with: insufficient evidence to stistain its refusal to’ license—

the film and that becanse of thix the lower court lacked,

ee ee

4 ‘

, sf : . ‘a

. ° ~g / 4

. .

. y

| As .

; - P “ *

jurisdiction to enter an order disapproving the film. With

out entering into a prolonged dise usxion, asde whether the

administrative procedure followed by the Board ix not

subject to review where it is clear flat there has been a

di nore judicial determination, Uurrersal &b ‘ihm v. Chicago, .

oss FP, Supp. 286 (168), we think that the Board made

a conscientions effort. to ‘follow the guidelines: set forth

in Mlewttev. Board of C CUSOFS, 24 Mal. 57- T1585, ts, 21

N20 SF C1966). canned thedit there was sufficient expert tes

timons) on which if could. properly Thane its decision. ;

Finally, ‘the appell: ints argue that the judgment of the

United States Court of Appeals for the Second Circuit’ in.

Le Am Cyrious (¥ low), supra, is conctusive on the Stase's

case, in that the fedéral statute under which adjudication

was: mike “must be read as preempting the right’ of a-

state later to subject thee’ films to further restraint in ad-

vance of publee shidwinise The short answer to this is”

that; the United’ Siates Supreme Court in, Fréedinan vy.

Maryland. supra, recognized that-as-longe as a state fol-

, lows the procedural safeguard suggested therein, it: may

validly exercise it~ police power fo effectuate a censorship

“y stem. It is aur belief that only aan adjudication by the

United States Supreme Court would be bindihg upon this.

Court with regard to the film before us; Constitution of

Maryland, Declaration of Right<, Article 2.6)

In-affirming the lower ‘court's order disapproving the —

film **f Agi Curioux (Yellow)** for licensing on the basis

that it is obscete, wecare mindful of Justice Stewart’x

observation ‘in Ginzhurg v. Enited States, 283 US. 463,

498. (1966) that, Censorship reflects a society's lack of

confidence in itself**; yet, we are likewise sensdte to our

abligation to withhold the proteetiow of the Firat Amend-

Jnent from material which those who wrote the ‘onstitu-

‘tion never intended to protect.

e 4 ORDER AFFIRMED. APPE ALA NTS

TO PAY COSTS. .

ra * : a

v x

eernes, J. concurring: 2 2 . .

fentirely goneur with the re aspning, statement of fac’ -

simul application of the law in the opinion of the Court. I

om Of the opi ion, however, that (a) additional emphasis

should be given to the pandering aspect of the ease when

the third test of ctterdy without redeeming social value’’

ix considered ane (hy) ihe ‘re should be, additional comment

upon the seope or applic “ability of this third test when the

Cofrt has before it a motion picture which is —

wider the first two tests in regerd-to prurient interest,

~ex amd an affront to conte porary community, acini

A the majority opinion, in considering the third test,

the pandering aspect of the case is suggested by théeeob-

servation that the film makers’ attempt to raise so called

social questions”? was ‘patently strained and contrived”?

amd the result, was so ‘*artifieally depicted’? as failing

to supply the “rédeeming social quality required to sus-

trims the filo.” “The thajority opinion alsé cites with ap-

proval a portion of Chief Judge Lumbard’s dissenting

opinion in Uuled States vioA Motion Picluré Fiim En-

titled “ET Am- Curious Yellow? 404 F.2d 186, 202,- in

_ which he states, ‘* Nee dlexs to say these acts (of fellatio and.

conmilingus) bear no conceivable relevance to any social

value, except that of box office appeal.”” > (Emphasis sup-

pied.) Id..at 203, With these observations, I heartily

concur, but 1 would additionally éiiphasize that the record

discloses to me that there is sub<taytial evidence which

indicates the pandering of, sex. This pandering, in my

vpinion, brings the present case within the ambit of the’

: decision ‘of the: Supreme Court of the United oa in

finchurg v. United States, 283 US. 463, 86 S.Ct. . 16

[.Ed.2d°31 (1966). 2. °°; oy

.* ; » an > . . . .

In Ginzburg, there was a. ge ir ina jority of five justices

for the opinion of the Court, Mr. Justice Brennan, .

who wrote the majority peice “with the concurfence of

WW arren, (.I.. Clark, White and Fortas, IJ.. Justices

~~ + armed

Black, Douglas, Harlan and Stewart dissented and each

_wrote dissenting opinions.

The opinion of the Supreme Court in Ginsburg stated:

PS his evidence (of advertising), in our view, was

relevant in determining the ultimate question of ob-

_seenity and, ii thy contest of this record, serves to

resolve all ambiguity and doubt. The deliberate repre-

sentation of petitioners’ - publications «as erotically

arousing, for example, stimulated the reader to aceept

‘them as prurient; he looks for titillation, not for saving

intellectual content, © Similarly, such representation ’

uch

would tend to foree public_eentrontation with the po-

~ tentially offensive isp wets of the work: the brazcnness

“of such an appeal heightens the offensiveness ‘of the

publications to those who are offended by’ such ma-

terial, And ;the circumstances of presentation’ and

,s dissymin: ition. of material are equally relevant to de

termining whether social importance Claimed for ma-

terial in the courtroom was, in the cire unustances, pre-

‘tense or reality- whether it was the basis upon w hich

it was tradedin the marketplace or a spurious claim

for let ration purposes, Where the purveyor's -sole

emphasis is on the sexually provocative aspects: of

his publications, that fact may be decisive in the de-

termination of obscenity. ‘Certainly ina prosecution

, — whieh, as here, does not necessarily’ imply suppression '

of the materi wis * involved, the faet that they originate

or are used vas a subject of pandering is relevant

to the applicati on of the Roth test.”’ (383 US. at’

- 4707 86 ‘SAt. at 947, 16 L.2ad. at 38) °

“We ci ited and followed Gin: burg i Sinéa v. Maryland

State Board of Censors, 245 Md. 319,226 A.2d 317 (1967)

and recently in Hewitt v. Maryland State Board of Cen--

sors, 254 Md. 179, 193-95, 254 A.2d 203, 210-211 (1969),

involving the motion pictare “Odd Tastes.’

- ,

oo ;

The pandering’ of sex in the presehit case is ‘not oa the

same nature’ as that involved in Ginzburg and Ahe evi-

dence in regard to it is hot. as clear and definite as ‘Was

the evidence in Mew it, supra. In the instant case the

pandering aspect is more subtle, ut it is present none

the less.

In the scenario, which apparently is prepared, for sale

in conjunction with the motion picture, there is an obvious

a eniphasix” on the sexval axpect<of th motiow picture re-

a ome Oh On

—vPaling as its object thre ‘marginal gain’ for the creator:

through an appeal’ to-the sexual curiosity and appetite.’

Ginzburg, supra, 383 US. at 471, 86 S.Ct. at 947-948, 16

L.Ed.2d at 88. It ix apparent from looking at the scenario

that there is alarger proportion of photographs of the

sexual scenes that-in the motion picture and Dr. Mackséy,

an expert witness for the “appellants, stated, in effect,

that the use of the series of step action frames. depicting

the sexual scenes served to emphasize the sexual theme

in the motion picture. In my opinion, these faets bring

the present case within the Ginz bury decision which in-

dicated that the anim: ition of sexual detail to give the

publication in that ease, a’ salacious cast amounted to/anw

appeal to the sexual curtosity and appetite and amounted

io the pandering condemned ii} that’ case.

The, Attorney General aptly commented on “this aspect

of this case iy the low4® court:

“Yo tive a heek omic cover says 250 illustrations,

If you count. the illustrations’ in this book, you will

find approximately. 100 of the'250 have to do with

sexual themes,-out of the 250. That is 100 out-of

250, which is forty percent ‘of the total against S18

minutés of 120 minutes or 135 minutes of the film, and

if you will look you will find that in a period of some

—pages 89 ft about 160, you have some 83 or 80

sexual pictures against 60 others, which is about a’

hundred and twenty-five percent, which indicates there

of the reader are centered.on the obvious and purposeful :

7 ~~ Se STA as ate

“as “A

inca ve ry significant emphasis: on ‘the pornography we

say is in-the film in this’ book, * * *”’

a r ° .-

It thus appears that the pandering of sex-in the motion

picture is generated ehtirely by the profit motive. By the

coneentration on sex in the scenario,, Grove’ Press sells.

the book and by selling the book it sells the sex in’ the

motion pictume. — 4 :

”

The argument by the* appellants (if relevant at ally

thatethe motion picture will be shown only to those -mem-

rion of the conmiunity 18 years of age or older is rather

impaired by the finclings by the District Court of Johnson

County, Kansas, in di recent case. entitled The State of

Kuwisas v. A Motion Picture Film Entitled {1 Aim Curions— > *

Yellow’ **, No, 6122, Div. No: 1, in owhich the Order was

filed on September », 1969, arid modified in a. detail of no

importance for this case on September 15, 1969. “A copy

of the opinion of District Judge Herbert’ W. Walton in

this Kansas case was forwarded to this Court by the At- -

torney General on Ocotber 1, 1969, a copy being sent -to

counsel for the appellants. Tn the’Kansas case, the motion

picture involved-in the ease at Bar was shown at the Kimo

South Theajre (an ‘tart theatre’*’) in Overland Park, John-

son County, Kansas, Advertisements furnished by Grove »

Press for the motion picture published in the Kansas City

-Fimes antt the Kansas City Star from June 17 to June.

24, 1909, stated, ** Admission restricted to adults.’” The

motion picture was advertised as a ‘tlandmark likely

to permanently shatter many of our last remaining movie:

. . * . . . . . “ 4 ae ’ ~

conventions,’ -says William, Wolfe of Cue Magazine.”? ‘In - °

none of the advertisements, othér than the one of-Jtne

21, 1969, wax there mention of any other’ theme. , The:

District Court found that although the advértise ‘ment on

June 21 mentioned Such-**alleged themes as polities, non-

viole nee, Zen, commitment, socialism’ and other subjects,

the whole import of the advertisement and the attention ae at

deletion which implies the word ‘Sex.* _

Psst LP

; ; ; »*

, nat

In the newspaper advertising of June 18, 1969, no men-

tion was made at all of age restrictions; on Jine 19, 20

und 21, there was a restriction to persons over 18 years of

age With suitable. identifications on June 22, there was a_

restriction to those 18. years and ovey; and, on June 23

and 24, the advertisements siniply stated ‘adults only.’’

~The enforcement officers took random samplings on. the

evenings of Jute 22, 23 and 24, 1969, among, persons leav-

ing the theatre (which. seats approximately 325 persons).

who appeared to be under 21 years of age. One officer on

Sunday, June 22, stopped 10 persons, three of whom were.

under 21 years of age; of the persons stopped by the

other officer on the same night, sever were under 21 years

of age. On Tuesday evening, June’ 24, from those stopped

six were under 21 years of age and of those, three were

under 18 years of’age. On June 22 also, the ticket seller

at the theatre sold'a ticket to view the motion pictures to

an identified lad, 17 years of age, without asking the youth .

his age or asking to see his identification.’ The lad was

thereafter admitted, the ticket ‘taker neither asking his:

ire nor for identilication. There were similar episodes

on June 24, 1969.

The Contract of May 18, 1969, between Dickinson Op-

erating Co., Ine. through G len W. Dickinson, Jr and Grov e”

Press, Inc. through Barney Rosset, one of its chief offi-

cers, to-exhibit the™Mnotion. picture at the Kimo South

Theatre provided. that Grove Press, Ine. would receive

90% of the gross receipts in excess of $1,000 a week, but

not less than the following. fixed pereents iges: first week:

70% : second and third weeks: 60% ; fourth and fifth weeks:

90% ; sixth week: 45%. The minimum run was to be

for six weeks with additional time to be negotiated. Grove

Press, Inc: was to pay 90% of the advertising costs and.

‘all advertising materials content and costs were to be at

the discretion. of Grove Press, Inc. The contract further

provided that Dickinson Operhting Co., Ine. was to exhibit

g 9

i ’

the filin in its entirety and was. not is ent or alter the

print, other than to make necessary repai’s or when re-

quired by a public official or authority, x withont the

written consent of Grove aes fire. |

Aw the majority points | out, Wor applied the Roth’ t test

as restated and amplified’ in: Memoirs to a motion picture

~ in He ae v; Regeow State Board of Consors, 254 Mad.

+: apply: “the most detailed and einnpretiens sive test entn--

‘179, 182-83, 254 A.2d° 208, 205 e169), supra, and the re-

, stated ceritle”? ine heen Applied in the present case. In

my opinion, in view of the micertainiy im regard tor the

“view of a majority’ of five jus slices of the Supreme Court

on variqus’ aspects of sige sigh test; it Was (vise for

us in We witt, supre, as well: isin the inst: mt case, to

ciated’ by. the justices writing for a‘majority or a plurdl'ty

of the Supre me Court, in the obscenity cases in that Court.

As I have indicatek. it is my opinton that the film in the:

a”

ease at Bar is well ‘within the three tests mefitioned and - -

is obscene under those tests,

The ahike argument of the Attorney General ad 6t the

Assistant Attorney’ General,, both in ,the anpellee’s. brief

and orally before us, has made me doubt, howéver, that

the third test i¢., that the material ds. Sfutterly Withoat,

redéeming social valne’!—at least in its. full vigor—is

properly applied to a motion picture. becyuse of the dif?

ference between motion pictures, on the jone hand,’ and

novels, pamphle{s and other Writings, Ov the other.

As early as 1952 when. the Stipre me Court first applied

‘the provisions 6f the First Amendment in regard to free-

_dom of.speech and of the press to motion pictures (*The

Miracle?’), i Joseptr. Burstyn, Ine. v. Wilson, 343° U.S."

495, 72 S.Ct. 777, 96 L.Ed. 1098, Mr. Justice Clark, speak-

ing for Phe Supreme Conrt (Reed and rankfarter, JJ.

~~ ©

ake Day

*-eoneurring ; there were no dissents) obse ied the difference .

by tween the two me ‘thods “of expression, as follows: -

“cope 0 hold: that- Liberty of expression by means of mo-

_tion pictures is gu: iraitecd by the First and Fourteenth .

Amendments. however, is not the end of our problem,

here | does not. follow that the Constitution requires ab-.

solute freedom to eXhibit-every motion picture of every

~ kind at’ all times and at all places. That much is

venus from the series of decisions of this Court

with respect to other raedia af communication of ideas

Nor Lock if follow that motion pictures are necessarily.

subject to the precise rules” governing any other par-|

me ‘thar ane Uh, od of expression. Each methogl ‘tends to

cont its own pee ‘triar. probloms, ’ ’: (343 U.S. at”

“0: 2-503,.72 S.Ct at 781, Oe L. ed. aut ed ae

—

My, Tustion ¢ dark in his concurring opinion in’ Kingsley| -

‘Pieluvés Corp. v; Regents (“ady. Chatterley’ x Lover YI

360 US. 684,°702,- 79. S.Ct. 1362, 1372, 3 3 L.Ed.2d 1512,

1524- (1snei), stated; ; eae

5 Af isce 20 grounds: for confusion, however, were a

statiite to ban ‘pornographic’ films, or. those that

‘poriray a ts of sexual immorality, perversion ‘or

lewdness’ °° (Eniphasis in er) ; moana

Mr Justice Brownan, for a unanimous Supreme Court, os

tated in ihe Maryland, 380 U.S. 51, 60-61, 85

“The yvequircment ef prior. submission ‘to a. censor’,

stained in Ties Filthy is consistent with our recog-

nition that. flies differ from other forms. of expres- .

ston.’ ‘ ~

SA. 734, 740, 13 1 ad. 2d sit 656 (1965) that: :--

This diffe rence is also recognized in the opinion of Cir-

cult . Judge Hays, in the Second Cirenit case involving | the

‘an ‘in this case ine whieh it is stated:

No doubt the standards by. whiel, motion pictures

Line he judged differ in.some particulars from, those

- to he applied to books.’’ (404 F.2d at 198)

Pam

‘

‘ p 4

“hid “ Py . ‘

. ad

. “ ‘ . ‘

. .

. . . . °

. ee ,? , P

wee os |

¢ id 4 -

’ P46 '

gr In the State Courts the distineti@n between the two.

js methods of-expression has deen carefully and fully ‘pointed

out. In Landay. Fording, 245 Cal, ‘App.2d 820, 54 Cal.

Rept. 177: (1966) the : apyellate court for California stated :

‘hulthermore, we think that the constitutional pro-

tection alvorded aloes ot tnepn that the visual impact

fant of 2 motion pieture as distingiitehed: frofa other media,

can De (isregarded, Pilms are obviously different from

Other forms of eX xpression (Freedman v. Maryland»

380 U.S. 51, at p. 61 [13 L.Kd.2d 649, 85 S.Ct. TBAT).

“The significance of the motion pictrre medium is dite

to the technological features of the-particular medium.

The nique combination of sight and Sound that ¢har-

acterizes a motion pf&ture makes the ideas presents “«l

by movies comprehe ls sible to a darger. audience. thai

is thy ease in-any other mediumexcept television (sec

_. atepp. 607-708, and 42 Cal.L.Rev., 122, fn. 53, at p..128).

‘/ Byen in’ the absence of sound, movies’ assure a high

degree -of- attention and vatdntion: The focusing of,

an intense light on a sereey and the semi-darkness of

the room where dis tracting ideas and sudgestions are

eliminated contribute to the ‘foregfulness af movies

4 Re and their unique effeetvon the andience (60 Yale‘hul.,

‘Supra, ut p. (08). :

“Dp CORSE of’ the nature of the: medinm,. we .think

a-motion picture of sexnal scenes may transcend the

bounds of. the constitutional viarantee long ltore il

, word’? dd. at 181, Mls: ie

a) > ‘ Ld

‘ o.?

' Seé also the interesting diseussion‘of this matter by the

“materials cited in 60 Yale° LS, 696, fns. “ot and 28, |

frank description of the same. see nes in the written

se of Appeals of New York in Trans-Lux Dist, Corp.,

Board of Regents, 14 N.Y.2d 88, 248 N.Y.S.2d 857 (1964),

rev'd per curiam, 280 US. 259, 5 S.Ct, 952, 13° L.Ed: Od

959% (1965). citing only Free didn v. Maryland, supra, from

“whieh it can be inferred that, the reversal by the Supreme,

wapplytng COME POLULY COgu sen

‘on 65) + ee ee

Court was onthe bavis of the: procediral inadequacy of

not considerthe issue of obonity,. Cf. Teitle Kiln Carp,

_ Cusack, 390° U.S, 139 (Note 1), 88 hen 754, 19-1. Ed.2d

6 (1968) in which the Supreme Court held a Chicago’

"statute invalid: under Preedian, but: noted “that it had —

not’ considered the issue of -okscenity,

° ' Pe vl?

“Me Roll test was ‘aechethe

‘to the average person,

y standards, the domi-

von theme of ee qualerial taken\as ‘a. whole appeals to

pruricul. iitorest,: xs bald it -i =the oat fest M which a

majority -of five justice s of the Supreme. Court ‘have ever

vay’ reed,

* tin the Roth case, 354°ELS. @76. 7 3-485, 7 wi S.Ct. 130

1308. 1309," 1 I, oe 1498, 1406-1507 (1957), tbe Supreme

( ‘ourt stated: tS at yf fh

* . the hacouaitiinnd niteine of the First Amend. ;

ment Was Heal ints mded

All 1dons. havine «

“yrrotect every utterance ..

the shiehtést redeeming social

“the New York statutes and that na LAs Shih Court aig”

importyuce ... mve the full protection of the, guar-.,

Wnties... . Bui implicit in, the history, of the. First

Amendmoent?is the rejection of obscenity as utterly

without’ redecming. social importance, ‘This rejection

for that reason is .mirrored. in the universal judg-

——

niont that obsconity should he restrained, reflected °

mai the internation: 1 wrooment of over a0 nations, in

the obscenity laws of alll af. ‘the 48 St: ites, and in the. ¢

YI obseo nity laws en ited by. the Congress from 1842

to 1996, This is the same judement’ ex expressed by this’

Coit in A‘haplinsky.v. New Hampshire. . . ‘There

are certain well- defined and “narrowly finsited classes

problens. These inelude the. lewd’ and obscene sek.

has been well’ “ohgerved that such utterances: are. no’

essential part.of any ‘exposition of, ideas, and are of

of speech, the prevention and punishment ‘of which.

“have never becnethought to raise any ‘Constitutional -

such slight orig | value as a step to truth that any

benefit, hats may he derived from them is clearly out-

weig wel Iiy the <ovial. inte rest in order and morality,

‘ nee 48 Emphasis ours.) «

@ The 8 Supreme Court continued: — ~ , 3

et We hold that obscenity’ ix not within the area of

coustifationally protected speech or press:"*

The Court then set ont the Both test abov@xet forth,

. ’ °

When then, did the other two tests, i, (4) the material.

must be ‘patently offensive’? and Ab) it must be ‘utterly’

without redeeming social value’ “ purportedly’ éome ‘into

lie wit - . P . ° °

the law G3, (23 ray

‘Apphrently, the * patently ofben-ive text came Siom-the

opinion of Mr. ugg Harlan in bis opinion in Manna!

Eaterprises, lic, v. Diy, 370 US, 878, 482, 82 S.Ct. 1422,

J444, 8. 1. | pom (1962). This **test.’ * however, only

received the conéeurrence of Mr, Justice Stewart in this

ease, Mr. Justice Brenna 1 Wrote an opinion concurring

‘inthe jadement for ditfe rent reasons and Mr. Chief Justice

Warren™ind Mr. Dustice Douglas concurred in the opinion:

the result without opinion: Mr, Justice Clark gixsented pitt

‘filed a dissenting 6pinion, Frankfurter White, JW,

tobk vo part inAhe decision, 4 review of sexquent cases

does not indicate to*me that a majority of the Supreme

‘ ‘ourt hascommitted itself in any one case to the bs salar

Cnsive test.” Mence, the doctrine of stare dccisis does

not commit: the Supreme Court to the ** patently offensive

test.”

o.- The eutterly without redeeming xocial value test” (om

phasis supplied j iis “applied: 10 “inedian pictures apparently

ccanie from the opinion of Mr, Justice Brenan in dacobelli«

ve Oo SIS COS TSS, SE S.C1. 1676, 12 L.Ed.2d-793 (1964)

. involving the French motion picture *La%® Amant«’ (The

of Mr: Justice Brennan, Mr. 4uetice Black coneurred in |

Lovers’ "). Here aguin, only “Mr. Justice Goldberg. con-

eprred in the opinion by Messrs. Justice Brennan, Black,

Dougles and Stewart, J, concurring in the judgment only.

Mr. Justice Harlan dissented as did Mr. Justice Warren

and Justice Clark, so that this ‘test’ did not receive tha’

approval of a majority of the Supseme Court. L

Some have thought that the whird ‘test’? was’ finally

brought into dhe law by the decision in Mymoirs, supra; in

106, But, alas, again the ‘test’? did not receive the ap-

proval of a majority of the Supreme Court, the opinion

of Mr. Justice Brennan receiving the approval of only Mr.

Chief Justice Warren and Mr. Justice Fortas. Mr. Justice °

Clark, indeed, in his dissenfing Opinion in Memoirs, ob-

served that the social value test was ‘novel’? and that

only three members of the Supreme Court held to it. He

further pointed out that, in ix opinion, such a test re jects.

the Both test to which, ix above indicated, a majority of

thu Supreme Court did arec.

Kven in the ease of Re deup v. Nye York, 386 US. 767,

_ ST S.Ct. 1414, 18S L.Bd2d 515 (1967)—disenssed at some

length by us in the recent. owill case, supra—the per

curiam opinion of the Supréme Court wax careful.to state

“74

that the necessity of meeting the three point test was one —

hell only by certain jus “tices in Memoirs, and did not cite

the three point test as the test of the Supreme Court. .

Where does this extraordgnary situation leave the lower

Federal Courts and State Courts in their required effort-

Vo apply the decisions of the Supreme Court of the United

‘States in obscenity cases? Like the policeman in Ghlbert

“aud Sullivan's **ILM.S. Pinafore,”’ their “‘leot is not a

happy one.** 1 have concluded that this Court is vot: re-

quired to follow the “three point test’? in motion picture

cases so Tan ie any authoritative and binding holding of the

Supreme Court of the United States ix concerned, but that

we ave required to apply and follow the original Roth test,

, his conclusion @sindirectly of some importance in the

¢ ~

Me or |) Oe ee

present case beqiuse of the statement in the concurring

opinion of Circuit Judge Friendly’ in the Second Circuit

. “If the governitig- ryle were “till whiat Mr, Justice

* Brennan stated iy Roth v. United Slates, 34 US. 476,

489, 77 S.Ct. 1504,.1 L.ea2d 1408 (1957), namely

‘whether to the average person, applying contemporary

e community stavdards, the dominant theme vf the ma-..

terial taken as ty Whole appeals to prurient interest,’

I might well join Chief Judge Lumbard for afirm-

_ anee.”” (404 F.2d at 2000 ig

“Ws IT have conchided that the governing rule is. iideed

“the Roth test, thix ee that the very excellent |

opinion of Chief Judge Ambre really should he the

opinion of the Secor d Cirenit in tliat case. 1 might add

parenthetically, that, in my opinion, it should have been

the majority opinion even-on the other theory.! :

I reiterate, however, that I think this Court was wise in

both the recent Hewitt ase, supra, and in view of the’ ma-

jority opinion to apply the “three pint test’ in view of the

unsettled state of the decisions of the Supreme Court in the

obscenity field. If4 majority of the Supreme. Court finally

‘adheres to the three point test (unfortunately from my

view point), we will have applied the correct rule: if a ma-

jority finally adheres to the Roth test, the appellants ean- -

not complain if we have applied a stricter test than the

law, as ultimately determined, required us to do,

“ ". ‘

‘IT note in stipport of my position that the three judge court

for the United States District Court for the District of Kansas,

consisting of: ick ey, Cirenit Judge, and Stanley and ‘Theis, Dis

. triet Judges, in the recent case of Grove Prews, wh v. State of

Kansas, et al. and Lakeside Drive In Theatre, Ine. v Me machin,

et al, Now, KC-2902 and KC-2007 (consolidated camen) inn

a eoriam opinion filed October 6. 1069. unanimoudy agreed —

with Chief Judge Lambard's opinion “

& ' 3

I might add that; as we observed in the Hewitt case, * |

supra (254 Md. at 195, 254, A.2d at 211), Mr. Justice Mar-

shall in the revent caseof Stanley v, Georgia, 394 US. 557,

. 568, 89 S.Ct. 1243, 1249-50,°22 L.Ed.2d 542, 551 (decided

April 7,-1969), seems to equate the cases subsequent to

stated, for the Supreme Court:

“Roll and the cases following that ee are not

impaired by today’s holding. As we have said, the

States retain broad power to regulate obscenity; that

power simply dog pot extend to mere possession by

the individual in the privacy of his home.’’

I add finally that although the ‘national’? comminity

standard may well be thought to apply reasonably to de-

cisions of ‘the Federal Courts involving the nation bs a

whole, and the’ expert testimony. in the present case is

sufficient to support the conclusion that the film doe offend

a national community standard, I have grave doubts that a.

majority of the Supreme Court will ultimately decide that

in the exercise by the States of their ‘broad power to-

regMate obscenity,”’ the States will be required to apply,

a ‘national’ rather than a ‘*State’’ standard as the ‘corr

hiberee community standard. ** When a State secks to’

clean the Augean stables of obscenity or to prevent the

offending material from agcumulating, if should he able

to consider ‘and apply the community’standard of its.own

community, and not be required to attempt to evaluate the

standards of other communities not under its jurisdiction, ,

I hope indeed that a majority of the Supreme Court of

the United States will ultimately reach thts ‘conclusion.

MeWituiams, J., dissenting

I do not agree with the majority’s conclusion that the oe

State has met its burden of satisfying the **Roth test.” sm

We have held that the triple standard announced by the

Supreme Court in Roth v. United States, 354 US, 476 ‘

Brennan, J), and A Book Navid *tJolu Cllaud'’s Memoirs

ofa Woman of Ph UsMre TN eAfforncy Gon ral df Mass, 283

UUS. 415. (1966) (opinion of Brennan, A.), i ix the standard.

to be applied in Maryland fn “determining whether certain

, Writings or pictures, including notion pictures, should be

afforded constitutional protection or whether they are

. obscene and therefore ineligible for ay exhibition. Heense.'

Because d think the film is not stafforly without redeeming

social value,” L would (veluctantly and with regret) reverse 7”

the court below. | :'. Rs

Mery Justice Brennan, in his Opititon im Sagobe Is, supra,

said the Roth decision recognized

¢ tional protection only becattse it ix *ullerly without.

— ° a , ° .

‘Tam not impressed with the argument of my brother Parnes

in his concurring opinion that we are re quired Jemphasis added |’

to apply and follow the original Roth test’ ingsmuch as that is

the only test which has been expressly approved: by a majority

of the Supreme Court at any one time. See M: avrath, The Ob-

scenity: Cases: Grapes of Roth, M66 Supp. (t. Rewvs-7. i. is im

, portant to note, however, that the intent of the Supre me Court

arhe nit established the *original’’ Noth standard was ‘to provide

‘safeguards adequate to w ithstand the Charee of constitutional :

yifirmity."’ Math v. United States, 354 US, 476, Ass (W957). Mr. :

Justice Brennan, Writing for a majority of the Court in Mishkin

ve Mew York, 383 1.8, 502 (1966), pointed ont that “I states

» are free to. adopt other definitions of. obscenity only to the extent

that those adopted stay’ within. the bounds set by fhe constitu. — -

tional criteria of the Moth definition * * *.°° Id ‘at 407. There,

is dlso little doubt that the **three- point’ test favored by ae

Aourt. a plurality of justices of the Supreme Court, and by,

‘substantial majority of the several states, see 5 AR. 3d 113 8

(1466) and Later Case Seryice, is. sufficiently adequate “to with.”

stand the charge of constitutional infirmity.” We might also

note that-although, as Jndge Barnes indic “ates, a majority of the

. Supreme Court has net agreed. on any one standard since Roth,

it clearly apyears that the standard set forth in that éase world

net receive the approval of a majority of that Court today. Ser

Bedrup v. New York, 386 U.S. 767. 770-71 (1967) (per curiam),

a :

redeeming social importiince,’ and that ‘the portrayal

of sex, og. in-art, literature and scientific works, is

not itself sufficient reason to, deny material the eg ots

Mitiitional protec tion of freedom of speech and press,’

| pe at ASH, i87.°° Ids at 191.

As a result. he satd

P Se 4

8 that material dealing with’sex in a manner:

hit advo: ae s ideas, Kingsley Intl Pictures Corp.

Reqeuls, 3OOU,Z OH, or thaf has literary or scientifhe

or artistic lie ae any other form-of sotial importance,

bad ; . . :

wanay vot Be branded as obscenity and denied the con- -

fitutional protection. Nor may the constitutional

statis of the material be made to turn on a ‘weighing’

of its socal importance against its prurient appeal,

for a work cannot be proseribed unless it is ‘utterly’

Without social importance.’’ 1d,

We cited the opinion of etd BEDS sroman with approval

in Vrang-Lii Distr baling Corp. \ « Maryland State Board

of Censors, 240 Ma, 98, 105 (1965),

oy i—_

Ip Memoirs (ie. Funny Hill), supra, Mr. Justice Brennan

wrote thet-courts evotdd not disregard’ the word “utterly”

When applying the third clement of the standard which pwe

in Mewill x». Maryland State Baard of Censor’, 243. Mad.

A, (IGG), w here we decided that the film “*This Picture

‘Ts Consored’’ was-not obseene and we’ referred.to his con-

‘clusion that the Massachusetts court had ‘*mi<interpreted

the social valne criterion.’? We quoted the following pas-

save of the Massachusetts court's opinion to illustrate its

itpiplic ation of th soe inl ¥ alne od ‘terion: : ~

“*Tt remaips to consider whether ha’ hook can be

<aid to he “utterty without social importance."* We

are anindful that there wag erpert testimony, much of

° 34 ee p

which was strained, 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 ; Tiat @t plays a part in the history of the .

development of the English novel; and that it con-

tains a moral, namely, that sex with love is superior

. fo sex ina brothel. But the fact that the testimony

the criterion :

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 in-

terest and ix patently offensive must be unqualifiedly -

worthless before it'ean be deemed obscene.” (Empliasis

supplied.) Id. at 595. -

also noted Mr: Justice Brennan's interpretation of

‘Hence, even-of the view of the court below tly

Memoirs (Fanny Hill] possessed only a moffitin of

social vali®, its judgment anust be reverved .\. .°* 7d,

(Emphasis added.)

concluded our opinion by stating that

oe * * we have ano diftic ulty whatever concluding’ that

As I see it, based on my reading of Roth, Jacobellis and |

if Memoirs has ‘redeeming social value,’ then, aw minor,

so does the film in this case, however, cheap, dull and

tawdry it may be * * *. The testimony of the tex-

perts” produced by the Board support, not the find-

ing of the trial judge, but a finding that the film is ‘not

utterly without redeeming social val.’ (Emphasis

supplied.) I. at 596.

Fanny Hill, and our own décision in Mewitt, a motion pie

’ . P

ee i

‘ 4 = *~6

ture? will be constitutionally protected if there’is a mere °

‘presence of viatters of social importance even though’ the

matter may, in- fact, be ‘outweighed by the film’s prurient

appeal. Sce Zeitlin vy. Arnebergh, 59 Cal. 2d 901, 920, 383

P. 2d 152, 165, 31 Cal. Rptr, 800, 815 (1963).

Applying the ahove | observations to ‘this film I question

that it is obscesie in the teechiical sense.’ The majority

found it iimmecessiry to detail the opinions of the many

expert witnesses who testified. but .it. seems to me -that-

some commicnt 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

- . af

oe .

>In its opinion thie majority indicated that ‘<“* * * we cannot

ignore the. visital 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 Iwoks as opposed to motion pictures. * This state, of

course, has always recognized that there are differences” between

the two medias and if has subjected migtion pictures toa censor-

ship scheme of prior restraint. ‘Phe written word is not subject to

such restraint although. its- possession may bea criminal offense

if itis obscene, Code, Art. 27, §§417-18 (1967) (Repl. Vol.). The

Supreme Court has approved the prior restraint of motion pictures

so long as the censorship scheme hag procedural safeguards. Freed-

maw Vv. Maryland, 380 U.S, 41, 60-61 (1965).- However; the

Sypreme Court has never held- that the standard applied to books

as opposed to films’ should not be the same. As Judge Friendly .

put it:

TL find’ nothing in the Supreme Court’ $ opinions that

would justify a lower court in embarking on such a doctrinal

innovation, which might import further confusion into a sub-

ject already sufficiently confounded. Jacdébellis related to a

film and neither the majority nor the. dissenting opinions

“!

suggested that any stricter standard would apply. The 5-to-4 -

per eurian affirmane e in Landau vy. Fording, 388°U.S. 456,

87S. C(t. 2109, 18 L.* Ed. 24 1317 (1967), affords too frail

a foundation to support a construction of. this.sort.’’ United

States v. A Motion Picture Entitled “TI Am Curious—Ycllow,”’

404 F. 2d 196, 201 (2nd Cir. 1968) (coneurring opinion).

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 Hum: anities Center of the

Johns Hopkins University, stated that he-lias taught

more than a dozen different Courses:about. films: and film

making and that he is a member of the Board of the Mary-.

land Film Festival. He said the film is “concerned clearly

‘with * * * conflicts between generations,’ “the doctrine of

non-violence as this relates to Sweden's partienlar role in

Kurope’” and with ‘the kind of malaise of the so-called

welfare state in Sweden, the ostensibly classless: soc lety.””

The film, he continued, covered ** awide range of social

attitudes’’ and had ‘‘artistie merit.’’ |

. ”

“Der. Lineoln FL Johnson, Chairman of the’ Fine Arts

_Pepartinent of Goue her College, has studied motion pie-

courses in the history-of, motion piétures and film pro-

ductions. He has served also on the selection. body for

the Ameriean Filmy Festival, and he views ‘‘between. 100

and 150° commercial films a year. He testified that the

film has sculfural significance?" and **¢inematic merit.”’

‘Dr. Peter i" ‘bial: a sodiologist,- is Chairman of the -

Department of Social Relations of the Johns Hopkins

University. Tle has held ‘editorial positions .en «three

sociological journals and he has been a consultant to the

‘Commission ‘on Pornograplty and other natioival commis~

sions as well. ITe-testified that the film has ‘social sig-

nificance ”’ inasmyjic h as it. is descriptive of the criticism

by young ‘people throughout the’ world of the present form

of society. As Dr. Rossi put, its’ , .

‘Part of this addresses ‘itself to eriti¢ism of the

political strueture that exists throughout the world;

and we cam see them im the film. The woman, Lena, °

not only griticizes the Swedish present government,

but is critical of the Chinese, the Russians an@ the like.

It is not a very articulated message. It is.a film which

\ ay

UE POEL UAL IA MAIC

37 | J. |

says there if something wrong and it is ¢ film which

| Says also thdt young people like the heroine are search-

‘ing for-~a_new type of personal freedom, which will

pull together i in a rather honest way both the polities)

life of the nations they live i in — their personal lives.’

Dr. Irving’ M. Brown, Director. of tlie Fine-Arts Prdé

gram it. the University of Maryland (Baltimore eaten

has ‘made a serious stiidy of the theater arts. He testified.

that the film has ‘‘artistic merit”? inasmuch as it made

) _ a good try dt some inte resting foums, using, a number

of different, frameworks and a number of eet 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 Hopkins

University. Dr. ‘Paulson stated that he views, on the

.average, two films a weck anid that he has published works

on literary criticism. He further testified that ‘‘ * * * this

is a film with * * * artistic esthetic merit. It holds to-

gether; it is relatively coherent, judged by the very, best

' movies; it is dealing with an important subject, ** * [the]

breakdow n in-the relationship: between the symbols of pu.

thority and the people, between parents. and children.

. Moreover, he stated that the film has social merit ‘‘in the

sense that it is dealing with impor tant’ ‘social problemns. is

» 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. Addi-

‘tionally, 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 artisti¢ merit and he offered the further comment

that ‘‘[i]t is rather gtrongly put together” and ‘‘is cer-

‘tainly one of the getateneing: films made within the last

year.’ ae ,

The testimony of the State’s witnesses ‘was less impres-

sive. Reuben Kramer testified that the movie was ‘totally

-inartistie’’ inasmuch as the sex secenes:*vontaminiaited the

picture.’’ Te 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 cartistie merit) and “are just

stupid.*’ However, he indicated ‘that. this film ‘is not

stupid.” - ree ; j se

Willianr Forshaw, Senior Subjects Specialist in. the

Humanities camo at the Pratt Library, testified

that he is‘ interested 1 the preservation of American

film’? and is a. film panties ant and historian to the Balti-

more Museum of Art. fle stated that in his opinion, Which

he deserbied as a minority one wnong his colleagues, -the

film had ho social or Literary merit, }

Dr. Paul Yaffe is ‘employed hy the Baltimore City Schools °

‘* as Director of fhe Kdneational: Testing Service. - He Cis:

also a part-time practicing psychologist with ‘more than

average ability in. the area of projective. tec ee dies °F)

ae emphasized. that he did .‘* nod _ pose as an expert * filins,

either from experience or study. Dr, Yatte bed threat

in his opinion the fin pretended’ to have social. ré

deeming value. He pointed*eut that ‘the socially mean-

ingful situation is* * * shallow and if the film were to stand

on it alone it could have no real redecming features in the

sense that it. would be instructional or "would ¢ parity: situa-

ee tions, and. the like?” ;

It is ‘interesting to note that Judge, Pieter in. the court’

below stated: ‘that he was*+.* ** impresse «Ll by*the testimony.

_ of one witness, at least as * * * [he] interpreted it, who

testified that * * * this is a& serious film, strongly put to-

gether, confusing to some, but that it would: not hold’

together without the. SOX scenes,’ peer

- The reviews produced by the appellant were. written by

prominant movie critics and they were equally. impressiv e,

' Hollis Alpert, whose reviews have een noted by this’

Mot in previous decisions, see Trans- Lui: Distributing

= .

‘ s 4 >

- . 2 .

y ° rie

.* . - . ,

; .

a % . % ~ .

pe 7 / ORT TCP is SMD HE en lee Ge

‘ . ’

Corp. Maryland tae Board of Censors, supra, wrote” é .

- ine the Sturdy, Review ‘that the purpose’ of the film?s

‘director was “ * *-* to explore and say something, through’

cinematic oe apout {he political ,zind wicia’ climate”; ° »

of his. country, Sweden.’ To: the. same effect are the re- |

Views of Richard Schickel .i Begin, Vincent Canby in the.

New. York Times, John Simon in. the. New York Times,

Richard Atefieson in Iloliday; Grégory ‘MeDonald in the:

Joston, Evening Globe, Bernard: Drew in The Hartford

Times, Krnest Schier in’ the Philadelphia Billetin and |

the reviewer of the National Observer. The’ film was re-

viewed) unfaves wbly by. James 4. Kilpatrick in the Los

Angeles. Times and Rex Reed in, the New York. Times... '

The \Qornmey General ‘does not deny that’ the credentials

of the | appellant” s Witnesses are impressive, but he argues

that ‘this does not tree the “pinions they expressed | from -:,

eritiens ‘anilysis. “ Taimust agree, Pam. bound to say, how- | rem

ever, that they reflect atleast ‘a modicum of social value’? +“ .

Memoirs, spray Hewitt, supra, - cannot agree with the eat:

majority, however, that the film’s social and sexual themes . °

were -not inte vtwined. «As Judge Hays. put. it: a

“Tt is “even inore -elear that ‘I’Am Curious’ is not -

utterly without redee ‘ming social valhe. Whatever

weight. we' may attach to the Opinions of the ‘experts’

who testified to the picture’s social importanee, and

‘whether. or not we ourselves consider the ideas of

the pieture particularly inferesting or the production

artistically snecessful, it is quite Certain that $I. Am.

_. Garibus? does’ present. idteas—aid-c - st rive. to pre®.: :

- sent these ideas artistically. * Tt falls within tlie ambit Peas

of intellectual efforts that the First. Amendment was. - ‘

designed to protect.’’ United States v; A Motion 2 SE:

Picture Film Teutitled “T Aim Curious—¥ ellow, ” 404

SF. 2d° 196, 299- 200 (2nd Cir. 1968). re Pad :

% “4

: Sudée ik Hendly. in iG coneurrmeg ‘opinion, s said he did not®

‘" feel that the sexual episodes ** * * # were simply luggéd —

‘ ° ee -

. .

‘

> e 7

a 5 «*

. ° .

el o . .

. ‘ . ; . . e .

"+. Py ° . : 40 .

‘ ‘

in and hore no relationship whaler er lo the thente.’ *"* More.

over, lie could not * * * conscientiously say that a eon-

nection between the serious purpose and the sexual om...

amd displays of wudity in wholly wamting.”’ Jd. at 201,

Finally, | a take inne with Judge Barnes’ sugyen-

tion that Ginchurg v. United Stiles; 383 LS. 463 ( 1SMit3)

is dixponitive of this cases A should poitt out thi Cine

hava did wot involve a censorship scheme of prior Pent raint

b wor dil it invelve a motion picture” tt is diffivull to see

chow evidence of the type of “pandering’’ found by the

Supreme Court in Ginzburg Will ever he prestnt where, a

— here, the film can neither be show n fier would it be ad.

'. vertised until it is approved and bicensed by the Board of

i Comore. Sco United States ¥. 4100 Copies of Magaziges, .

2376 KB, Supp. 002 (D. Ma W407). To he sufi we did find

svithence of pandering in“aur recent devixion in Mewilt ~.

Marylapyd State Board of Geisora, DA Md. 179 (4969).

The eviderde in that eaxe revealed that the theaters at

Which the film—**Odd Tastes" wax to be shown specialized

in the exhibition of ** sex- -ploitatiog filrs.** Tt was evident

alyo That’ the film's tithe was highly wugKeNIVe per se. ‘Evi. .

_ dence of this sort ix not present inthe cane at bar.» The

film was scheduled to be exhibited jh Baltimore at the 7

: East Theatre. ‘The type of film normally exhibited at this

theater (and its sister theater2-5 Weat) ix deseribed in

the following exchange between the appellant's attorney

and Wr. Johnson: , \ ;

aeery , *Q, (Mr. Weiner) How does this filma, **1 “ihe Cartons’

3 ( Yellow)’ fit in with thie other films which are shown

‘Ginzburg, of course, itivolved 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 Ginchurg. tosits facta. See

~~ Kedrup. New York, supra, awl Books, Inc. v. United States, 388

1S. 444 (1967) (pér enriam), noted in 19 Case W. Res. L. Rev.

7487 1968), ates ,

at those theatres! A. Well, first of ally it is a forrign

film, Secondly, it te filin, in my poind, of exceptional

merit, snd Chinedly, Gili Teadvn te thee two theatres |

seriously consider serious problems. These two then

‘tres show filwms whieh are net simply entertainment

fs. They are fils thieh are important artivtienlly,

whieh have some cultural’: ienifieaner, whieh rie

aguaerrst gga of denagneort cater «, ante LU ane re Wtf anernaerr “public

doppinnionn. *

“And in your opinions, lea the file) Aw Curious

( Velbow )° cho theese thing Vocal versdeaver jut deneribed /

A; oh, ves, indeed." oe °

Purtlirmere, itis prot elated nor does appear that the

tithe off this film, «fssnediog saleone, is suygyventive of ite tly

tent. Compare the evidence of pandering found bye Chief

Slee Murphy in Lawcaster v. Slate, 240 A, dh 716 (Mal

App. 100). ; ce e

Dhave no dowht that the notoric Ay thin (ils View serguired

hats been more the resupt of the abundant publicity gears

‘ated by the confiseatory alien of the United States Cu

tom Servier, the ensuing decisions of the federal court:

aed the file's financial success than any one advertisment

or bok." Lexpect the fi’. raputation will not suffer as

a result of the aetion of my brothers of the majority.

Ht titet net be supposed, however, that P hive any ene

thusiaxmn for this film. Adie not esijoy -eting in TD thought

* Aceoriling to the appellant, [tlhe film was distributed ma-

tionally and -it first opened in New York City on Mareh 10, 196%

people in the ‘vities of New York, Philadelphia, Washington

San Francinen, Las Angeles, Heuston, Atlantic City, San Antonio, .

- Miami Beach, Seattle, Norfolk, Woston-and Portland. The film

in currently being shown in, these places, some of whith are in

the jurisdictions contiguous to thé State of Maryland. ahd con-

tracts have also been executed with ‘exhibitors for showing in 27

additional cities.’

it Wis a crashing bore. Neve ihe lowe 1 is not for ts. ty

determine, the quality of a’ * [sill Oued ity is to

respect and enfotee in full meafare the freeslom of

Pression guaranteed by stade sand focteral constitutions. **

MeCanley ve Tropic of Cancer, 2 Wis, 2d 124, oh, 121

NOW. 2f 545, os) A VM Md 1140, 1152 ( 1EMics

Chief Judge Manmnneoinl mk Indee Singley have av

thorized. me to state shat they coneur in the lows eXpre<nca?

in the foregoing opinion.

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