Record and brief — 400 E. Baltimore Street, Inc., Block News Inc., Phillip David Long, Thomas F. Craig, Joseph D. Stephens, David Thomas Stoughton, Charles Books, Inc., Deborah Rayola Redding a/k/a Deborah Rayola Pierce v. State of Maryland
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Office - Supreme Court, u.S
81902 „
FILED
In The wer 0
NDER . STEVAS
Supreme Court of the al
2
October Term, 1981
400 E. BALTIMORE STREET, INC., BLOCK NEWS, INC.,
PHILLIP DAVID LONG, THOMAS F. CRAIG, JOSEPH D.
STEPHENS, DAVID THOMAS STOUGHTON, CHARLES
BOOKS, INC., DEBORAH RAYOLA REDDING a/k/a
DEBORAH RAYOLA PIERCE,
Petitioners,
vs.
STATE OF MARYLAND,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE COURT
OF SPECIAL APPEALS OF MARYLAND
BURTON W. SANDLER
Attorney for Petitioners
Suite 600
28 Allegheny Avenue
Towson, Maryland 21204
(301) 821-6777
$862 LUTZ APPELLATE PRINTERS. INC.
NY (212) 840-9494 © (316) 222-1606 © (914) 683-0363
NJ (201) 257-6850 © PA (213) 963-3987 © DC (202) 783-7288 © MA (617) 227-1133
QUESTIONS PRESENTED
I. Is Maryland Ann. Code Article 27, Section 423 void for
vagueness as it fails to provide the procedure or method a person
must follow in an effort to bring themselves within the confines
of its exemption provisions, thereby denying equal protection and
due process of law under the Fifth and Fourteenth Amendments
to the United States Constitution?
II. Did the Court of Special Appeals erroneously find that
the mere posting, around a store located in an adult entertainment
area and loaded primarily with sexually explicit material, of signs
indicating that material sold in the store was sold exclusively for
scientific, educational or governmental purposes hardly suffices
to make Section 423 applicable as a matter of law?
III. Does Article 27, Section 423 create an arbitrary and
capricious classification, thereby denying equal protection of the
law and due process of law?
IV. Is Article 27, Section 418 inoperable and unenforceable
because on its face it recognizes, by virtue of Section 423, that
obscene material has scientific, educational, governmental or other
similar justification? Some of the elements that the Supreme Court
in Miller v. California mandated material cannot possess in order
to come within the ambit of the First Amendment.
Page
Goenatines Peenemte. oo ccc 0 i
Table OF Comtemts occ cc cccctccccccccccccveccccccessces ii
G Wh. . „„.. cccccccccccvccvccccscccce iii
Go „„ „„ „ „„ 1
Dh... „6666666 2
Constitutional and Statutory Provisions Involved ......... 2
Statement of the G ,ẽ ꝛWM „„ ã 3
How the Federal Questions Were Rais esd 5
ii
TABLE OF CONTENTS
Reasons for Granting the Writ:
Section 423 of Article 27 is void for vagueness for
failure to provide the procedure or method which a
person must follow in an effort to bring themselves
within the confines of its exemption provisions,
thereby denying equal protection and due process of
law under the Fifth and Fourteenth Amendments to
the United States Constitution.
The Court of Special Appeals erroneously found that
the mere ſ osting. around a store located in an “adult
entertainment” area and loaded primarily with
pornographic material, of signs indicating that
everything in the store is sold only for scientific,
educational or governmental purposes hardly suffices
to make Section 423 applicable as a matter of law. .
9
iii
Page
III. Article 27, Section 423 creates an arbitrary and
capricious classification, thereby denying equal
protection of the law and due process of law. ... 13
IV. Article 27, Section 418 is inoperable and
unenforceable because on its face it recognizes, by
virtue of Section 423, that obscene material has
scientific, educational, governmental! or other similar
justification. Some of the elements that the Supreme
Court in Miller v. California mandated material
cannot possess in order to come within the ambit of
the First Amendment. ©....06...cccccccccccccces 15
// bb dee 16
TABLE OF CITATIONS
Cases Cited:
Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed.
W „„ „ „ 13
Miller v. California, 413 U.S. 7 i, 4, 15
People of New York v. Wrench, 371 N.Y.S. 2d 833 (1975) a
Roaden v. Kentucky, 413 U.S. 496 (197)));ß:: 9
Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d
ash 8. 14
iv
Contents
Page
United States v. Reidel, 402 U.S. 351, 91 S. Ct. 1410, 28 L.
E 14
eee 14, 15
Winters v. New Vork, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed.
111% ⁵[K——— ²˙! een eee 11
Statutes Cited:
Pes eI BREST hawannccccccckcccncsdovocsesuge 2
Maryland Annotated Code, Article 27:
Section G. i, 2, 3, 4, 12, 13, 14, 15
Section 423 . i. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11. 12, 13, 14, 15, 16
New York Penal Law, Section 235. 18(l7)7)7¶ . 10, 11
United States Constitution Cited:
First Amendment i, 2, 9, 15
Fourth Amendment 2
Fifth Amendment᷑᷑ i, 2, 6, 14
*
Contents
Page
APPENDIX
Opinion of the Court of Special Appeals of Maryland ...... la
Order of the Court of Appeals of Maryland ...........++: Wa
Relevant Constitutional and Statutory Provisions .......... 3la
“Issues Presented” Excerpted From Petitioners’ Brief Before
the Maryland Court of Special Appeals 33a
Motion to Dismisss s 34a
Motion to Dis miss ̃ 39a
Motion to Dis miss 44a
DGstion 00 DEMERS ©. „„ Sla
Ba RSS e Ae Fee
In The
Supreme Court of the Hrited States
October Term, 1981
400 E. BALTIMORE STREET, INC., BLOCK NEWS, INC.,
PHILLIP DAVID LONG, THOMAS F. CRAIO, JOSEPH D.
STEPHENS, DAVID THOMAS STOUGHTON, CHARLES
BOOKS, INC., DEBORAH RAYOLA REDDING a/k/a
DEBORAH RAYOLA PIERCE,
Petitioners,
vs,
STATE OF MARYLAND,
Respondent,
PETITION FOR A WRIT OF CERTIORARI TO THE COURT
OF SPECIAL APPEALS OF MARYLAND
On June 8, 1981, the Court of Special Appeals of Maryland
filed a reported opinion reversing the decision of the Criminal
Court of Baltimore, The Honorable Albert M. Figinski presided
at the trial in the Criminal Court, The Court of Special Appeals
reversed petitioners’ convictions herein because an error in trial
procedure. the failure to make a necessary finding" .., the
finding of obscenity, The reported opinion of the Court of Special
Appeals, dated June 8, 1981, is printed in the appendix, N at
page la, The cases were removed for retrial, In addition, under
‘other issues’, pursuant to Maryland Rule 1085, the Court of
Special Appeals addressed for the guidance of the trial court,
conatitutional defenses made by petitioners to their prosecutions.
It was from this portion of the Court of Special Appeals opinion
that the petitioners sought review by the Court of Appeals of
Maryland,
A petition for writ of certiorari was timely filed by the
petitioner to the Court of Appeals of Maryland. The Court of
Appeals, by written order, denied the petition for writ of certiorari
on September 9, 1981, The order of denial is not reported and
without opinion and is set out in the appendix (30a).
JURISDICTION
The judgment of the Court of Appeals of Maryland was
entered on September 9, 1981, and the judgment was thus final,
cn of this Court is invoked under Title 28 U.S.C.A.
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The pertinent provisions of the First, Fourth, Fifth and
Fourteenth Amendments to the Constitution of the United States
and the provisions of Maryland Code, Article 27, Sections 418,
423 are set forth in the appendix (Jie).
3
STATEMENT OF THE CASE
The petitioners’ cases proceeded to trial on a statement of
facts and proffers of testimony after pleas of not guilty and waiver
of a jury trial on statements of charges, charging the sale and
distribution of obscene publications in violation of Article 27,
Section 418. The statement of facts submitted to the trial court
for consideration was as follows:
Plainelothed policemen proceeded into the bookstores of the
corporate petitioners where the individual petitioners were
employed and selected certain publications which were wrapped
in cellophane. The selections of the police officers were made
without any help from the petitioners. After selecting the
publication of their choice, the officers took them to the cash
registers where individual petitioners were located and paid for
the same with cash from police funds, without discussion of the
purpose for the purchase. After the purchase, the publications were
taken to a judge, removed from the cellophane wrappers and found
to be obscene by said judge. As a result, warrants were issued for
petitioners and they were arrested. The statement of facts further
revealed that throughout the store there were posted signs stating
that the material sold in the store is sold only for scientific,
educational, governmental or other similar justifleation In
addition, at the cash register where the police paid for the
publications selected by them, there appeared a sign that stated
“customers agree that he or she have purchased the material
selected by him or her for educational, scientific, governmental
or other similar justification,’’ The statement of facts further
stipulated that the police officers saw the signs. Thereafter,
arguments were made on the motion to dismiss as follows:
(a) that the petitioners were exempt from prosecution under
Article 27, Section 418, by virtue of Section 423;
4
(b) that the statute was being unconstitutionally applied to
petitioners; a
(c) that the statute was void for vagueness and for
overbreadth;
(d) that the statute on its face and in its application denied
to petitioners equal protection of the law. and due process of law;
(e) that the statute on its face contained an arbitrary and
capricious classification.
Subsequently, timely motions for judgment of acquittal were
made on the basis that the petitioners were exempted from
prosecution under Article 27, Section 418, in light of Section 423.
The trial court held the motions to dismiss, motions to suppress
and motions for judgment of acquittal sub curia. Thereafter,
memorandums were submitted in connection with the motions for
judgment of acquittal. On November 3, 1981, the trial court in
an oral opinion from the bench based on a recommendation from
the state, fined each petitioner $500. The trial court at no time
commented on or specifically ruled on the motion to suppress,
motion to dismiss and motion for judgment of acquittal or made
an independent determination of obscenity, applying contemporary
community standards and the Miller test, which set the guidelines
for the trier of fact.
A timely appeal was taken to the Court of Special Appeals
of Maryland on November 14, 1980, which, in a reported opinion
dated June 8, 1981, reversed the decision of the trial court and
ordered the cases removed for retrial due to procedural error in
failing to make a specific ruling on the obscenity of the material.
The petitioners filed a timely petition for writ of certiorari
to the Court of Appeals of Maryland seeking review of that portion
3
of the Court of Special Appeals opinion giving guidance to the
trial court concerning the constitutional defenses made by the
petitioners.
The Court of Appeals of Maryland denied a petition for writ
of certiorari from the petitioners, the order of denial being dated
September 9, 1981.
The petitioners therefore seek review from this Honorable
Court by filing a timely petition for a writ of certiorari on
November 8, 1981.
HOW THE FEDERAL QUESTIONS WERE RAISED
The question of the constitutionality of Article 27, Section
423, and the unconstitutional application of that section to the
petitioners under facts and circumstances known at the time of
arrest, were raised by motions to dismiss and oral argument, which
was heard before the Honorable Albert Figinski in the Criminal
Court. These motions are printed in the appendix (34a). The
motions to dismiss were denied by Judge Figinski, sitting without
a jury, in the Criminal Court of Baltimore City.
The petitioners took an appeal to the Court of Special Appeals
of Maryland and thereafter re-raised the issues of the
constitutionality of the statute and the unconstitutional application
of the statute to them. These questions were once again raised in
the Court of Appeals of Maryland by way of a petition for writ
of certiorari and the questions presented are printed in the appendix
(33a). The rejection of petitioners’ petition for writ of certiorari
is shown by the order of the Court of Appeals of Maryland and
is printed in the appendix (30a).
6
REASONS FOR GRANTING THE WRIT
Review by this Court would be desirable and in the public
interest as it is necessary for this Court to resolve the conflict
created by the decision of the le wer court and resolution of the
serious constitutional issues raised in light of Article 27, Section
423.
Section 423 of Article 27 is void for vaguencss for failure to
provide the procedure or method which a person must follow in
an effort to bring themselves within the confines of its exemption
provisions, thereby denying equal protection and due process of
law under the Fifth and Fourteenth Amendments to the United
States Constitution.
The statute Article 27, Section 423 does not set forth the
procedi'e or any guidance that persons having educational or other
similar justification must follow to allow others to know what their
state of mind is as to possession or what procedure one must follow
in order to bring themselves within the confines of Article 27,
Section 423.
i It is well settled that a statute which either
forbids or requires the doing of an act in terms so
vague that men of common intelligence must
necessarily guess at its meaning and differ as to its
application, violates the first essential of due
process of law. Connally v. General Const. Co.,
269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322;
Trio Distributors Corporation et al. v. City of
Albany, et al., 2 N. V. 2d 690, 163 N. V. S. 2d 585,
143 N.E. 2d 329. Even where we might guess at
what the draftsman intended and even where there
7
is mcterial available to show what was intended,
that is not sufficient. ‘For validity the statute must
be informative on its face.’ People v. Firth, 3 N.Y.
2d 472, 168 N.Y.S. 2d 949, 951, 146 N.E. 2d 682,
684.
[4] Whether the vagueness is in one statutory
section proscribing certain conduct (here Section
418) or in a different section stating exceptions to
that proscription (here Section 423) is a matter of
form and should not deter the court from
recognizing the substantive constitutional
deficiency, if such exists, in the statute seen as a
whole. See People v. Abrahams, 40 N.Y. 2d 277,
386 N.Y.S. 2d 661, 353 N.E. 2d 574.”
The difficulty with Section 423, is its failure to clarify or set
forth just what one has to do to qualify or come within its
exemptions.
On examination, Section 423, can be seen to set forth these
favored uses in three degrees of definiteness, or, conversely, of
vagueness. Firstly, is ‘‘governmental”’ which is adequately clear,
since we can fairly interpret this to mean de jure government. In
the second category are “‘scientific”” and educational True, it
may be that certain specific uses might he clearly recognizable as
within the ambit of scientific“ or ‘‘educational”’. For example,
acquisition by a professor at a university accredited by the State
Board of Regents, for use in a regularly offered course, would
surely be.considered ‘‘educational”’. However, the deficiency in
each of these two words is from our not being able to discern what
the limits are on their descriptions of use. Each of these words,
alone or with the other, is so broad in meaning as to permit honest
interpretations over a wide, unpredictable range.
If Section 423 stopped at scientiſic, e ſucational or
governmental”’ it would likely be unconstitution: vague, but
the coup de grace is from its proceeding to include a third category:
other similar uses. What the statute would thereby reveal to
us is that there are some one or more uses similarly favored but
which are not scientific or educational or governmental. Similar
to one although not similar to others, or similar to all three? Does
the justificationꝰ derive from the similarity? Or (more likely)
does the similarity derive from their sharing the quality of
justification? If so, is not reference to some extrastatutory source
made essential to find the definition of ‘‘justification’’?
One might be inclined to construe Section 423 as telling us
that the favored uses are those which are scientific, educational,
governmental, or similarly not for simple enjoyment. Besides
being excessively creative (the courts are to interpret, if possible,
and not to legislate) it is precisely simple personal enjoyment,
possession for which is constitutionally protected. Stanley v.
Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969),
and to characterize such possession as the one possession that is
not justified would be constitutionally repugnant.
The Court of Special Appeals erroneously found that the mere
posting, around a store located in an adult entertainment’’ area
and loaded primarily with pornographic material, of signs
indicating that everything in the store is sold only for scier‘ific,
educational or governmental purposes hardly suffices to make
Section 423 applicable as a matter of law.
Article 27, Section 423 provides in pertinent part, as follows:
The prohibitions and penalties imposed in this
subtitle shall not extend to persons having bona fide
scientific, educational, governmental or other
similar justification for possessing such matter, or
to distributions thereof pursuant to such
justification.“
The legislative purpose is clear in that it allows the possession
and distribution of obscene material under certain circumstances.
That is, that persons who have educational, governmental or other
similar justifications may possess obscene material and may
distribute pursuant to such justification. Educational, certainly
by the language on the face of the statute, is not confined to
institutions, schools, colleges and universities. The statute does
not set forth the procedure that persons having educational or other
similar justification must follow to allow others to know what their
state of mind is as to possession. Therefore, it is respectfully
submitted that the facts and circumstances of this particular case
must be considered by this Court in connection with Article 27,
Section 423.
Petitioners in the matter before this Court operate adult stores
that deal with material presumptively protected under the First
Amendment, see Roaden v. Kentucky, 413 U.S. 496 (1973), and
throughout t! stores there appears signs that are visible, stating
that the material sold is sold only for scientific, governmental,
educational or other similar justification. At the cash register
there appears a sign quite visible that states ‘‘the customer agrees
that the material selected by him or her is being purchased for
scientific, educational, governmental or other similar justification.”’
Under strikingly similar facts, the court in People v. Wrench,
371 N.Y.S. 2d 833 (1975) found defendant who was charged with
selling an allegedly obscene publication not guilty and exempted
him from prosecution under Section 235.15(1) of the Penal Law
of the State of New York which is similar to Maryland Section
423 with the addition of an affirmative defense clause. Section
235.15(1) states:
It is an affirmative defense that the persons to
whom allegedly obscene material was
disseminated . . . consisted of persons or
institutions having scientific, educational,
governmental or similar justification for possessing
or viewing same.
As in People of New York v. Wrench, 371 N. V. S. 2d 833,
petitioners clearly demonstrated their intent to bring themselves
within the letter of Article 423 by prominently displaying signs
which state:
The material sold in this store is sold only for
scientific, educational, governmental or other
similar justification.”
By posting signs in prominent places such as squarely in front
of the cash register, petitioners set forth the terms of sale which
purchasers agreed to through completing the purchase. Petitioners
urge they have made all reasonable efforts to come within the
protection of Section 423 and to ascertain whether the prospective
purchaser indeed has the requisite justification pursuant to Section
423. To impose a higher hurdle such as restricting sales to card-
carrying professors, certified scientists or licensed psychologists
would necessarily run afoul of the equal protection clause of the
Fourteenth Amendment to the United States Constitution, nor is
such scrutiny required by the face of the statute. A close reading
of Section 423 reveals the exemption shall apply to persons having
the state justification with no regard as to ultimate use or purpose
for which the material is purchased.
To force petitioners to ascertain ultimate use of the material
purchased would impose an impossible burden, for as stated in
Wrench, supra:
The Court cannot probe the minds of the
purchasers of allegedly obscene materials to
determine if such person has the requisite
justification for possessing such material, in the
dark recesses of such person’s mind, there lingers
anticipation of future excitement upon the viewing
of the material which he has purchased.
What is one man’s amusement teaches another’s
doctrine. Winters v. New York, 333 U.S. 507, 68
S. Ct. 665, 92 L. Ed. 840.
In Wrench, supra, the court concluded that defendant,
through the use of signs and precautions taken to prevent the
foistering of material upon an unwary or unwilling public had
brought himself within the exemption of Section 235.15(1) in a
factual setting identical to that in the instant case. Petitioners have,
by fair ponderance of the evidence, established intent to act within
the letter of the law. The petitioners submit without more
12
explanation on the face of the statute, they have done all they were
required to do to bring themselves within the framework of Section
423, that is to communicate their intent to sell for the reasons
allowed under Section 423. The statute does not require that they
must be a university, college, etc. to possess and distribute this
material for educational purposes. All the statute facially requires
is that it be possessed for one of the specific purposes and,
therefore, distribution pursuant to such justification to people who
have such justification is permitted.
In this case before this Court, the purpose of possession and
distribution were made clear by the seller to the buyer, i.e., the
police officer, and he agreed by his silence to a purchase for one
of the reasons stated on the sign. One obvious reason is that he
is an arm of the government and the purpose was for bona fide
governmental purposes. Therefore by the very language of the
statute, the conduct of the petitioners was not criminal.
The net result is that the statute Article 27, Section 418 in
combination with Section 423, simply does not adequately advise
a person what one has to do to come within its exemptions. It is
void for vagueness, thereby denying equal protection of the law
and due process of the law for one could engage in conduct based
on an honest interpretation of its exemption and be prosecuted
for criminal conduct.
13
III.
Article 27, Section 423 creates an arbitrary and capricious
classification, thereby denying equal protection of the law and due
process of law.
The petitioners in this case urge that in order to preserve the
constitutionality of Article 27, Sections 418 and 423, it must be
interpreted as authorizing sales to all adults. Petitioners contend
that to do otherwise would make the statute unconstitutional as
having created an arbitrary and capricious classification for
authorized sales, i.e., sales only to those of superior intellect or
scholarship, or those in a governmental capacity.
Where the constitutionality of a statute is called in question,
the statute must be interpreted if possible in a manner which will
preserve its constitutionality. The statute involved here cannot be
interpreted to mean that only formal educators, students or
scientists or those in governmental capacity, are persons with the
necessary justification to possess or view such material.
A classification must be reasonable, not arbitrary
and must rest upon some ground of difference
having fair and substantial relation to the object
of the legislation, so that all persons similarly
circumstanced shall be treated alike.’’ Eisenstadt
v. Baird, 405 U.S. 438 at 447, 92 S. Ct. 1029 at
1035, 31 L. Ed. 2d 349 at 359.
Can there by any rational or constitutionally valid distinction
between certified scientists, teachers, students or government
officers on the one hand and the individual who seeks to conduct
his own education?
14
Our whole constitutional heritage rebels at the
thought of giving government the power to control
men’s minds. Stanley v. Georgia, 394 U.S. 557
at 565, 89 S. Ct. 1243 at 1248, 22 L. Ed. 2d $42
at 549.
A state may determine its statutory scheme for the regulation
of obscene materials provided it does so in a constitutional manner.
United States v. Reidel, 402 U.S. 351, 91 S. Ct. 1410, 28 L. Ed.
2d 813. The fact that it has done so by providing an outright
exception to the statute is within the State’s right. Once having
done so, it would be a denial of equal protection of the law (United
States Constitution, Fifth and Fourteenth Amendments) to
establish arbitrary classifications of persons who are entitled to
possess or view allegedly obscene material.
If this Court is to construe Article 27, Sections 418 and 423
as being constitutional, it must reject the state’s contentions that
the statutory language creates special classes of customers
distinguished from the rest of our citizenry by high I. O. or PH.D’s
or governmental capacity. Authorizing sales only to card- carrying
college professors or certified scientists is as unconstitutional as
restricting sales by race, religion or sex.
To say otherwise would be to sanction an elite class reminiscent
of the final commandment or Orwell’s Animal Farm that all
animals are equal, but some animals are more equal than others.
In order to sustain the constitutionality of the statute, the
Court should find the statute as authorizing sales to all adults and
not a limited few. See Wheeler v. State, 281 Md. 593.
The petitioners note that the language itself admits to this
interpretation since it provides for sale for similar justification”
in addition to the more limiting classification.
Furthermore, the severability clause does not save Sections
418 and 423, for as stated in Wheeler, supra:
“A long established principle of statutory
construction in determining severability questions,
is that where the Legislature enacts a prohibition
with an excepted class, and a court finds that the
classification is constitutionally infirm, the court
will ordinarily not presume that the Legislature
would have enacted the prohibition without the
exception, thereby extonding the prohibition to a
class of persons whom the Legislature clearly
intended should not be reached.“
IV.
Article 27, Section 418 is inoperable and unenforceable
because on its face it recognizes, by virtue of Section 423, that
obscene material has scientific, educational, governmental or other
similar justification. Some of the elements that the Supreme Court
in Miller v. California mandated material cannot possess in order
to come within the ambit of the First Amendment,
The Supreme Court of the United States in the Miller v.
California, 413 U.S. 15, case, mandated that if material lacked
literary, artistic, political or scientific value, it did not come within
the ambit of the First Amendment. Yet Article 27, Section 418,
by virtue of Section 423, provides that the prohibitions and
penalties imposed in that subtitle shall not extend to persons having
bona fide scientific, educational, governmental or other similar
Justification for possessing such matter, or distributions thereof,
pursuant to such justification, The implication being that when
possessed or used by people having such justification, obscene
material has scientific, educational, governmental or other similar
value.
How then, if the statute on its face recognizes that obscene
material may have scientific, educational, governmental or other
similar value for use by people in the aforementioned categories,
can all others be prosecuted for any use of obscene material? The
answer is obvious, the statute itself provides on its face by virtue
of Section 423, evidence of which the prosecutors and police
officers must take notice, and which the Court must take judicial
notice, thereby rendering the statute unenforceable, or
unconatitutional, being void for vagueness.
For the reasons herein stated, the petitioners reapectfully
request that this Court issue writ of certiorari to review the decision
of the Court of Special Appeals to determine the important
constitutional issues created as a result of the decision, It is
reapectfully suggested that the decision of the court below is in
conflict with constitutional guarantees of the United States
Constitution,
Reapectfully submitted,
BURTON W. SANDLER
Attorney for Petitioners
la
APPENDIX
OPINION OF THE COURT OF SPECIAL APPEALS OF
MARYLAND
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
No. 1500
September Term, 1980
400 B. BALTIMORE STREET, INC.
BLOCK NEWS, INC,
PHILLIP DAVID LONG
THOMAS F. CRAIG
JOSEPH D. STEPHENS
DAVID THOMAS STOUGHTON
CHARLES BOOKS, INC.
DEBORAH ROYOLA REDDING
a/k/a DEBORAH ROYOLA PIERCE
V.
STATE OF MARYLAND
Gilbert, C.J.
Thompson
Wilner,
JJ.
Opinion by Wilner, J.
Filed: June 8, 198)
2a
Opinion
Md. Ann. Code art. 27, § 418 provides, in relevant part, that
every person who knowingly ‘‘exhibits, distributes, or offers to
distribute, or has in his possession with intent to distribute or to
exhibit or offer to distribute, any obscene matter is guilty of a
misdemeanor. Section 423 of that article, however, states that
the ‘‘prohibitions and penalties imposed in this subtitle [which
includes § 418] shall not extend to persons having bona fide
scientific, educational, governmental, or other similar justification
for possessing suc matter, or to distributions thereof pursuant
to such justification.”
After a non-jury trial in the Criminal Court of Baltimore,
appellants were convicted of having violated § 418, for which they
were each fined $$00. In an effort to overturn those convictions,
they contend, first, that the court failed to make the necessary
finding that the materials in question were obscene, and second,
that § 418, when read in conjunction with § 423 and in the light
of controlling constitutional limitations, is invalid, both as written
and as applied to their activity. There is merit in their first
contention but none in their second.
The cases against appellants, which were consolidated for trial,
proceeded upon an agreed statement of facts, supported by certain
agreed exhibits. The evidence, so produced, established the
following:
(1) On February 28, 1979, police officer Danny Brown walked
into a bookstore at 420 E. Baltimore Street owned by appellant
Block News, and, for $6.00 each, purchased from appellant Long,
the clerk managing the store, two magazines entitled Pretty Girl
Film Review,“ issues No. 3 and No. 4.
3a
Opinion
(2) On May 9, 1979, police officer Melvin Kelbaugh also
frequented that store and, for $7.50, purchased from appellant
Craig, the clerk then in charge, a magazine entitled Swedish
Erotica, issue No. 22.
3) On May 15, 1979, police officer Eric Husok entered a
bookstore located at 1827 N. Charles Street owned by appellant
Charles Book, Inc., and, for $9.95, purchased from appellant
~ Stephens, the clerk in charge, three magazines — ‘‘Wet,”’ Hot
Baby,“ and Route Sixty Sex.“
(4) On June 4, 1979, police officer Bruce Patton went to a
bookstore at 400 E. Baltimore Street owned by appellant 400 E.
Baltimore Street, Inc., where, for $6.00, he purchased from
appellant Stoughton, the clerk in charge, a magazine entitled
Swedish Erotica, issue No. 23.
(5) On November 16, 1979, officer Husok visited the store
at 420 E. Baitimore Street (appellant Block News) where, for $6.00,
he purchased from appellant Redding (a/k/a Pierce), the managing
clerk, a magazine called American Erotica
(6) In each instance, the officer promptly took the magazine(s)
to a judge of the District Court who found them to be obscene.
Based upon those determinations, the instant charges were filed.
(7) In each instance, the police officer, dressed in mufti.
entered the store, wandered about, selected the magazine(s) he
wanted, took them to the clerk, and purchased them for the posted
price. The magazines on display, including those purchased, were
wrapped in cellophane, permitting the browsing customer to see
the covers but not the inside pages.
4a
Opinion
(8) There were, throughout the stores, signs stating the ‘‘[t]he
material sold in this store is sold only for scientific, educational,
governmental or other similar justification and the customers agree
that they are purchasing these materiais only for scientific,
educational, governmental or other similar justification,“ or words
of similar import. No one asked the officers whether, in fact they
were purchasing the magazines for any of those purposes; nor did
they volunteer their purpose in making the purchase. The individual
appellants, if called to testify, would have stated that, had the
officers told them that they (the officers) were not buying the
magazines for the reasons set forth on the signs, the appellants
would not have accepted their money.
(9) The three stores hold themselves out as adult“ book
stores and are located in areas devoted or catering to adult
entertainment. The magazines purchased by the officers were
fairly representative of the merchandise on display and offered
for sale at the three stores.
(10) The policemen used public funds to pay for the
magazines. There was allocated in the vice unit a certain amornt
of money to make purchases in the area of obscenity and gambling
and prostitution money. This general fund was used to make this
evidentiary purchase.
1. The two stores located in the 400 block of East Baltimore Street are in
a special adult entertainment zoning district. See Baltimore City Municipal Central
Area Renewal Pian, approved March 8, 1977. The third store, on North Charles
Street, is not in such a district; however, the evidence showed that the block in
which it was located contained u number of places of adult entertainment”’
— e., barg. night clubs, with dancing go-go girls, advertisements on Cae outside,
there are a number of book stores, that advertise themselves to be adult book
stores."*
Sa
Opinion
The convictions rested upon these facts, upon the magazines
purchased by the officers, and upon photographs of the signs
posted in the stores (see { 8 above), the magazines and photographs
being admitted into evidence without objection.
In this appeal, appellants complain:
„I. The appellants were denied due process of law
and equal protection of the laws in violation of their
constitutional rights under the First, Fifth and
Fourteenth Amendments, when the Trial Court
found the appellants guilty on the basis that the
cases were tried on the theory that the obscenity
of the materials was assumed.
II. The Trial Court erred in finding that the
appellants did not come within the exemption of
Article 27, Section 423, thereby denying to
appellants due process of law and equal protection
of the law under the Fifth and Fourteenth
Amendments to the United States Constitution.
Ill. Article 27, Section 418 denied to appellants
equal protection of the law because it creates an
arbitrary and capricious classification.
IV. Article 27, Section 418, is inoperable and
unenforceable because on its face it recognizes that
obscene material has scientific, educational,
government or other similar justification some of
the elements, that the Supreme Court in Miller v.
California mandated material cannot possess in
6a
Opinion
order to come within the ambit of the First
Amendment.
(1) Assumption of Obscenity
Three proceedings were held in the trial court. The first, on
March 25, 1980, was nominally for the purpose of considering
appellants’ several motions to suppress the magazines and to
dismiss the charges. Those motions, virtually identical in each case,
rested on essentially the same grounds — that the underlying
statutes were unconstitutional for a variety of reasons, that the
charges were vague and insufficient, and that the magazines (and
their distribution) were constitutionally protected. It was agreed
at that proceeding that, if those motions were denied, the case
would proceed before the court, sitting without a jury, on an agreed
statement of facts, and that the court would take the entire matter
sub curia. Pursuant to that agreement (and without objection),
the court made the necessary inquiries under Maryland Rule 735d,
accepted from appellants their waiver of a jury trial, and had placed
in the record the agreed statement and exhibits recounted above.
The second proceeding, which occurred on June 16, 1980, was
taken up with discussion of the various legal issues raised by
appellants. The primary thrust of appellants’ argument was that,
even if obscene, by virtue of the signs scattered around the stores
the magazines and their distribution were exempt from criminality
under § 423. In that limited context, appellants expressed no
objection to the court asuming that the magazines were, in fact,
obscene, their point being that, because § 423 permitted obscene
material to be exhibited and sold for certain purposes, it made
no difference whether they were obscene. They made clear,
however, that they were not conceding obscenity in the event the
7a
Opinion
court rejected their exemption argument. Again, the court held
the matter sub curia.
Judgment day was November 3, 1980.’ The court, after noting
that the key issue was an interpretation of § 423, observed that
the cases were tried on the theory that the obscenity of materials
was assumed and that the defendants . . . could not be found guilty
of these charges because of the applicatiou of the exemption.”’
That, as we have noted, had been the primary issue argued by
appellants, both orally and in the extensive memoranda supplied
to the court, although at the June 16, hearing, defense counsel
made clear to the court that if you decide against us on a motion
for judgment of acquittal then you as a finder of fact must make
a determination by determining on a contemporary community
standard . . what would be in the minds of the jury.“ It is evident
from the record, however, that the court omitted to make that
ultimate finding. Although it characterized the magazine covers
as “‘sexually explicit’’ and concluded that such cover scenes were
sufficient to alert appellants that the material inside may be
obscene (emphasis supplied), the court never discussed the criteria
necessary for a finding of obscenity and never actually made a
finding that the magazines were, in fact, obscene. After finding
that the exhibition and distributions were not protected by § 423,
the court simply entered sentence, and thus forgot that § 423 has
no application and is entirely irrelevant unless the material is first
bound to be obscene under § 418.
2. There can be little doubt from the transcripts of the three proceedings
that the verdicts were rendered at the November 3 proceeding. The docket entries,
however, show the verdicts of guilty as having been entered on March 24, 1980.
To that extent, the docket entries are clearly in error and ought to be corrected.
8a
Opinion
It is not necessary, of course, for a trier of fact to announce
its verdict in the context of specific issues. But, whether trial is
before a court or a jury, in order for a conviction to be sustained,
the record must show in some way that, in rendering its verdict,
the trier considered and at least implicitly made findings upon all
of the factual issues necessary to support a verdict of guilt. In a
jury trial, that requirement is normally satisfied through the court's
instructions, assuming that they are proper ones. In a non-jury
trial, the record often tends to be less specific. Courts do not always
articulate their findings on each and eve: element. Such silence
is not necessarily fatal, however, if the requisite findings are fairly
implicit in the court’s verdict and the record does not affirmatively
indicate an actual omission to make such findings. The problem
here is not mere silence from which a finding of obscenity might
be inferred, but an affirmative (and erroneous) statement by the
court clearly indicating that obscenity was assumed. A court may
not assume a critical element of guilt.
This is not a case of insufficient evidence. With the agreed
statement of facts and the exhibits, the court had before it enough
evidence to support a finding that the magazines were obscene
under § 418. The problem is it never made that finding; and,
although, through our Constitutionally mandated review of the
material we might conclude that it was obscene, such a finding
could not serve as a substitute for the required finding by the trial
court. We therefore must reverse the convictions. Because the error
was one of trial procedure — the failure to make a necessary finding
— and not of insufficient evidence to support such a finding, we
shall remand the cases for new trials. Burks v. United States, 437
U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978); State v.
Boone, 284 Md. 1 (1978).
9a
Opinion
(2) The Other Issues
Appellants have made clear, both in the trial court and here,
that their principal defense to these prosecutions is that of
Constitutional and statutory interpretation — the three other issues
noted earlier. Those questions will therefore undoubtedly arise in
the retrials, and for the guidance of the trial court, we shall address
them. Maryland Rule 1085.
Appellants argue that (1) their activities fell within the § 423
exemption; (2) if they did not, § 418, read in the light of § 423,
creates an arbitrary classification by authorizing sales only to
formal educators, students or scientists or those in a governmental
capacity’’; and (3) the two sections, read together, contravene the
definition of obscenity mandated by the Supreme Court in Miller
v. California, 413 U.S. 15 (1973), by recognizing that obscene
material has scientific, educational, or governmental value.
In order to consider and resolve these challenges, it is necessary
for us to trace the historical development of our obscenity law.
The publication and exhibition of lewd and obscene words
and writings was initially a concern of the English ecclesiastical
courts; but, by the Eighteenth Century, it had become punishable
as a common law misdemeanor, either as a libel or as a public
nuisance. The underlying rationale for making such activity
criminal was that it tended to weaken the bonds of civil society,
virtue, and morality.
3. See Clark and Marshall, Law of Crimes, §11.10; Judicial Censorship of
Obscene Literature, $2 Harv. L. Rev. 40 (1938); Model Penal Code and
Commentaries (Official Draft and Revised Comments), Part II (1980), §251.4
(p. 481).
10a
Opinion
The Maryland General Assembly first took note of the
problem of obscenity in 1853 when it observed that the publication
of obscene and licentious matter in the form of advertisements
in newspapers and other periodicals had become more frequent,
found that such matter was ‘‘exceedingly injurious to the morals
of the community,“ and decided that the common law in this
regard [should be re-enacted and enforced. It therefore made the
publication of any obscene or licentious matter in any newspaper
or other periodical a statutory misdemeanor, punishable by fine
and imprisonment See Laws of Md., 1853, ch. 183.
The prohibition enacted in 1853 was extended in 1886 to cover
the drawing, manufacture, production, exhibition, or distribution
of any obsceue book, pamphlet, paper-writing, advertisement
circular, print, picture, drawing or other representation, figure or
image on or of paper or other material of an indecent or immoral
nature.. Laus of Md., 1886, ch. 490. In 1894, the statute
was rewritten, without much substantive change; and, except for
some amendments not relevant here, the law remained more or
less the same until the 1960's.‘
The word obscene was not defined in the statute and thus
neither was the precise ambit of the statutory proscription; but
4. In 1961, the General Assembly made it a separate crime to distribute
obscene material commercially to persons under eighteen years of age (Laws of
Md., 1961, ch. 473; compare current Md. Ann. Code art. 27, §419), and also
authorized the circuit courts, upon petition of the State’s Attorney, to enjoin
the distribution of obscene material under certain circumstances (Laws of Md.,
1961, ch. 382; current Md. Ann. Code art. 27, §418A). Neither of these
enactments affected the prohibition as rewritten in 1894 (now §418). In response
to Smith v. California, 361 U.S. 147 (1959), the General Assembly added the
element of Scienter to §418 in 1960, requiring that the prohibited actions be
“knowingly” done. Laws of Md., 1960 ch. 39.
Opinion
that did not appear to have been a significant problem until the
Supreme Court decided Roth v. United States and Alberts v.
California, 354 U.S. 476 (1957), and made it one.’
In Roth and Alberts the Court sustained convictions under
the Federal and California obscenity laws, neither of which defined
the critical term. In the context of this case, Roth did two important
things: (1) it stated affirmatively and explicitly that which the Court
had in the past merely assumed — that obscenity is not protected
by the freedoms of speech and press (354 U.S. at 481-85);* and
(2) it purported to give a Constitutional definition to the word
“‘obscene.”’ The definition, or standard, chosen to determine
whether a publication was obscene and thus subject to proscription
was “‘whether to the average person, applying contemporary
community standards, the dominant theme of the material taken
5. In the 104 years from the enactment of the 1853 statute to the decision
in Roth, only two cases involving the obscenity law reached the Court of Appeals:
and both of them concerned the form of indictment rather than the scope or
meaning of the prohibition itself. See Nicholson v. State, 36 Md. x (Unreported,
1872); State v. Monfred, 183 Md. 303 (1944).
6. The Court iterated and reiterated that precept at least three times. At
p. 484, it stated that “implicit in the history of the First Amendment is the
rejection of obscenity as utterly without redeeming social importance. This
rejection for that reason is mirrored in the universal judgment that obscenity
should be restrained. . . ."’ At p. 485, the Court repeated with emphasis an earlier
passage from Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942), that
lewd and obscene utterances ‘‘are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and
morality.’ Following this, also at p 485, the Court flatly held that obscenity
is not within the area of constitutionally protected speech or press.
12a
Opinion
as a whole appeals to prurient interest. 354 U.S. at 489.’ If the
statutory proscription rested upon that standard, said the Court,
it did not offend Constitutional safeguards.
In Monfred v. State, 226 Md. 312 (1961), cert. den. 368 U.S.
953 (1962), the Court of Appeals adopted and engrafted into the
Maryland obscenity statute the Roth test — at least, it said (p.
323), until the Supreme Court specifically speaks further in this
uncertain area. See also Yudkin v. State, 229 Md. 223 (1962),
and Levin v. State, 1 Md.App. 139 (1967), cert. den. 247 Md. 740,
cert. den. 389 U.S. 1048. The area uly was uncertain. The
Supreme Court had a tiger by the tail and as noted in a
comprehensive article in 52 N. V. U. L. Rev. 810, 820, in the first
twenty years since Roth, there followed from that Court no fewer
than one hundred signed opinions. . in twenty-seven cases
dealing with obscenity. The subject of obscenity, remarked Justice
Harlan in his dissent in Interstate Circuit, Inc. v. Dallas, 390 U.S.
676, 704-05 (1968), has produced a variety of views among the
members of the Court unmatched in any other course of
constitutional adjudication. Indeed, he referred to it as the
“intractable obscenity problem. Id.
7. Rejected by the Court was the test laid down in Regine v. Hicklin (1868)
L.R. 3 Q.B. 360, which determined whether material was obscene by the effect
of isolated passages upon particularly susceptible persons. 354 U.S. at 488-89.
Under the Roth test, the entire work had to be considered in terms of the average
person.
8. No less perplexed was Justice Stewart who began to see the task as trying
to define what may be undefinabie."’ Jecodeilis v. Ohio, 378 U.S. 184, 197 (1964)
(Concurring Opinion). Stewart finally concluded that the proscription had to
be limited to hardcore pornography, as to which he said in an oft-quoted
statement: I shall not today attempt further to define the kind of material
I understand to be embraced within that shorthand description; and perhaps |
could never succeed in intelligibly doing so. But | know it when I see it. . . .
13a
Opinion
Part of what made the problem intractable was the ‘‘plurality’’
Opinion by Justice Brennan (joined only by Chief Justice Warren
and Justice Fortas) in A Book Named ‘‘John Cleland’s Memoirs
af a Woman of Pleasure’’ v. Massachusetts, 383 U.S, 413 (1966)
(Memo a case involving the burning question of whether the
novel Fanny Hill, first published in 1749, could legally be banned
in Boston in 1965, It was there noted that under the Roth definition
us elaborated in subsequent cases, three elements
must coalesce: it must be established that (a) the
dominant theme of the material taken as a whole
appeals to a prurient interest in sex; (b) the material
is patently offensive because it affronts
contemporary community standards relating to the
description or representation of sexual matters; and
(e) the material is utterty without redeeming social
value. (Emphasis supplied.) A. at 418.
See also Ginzburg v. United States, 383 U.S. 463 (1966), and
Mishkin v. New York, 383 U.S. 502 (1966).
Whether prompted by the decision in Memoirs, or the general
maelstrom into which the obscenity issue then found itself, or some
other reason no longer apparent, the General Assembly decided
in 1967 generally to revise the laws of the State pertaining to
obscene matter, and thus enacted Laws of 1967, ch. 394, which,
with changes not relevant here, is our current statute.
That statute — in particular §§ 418 and 423 — has to be
viewed, at least initially, in the light of the then-current law.
Although new § 418 substantially rephrased the former section,
it did not change the basic proscription against exhibiting and
distributing obscene material. Because the legislature again declined
**
v
to provide a statutory definition of odscenity, however, it left to
the courts the task of supplying such a definition and thus
cirewmsoriding the scope of the dase prohibition, The statutory
genase lemma
would *
At the time the statute was enacted, the controiling standards
were assumed to de those heated in the Brennan plurality
Opinion in Afewreds, which standards had previously been apptied
to the former § 418 in Domnenderg . State, | Md. App. $91 (1967).
Those standarda, as noted, were definitional ones; they served to
define the term and thus provide a constitutional perimeter within
whieh N 418 could operate, They did not, however, purport to carve
out any constitutional exceptions or exemptions, If the material
met the modified Nee definition of obscenity, M could be
regulated, no matter who was selling or buying N or for what
purpose the material was exhidited, distributed, ot used.
That presented somewhat of a problem, however, one that
both State and Federal courts had wrestled with for many years.
Chief Justice Warren alluded to it in his concurring Opinion in
Nota when, at p. 495 of 354 U.S., he noted:
“The line dividing the salacious of
pornographic from literature or tene is not
N tattooed, cme Dll id cea a eee f eee
ware ta Red at Rand atreanty eee Dy vertwe ol Laveen aid
rr
een eee
Nr
rr
of the Supreme Court of the United Rare.”
Sa
Opinion
straight and unwavering. Present laws depend
largely upon the effect that the materials may have
upon those who receive them. It is manifest that
the same object may have a different impact,
varying according to the part of the community it
reached. But there is more to these cases. It is not
the book that is on trial; it is a person. The conduct
af the defendant is the central issue, not the
obscenity af a book or picture. The nature of the
materials is, of course, relevant as an attribute of
the defendant's conduct, but the materials are thus
placed in context from which they draw color and
character. A wholly different result might be
reached in a different setting.’’ (Emphasis
supplied.)
Could material be obscene when viewed by the average person,
because, to him, applying contemporary community standards,
its dominant theme appealed to prurient interest, and yet, in the
hands of a scientist studying obscenity, not be obscene because
to him it did not appeal to the prurient interest? Or, restated, if
such material, meeting all the other criteria for obscenity, could
de the proper subject of scholarly investigation and study, could
it then be said to be utterty without redeeming social value and
taus legally obscene?
The dilemma normally arose in the context of attempts by
the government (State or Federal) to seize or prevent the
importation or mailing of materials it considered to be obscene,
i.e, prior censorship as opposed to criminal prosecution. Most
ol the courts, applying pre- criteria, recognized the need
to distinguish between the pandering of lewd material to the public
at large and the reception and use of such material for legitimate
16a
Opimon
research and education purposes; and they usually did so by
concluding that, in the hands of researchers, medical personnel,
or art collectors, such material was simply not obscene. See, for
example, United States v. 31 Photographs, Etc., 156 F. Supp. 350
S. D. N. v. 1957), involving materials ordered by the Institute for
Sex Research, Inc. (he Kinsey Institute) of Indiana University,
and cases cited and reviewed therein; also People v. Marier, 199
Cal.App.2d 889 (Cal. App. 1962); but compare United States v.
One Unbound Volume, Etc., 128 F.Supp. 280 (D. Md. 1955).
That type of reasoning may have been prompted by the fact
that the statutes in question purported to apply their sanctions to
all obscene material and admitted of no exception therefrom for
obscene material used for a legitimate purpose. That left the
courts no way of making the desired distinction other than in a
definitional context. The effect of that, however, was to create
a concept of “‘variable obscenity’ — one that judged the obscenity
of a publication, at least in part, on the basis of how it was
purveyed, to whom it was purveyed, and the purpose for which
it was purveyed. This concept was given expression in several
different contexts by Justice Brennan in Memoirs and the
companion cases of Ginzburg and Mishkin.''
10. See Lockhart and McClure, Censorship af Obscenity: The Developing
Constitutional Standards, 4$ Minn. I. Rev. 5 (1960).
11. In Memoirs, 383 U.S. at 420, Brennan noted that if a book had the
requisite prurient appeal and was patently offensive, but had only a minimum
of social value. the circumstances of production, sale, and publicity are relevant
in determining whether or not the pubdlication or distribution of the book is
constitutionally protected. Given the actual holding of the Court — that the
book was not obscene — that statement was probably mere dicte. In Ginzburg,
however, Brennan's statement at 383 U.S. 465 that “the question of obscenity
(Coad)
17a
Opinion
In seeming to adopt these various forms of variable obscenity,
especially in and after Memoirs, the Supreme Court never
satisfactorily addressed the question of whether material could ever
be “‘utterly without redeeming social value if it had some value
in a clinical setting or for purposes of research. One can only
assume that the social value’’ criterion enunciated by Justice
Brennan related to the intrinsic worth of the ideas being
communicated in the publication, and not to any indirect value
the publication might itself have as an object of study or as a
therapeutic device in a clinical program. Otherwise, the variable
obscenity concept, seemingly adopted in that trilogy of cases, would
de flatly inconsistent with the social value standard so clearly
expressed in the very same opinions.
Variable obscenity, when so viewed, was one pragmatic answer
to a real problem; but it created some vexing problems of its own.
Even if one accepts the initial proposition that the same publication
can, at the same time, be obscene or not obscene depending upon
who is looking at it, there is still the difficulty of regarding that
which is otherwise obscene as not obscene when viewed, for
example, (1) by a researcher (or those participating in research
experiments) whose purpose in viewing it is to study (or assist in
(Com u)
may include consideration of the setting in which the publications were presented
as an aid to determining the question of obscenity. . ."’ was more significant,
for the “‘setting’* — the manner in which the materials were advertised — was
the critical factor used to sustain Ginzburg’s conviction. In Mishkin, which
involved magazines depicting masochistic and bizarre sexual behavior designed
for what the Court called “‘a clearly defined deviant sexual group (p. 508), the
Court said, at p. 509 (of 383 U.S.), ““We adjust the prurient-appeal requirement
to social realities by permitting the appeal of this type of material to be assessed
in terms of the sexual interests of its intended and probable recipient group.
Opinion
the study of) obscenity and its effects or (2) by patients in a
medically supervised clinic whose purpose in viewing it is to correct
sexual dysfunction — i.e., to heighten their sexual appetites and
awareness, to appeal to the prurient interest.'’
Even before Roth, this dilemma was the subject of some
debate in legal circles, and eventually a way was found around
it. The problem, in part, was one of overlapping concepts, of
confusing a publication having some intrinsic literary, scientific,
or artistic value sufficient to offset its prurient appeal with one
not having such offsetting intrinsic value but which might be the
subject of legitimate study or clinical use, and thus become clothed
with an extrinsic value for that limited purpose.
The solution, devised or adopted by the draftsmen of the
Model Penal Code, was to regard the first type of publication as
simply not being obscene in the first instance, which is how the
courts tended to regard it, and to consider the second type as
possibly falling within the proper definition of obscenity but
12. See Technical Reports of the Commission on Obscenity and
Pornography, Government Printing Office (1971); Money and Athanasiou,
Pornography: Review and Bibliographic Annotations, Amer. Journ. of Obstetrics
and Gynecology, Vol. 115, No. 1, pp. 130-46 (1973).
13. See, for example, Hartman and Fithian, Treatment of Sexual
Dysfunction (1974), ch. 10; Bjorksten, Sexually Graphic Material in the Treatrnent
of Sexual Disorders, in Meyer, Clinical Management of Sexual Disorders, pp.
161-94 (1976); Lobitz and LoPiccolo, New Methods in the Behavioral Statement
of Sexual Dysfunction, in Fischer and Gochros, Handbook of Behavior Therapy
with Sexual Problems, Vol. I. pp. 7-14 —1977).
14. See Lockhart and McClure, Literature, The Law af Obscenity and the
Constitution, 38 Minn. L. Rev. 295 (1954).
19a
Opinion
nevertheless deserving of protection when used for legitimate
research or clinical purposes. This was done by (1) adopting as
a definitional condition of obscenity that the predominant appeal
be to the prurient interest, thus recognizing that a work of art
or literature may contain elements of prurient interest that are
subordinate to the positive values of the work; and (2) providing
that ‘“‘fijt is an affirmative defense to prosecution. . . that
dissemination was restricted to: (a) institutions or persons having
scientific, educational, governmental or other similar justification
for possessing obscene material; or (b) non-commercial
dissemination to personal associates of the actor. (Emphasis
supplied.) See § 251.4(3), Model Penal Code.
The intent behind this approach is made clear in the A. L. I.
comments to § 251.4(3). Comment 9 (p. 501) states, in relevant part
‘*Psychologists, sociologists, anthropologists, and
students of art and literature must not be barred
from access to relevant materials merely because
they may appeal to prurient interest. It seemed
better to face this problem realistically by way of
explicit exemption, rather than to twist the
definition of obscenity so as to reach the correct
result by describire obviously pornographic
materials as not ‘obscene’ if in the hands of an artist
or scientific rescurcher. (Emphasis supplied.)
Section 251.4 of the Model Penal Code was first published
as part of Tentative Draft No. 6 in May, 1957. It was finally
approved by the American Law Institute in May, 1962, and soon
15. Model Penal Code and Commentaries, supra, note 7, p. 492.
20a
Opinion
thereafter parts of it began to be adopted, in one form or another,
by a number of State legislatures. In particular, one finds the
approach taken in § 251.4(3) — of exempting material in the hands
of researchers and clinicians from criminality rather than from
the definition of obscenity — embodied in many (if not most) of
the State obscenity statutes currently in force.'*
There is no uniformity among the States in the wording of
the exemption. Some, for example, couch it as an “‘affirmative
defense, as does the Model Penal Code, while others (like
Maryland) speak in terms of an exemption.'* Some States frame
the exemption in terms of the particular types of institutions
permitted to acquire, possess, and use obscene material — libraries,
16. See, for example, Cal. Penal Code §311.8 (Deering); Conn. Gen. Stat.
Ann. §53a-195; Del. Code tit. 11, §1362(1); D.C. Code §22-2001(c); Ga. Code
§26-990Sa(c); Idaho Code §18-4102; Ill. Ann. Stat. ch. 38, §11-20(f) (Smith-Hurd);
Kan. Stat. §21-4301(3) (1980 Supp.); Ky. Rev. Stat. Ann. §531.070 (Baldwin);
9A La. Rev. Stat. Ann. §14-106(D) (1981 Supp.); Me. Rev. Stat. tit. 17,
§2911.2.A; Mass. Ann. Laws ch. 272, §29; Mich. Comp. Laws §722.676; Minn.
Stat. §617.295(a) (1981 Supp.); Neb. Rev. Stat. §28-815(1); N. H. Rev. Stat. Ann.
§650:4, N. M. Stat. Ann. §40-S0-S; N.Y. Penal Law §235.15 (Consol. N.C. Gen.
Stat. $14-190.10(c1) N. D. Cent. Code §12.1-27.1-11; Ohio Rev. Code Ann.
§2907.32.1(B) (Anderson); Okla. Stat. tit. 21, §1021.1 (1980 Supp.); Or. Rev.
Stat. §167.085(2); Pa. Stat. Ann. tit. 18, §$903(j); S. D. Compile Laws Ann.
§22-24-31(4); Tenn. Code Ann. §39-3016 (1980 Supp.); Tex. Penal Code Ann.
tit. 9, 43.23 (1980 Supp.) (Vernon); Wash. Rev. Code §9.68.100.
17. See, for example, the California, Delaware, D.C., and Illinois Codes,
supra, n. 16.
18. See Pennsylvania Code, supra, n. 16. Except possibly in determining
who has the burden of proof on the issue (see Mackall v. State, 283 Md. 100
(1978)), we see no significant distinction between stating the caveat as an
exemption from criminality as opposed to an affirmative defense to a criminal
prosecution.
2la
Opinion
museums, schools, etc. — without specific regard to purpose:
most, however, tie the exemption to the purpose of the acquisition
and use and not expressly to the nature or status of the accquirer
or user. These latter States (like Maryland) speak in terms of
scientific, educational, and occasionally governmental purposes.
Although the precise wording is different in nearly every case, the
general purpose and effect of these provisions is similar; it is to
adopt the approach taken in the Model Penal Code, as explained
in Comment 9, supra.*'
There can be little doubt, from its very wording, that our §
423, as enacted in 1967, was taken from § 251.4(3) of the Model
Penal Code, and was intended to serve the same purpose. No other
construction would appear to be warranted or reasonable.
Since the enactment of § 423, there has, of course, been a
major shift in the constitutional definition of obscenity. In Miller
v. California, 413 U.S. 15 (1973), and four companion cases,“
19. See Louisiana, Maine, Massachusetts, Minnesota, Nebraska, North
Carolina, Pennsylvania, and Washington Codes, supra, n. 16.
20. See Connecticut, Delaware, D.C., Georgia, Idaho, Illinois, Kansas,
Kentucky, New Hampshire, New Mexico, New York, Ohio, Oklahoma, Oregon,
South Dakota, Tennessee, Utah, and Vermont Codes, supra, n. 16.
21. Comments in the Illinois Code make this especially clear. The Illinois
law, as noted, provides an affirmative defense for dissemination to institutions
or individuals having scientific or other special justification for possession of
such material. The Committee Comment to that provision states that it is
imply a recognition that police, social scientists, educational institutions and
other authorities may have a legitimate need to possess obscene material.
22. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), “aplan v. California,
413 U.S. 115 (1973); United States v. 12 200 Ft. Reels af Super 8MM Film, 413
U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973).
22a
Opinion
the Supreme Court formally abandoned the three-stage Memoirs
test, which the Court found had created a burden virtually
impossible to discharge. Id. at p. 22. In its place, the Court
fashioned a new” tripartite test. The critical language appears at
pp. 23-24:
State statutes designed to regulate obscene
materials must be carefully limited. . As a result,
we now confine the permissible scope of such
regulations to works which depict or describe sexual
conduct. That conduct must be specifically defined
by the applicable state law, as written or
authoritatively construed. A state offense must also
be limited to works which, taken as a whole, appeal
to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which,
taken as a whole, do not have serious literary,
artistic, political, or scientific value.
he basic guidelines for the trier of fact must
be: (a) whether ‘the average person, applying
contemporary community standards’ would find
that the work, taken as a whole, appeals to the
prurient interest... (6) whether the work depicts
or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific
value. (Citations omitted; footnote omitted.)
23. Part of the new test, as is evident by a simple comparison, is essentially
a rephrasing of Roth-Memoirs. The primary thrust seems to be in the substitution
of whether the work lacks serious literary, artistic, political. or scientific value
for whether it is utterly without redeeming socia! value.
23a
Opinion
Having thus stated the test in conceptual terms, the Court
gave ‘‘a few plain examples of what a state statute could define
for regulation’’; namely: (a) Patently offensive representations
or descriptions of ustimate sexual acts, normal or perverted, actual
or simulated' and (d) Patently, offensive representations or
descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals. Jd. Thus, said the Court at p. 27,
ulnder the holdings announced today, no one will be subject
to prosecution for the sale or exposure of obscene materials unless
these materials depict or describe patently offensive ‘hard core’
sexual conduct specifically defined by the regulating state law, as
written or construed.”” (Emphasis supplied.)
This new test, set forth in Miller, was first adopted by this
Court in the context of Md. Ann. Code art. 66A (providing for
the advance licensing — i.e, censorship — of motion pictures) in
Ebert v. Maryland State Board of Censors, 19 Md. App. 300 (1973).
In Village Books, Inc. v. State, 22 Md.App. 274 (1974), cert. den.
273 Md. 723, we specifically adopted it (as further explicated by
the Supreme Court in Hamiling v. United States, 418 U.S. 87 (1974),
and Jenkins v. Georgia, 418 U.S. 153 (1974)) as controlling the
scope of art. 27, f 418 as well. That, we think, serves to meet the
Miller requirement that the State statute, as written or construed,
specifically define the proscribed conduct. See Ward v. Illinois.
431 U.S. 767 (1977); Star v. Preller, 375 F.Supp. 1093 (D. Md.
1974) aff'd 419 U.S. 936.“ The obscene matter proscribed by
24. Compare Obscenity ‘73: Something Old, A Little Bit New, Quite a Bit
Borrowed, But Nothing Blue, 33 Md. L. Rev. 421, 452-53 (1973), written prior
to our Village Books, Inc., in which the author concluded that §418, in light
of its then-current judicial interpretation, was lacking the specificity required
by the Miller Court.
24a
Opinion
§ 418 is precisely that which the Miller-Hamling-Jenkins Courts
said may constitutionally be proscribed — no more and no less.
Although Miller clearly controls the scope of § 418 in terms
of defining what is obscene, it has no direct impact on § 423. Miller
does not eintroduce the concept of variable obscenity, as suggested
by appellants; it does not necessarily equate the definitional
criterion of literary, artistic, political, or scientific value with the
usability of material for scientific, educational, or governmental
purposes. To conclude otherwise, in view of the usability of even
hard core pornography for research, teaching.“ and clinical
purposes, would be tantamount to saying that nothing is legally
obscene — that there is no such thing as proscribable obscenity.
And that, most certainly, has never been the position of the
Supreme Court.
In the commpanion case of Paris Adult Theatre I v. Slaton,
supra, 413 U.S. 49, 69, the Court made clear that its holdings were
directed not at thoughts or speech, but at depiction and
description of specifically defined sexual conduct that States may
regulate within limits designed to prevent infringement of First
Amendment rights. It was the commerce in obscene material.
the “exhibition of obscene material in places of public
accommodation that was unprotected by the Constitution and
thus subject to regulation. See also Kaplan v. California, supra,
413 U.S. 115, 120: Paris Adult Theatre I “reaffirms that
commercial exposure and sale of obscene materials o anyone,
25. See, for example, Vandervoort and Mclivenna, Sexuelly Explicit Media
in Medical School Curricula, in Green, Human Sexuality; A Health Practitioner's
Text, pp. 235-44 (1975); and in general, a bibliography entitled Professional Use
of Erotica (Bibliotherapy) published by the Institute For Sex Research, Indiana
University.
2Sa
Opinion
including consenting adults, is subject to state regulation.
(Emphasis supplied.)
From these expressions, and indeed from the entire thrust of
Miller, we think it clear that the exemption from criminality stated
in § 423 in no way renders the general proscription of § 418
nugatory. It does not eradicate or annul the concept or definition
of obscenity or Maryland’s power to regulate that obscenity.
Section 423 under Miller has the same function as it did before
Miller: it permits obscene material to be used for certain specified
purposes.
We turn then to the question of whether § 423 carries out that
function in a constitutional manner, specifically, whether it creates
arbitrary or capricious classifications. Appellants’ contention that
it has that effect is based upon their construing the exemptions
as applying only to formal or certiſied educators, students,
or scientists, which discriminates against those who seek such
material for their own personal education.
In Wheeler v. State, 281 Md. 593, 602 (1977), the Court of
Appeals observed that, because obscenity is unprotected by the
First Amendment, the exemptions from criminality under the State
obscenity law involve neither a suspect class nor a fundamental
right. The test to be applied in viewing an equal protection
claim, therefore, is the reasonable basis or rational
relationship one; i. e., the legislative classification must be
sustained unless it is ‘patently arbitrary’ and bears no rational
relationship to a legitimate governmental interest. Id.
As we have noted throughout, it has long been recognized,
first by the courts, then by legislative bodies, that obscene material
of a type that is constitutionally subject to regulation by the State
Opinion
ought to and may be permitted for bona fide educational and
scientific purposes, in a variety of research and clinical settings.
Use of the material for those purposes provides a certain social
utility to it that it does not otherwise possess; that infusion of
external utility, indeed, is all that justifies the use of the material
in those circumstances.
We have no difficulty in concluding that the statutory
exemption for persons having bona fide scientific, educational,
governmental, or other similar justification for possessing obscene
material does not serve to contravene the equal protection clause
of the Fourteenth Amendment. Those are reasonable
classifications, sufficiently well defined, and bear a rational
relationship to a legitimate governmental interest. See Senza v.
Maryland State Board af Censors, 245 Md. 319, 341 (1967),
sustaining the validity of similar exemption under art. 66A of the
Code; Star v. Preller, 352 F Supp. 530 (D. Md. 1972), remanded
413 U.S. 905 in light of Miller v. California and reaffirmed 375
F.Supp. 1093 (1974), aff'd 419 U.S. 956; also State v. Starr
Enterprises, Inc., % P.2d 1098 (Kan. 1979); State v. Next Door
Cinema Corp., 587 P.2d 326 (Kan. 1978); and People v. Iliardo,
423 N.Y.S.2d 470 (1979); and cf. Modern Social Education, Inc.
v. Preller, 353 F.Supp. 173 O. Md. 1973), aff'd in part, rev'd
in part (on other grounds), 512 F.2d 1241 (4th Cir. 1975).
26. In responding to appellants’ equal protection argument, we have
assumed that they have standing to raise it in light of the record in this case.
This is an assumption, not a determination. Compare Matter af Trader, Da Md.
364 (1974).
There may, perhaps, come a point where the use of pornographic material
in an educat. nal or therapeutic setting becomes so widespread and unstructured
im terms of the general population that the statutory classifications created in
$423 could lose their rationality. In that circumstance, a significant ‘‘equal
protection problem would arise. The record in this case, however, does not
reveal that we have yet reached that point or that we necessarily ever will.
(N
Finally, we turn to the question of whether appellants’
5
an ordinary Bookstore Nene shopping ente lu the front,
ik sold everything “from leit fetion to cook books” (97) N.Y.S.20
at B35) me separate rear section, physically separated from the
rest af the Bookstore Dy wall and a door’ was dixplayed “adult
marertal * Ad Signa restricted access to the rear portion to pervons
over twenty-one, also posted were the types of signs placed in
appellant’ stores. A police officer went to the rear part of the
wire, wot Ral a eeparate cant register and punctasal a maganne
alleged ty Be Nee
On those facta, the Suffolk County District Qourt concluded
that the defendant Red extadiahed the affirmative defense of
dixxemimating the magasine to a person having a governmental
Ot Wailer justi foation for pomeeetng or veewig same — the New
York counterpart to ovr § 423.
Peeps» reared & pot perwanive authority to us Aside from
S differences i the factual setting, (he Rodding in that
de does Rot represent the definitive law of New Vork, and we
de Bot accept as valid the reasoning upon which Ht rested See
Peaple ». Mert, 420 N.Y.S. 2d 318 Gapreme Ch. 1979) Aeapee
» Merde, 411 NY.S.28 142 County CQ. 1978), off'W 403 N.Y.S.20
470 (19TH,
Thre question is ame of fact, whet will Rave to de determined
Dy the trial court
» Appeliants printed and filed a record extract, which is not required in
crwmmnal appeab Sew Maryland Rule 1028 Notwithstanding (herr ultumate wove
im this appeal, t would be unjust to charge the City with the cost of chat record
extract”
wa
ORDER OF THE COURT OF APPEALS OF MARYLAND
IN THE COURT OF APPEALS OF MARYLAND
Petition Docket No. 304
September Term, 1981
(No. 1500, September Term, 1980
Court of Special Appeals)
400 B. BALTIMORE STREET, INC., BLOCK NEWS, I.
PHILLIP DAVID LONG, THOMAS F. CRAIG, JOSEPH D.
STEPHENS, DAVID THOMAS STOUGHTON, CHARLES
BOOKS, INC., DEBORAH RAYOLA REDDING a/k/a Deborah
Rayola Pierce
v.
STATE OF MARYLAND
Upon consideration of the petition for a writ of certiorari to
the Court of Special Appeals and the answer filed thereto, in the
above entitled case, it is
ORDERED, by the Court of Appeals of Maryland, that the
petition be, and it is hereby, denied as there has been no showing
that review by certiorari is desirable and in the public interest.
s/ Robert C. Murphy
Chief Judge
Date: September Nh. 1981.
3la
RELEVANT CONSTITUTIONAL AND STATUTORY
PROVISIONS
I. First Amendment — United States Constitution
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.
2. Fifth Amendment — United States Constitution
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury except
in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War
or public danger; nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor
be deprived of life, liberty or property, without due
process of law; nor shall private property be taken
for public use, without just compensation.
3. Section 1, Fourteenth Amendment — United States
Constitution
A persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State
wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or
Relevant Constitutional and Statutory Provisions
immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty
or property without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.”
4. Article 27, Section 418 of Maryland Code
“Sending or bringing into State for sale or
distribution; publishing, etc., within state.
Every person who knowingly sends or causes to be
sent, or brings or causes to be brought, into this
State for sale or distribution, or in this State
prepares, publishes, prints, exhibits, distributes, or
offers to distribute, or has in his possession with
intent to distribute or to exhibit or offer to
distribute, any obscene matter is guilty of a
misdemeanor
5. Article 27, Section 423 of Maryland Code
Exemptions
The prohibitions and penalties imposed in this
subtitle shall not extend to persons having bona fide
scientific, educational, governmental, or other
similar justification for possessing such matter, or
to distribute thereof pursuant to such
justification.
1. Were the Appellants denied due process of law and equal
protection of the laws in violation of their constitutional rights
under the First, Fifth and Fourteenth Amendments, when the Trial
Court found the Appellants guilty on the bases that the cases were
tried on the theory that the obscenity of the materials was assumed.
2. Did the Trial Court err in finding that the Appellants did
not come within the exemption of Article 27, Section 423, thereby
denying to Appellants due process of law and equal protection
of the law under the First, Fifth and Fourteenth Amendments to
the United States Constitution.
3. Does Article 27, Section 418 deny to Appellants equal
protection of the law because it creates an arbitrary and capricious
classification, by virtue of Section 423.
4. Is Article 27, Section 418 inoperable and unenforceable
because on its face it recognizes that obscene material has scientific,
educational, governmental or other similar justification, some of
the elements that the Supreme Court in Miller v. California
mandated material cannot possess in order to come within the
ambit of the First Amendment.
34a
MOTION TO DISMISS
IN THE CRIMINAL COURT OF BALTIMORE
CASE NO: 47917859
STATE OF MARYLAND
V.
400 E. BALTIMORE Sr., INC.
Defendant
The Defendant, through undersigned counsel move the Court
for an order dismissing the case against the Defendant and as
grounds for said motion states the following:
I.
The State’s Attorney for Baltimore City, pursuant to a
Statement of Charges, has instituted a criminal proceeding charging
the Defendant, as follows:
On or about June 4, 1979 at 400-402 E. Baltimore
St., Inc. did distribute an obscene publication to
wit; Swedish Erotica #23 in violation of Ann. Code
of Md. Art. 27, Sec. 418.“
1. The Statement of Charges is vague and insufficient as a
matter of law in that it fails to set forth with sufficient specificity
the charges of which the Defendant stands accused.
35a
Motion to Dismiss
2. The statutory provisions of Article 27, Section 15G and
Article 19, Section 190 Baltimore City Code, under which the State
if proceeding are, as written, repugnant to the First, Fourth, Fifth,
Sixth and Fourteenth Amendments to the Constitution of the
United States because:
(a) Said statutory provisions and the Baltimore
City Code are void for vagueness in that the same
forbid or require the doing of an act in terms so
vague, fluid and indefinite that men of common
intelligence must necessarily guess at the meaning
and differ as to the application thereof, and, as
such, are repugnant to the Due Process provisions
of the First, Fifth and Fourteenth Amendments to
the Constitution of the United States; and further,
(b) Said statutory provisions are void for
overbreadth by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms in that the statute sets forth no standards
for determining and regulating obscenity and thus
are insufficient for those minimum standards
proscribed by the United States Supreme Court in
connection with speech and communications,
presumptively protected under the First
Amendment and Fourteenth Amendment; and
further,
(c) The said statutory provisions are void for
vagueness and impermissible overbreadth, in the
area of First Amendment freedoms, because the
said provisions are susceptible of sweeping and
improper application by law enforcement officials
30
Motion to Dismiss
and have a chilling and inhibiting effect’’ on the
exercise of the Federal Constitutional rights of
citizens of the State of Maryland and the United
States, as well as the Defendant, in the area of the
First Amendment; and further,
(d) Said statutory provisions are repugnant to the
substantive Due Process provisions of the Fifth and
Fourteenth Amendments to the United States
Constitution because they permit deprivation of
liberty and/or property rights and interests for the
exercise of First Amendment rights by
unreasonable, arbitrary, and capricious means by
law enforcement officials of the State of Maryland
without a showing of a real and substantial
relationship to any state’s relationship to any state’s
subordinating interest which is compelling to justify
state action limiting First Amendment freedoms;
and further,
(e) Said statutory provisions are impermissibly
broad and repugnant to the procedural Due Process
requirements of the Fifth and Fourteenth
Amendments to the Constitution of the United
States by employing means lacking adequate
safeguards which Due Process demands to assure
protected matter the constitutional protection of
the First Amendment to which it is entitled.
The statutory provisions of Article 27, Section 15G and
Baltimore City Code, Article 19, Section 190 are clearly repugnant
to the First, Fourth, Fifth, Sixth and Fourteenth Amendments to
the Constitution of the United States as said provisions have been
37a
Motion to Dismiss
applied, construed, and are being applied and construed by the
State’s Attorney and/or law enforcement officials in the following
respects:
(a) That in the application of said statute, the said
law enforcement officials did not have available the
necessary probable cause necessary for the issuance
of th: Statement of Charges.
3. That the Defendant was arrested falsely and without
probable cause as the charging document does not set forth facts
sufficient to establish criminal activity on the part of the Defendant.
4. That Article 27, Section 15G and Article 19, Section 190,
Baltimore City Code, are void for vagueness and overbreadth.
It is, therefore, respectfully submitted that the prosecution
in the case at bar is brought in bad faith for the purposes of
harassment and the statute and Baltimore City Code, under which
the State if proceeding, are void for vagueness and overbreadth
and unconstitutional on their face and are being unconstitutionally
applicd to the Defendant.
WHEREFORE, the Defendant prays that the Statement of
Charges be dismissed.
38a
Motion to Dismiss
Respectfully submitted,
s/ Burton W. Sandler
Burton W. Sandler
28 Allegheny Avenue
Towson, Maryland 21204
(301) 821-6777
Attorney for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 3rd day of December, 1979,
a copy of the aforegoing Motion to Dismiss was mailed prepaid
to John Prevas, Assistant State’s Attorney, Room 450, Court
House, Criminal Courts Building, Calvert and Fayette Streets,
Baltimore, Maryland 21202.
s/ Burton W. Sandler
Burton W. Sandler
IN THE CRIMINAL COURT OF BALTIMORE
CASE NO: 47917860
STATE OF MARYLAND
v.
DAVID r. STOUGHTON
Defendant
The Defendant, through undersigned counsel move the Court
for an order dismissing the case against the Defendant and as
grounds for said motion states the following:
The State’s Attorney ‘or Baltimore City, pursuant to a
Statement of Charges, has instituted a criminal proceeding charging
the Defendant, as follows:
On or about June 4, 1979 at 400-402 E. Baltimore
St., Inc. did distribute an obscene publication to
wit; Swedish Erotica #23 in violation of Ann. Code
of Md. Art. 27, Sec. 418.“
1. The Statement of Charges is vague and insufficient as a
matter of law in that it feils to set forth with sufficient specificity
the charges of which the Defendant stands accused.
2. The statutory provisions of Article 27, Section 15G and
Article 19, Section 190 Baltimore City Code, under which the State
40a
Motion to Dismiss
if proceeding are, as writ*en, repugnant to the First, Fourth, Fifth,
Sixth and Fourteenth Amendments to the Constitution of the
United States because:
(a) Said statutory provisions and the Baltimore
City Code are void for vagueness in that the same
forbid or require the doing of an act in terms so
vague, fluid and indefinite that men of common
intelligence must necessarily guess at the meaning
and differ as to the application thereof, and, as
such, are repugnant to the Due Process provisions
of the First, Fifth and Fourteenth Amendments to
the Constitution of the United States; and further.
(b) Said statutory provisions are void for
overbreadth by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms in that the statute sets forth no standards
for determining and regulating obscenity and thus
are insufficient for those minimum standards
proscribed by the United States Supreme Court in
connection with speech and communications,
presumptively protected under the First
Amendment and Fourteenth Amendment, and
further,
(c) The said statutory provisions are void for
vagueness and impermissible overbreadth, in the
area of First Amendment freedoms, because the
said provisions are susceptible of sweeping and
improper application by law enforcement officials
and have a chilling and inhibiting effect on the
exercise of the Federal Constitutional rights of
41
Motion % Dimas
citizens of the State of Maryland and the United
States, as well as the Defendant, in the area of the
First Amendment; and further,
(d) Said statutory provisions are repugnant to the
substantive Due Process provisions of the FU and
Fourteenth Amendments to the United States
Constitution because they permit deprivation of
liberty and/or property rights and interests for the
exercise of First Amendment rights by
unreasonable, arbitrary, and capricious means by
law enforcement officials of the State of Maryland
without a showing of a real and substantial
relationship to any state's relationship to any state's
subordinating interest which is competing to justify
state action limiting Firs: Amendment freedoms,
and further,
(e) Said statutory provisions are impermissibly
broad and repugnant to the procedural Due Process
requirements of the a and Fourteenth
Amendments to the Coastiwien af the United
States by employing means lacking adequate
safeguards which Due Process demands to assure
protected matter the constitutional protection of
the First Amendment to which it is entitied.
The statutory provisions of Article 27, Section 150 and
Bakimore City Code, Articte 19, Section 190 are clearly repugnant
to the Firs, Fourth, Ma. Sixth and Hourteenth Amendments to
the Constitution af the Unied States as sad provisions have deen
applied, construed. and are being applied and construed by the
Ne Attorney and or law enforcement offoah n the following
respects.
fa) That m the apphoation of sand statute, the sand
law enforcement offioah dit mot Nave avaiiate the
en prodedte oause MeCeRary for the nee
Ot the Narement of Ranges
i Trat the Defendant was arrested falsely and without
prodadte cause ax the charging document does aot set forth facts
wwafThorent fo eee eee ach) on the part of the Defendant
4 Wa Article 27, Section 190 and Article 19, Section 190,
Rakemore CRy Code, are void for vagueness and overbreadth.
u.
n . therefore. el wadetted that the prosecution
we the case at Dar & Brought im Dad faith for the purposes of
Nen and the statute ar Ratimrore OO) Coste. winder n
the Mare if proceeding. are word for vagueness and overbreadth
amet wrounatetomal on then face and are Neen anoonstitunonall:
aed co Une Defendant
WHEREFORE, the Defendant prays that the Sarement of
Cane
*
Motion to Dimes
Respectfully submitted,
„ Burton W. Sander
Burton M Sandler
28 Allegheny Avenue
Towson, Maryland 21204
(901) 821-6777
Attorney for Defendant
t HEREBY CERTIFY that on this Srd day of December, 1979,
a copy of the aforegoing Motion to Dismiss was mailed prepaid
to John Prevas, Assistant State's Attorney, Room 450, Court
House, Criminal Courts Building, Calvert and Fayette Streets,
Baltimore, Maryland 21202.
s/ Burton W Sandler
Burton M Sandler
t4e
MOTION TO DISMISS
IN THE CRIMINAL COURT OF BALTIMORE
CASE NO. 47915205
47915206
STATE OF MARYLAND
v.
BLOCK NEWS, INC.
Defendant
The Defendant, through undersigned counsel, moves the
Court for an order dismissing the case against the Defendant and
as grounds for said motion states the following:
The State’s Attorney for Baltimore City, pursuant to a
Statement of Charges, has instituted a criminal proceeding charging
the Defendant, as follows:
“That the above named Defendant Block
News on or about February 28, 1979 at 420 E.
Bakimore &. unlawfully did distribute to Detective
Danny Brown an obscene publication to wit:
“Pretty Girl Film Revue #4"" (and #3) on 28 Feb.
"79 in violation of Art. 27, Sec. 418,"
1. The Statement of Charges is vague and insufficient as a
matter of law in that it fails to set forth with sufficiont specificity
the charges of which the Defendant stands accused.
4Sa
Motion to Dismiss
2. The statutory provisions under which the State is
proceeding are, as written, repugnant to the First, Fourth, Fifth,
Sixth and Fourteenth Amendments to the Constitution of the
United States because:
a. Said statutory provisions are void for vagueness
in that the same forbid or require the doing of an
act so vague, fluid and indefinite that men of
common intelligence must necessarily guess at the
meaning and differ as to the application thereof,
and, as such, are repugnant to the Due Process
provisions of the Fifth and Fourteenth
Amendments to the Constitution of the United
States; and further,
d. Said statutory provisions are void for
overbreadth by means which sweep; unnecessarily
broadly and thereby invade the area of protected
freedoms in that the statute sets forth no standards
for determining and regulating obscenity and thus
are insufficient for those minimum standards
proscribed by the United States Supreme Court in
connection with publications presumptively
protected under the First Amendment and
Fourteenth imendment; and further,
c. The said statutory provisions are void for
vagueness and impermissible overbreadth, in the
area of First Amendment freedoms, because the
said provisions are susceptible of sweeping and
improper application by law enforcement officials
and have a “chilling and inhibiting effect’’ on the
exercise of the Federal Constitutional rights of
46a
Motion to Dismiss
citizens of the State of Maryland and the United
States, as well as the Defendant, to publish,
distribute, circulate, sell, receive and/or purchase
material protected by the First Amendment, and
further,
d. Said statutory provisions are repugnant to the
substantive Due Process provisions of the Fifth and
Fourteenth Amendments to the United States
Constitution because they permit deprivation of
liberty and/or property rights and interests for the
exercise of First Amendment rights by unreasonbie,
arbitrary, and capricious means by law
enforcement officials of the State of Maryland
without a showing of a real and substantial
relationship to any state’s subordinating interest
which is compelling to justify state action limiting
First Amendment freedoms, and further,
e. Said statutory provisions are impermissibly
broad and repugnant to the procedural Due Process
requirements of the Fifth and Fourteenth
Amendments to the Constitution of the United
States by employing means lacking adequate
safeguards which Due Process demands to assure
non-obscene material the constitutional protection
of the First Amendment to which it is entitled; and
further
f. That the statutory provisions under which
Defendant is being prosecuted on its face deny to
Defendant the equal protection of the laws.
47a
Motion to Dismiss
3. There was no constitutionally relevant evidence io support
probable cause, nor is there any reasonable or probable cause to
believe that the material charged under this Statement of Charges
is obscene under the First Amendment and Fourteenth
Amendments to the Constitution of the United States in that:
(a) There was no evidence that the material
involved herein exceeds the limits of candor,
tolerated in the State of Maryland, in the
representation or depiction of matters pertaming
to sex and/or nudity.
(>) There was no evidence that the material
involved herein appeais to the prunent interest of
the average adult intended recipient. or that the
prurient appeal was successful.
The Statutory provisions are clearly repugnant to the First,
Fourth, Fifth, Sith and Fourteenth Amendments to the
Constitut.on of the United States as said provimons have been
applied, construed, and are being applied and construed by the
States Attorney and/or law enforcement of ficiais in the following
respects:
a. That in the application of said statute, the said
law enforcement officials did not have avaslable the
necessary probable cause for the issuance of the
Statement of Charges.
b. That in the application of said statutc, the
State Attorney did not hn his prosecutoria:
efforts, as is constitutionally required. to these
instances where sexually caplicit astcrials
48a
Motion to Dismiss
specifically defined in the State statute, or
authoritatively construed, have been thrust by
aggressive sales action upon unwilling recipients,
who had in no way indicated any desire to receive
or view said materials.
c. It is respectfully submitted that this Defendant
cannot be subjected to prosecution for the sale or
exposure of obscene material unless these materials
depict or describe patently offensive ‘‘hard core
sexual conduct specifically defined by the regulating
state law, as written or construed, and only under
circumstances in which sexually explicit materials
have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated
any desire to receive such materials.
d. That Defendant herein has by the statute under
which it is being prosecuted an affirmative defense
to the charges placed against it and is exempt from
prosecution herein.
4. That the Statement of Charges and the supporting
application for statement of charges does not state a crime as under
Article 27, Section 423, the Defendant’s actions are permissive and
the Statement of Charges is therefore null and void on its face.
5. Tu the Defendant was arrested falsely and without
probable cause as the charging document does not set forth facts
sufficient to establish criminal activity on the part of the Defendant
in view of Article 27, Section 423.
49a
Motion to Dismiss
6. That Article 27, Section 418, et seq. is unconstitutional
on its face and as applied to the Defendant in that it denies to
the Defendant equal protection under the laws and due process
of law in violation of his rights under the First, Fifth and
Fourteenth Amendments to the United States Constitution.
7. That Article 27, Section 418 et seq. is void for vagueness
and overbreadth.
8. That the distribution alleged in the Statement of Charges
is a permissive distribution, and is not considered criminal activity
under Article 27, Section 423.
It is, therefore, respectfully submitted that the prosecution
in the case at bar is brought in bad faith for the purposes of
harassment and the statute under which the State is proceeding
is void for vagueness, unconstitutional on its face and is being
unconstitutionally applied to the Defendant.
WHEREFORE, the Defendant prays that the Statement of
Charges be dismissed.
Motion to Dismiss
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that on this Im day of October, 1979
a copy of the aforegoing Motion to Dismiss was mailed postage
prepaid to John Prevas, Assistant State’s Attorney, Room 309,
Criminal Courts Building, Calvert and Fayette Streets, Baltimore,
Maryland, 21202.
s/ Burton W. Sandler
Burton W. Sandler
The Defendant, through undersigned counsel, mceves the
Court for an order dismissing the case against the Defendant and
as grounds for said motion states the following:
The State’s Attorney for Baltimore City, pursuant to a
Statement of Charges, has instituted a criminal proceeding charging
the Defendant, as follows:
That the above named Defendant Phillip
David Long on or about February 28, 1979 at 420
E. Baltimore St. unlawfully did distribute to
Detective Danny Brown an obscene publication to
wit: Pretty Girl Film Revue #4"’ (and #3) on 28
Feb. "79 in violation of Art. 27, Sec. 418.“
1. The Statement of Charges is vague and insufficient as a
matter of law in that it fails to set forth with sufficient specificity
the charges of which the Defendant stands accused.
52a
Motion to Dismiss
2. The statutory provisions under which the State is
proceeding are, as written, repugnant to the First, Fourth, Fifth,
Sixth and Fourteenth Amendments to the Constitution of the
United States because:
a. Said statutory provisions are void for vagueness
in that the same forbid or require the doing of an
act so vague, fluid and indefinite that men of
common intelligence must necessarily guess at the
meaning and differ as to the application thereof,
and, as such, are repugnant to the Due Process
provisions of the Fifth and Fourteenth
Amendments to the Constitution of the United
States; and further,
b. Said statutory provisions are void for
overbreadth by means which sweep; unnecessarily
broadly and thereby invade the area of protected
freedoms in that the statute sets forth no standards
for determining and regulating obsc: nity and thus
are insufficient for those minim um standards
proscribed by the United States Supreme Court in
c. The said statutory provisions are void for
vagueness and impermissible overbreadth, in the
area of First Amendment freedoms, because the
said provisions are susceptible of sweeping and
improper application by law enforcement officials
and have a ‘‘chilling and inhibiting effect on the
exercise of the Federal Constitutional rights of
Motion to Dismiss
citizens of the State of Maryland and the United
States, as well as the Defendant, to publish,
distribute, circulate, sell, receive and/or purchase
material protected by the First Amendment, and
further,
d. Said statutory provisions are repugnant to the
substantive Due Process provisions of the Fifth C
Fourteenth Amendments to the United States
Constitution because they permit deprivation of
liberty and/or property rights and interests for the
exercise of First Amendment rights by unreasonbie,
arbitrary, and capricious means by law
enforcement officials of the State of Maryland
without a showing of a real and substantial
relationship to any state's subordinating interest
which is compelling to justify state action limiting
First Amendment freedoms, and further,
e. Said statutory provisions are impermissibly
broad and repugnant to the procedural Due Process
requirements of the Fifth and Fenurteenth
Amendments io the Constitution of the United
States dy employing means lacking adequate
safeguards which Due Process demands to assur
non-obscene material the constitutional protectio.
of the First Amendment to which it is entitled; and
further
f. That the statutory provisions under which
Defendant is being prosecuted on its face deny to
Defendant the equal protection of the laws.
Motion to Dismiss
3. There was no constitutionally relevant evidence to support
probable cause, nor is there any reasonable or probable cause to
believe that the material charged under this Statement of Charges
is obscene under the First Amendment and Fourteenth
Amendments to the Constitution of the United States in that:
The Statutory provisions are clearly repugnant to the First,
Fourth, Fifth, Sith and Fourteenth Amendments to the
Constitution of the United States as said provisions have been
applied, construed, and e being applied and construed by the
State ; Attorney and/or law enforcement officials in the following
respects:
a. That in the application of said statute, the said
law enforcement officials did not have available the
specifically defined in the State statute, oF
authoritatively construed, Aeve deer Mrust Ay
tr ν sates Dean Nea.
rere NN
or veew aaed meaternads
c. Itis respectfully submitted that this Defendant
cannot be sudje ied to prosecution for the sabe or
exposure of obe matenal unten (dese marenad
depict or descride patently offensive “hard core’
seruai vosdiat apecificall dtefimed by the reguiarme
state law, as written of construed, and only uader
cirewmstaaces in which sexually explict’ maternal
have deen thrust Dy aggresive wate comet ager
wen welling N ο‚ who RAE ORO e ORO ne
a desire 60 receive sack meaterned
d That Defendant eren has Dy the unte under
which it is beimg prosecuted an affirmative defense
to the charges placed against ( and is exempt from
prosecution herein.
4. That the Statement of Charges and the supporting
application for statement of charges does mot state a crame as under
Articte 27, Section 423, the Defendant's actions are permaive and
the Statement of Charges is therefore null aad word an ay face
. That the Defendant was arrested falelty and without
probable cause as the charging document does aot set forth facts
sufficient to establish criminal actiewty on the part of the Defendant
in view of Article 27, Section 423.
©& That Artrote 2°. Section 428 et seg. unconstitutional
am Race and as applied to the Defoedant wm that 8 dente fo
the Deteadant equal protection ander (he law. and due proces
of Wwe te woletion of Dis rights wader the Act, ARR and
rr
made. Seotion 428 et seq. & void for vagueness
Nenn
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rern on uh face and 1 Dem
RATER UTRRATD amet co the Detoetiant
WHEREFORE. the Defendant prams that the Rarement of
re
| HBREBY CERTIFY, that on this 12th day of October
—ä—ä—ä—ä— no pty tert reed
prepaid to John Prevas, Assistant State's Attorney, Room 309,
Criminal Courts Building, Calvert and Fayette Streets, Baltimore,
Maryland, 21202.
s/ Burton W. Sandler
Burton M Sandler
The Defendam, through undersigned counsel, moves the
Court for an order dismissing the case against the Defendant and
as grounds for said motion states the following:
i.
The State's Amorncy for Bakimore City, pursuant to a
Swarement of Charges, has insntuted a crmminal proceeding charging
the Defendant. as follows:
“That the above named Defendam Dedorah
Royola Redding on or about November 16, 1979
at QO E. Balnmore S. did knowingly and willingly
Gistridute an obscene publication to) 4: Amencan
Brotica Suckers t© Det. Sgt. Er. Husok ip
violation of Ann. Code of Md. Art. 27, Sec. 418,"
1. The Statement of Charges is vague and insefficient a: a
matter of law im that & fails to set forth with sufficient specific’
the charges of which the Defendant stands accused.
a
Motion to Dismiss
2. The statutory provisions under which the State is
proceeding are, as written, repugnant to the First, Fourth, Fifth,
Sixth and Fourteenth Amendments to the Constitution of the
United States because:
a. Said statutory provisions are void for vagueness
in that the same forbid or require the doing of an
act so vague, fluid and indefinite that men of
common intelligence must necessarily guess at the
meaning and differ as to the application thereof,
and, as such, are repugnant to the Due Process
provisions of the Fifth and Fourteenth
Amendments to the Constitution of the United
States; and further,
D. Said statutory provisions are void for
overbreadth by means which sweep; unnecessarily
broadly and thereby invade the area of protected
freedoms in that the statute sets forth no standards
for determining and regulating obscenity and thus
are imsefficient for those minimum standards
proscribed by the United States Supreme Court in
conrection with publications presumptively
protected under the First Amendment and
Fourteenth Amendment; and further,
c. The said statutory provisions are void for
vagueness and mmpermissidie overbreadth, in the
sree of First Amendment freedoms, because the
said provisions are susceptible of : weeping and
improper apphcation by law enforcement officials
and have a “‘chiling and inhibiting effect’ on the
exercise of the Federal Constitutional rights of
60a
Motion to Dismiss
citizens of the State of Maryland and the United
States, as well as the Defendant, to publish,
distribute, circulate, sell, receive and/or purchase
material protected by the First Amendment, and
further,
d. Said statutory provisions are repugnant to the
substantive Due Process provisions of the N and
Fourteenth Amendments to the United States
Constitution because they permit deprivation of
liberty and/or property rights and interests for the
exercise of First Amendment rights by unreasonble,
arbitrary, and capricious means by law
enforcement officials of the State of Maryland
without a showing of a real and substantial
relationship to any state’s subordinating interest
which is compelling to justify state action limiting
First Amendment freedoms, and further,
e. Said statutory provisions are impermissibly
broad and repugnant to the procedural Due Process
requirements of the Fifth and Fourteenth
Amendments to the Constitution of the United
States dy employing means lacking adequate
safeguards which Due Process demands to assure
non-obscene material the constitutional protection
of the First Amendment to which it is entitled; and
further
f. That the statutory provisions under which
Defendant is being prosecuted on its face deny to
Defendant the equal protection of the laws.
3. There was no comstsutonaily rciewart cwxdemce to seppor
probable cause. nor ss there any reasomabie or probable camer to
delleve that the material charged ender thes Scasemesr of Charge
is obscene under the Firs „„
Amendments io the Comststutson of the \mmec Seaues = that
(a) These was co crideece Get Ge aoe
moved herein cacends the Gems of caméor
tolerased ip the Ste of Maryieetd. @ Ge
representatice of Gegactsoe of maticrs =
to ora and/or sudity.
@) There was co cider Get Ge eee
invotved berem wenn to the premcse meerest of
the average adwk mtcnded recgerst. o tht Or
prunes appeal was successful
The Statutory prowmsoms are Geearty repegmast to Oe fx
Fourth, Fifth, Sath ani „„
Constitution of the Unsted Seates „„ Sper Dert
appbed. comstrucd. and are beang appieed anc commtrent & or
State's Attorney and of aw enforcement offs „
necessary probetic r
Statement of Charges
b. rr
State's Aftoracy , oot Ge bs proses
efforts. 23 2 ðè v © ow
mstamces re. r eeu
P eee 0 ˙¹ —
Motion to Dismiss
specifically defined in the State statute, or
authoritatively construed, Aave been thrust by
aggressive sales action upon unwilling recipients,
who had in no way indiceted any desire to receive
or view said materials.
c. It is respectfully submitted that this Defendant
cannot be subjected to prosecution for the sale or
exposure of obscene material unless these materials
depict or describe patently offensive “hard core
sexual conduct specifically defined by the regulating
state law, as written or construed, and only under
circumstances in which sexually explicit materials
have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated
any desire to receive such materials.
d. That Defendant herein has by the statute under
which it is being prosecuted an affirmative defense
to the charges placed against it and is exempt from
prosecution herein.
4. That the Statement of Charges and the supporting
application for statement of charges does not state a crime as under
Article 27, Section 423, the Defendant’s actions are permissive and
the Statement of Charges is therefore null and void on its face.
5. That the Defendant was arrested falsely and without
probable cause as the charging document does not set forth facts
sufficient to establish criminal activity on the part of the Defendant
in view of Article 27, Section 423.
63a
Motion to Dismiss
6. That Article 27, Section 418, et seq. is unconstitutional
on its face and as applied to the Defendant in that it denies to
the Deſendan equal protection under the laws and due process
of law in violation of his rights under the First, Fifth and
Fourteenth Amendments to the United States Constitution.
7. That Article 27, Section 418 et seq. is void for vagueness
and overbreadth.
8. That the distribution alleged in the Statement of Charges
is a permissive distribution, and is not considered criminal activity
under Article 27, Section 423.
It is, therefore, respectfully submitted that the prosecution
in the case at bar is brought in bad faith for the purposes of
harassment and the stetute under which the State is proceeding
is void for vagueness, unconstitutional on its face and is being
unconstitutionally applied to the Defendant.
WHEREFORE, the Defendant prays that the Statement of
Charges be dismissed.
Respectfully submitted,
s/ Burton W. Sandler
Burton W. Sandler
Suite 600
28 Allegheny Avenue
Towson, Maryland 21204
(301) 821-6777
Attorney for Defendant
uo
Respondent
the
lL. Whether it is necemary or Gesiratie for this Court
to ceview this case when there hes been no conviction a
sentence amounting to a final jxigment?
2. Whether it is necessary oc desirable for this Court
to eddress the iasue as to whether the Maryland Annotated
Code, Article 27, §423 is void for vequeness when this ime
was not decided by either the trial or the appellate courts of
the State of Maryland?
3. Whether it is necemsary oc desirable i this Court
t rceview the dicte of the Couwt of Special Appeals
concerning the operation and constitutionslity of the
Maryland Annotated Code, Article 27, §§418 and 4237
Aa
ag
*
gis
2
—
4
eececececececesseel
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“
“i
3
| PTT ttt Tt tte
ee es
Mieses ¥. Kress and ., 398 0.8.
144 RROGSD ce cceccccecececeececececeds
Barry We Baroni, 445 0.8. SS casye) ...22
Berean ». Gaited States, 302 0.8.
i reed
Wers ». State, 263 M8. LAS ee
*
Page
Brady ©. Marpland, 373 6.3. 83 (1969) ..5
Califeraia ©. Tapler, 353 6.8. 553
DD.
Commally ©. General Construction
Company. d 9.8. ses (ASRS) .......7
Date „ane. 397 6.8. <7)
SSS Pe Pe ee ee See eee eeeee
Raneette ©. Hew Jersey, 396 6.8.
«8, Gee
Miller ©. ite. 413 6.8. 15
„
is, e.
Preller, P.Sepe. 173 (D.a8.
19?)
RS (am * . & u
Pare ©. Gaited States, 351 6.8. S15
(1986)
SSVSTSSVVVeeesee eee eee eee eee e
People ©. Thar@e, 423 8.7.3.28 470
won
rene
Sanea ©. Beare of Censore,.
eS wea. ee Lu
Seite ©. Gageen, 415 6.8. SS oe
State ©. Heat Geer Cinema Corp...
SO? 0.28 SRE Gan. 1978) .......8,
N u
0
Page
Gaited States d. Lovesco, 431 U.S.
783 an......
United States v. Powell, 423 U.S.
8? ,
Vance d. Bradley, 440 U.S. 93
and......
Statutes
Maryland Annotated Code,
article 27,
SELB. . . POGeia
F paaeia
Article 66a,
1 ˙
Constitution of the United States,
Amendments I, TV, V and EIV........2
„. errr TTT TT TTT TTT 5
Rules
Maryland Rules of Procedure
Rule 2 ͤ n 8
Petitioners ceproduced in the \gpenitin the deckmon of
the Court of Qpecial Agpeals of Maryland amd the denial of
the Petities Ge Wek of Cattioneri © Ge Cont of Special
Appeals by the Court of Appeals of Maryland
a=
Petitioner invokes the jurisdiction of this Court under
2 U.S.C. §1257.
STATE STATUTES
Acmoteted Code of Maryland, Article 77, §§418 ad 423
Qereimafter referred © as §418 and §423.
Maryland Rules of Procedure, Rule 1085.
CONSTITUTIONAL PROVISIONS
Constitution of the United States, Amendments | IV, V and
XV.
Err
Fr
Err
Rules of Procedure, Rule 1085, reproduced in the Appendix at
Ape. 77.
STATEMENT OF THE CASE
‘The instart petition seeks review of the decision of the
Couxt of Special Appeals of Maryland which reversed and
renended a judgement thet PetBiones were in violation of
Sus.
Reede in
Err
peblicetions. The cases proceeded cn am agreed state ment of
facts along with certain extutits.
an extecsive Goowwion cof Sct: wa which the
comictios wer presested © Ge tid coxt anf i
==
reproduced in the appendix. The following sas eary of
facts for the purpose of this Court's review.
Petitioner's bookstores displayed cellophane wrapped
magazines. On several cocasions, plainclothes policemen
entered the stores and purchased magazines.) Throughout
the stores signs were posted stating that, “(jhe material sold
in ths a@ore & god only fo scientific, educational,
governmental or other similar justification an the customers
agree that they are purchasing these materials only for
scientific, educatioal, governmental a other sinilar
justification” a words of similar import. The officers were
not asked whether, in fact, they were purchasing the
magazines for such purposes, nor did the officers volunteer
their purposes for making the purchases. The magazines were
taken to a judge, who found them to be obecene and iswed
arrest warrants for the Petitioners. (Apx. 1-14).
Hearings were held cn March 25, 1980, June 16, 1980
and November 3, 1980. On November 3, 1980, the Criminal
Court of Baltimore (Piginski, J) convicted and fined each
Petitioner $500. (Apx. 15, 21-25). Petitioners appealed and
on June 8, 1981, the Court of Special Appeals reversed the
convictions and remanded the cases for retrial, because the
trial court had failed to reach an express finding of fact that
The were entitled, Girl", “Filth
Review", Erotica", "Wet", Hot , "Route Sixty
Sex", and “American Erotica". (Pet. App. 2a and ja).
*
rr
Petitie Gx eek of COetiocswi © Ge Gat ¢ Gece
r
SUSSARY OF ARCUEEST
L tae sw „
r
2 - 423 & comtietioes>) et ot ot =o
tr
„ „„
r seta, soot: 2s ee
moni 2 owe oe Oe —
the peotection of §423 ac 8 satae of be
„ 423 Goes ot cee ett, Gat
r
„ r
material by victar of 9473.
the trial comet fueg eo? — ost — oe
cause Gx ceria awe Or wel cot et Geet oOo oe
*
the magazines were obscene. Petitioners have yet to be
retried and have not been convicted of any offenses. The
Petition for Writ of Certiorari should be denied because there
is no final judgment as required as a jurisdictional predicate
of 28 U.S.C. 81257.
A judgment is final when litigation is terminated
between the parties. Ih a criminal case the sentence is the
final judgment. Berman v. United States, 302 U.S. 211, 212
(1937). In Parr v. United States, 351 U.S. 513 (1956) the
dismissal of an appeal was affirmed based on the fact that
there was no final judgment. m holding that there was no
final judgment, this Court stated, "...petitioner has not yet
been tried, much less convicted and sentenced." 351 U.S. at
518.2 Here, as in Parr, the Petitioners have not yet been
convicted and sentenced. The publications which are the
basis of the case have not been deter mined to be obscene.
The issues raised by Petitioners as to the
constitutionality of §§423 and 418 were addressed by the
Court of Special Appeals of Maryland only in dicta since the
cases were reversed and remanded, (Pet. ga - 9a). Review of
the constitutional questions raised by Petitioners would be
2the exception to the finality rule as expressed in
v. M 373 U.S. 83 (1963) is not applicable in this
case. m order for new trial limited to the issue of
punishment was reviewable, when the question was whether
the defendant was entitled to a new trial on both the question
of guilt and punishment. Here, the order remanding the case
was for a deter mination of both guilt and punishment.
*
premature given that these issues were only addressed by the
intermediate appellate court in dicta, The opinion of the
Court of Special Appeals as to these issues was only given as
guidance to the trial court pursuant to Maryland Rule of
Procedure, Rule 1085. Review by this Court would not be
necessary or desirable given that the discussion of the
constitutionality of §§418 and 423 in this case was only made
by the Maryland court by way of dicta.
IL
THE ISSUE AS TO WHETHER §423 S VOID FOR
VAGUENESS WAS NOT RAISED IN THE
COURTS BELOW. AT ANY RATE, §423 &S
CONSTITUTIONALLY VALID.
Petitioners argue that §423 is void for vagueness in
that it does not set forth the procedures necessary for
persons to bring themselves within its ambit. (Pet. J.
Although Petitioners questioned the constitutionality
of §423 in the Court of Special Appeals, they did not raise the
issue that this section was void for vagueness (Pet. 33a), and
therefore, the Court of Special Appeals did not a. iress this
issue (Pet. 9a and 25a). Respondent submits that because the
issue as to the alleged void for vagueness was not presented
for appellate review in the courts of Maryland, it is not now
proper to raise it in this Court, and the Petition for
Certiorari should be denied for this reason. Adickes v. Kress
and Co. 398 U.S. 144, 147, n. 2 (1970); United States v.
Lovasco, 431 U.S. 783, 788, n. 7 (1977); California z. Taylor,
353 U.S. 553, 557, n. 2 (1957).
2
Even if this Court were to address this issue,
Respondent asserts that §423 is constitutionally correct and
not void for vagueness.
In assessing whether a statute is void for vagueness,
courts generally consider two criteria: (a) whether there is
sufficient notice as to the prohibited conduct; and (b) whether
there are standards sufficient to guide those persons charged
with enforcing the law. Lanzetta v. New Jersey, 306 U.S.
451, 453 (1939); Connally v. General Construction Company,
269 U.S. 385, 391 (1926); Bowers v. State, 283 Md. 115, 121-
122 (1978). The decision whether a statute is void for
vagueness is made solely on the basis of the statute's
application to the particular facts at hand, and is not
affected by the application of the statute to a foreseeable
marginal situation unless the statute appears to intrude upon
funda mental constitutional liberties. United States v. Powell,
423 U.S. 87, 92 (1975). Since obscene materials are not
protected by the First Amendment, Miller v. California, 413
U.S. 15, 23 (1973), this statute is to be examined based on the
particular facts at hand.?
3 assuming, ar First Amendment rights are
implicated, the vagueness analysis would be
essentially the same except the statute is to be tested on its
face. Smith v. 415 U.S. 566 (1974). Respondent
would mit that even under the stricter standard, §423 is
Section 423 is not void for vagueness in that a definite
course of conduct is forbidden: the sale and distribution of
Obscene material. Section 423 also sets forth standards for
an exemption from the criminal prohibitions and penalties for
selling and distributing obscene material. This exemption
covers persons having bona fide scientific, educational,
governmental or similar justification for possession or
distribution of such material. There is nothing vague about
this exemption. Cf Sanza v. Maryland Board of Censors, 245
Md. 319, 340-341 (1967) (holding a similar exemption under
the Annotated Code of Maryland, Article 66A, §23 is
constitutionally valid in that it is to be read as allowing the
showing films by non-profit organizations. Cf. Modern Social
Education, Inc. v. Preller, 353 F.Supp. 173, 181-183 (D.Md.
1973), affd in part, rev'd in part (on other grounds), 512 F.2d
1241 (4th Cir. 1975) (holding that the exemption provided in
Annotated Code of Maryland, Article 66A, §23 does not raise
constitutional issues but rather raises a factual question to be
determined by the state courts}. Cases from the only other
state which has examined the constitutionality of a statute
granting an exemption to the distribution of obscene
materials has concluded that a version similar to that
employed by the Maryland Legislature is constitutionally
broad but not overbroad or vague. State v. Starr Enterprises,
D, 597 P.2d 1098, 1100-1102 (Kan. 1979); State v. Next
Door Cinema Corp,, 587 P.2d 326, 329 (Kan. 1978).
*
Petitioners claim that signs alleging the material to be
educational or scientific is not persuasive. Here, the signs
were posted in stores that primarily sell, for commercial
exploitation, sexual goods and pornography. The signs were
found by the trial court to be a "...flimsy facade erected to
escape prosecution.” Modern Social Education, Inc. v.
Preller, 353 F.Supp. at 182 (Apx. at 21-23).
II.
THE COURT OF SPECIAL APPEALS WAS
CORRECT IN STATING IN DICTA THAT THE
MERE POSTING OF SIGNS IN A STORE
LOADED PRIMARILY WITH PORNOGRAPHIC
MATTERS WAS INSUFFICIENT TO MAKE
SECTION 423 APPLICABLE AS A MATTER OF
LAW.
Petitioners argue that the courts below were incorrect
in determining the mere posting of signs within the
bookstores was not sufficient as a matter of law to bring
their activities within the exemption established by §423.
(Pet. 33a).
The Court of Special Appeals stated in dicta that the
mere posting of signs in a book store loaded with pornography
could not as a matter of law bring Petitioners within the
exemption of §423, (Pet. Apx. at 27a). The question as to
whether Petitioners fall within the exemption of §423
requires a factual determination which should be left to the
State courts to decide after all the evidence is heard.
Modern Social Education, Inc. v. Preller, 353 F.Supp. at 182.
The Court of Special Appeals dicta that §423 was not
-10-
applicable as a matter of law does not raise an issue of
constitutional dimension and therefore, the Petition for
Certiorari should be denied as neither necessary nor
desirable.
IV.
SECTION 423 AVOIDS CREATING ARBITRARY
CLASSIFICATIONS OF PERSONS ENTITLED TO
POSSESS OBSCENE MATERIAL.
Petitioners’ argument that §423 violates the equal
protection clause is without merit. Petitioners’ argument is
predicated upon the proposition that §423 creates a
distinction "...between certified scientists, teachers, students
or government officers on the one hand and che individual
who seeks to conduct his own education." (Pet. at 13).
First, Petitioners lack standing to raise this issue
because the finding of guilt did not avert to this allegedly
invidious distinction; rather, the finding of guilt was made
because the trial court felt that the signs did not bring the
Petitioners within the exemption of §423. Further, there was
no evidence taken tending to demonstrate that there was no
rational basis for the purported distinction. (Apx. 1-14). The
only evidence presented to the trial court was contained in
the statement of facts; the remainder of the hearings were
devoted to arguments of counsel. The case is not in a posture
for a review based on an equal protection argument.
Assuming, arguendo, that the issue of the alleged
violation of the Equal Protection Clause were to be addressed
by this Court, it is clear that §423 is constitutional.
elie
The test to be applied in analyzing an equal protection
challenge where suspect categories or fundamental rights are
not implicated is whether the legislative classification is
rationally related to a legitimate government interest and if
so, the classification must be sustained. Barry v. Barchi, 443
U.S. 55 (1979); Dandridge v. Williams, 397 U.S. 471 (1970);
Vance v. Bradley, 440 U.S. 93 (1979). If a statute does not
burden a suspect group or impinge upon a fundamental right,
courts will not
"...overturn such a statute unless the varying
treatment of the different groups or persons is so
unrelated to the achievement of any combination
of legitimate purposes that we (the courts can
The sale of obscene material is not a fundamental
right; nor are the sellers of it a suspect category. Persons
having bona fide scientific, educational, governmental, or
other similar justification is a valid classification related to
legitimate government interest. See, Sanza v. Maryland
State Board of Censors, 245 Md. 319, 341 (1967); State v.
Starr Enterprises, Inc., 597 P. 2d 1098 (Kan. 1979); State v.
Next Door Cinema Corp, 587 P. 2d 326 (Kan. 1978); People v.
Tlardo, 423 N.Y.S.2d 470 (1979); Modern Social Education, Inc.
v. Preller, 353 F.Supp. 173 (D. ud. 1973), aff'd in part, rev'd in
part (on other grounds, 512 F.24 1241 (4th Cir, 1975).
-12-
V.
THE EXEMPTION FROM CRIMINAL
RESPONSIBILITY OF CERTAIN POSSESSORS
AND DISTRIBUTORS OF OBSCENE MATERIAL
DOES NOT ALTER THE OBSCENE NATURE OF
THE MATERIALS THEMSELVES AND THUS,
$418 IS NOT MADE UNCONSTITUTIONAL BY
VIRTUE OF §423.
Petitioners lastly contend that 5418 is unconstitutional
because of the alleged conflict with the exemption section
thereof (§423). Petitioners misapprehend the import of the
exemption law. The exemption does not alchemically
transform the base pornographic materials into glittering
artistic expression, protected by the First Amendment.
Rather, the statutory exemption leaves intact the obscene
nature of the material, but insulates its custodians from
criminal responsibility for dissemination of it, under certain
circum stances,
The character of the magazines which were introduced
into evidence before the trial court never changed; the
Character of their use may have served to insulate its
distributors from conviction, had the distribution fit within
the guidelines declared under §423. As argued hereinabove,
Petitioners raise a factual, not a constitutional issue. The
determination as to whether an individual falls within the
exemptions is a factual one to be raised as a defense in the
trial court. Therefore, an issue of constitutional dimension
has not been presented to this Court and the Petition for Writ
of Certiorari should be denied.
12
CONCLUSION
For the foregoing reasons, Respondent requests that
this Court deny the Petition for Writ of Certiorari to review
the decision at the Court of Special Appeals of Maryland.
Respectfully submitted,
STEPHEN H. SACHS,
Attorney General of Maryland
DEBORAH K. HANDEL,
Chief, Criminal Appeals Division
PATRICIA E. MCDONALD,
Assistant Attorney General
One South Calvert Building
Baltimore, Maryland 21202
Telephone: (301) 659-4000
Attorneys for Respondents
Excerpt from March 25, 1960 hearing. 41
1 MA, 0, Your oer.
2 CCD. You all may be seated back is
3] the audience iz you wish.
4 AR. PAZVAS: Prise to giving first che State-
5 |aent of zeta, the statement of the defense by agreement with
8 |consent of the defendants have agreed in every case except fcr
7 | chat ia Cebbra Aedding to amend the cllacging document as
8 |f2llows, before the words distributed, she word ‘mowingly would
9 [Se entered by interlineation. Asay it show op the document, the
10 jamended charging document to enter the word knowingly >efsre
il ithe word distrizvuted.
12 rr
13
* MR. PREVAS: ., tha Statement of Facts are
follows, Your donor, first of all with respect to Sebbra
„ the testimony would be as follcws.
Detective ie Nek of the Zaltimore City 7olice
. Vice-Prostitution Gnit would testify that on the
9th of Movember, 1979 at 1:30 in the evening he had cecasion
be in the 400 block cf Zast Baltimore Street which he
describe, which is in the City of Saltimere which he
describe as part of the adult entertainment district. Se
various buildings of flashing lights there. There
night clubs that have pictures cf women in various stages
t undress and I would indicate that he went to 420 cast
Apx. 1
Saltimore Street which is, which advertises as an adult book
4 | rs. Sa would tastify that wnen he entered the premises thac
, | along both walls of the buildicg are displays indicating
P numercus aagazines of a sexual nature. Zach were wrapped in
3 | cellophane.
0 — . —
7 Garn at rhe counter and there eee is the
3 | 4tese. de would testify that he went into the Sody cf the
9 | tore and losking at all of the various items being displzyed
19 | 2@ selected ome. Se looked at the covers cf various icems that
u | were all up for display and hewlected one “hich wes represents.
u tive of the general nature of thes.
1 Ze took that item still wrapped ene where
u D Lata the wrapped, sealed item in front of <he counter is
1
6
ia the courtroce today. Je placed it on the counter,
* she quoted him the price which is $6.00 that ne purchased
item from hes, giving cash for the ites. There being a0
ether than the qucting of the price and at that tine
removed it from the premises and returned with an arrest
Yor he would offer the segasine that he yurchased as
eate’s Exhibit me cae. Ze would further testify when he
(Standing at the same counter ae the Clerk he exhibited only
Statement cf Pacts. Se would testify that he wes standing
Apx. 2
E
1e the counter with the Clerk, he could see all of the
2 | various items that were being displayed throughout the store
3 | standing at that position. ‘That would complete the Statement
es Pacts as to Oabbra Redding.
$ Tae court: With respect to 3tate’s Exhibit
® Tone, it will be admitted.
7 | WEEREUPCS, STATS'S EXHcSsT WOMBER ONE WAS MARKED ITO EVIDENCE.
8 MR. PREVASs That will be the Statement of
9 iets for Sebbre Redding.
0 THE COURT: Very erotic number 104.
u MR. PREVAS: The next Statement of Pacts
12 J would be as follows:
3 Detective Melvin Xel < <
“4 THE COURT: What case is this?
1 . PREVAS: This is Thomas Craig and the
6 e Mewe Incerporsted.
Detective Melvin k-e-l-b-e-uw-geh, celbaugh testifiel
that he is an officer of the Baltimore City Police Departeant
assigned to the Vice-Gambling Tnit. Se would testify that on
the 9th of May, 1979 at 1:35 in the afternoon, he had cccasicn
3
to go, 9th of May, 1979 he had cecasion to go to 400 East
Baltincre Street which he would sere eas an adult entertain-
ment district as described in the Statement of Pacts.
Be would testify he went so 420 East Saltinore Street
which clearly advertises to be an adult beck store. den enter}
q
Apx. 3
1 44
— —
megasines which were sesled in plastic and which indicated
from the covers that they were of an explicit semal nature.
After perusing the various displays, he selested what will be
State’s ne Que on this Statement of Pacts - “Swedish
eri.
THE COURT: It is a different Statement of
Pacts, you will be getting confused doim at the Coust of
Appeals? This will be State's Exhibit twe - “Swedish Erotica,”
Susber two.
WHEREUPCH, STATE'S rr WOMSER SWO WAS MARKED INTO EVIDENCE.
MR, PREVAS: Which he would testify was
weepped in plastic. Se would testify that at that tine he tock
it from the display reck to the desk and he would identify the
defendant, Thomas Craig seated in the courtroom es the clesk
waited on him et thet time. Ne would testify there was ne
Conversation with Mr. Craig, that of course Detective Kelbaugh
im plainclethes and he was acting as 8 mauber of the
general public, wes quoted by mr. Craig the price of the
which wes $7.50 which he paid for with U.S. .
would testify at that time mr. Craig then placed State’s
ber Two in = plain brow bag end turned it over to
1 wae at that time asked to identify himself end said
name vee Themes Craig.
Detective Xelbeugh would testify he procecded in
Apx. 4
, | Oivertet Coust after presenting the magesize to Judge Josegh
2 | Clatelsa, « warrant was iseued and he returned te the premises
3 | and 4t Le etipuleted thet Willies Ghamsker of the State
, | Jepartmant of \esesaments and Tamation would teetify that the
5 | Coxporetion thee dees business at 420 Enct Salitincse Street is
6 | Bleck Jews, .
7 The eee ohne.
THE COURT: 10 ms. e re
The tootinesy would be ce fellows: Sergeant Bruce
would taotify he ic 4 Seltiaere Ciey Selice Gfticews
co the Vico and Gamliag Gait. Se would teocisy =
4“ of Jane, 1973 thet in civilian clothes, he want te 400
Rect Geitiagse Street which has bees Geseribed ac is the
etegenest of facts thet he want to 460 Bact Saltiosve
Which advertises es am edult beck stove.
Ratering the pramtces, „„
„„ K ia plastics mvelepes thet ase disployet
woth walle ef the premises. He wereld testify thet they
aagaaines which covers, which indicsted thet they ware of
euphieit camel setups. Ge selected State's hibits Suber
“Swedish „k 23,° as o seprecentstive sangle
ür unn ue „e „ „„ & * SS
1
16 jmade a determination eee cbscene. Se
7
19
ee ee
of that display and he took it to the counter to the Clerk whos
he would identity as the defendant, Savid Thomas Stoughton whe
seated in the courtrooms today. That, at that tise he indicated
that he wanted to purchase the magazine, that xr. Stoughton
received his money after it was established that the price was
$4.00.
ur. Stoughton placed the maggsine in a plain paper
bag and gave the same to the officer in return for the currency,
that ther: was 30 further conversation, that he did act want
to sepresent himselt to be a police officer cr any other
govesrmental agent. Je would testify that while waitin; at the
counter with mr. Stoughten, he could see the catire display
ares cf all of the counters in the store. Ue would testify
that after purchasing “Swedish Ereties Sumber 23,° he want to
the District Coust, Central District and Judge Joseyh Ciatala
an arrest warrant, w. William Shumsker from the State derart
ment of Assessments and Taxation would testify that the
corporation to de business at 400 East Baltimore Street is
400 East 3 ltinore Street, Incorporated. That is the State's
Sxhibl: Sumber Three.
24
THE COURT: And was Mr. Stoughton an enployee
of East daltizere Corporation, is that correct?
MR, PREVAS: That's correct. ‘The next case
Apx. 6
De eee 6
112 State of Maryland vs. Joseph 0. Stephens and Charles Socks,
2 | incerporated.
3 Detective Eric Husck of the Baltimore City Police
+ | Department would testify that the 15th of May, 1979 at 3:15 in
5 ij the afterncon, he had occasion to go to the bock stare of
6 [Charles Books, Incorperated, 1327 North Charles Street.
? Be would testify that the 1800 block of worth
8 ijCharles Street is in the City of Baltimore, and there are «
9 jnumber of places of adult entertainment on that Slock, a lot
eee
u gene. It is not in the City cee Adult Mmtertainuent
12 gone but there are plseces of entertainment in this block that
bars, night clubs, with dancing go-go girls, advertisement
the outside, there are a sumber cf books stores that
se themselves so be adult book stores.
Be went into one of then which is 1627 North Charles
upon entering it he cbszerved there were numbercus display
indicating numerous aegazines which were sealed in
through the entire sample, pretending he was a
„ he wes in civilian clothes, he selected one which
be State’s Exhibit sumber Four as 2 representative of
semple of what wes Ml which he would so
4 would so identify this wee a package of tiree.
2 | wousd so identity as follows, State's Exhibit Sumber Four ~
| package of three.
1 cc. ‘They are all four, put them back
„ the bag. “Wet” is the first one, “Hot Baby“ is the secand
4 |one, and “Route Sixty Sex* is the third one.
; . PREVAS: Se would testify that at that
z | time he went to the counter where he observed the defendant
9 |toseph Stephens was the clerk. Se would testify that he gave
the items to the Clerk and that the Clerk indicated the price
ich was $10.00, excuse me, three, for $9.95. And that there
no cther conversation other than the price. He would
r “hat che orice wes quoted to his by Mr. Stephens —-
for $9.95 which he paid for with 9.S. currency and that
items were placed in s brown paper bag for him at the tine.
he could see the entire pramises end he could see all of the
He would testify that he took the itess to Central
istrict where Judge Clatols sade 2 preliminary determination
they were cbscone, at which time he returned with an
rrest warrant for Mr. Stephens and William Shuseker of the
Beebe s 8 &
was standing next to Mr. Stephane st that time, st the counter,
2 2 eS —
business at 1827 North Charles Street and that Mr. Stephens is
an employee thereof. All events occurred in the City of
3] Saltimere. GZtate's Shit Number Your.
4 | MHERZUPCS, STATE'S EXHISIT Wan FOUR, WAS MARKED INTO EVIDENCE.
5 Phillip Loag and Slock Jews, Incorporated < Cetective
6 | Denny Aren. C. . D. , Vice»?rostitution Unit would testify that
7 on the 28th day of February, 1979 f 11:45 A. A., he has cccasics
8) toe go to 420 East Baltimore Street which is in the 400 block
9 J of Zast Saltimore Street which has previously been described
10 Jin the earlier Statement of ers “hat he would testify that
11 420 Zazt Zaltimore Street sdvertises itself on the front as a
adult book stores.
13 Se entsred the dock store. He cbserved numercus
4 | racks indicating various items which purported from their
8 [covers to be explicit sexual nature, displayed all along the
store. Je selectcd rares Exhibit uber Pive, which is twe
32 suguesentstive of the itens Gut wane on Giéshen.
Be would tastity shat he purchased <ach of the ovo megasines
from Fu lliz ei Long whem he would identify as being the
endant seated in the courtroom ‘ho is the clerk at the
cur.
He would testify that the only conversation that
between himsel‘ and Mr. Long was the queting of the
of the magazines which was $4.00 for “Pretty Girl Pilz
„ double feature issue and 36.00 for “Pretty Girl Fila
*
u n un u ss 8 2
! Apx. 9
a OE Ea
1
2
a n n nm n 8 & &
Review Trees, feature length issue. e would testify that he
was in civilian clothes at the time that he sade the purchase.
After making the purchase that he tock the magazines to Judge
Joseph Ciatola who made an x Parte determination of their
obscenity.
Ze seturned with an arrest warrent. de would further
cestity that he wes at the comter with Xr. Leng, he would
observed from the vantage point of the counter - displays
t the varicus items. We would testify that cher than the
of the price there was no conversation with Mr. Long
Me. William Shumaker of the State Department of Assescumts
Taxation would testify that the corporation licensed to do
at 2420 Zast Baltizere Street is Mock Jews, Incorporated
that Mr. Leng is an euployee.
The State would offer the magazines as State's
THE COURT: Mark them SA and 3.
„ STATE'S EXHIBITS NUMBERS FIVE A A EIVE 3 WERE MARKED
ZVIDENCE.
MR. PREVAS: I believe that that covers all
the defendants.
TH COURT; Is that it Mr. Prevas?
MR, PREVAS: Yes, Your Boner.
MR. SANDLER: Your Honcr, we'd lixe on the
————ä 22
| Apx. 10
; e |
rt of Pacts. that is. if each and every ane of the defendants
2 iwexe to testify, if the Court requires chat I name each of then;
372 will but they would testify that in the event that if sithes
+ |one of these police officers would have indicated to then that
5 | they were sot parchasing the asterial selected by thes for the
6 |}reasons set forth on the sign that they would have refused to
7 2 tn caliente eae, Oe eee wale ene,
8 tm addition <- <-
9 THE COURT: They'd also teutify thet I os
% ure that it would have to affirmatively come from the
il |parchaser end act ac anything that they inquired iste?
MR. SANDLER: Se, siz.
THE COURT: They would testify that they
@idn’t make any inquiry, did they?
MR, SANDIZR: I doen't believe the testinasy
fwould believe that they made any inquiry. 1 believe they did
‘thet indirectly through the signs.
THE COURT: We have got to get the signs is
—
—
yet.
MR. GABDLERs But as of right sow, each and
witnese in the event either police cfficer wuld heave
it was net for the purposes on the signs, they
't have sold it. |
THE COURT: Sut they also wouldn't heave
the question?
sees Bes & & SF 8
Apx. 11
ee
1 MR. SANDLER: That's correct. They would
2 | testify, Your Sones, that I believe the additional testimony
3 | im the case would be if the police officers wers to testify,
4 | ander cross-examination that they would freely admit that the
5 | signe were existiag in the store in places where they indicated
6 | and from their vantage point as the State has indicated.
7 n addition to being able to see the other ter
8 jin the store, they would be able to see the signs.
9 THE COURT: “Whether the police officer would
10 [ada cn crous-examinacion .& is something which vou would
ll | prove as part of your case.
12 MA, Wr. Tf think in 211 fairness, the
rr
14 rtl ren heit vantage ens and also see the signs.
1 Tag COURT: She signs aren't as colorful.
—
a
The signs are ia black ani white, the other things are in
—
=~
MR. SN. I think some of the signs may
.
TSE CCURT: Well, they don’t shew up that
i
MR. SANDLER: We didn’t take color photos.
are black and white. f think the signs are printed in
seer 2 &8 & &
THE COURT: iter way.
{ Apx. 12
321
MR. SANDLZR: anten. Your er the
Statement of Pacts should include the fact that the exhibits
substantiate the fact there were signs throughout the store
indicating that the material thac is being sold in this store
is deing sold for scientific, governmental, educational or
other similar justifications and also there was a sign at the
entrance and at the cash register whare the purchaser psys his
money whereby he agrees that he is purchasing the saterial
selected by him or her for scietific, education, governeatal
oz other similar justification and Your Soor, I sort of place
some emphasis on the other similiar justification for lack of an}
additional commmicaticon between the parties.
THE COURT: Cne additional fact I think
that should be included, T don't think that that phrase gets «
>it more significmt by silence. f think that that phrase is
totally within the concept of the other of sjusdes generis,
you have argued it a couple of times mr. Sandler, I think I
have got the drift of your argusent. We are going to have
plenty of cpportunity for sdditicnal arguest.
MR, SANDLER: Yes, sir.
MR. PREVAS: I don’t went the Court to, well
in addition te the additional facts it should be that the
material was purchased with money from a police fund just se
that the record reflects clearly, the police cfficers vere
allocated in the vice uit a certain amount cf momey to sake
Apx. 13
— ern i
1 purchases in the area of obscenity and gambliag and
2] prostitution money. This general fund was used to cake this
3 evidentiary purchase. Im, addition, I think the factual
4] situation should contain at that tine.
5 MR. SANDLER: The Defense would produce
6 | evidence from the police officers to ,the effect that they are
an arm of the Government of the State of Maryland for the City
8 lof Saltimore and that in addition to the statement as set forth
9 | which states thet they purehaced the sacerials for evidence, I
10 [think the evidence or the facts saould snow his Court that
i cher also purchased the material for jovernmental purvose. Thad
2 14s where we are.
dow, Your Gonor, sway from the Ctatement of Pacts so
I dent mislead this Court, please let ue 2010912 if f
15 created the resin that this defense rests solely a
16 facts that it is our position nat che =2terial is
7 paterials purchased for strictly governmental zur roses.
THE cougT: Mo, I understand thet casmpletely.
ou certainly don’t have to apologize. a thers anything else?
MR. SANDLER: io, sir.
THE COURT: Gentlemen, what I will do, you
make a Motion for Judgment of Acquittal, I would assume?
MR. SANDLER: [f would, siz.
THE COURT: And I will reserve on that as well
u r u n & s & &
eon the Motion to Dismiss and the Motion to Suppress.
q Apx. 14
Zxcerpt from November 3, 1960 hear‘ng.
242444211444
THe COURT: Sow, we have hare cases <-
47917955 = State versus Charles Scoks, Inc.; 47915745 - State
versus Stepheng: case number 47915555 - Stace versus Thomas
Craig Thomas is spelled t-h-o-m-aes Craig is spelled ¢-r-a-i-g;
case — 47917955 Stats versus Slcck Jews, Inc.; case
number 47915227 and 23 - State versus Thillip Loag; case
number 47915205, 06 - State versus Moeck News, Inc.; case
number 47934850 - State versus Sebbra Redding: case aumber
47917860 — State versus David Stoughton; case number 47917859 <
Stace versus 400 Tact Saltimore Street, me. as vell as the
ease number 47936103 State versus “coden. wow, these cases
came before the Court on a special assignment request of x.
Prevae on March 24, 1960. At that time there was some dis-
cussion on the record. The case proceeded to a act guilty
statement of facts. In essence, Mr. Preves and mr. Sandler
for the Defense sade the record that they wished to sake with-
out the need: for taking testimony after he defendants had
respectfully weived their rights so a jury trial and to gro-
esed with an actual trial before this Court. At the conclusics
of that heering, © asked nine specific questions which were in
part related to = case that was pending in the Court of Special
presls. That case was an appeal from a decision by Judge
ley, State versus Gravett: which was number 1193 in the
September Term end in an unreported opinion, unreported per
Apx. 15
1 | curiam opinion, the Court of Appeals decided the issue in that
2 | case on the narrow procedural point and did act reach zany of
3 | the substantive issues which ers in fact befors ze here. The
4 | case of the Court of Special Appeals was filed on May 12th,
1880. Mr. Prevas provided me soon thereafter with a copy of
s | that opinion together with a copy of the brief of the Attorney
7 | General and a copy cf the riet of Mm Sandler with respect to
g | those cases sometine after May 12. An ambitious person euplcy-
9 | ed by the stats Attorney's Office of Baltimore City apparent-
10 Ir having something to ¢o more with computers than with prose-
u | caution of cases insisted that this case be set in for this
12 | date even though counsel and = had agreed that some of these
„ee would be delayed pending | ajudication by the Court of
14 | Appeals. Consequently, the cases were called end brought be-
fore the Court today. Now that many of the defendants have
Deen assembled and Mr. Sandler and Mr. Prevas are here, we will
hear argument on the points which I left open at the end of the
3 last hearing. We will attempt to resolve some, perhaps all of
OD CERES — 222K O2
cases. Im brief, the first point which we will note in brief
but perhaps at this point it should be made clear that on the
statement of facts, Mr. Prevas, ©; put before the Court,
purchases of the items which have been marked in evidence and
which are now in their original wrappers again the State's
Exhibit he. State Exhibit Five, Mr. Prevas if I am not ais-
Apx. 16
a un un 8: 8s & & & & F&F BS
5
taken you indicated that at sach of these bookstores these
items were arrayed in displays and in zany instances they were
wrapped in cellophane. That the jlainclothes officer had Ae
ed out items and taken them to the cash register and paid cash
without discussion of the purpose for the purchase and upon
making the purchase removed the itess ‘rom the premises. ith
respec: to certain of the instances, ou indicated that sone of
these goods were visible from outside of the premises. The
testimony was taken with respect to the employees and the
corporations and finally Mr. Sandler I believe indicated that
with respect to each and every defendant, if the officer would
have indicated that he was not purchasing for governmental
purposes, they would act have been sold. Sut. Mr. Saendles
candidly admitted that the persons whe were selling would act
have volunteered the question. Mr. Sandler also sdded for the
record that the signs which were depicted in Defendant's
Exhibits ne through Four, dencminated as motions exhibits and
which will be ausde now case exhibits, those signs were in place
end that ———— r with quvesmmantel, Gents ant
16288 — eatin 00 cfticns 00 Gn Gata
City Police Department when in fact they asde curchases. How
gentlemen, without prejudice to what you sectually said a the
record last time but just for my purposes, did you in fact have
any additional facts which are critical or which I should be
apprised of at this tine?
Apx. 17
5
MR. PREVAS: i think the facts is Your Honor
indicated thes were the facts that we gave at that time and the
State has nothing in addition.
THE COURT: Well, on the faccs, I am sure,
but I would like to hear scusthisg on argument. Mr. Sandler,
do you nave anythiag additionally on the facts?
MR. SAMDLZR: Just @ne comment, Your donor,
ia connection with ay candid admission that the clerks would
not ask the question, I think that I qualified that by state-
ment on the record that under the Section 422, they weren't
required te do anymore that the signs - .
THE COURT: I understand your legal arguset,
19 [dat I think the fact was that they did not in fact inguire.
MR. SANDIZR: At that point I believe you
asked ara the Court queried as ts whether or not any of the
Clerks asked and I said based on ay information they did not.
“MR, PREVAS: Your Honor, Sefors we proceed,
just as a housekeeping matter let the record reflect that the
five human defendants are in fact present in she court room and
that the rule I believe, it is 723c does not require that the
corporations be present although Mr. Sandler is acting as the
representative for the corporation. So the record is clear we
are not doing this in the absence of the defendants.
THE COURT: All right, I think the first
—. . ieeiesdines:
Apx. 18
1 sases sefor2 1 iste the Tench go tues Thar sold aot 20 122:
24 : for e eas.
3 So scunsel want 70 sa7 anychiag at shis dot: at all
222222 = 30 Lato zne opta:
5 2. 222: o, yous doncr.
6 : Ca any soict, rrocedural or ctheryvize?
7 4. 3.82: Yo. The zar! 12 12284 -- 2n ;
8 Taz COURS: Tha Seat is 422217
4 “3. SASS: Yes.
10 D SCURT: “why is the Sese9 sf2aid?
2. I: we are hart, your isnor, there :
:afendant oeiaz eser. And 7 would lik2 20 tus shart,
% save sochitaz further 2 say. #@ are act afzaid.
TES COURT: wr. Diener?
2. 2E: Jorg 20 add.
AZ CC: . ener is w. ia the unfsreumace
17 arzon of being callad upon to sit in for Mr. Sandier,
‘fe. Sandler having aade the arne £9 she Court is the
rer searings and supplementing shesa genes vith 2 Lotter
to the Court dated July 31, 1988. 4 copy of chat Term vill
za entered for the record in chase cases at this tine. Also
Ser the secord He. ?revas’ submission of rand of Lav and
gone case citations on cbscenity will also be yut ia the record.
The ey iseve here is an interoretatisas of Section
423 of Article 27 of che Maryland Coda. Section 423 of
wees W s s&s & Sk S&F SF GB GH
1 Apx. 19
3
astisis 27 grovicas renzen za penuistes Cosi ia 2228
1222212 shali sot Hd 2 persons n sonafida seimsizi:,
adscational, zovernmental or other zicilar jussizicacio: for
tossessiag such aattar or disertSutton snereot sursane to
such ‘ustificatisn. The cases here vere triad on chs sheory
that the obscenity of saterials daa aud ind chat tha
¢aZandancs were, could 10% Se fomd Her of these charces
because of the application of th: exonpeion. Ths exempeion
waa said to ly because as shown ia cefandane's ite 1,
2, 3 and 4, ts the resvective slaces : Susinass signs apoear
which read "The customers agree that he or she is ocechasiag
sha saterial salat z by U or her for their sci meizic,
gavernmental, educational or enger Ul jJustizication.”
de have had extensive argument on these ones. Ars=ocent Sas
Saen wust but fe has not Seen carticularly tinte;
tecause chia exacption has not dem che subject of she —
licigation at she appellate level in any “oure in this ry.
The case which defendants rely wen is a case decided Sy 4
Misi ?rius Court in che State of Sew York. That case which ve
have callad through the course of chase proceedings the anal
case decided that similar signs brought che ¢efandants 12812
the exemption and called for the sxemotion to be applicable
so that she crizinal penalties could sot asply.
Is is Me. Sandler's contention as specifically set
forth in his leeter of July 3rd, which 1s being wade a part of
Apx. 20
{ 2 |
tf saiz secort, shat section 21e zar nat Ls 1271, shat 1:
2 shows the lat zen 20 distetbut: zel 3f m 02
3] satus? only 22 222: witht sclearizis, susacionai sr
4] sovernzental fusetiication. ia contends that the atime 22
5 do shis is tade clsaar by “he signs costed is she stores and
6] sherelore ese silence on the past of sha purchaser nl:
tis acceptance of the matartals of * cale. Dar 282224117
8] is ds teasenicg of the Court in the ren case. Tha 3122212
9] for wrench Lg 271 N.Y. Supp. 22d. , 322, decision by tha cLarricd
Derr 22 SufZole County in “ew York.
Der cousiderabdle considesation iaciudias she revied |
o2 she “Miller case and chez prozess az well as other -attors
and other cases ick have beer sited to the Court La sha
various saterials it is this Court s fe~ling that thurs is
2asentially rtl or no itlustaaetion of “his «xercprion
provision and the Court is lefe przez: co Les own rzasoniag
gewers with respect to these cases ind che application of <his
azecption provision. This Court EZads shat a3 the szvidencs
daconstcated and as the agreed streuen of facts tacicatac
chat the en sold were sol in cellophane covers wer? 3acusliy
sxplicis scenes depicted on the cover, that depiction is
sufficient to place knowledge of che sellars chat the naterial
iaside say be séscane. That ioctrine has been racently
rant f ic sha case of lindzad seerss vs. Grassi, 5057.2)
We. That case novaver and other cases
u m un u um Ss „ S & * BS
Apx. 21
: —
1 saaiiag with knowledge of obscene =atzriuls is noe reul iy.
2] does cet zaall help tha Course with respect to this exerotion.
3] <£ che Cours were che Szare s sttommey the Court vould ar
4] ce stringing thede cases. for the record te 1 slear chat shesq
s [terial are tetas sold exclusive:;, or at lease 12 21 Sut
6] one case, in soning as she adult entcrtainrent cone, whick is
a creature of Cy Crvinance ar vba b wer adult eat ezzazn-aat
8] aight be.
9 The Course does cot 222d t) st the person who 28223
10 sha store 13 surprized co find har 22 ads thera. <a Les,
u she zerson o waters cose Cel wnters wilifully with 4
dasize to be abla co gurchase thas which is on ale. is
13] 2prears to she Court, and if tha cours wera sha Sears
4] actorney, 23 long as these catters were caiataiced witain she
7 acule entertainment’ sone, a sone ohzah the CI Cowneli Sa:
16] isdicaced should be for this type of entexcaiament, she
unf prosecutions would be best deZar=ed,
1 The court does act however have the ower to
19] tsseteusa cases. it nas oaly the power to adjudicats show
” | cases which come before it and its opinion as to che value of
af che prose
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