# Appendix — Grove Press, Inc. v. Maryland Bd. of Censors > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1480%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 401 U.S. 480 ## Text PSE ay conte als , Suygeme Court of the United Stites > : is bd * ; oo ae . i “ f $ NS = LT OW crooner Term, 1969 Sarees : . z ° ote, ° 7 . .*8 } : : S is - ar ws $ ee _ 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, o% . - V.—- te ; . * of e - ~ oon ra > C Z ¥ iC ‘ 3 : Zi i ‘MARYLAND State ‘Boarn’ or. @'ENSoRS, « Ay ee dk a er ae eae . dt yl anes Appellee, - a 3 é : 6 “ = . : ‘ Ra « * 3 . PS > y is; * ; ; x Bm ON APREAL FROM. THE COURT*OF APPEALS OF MARYLAND - bd eres: : | a -. Pocket Entries eee 1, Weegee! ° , te Me ord Bela : _ 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: ee eee Blt ee es ee a ee ee Gr lett Or eee Si Ee A We SSP ES Di 6 ee OR a ye Boe ese Opinion ~... yo e o° - . > . : sf ° a, a A ° W ~ ° as A Jf « : “ * i ° 5 ?- v7, . e v . ” 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. a "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 4 s , ” 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 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 ee 4 EEN, “- i . 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 . ¢ a . ‘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 ee _- 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. it Ww - . , : . 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 ge . A 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 | i “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 j 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. e. —_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 (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 . . . . 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 a 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 * 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- Or 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 ’ . eS om 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-- ia ‘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. ~~ © a? 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 . 26 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, oo 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 - e- 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 In its opinion thie majority indicated that ‘ - . 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 in 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% Ax of duly 1, 1969 ° © * it has been exhibited to more than 70.006 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.’ 42 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 -_ * . o * ’ . e® . * > ’ . * > * * . ™, e . + ve - . * P © ‘ * - aN +49 be oe ig nt Nate Ppl 7 % 7 a - ay” ¢ “3 , a o PP, di --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1480%3A01. Public record. Not legal advice.