Dillingham v. State

BRINTON DILLINGHAM STATE JOSEPH OF MARYLAND 314, Sеptember Term, 1969.] [No. July 15,

Decided 1970. argued Murphy, C.J., The cause was before and An- derson, Orth, Thompson, JJ. Morton, Joseph appellant. Forer for DiCieco, General, Attorney

Robert Assistant A. Attorney Burch, General, were Francis B. whom William LintMcum, Jr., Attorney Montgomery A. State’s for Cotmty, Barry Helfand, H. Assistant Attor- State’s ney brief, Montgomery County, appellee. on the for for J., majority opinion delivered the of the

Thompson, J., J., Court. concurs. dissents. Con- Orth, Anderson, curring opinion by J., page 700 infra. Orth, Dillingham,

Joseph appellant, Brinton was con- 27, pro- victed under Art. 418 of the Md. which Code § exhibition, sale, etc., pamphlets hibits the of obscene drawings. originally People’s He was convicted in the Montgomery County. appeal Court for to the Circuit On Montgomery County, again for he was convicted jury granted novo certiorari. Dill- in a de trial. We ingham did not re- contends evidence establish quired obscenity; agree elements of since we with this contention, unnecessary for us it will be to consider other contentions. 21, 1969, appellant in front of

On March was arrested County Montgomery Headquarters selling Police Washington a detective an of the Free Press news- issue 15-31, paper, page No. March 1969. three of Vol. On issue, page ap- top bold of the letters at the block high, proximately inch is the headline “Dear one there Pugh” Judge print “pages page in smaller 9-15”. On issue, approximately nine of the in white letters one and one-eighth high, background, on a there inch black Pornobiography.” “A In the the headline lower center approximately portion page, there is a cartoon one-quarter square which a nude four and inches shows Judge Pugh figure (purported to be H. human James Montgomery County) the Circuit Court for masturbat- ing. figure sitting large The cartoon the human shows it, chair with a podium swastika on front of or lec- hanging tern on which are hypo- various items such as a whip. cartoon, including dermic needle and a The entire figure, drawing, human line-type being very is a simple artistically proportions. and out of natural figure sensе, bearing human only abstract in an artistic moderate resemblance to actual human form. The limbs general anatomy proportion, are out of no there is head, hair on the expressionless. face is Above figure one-quarter square within the four and inch caption cartoon is the “HE’ COMM D’JUDJE” Surrounding the cartoon in a ten [sic]. box inches three-quarter four and biography inches is personal concerning Judge Pugh, e.g., facts memberships, club address, alleged home conflicts of interests. Surround- ing the biographical cartoon and material on the rest of page critique Judge Pugh is a in hostile terms of in professional capacity; his page the entire measures seven- teen approximately inches eleven and one-half inches. Page twenty-four nine is pages one of in the total news- Pages paper. apparently 10 to 15 are intended as a con- critique judicial tinuation of the system general of the begun page summary A nine. newspaper expert testimony is appendixes. shown in the applying 27, Code, 418 of proper Art. § Md. obscenity criteria to determine is outlined in Roth v. States, 476, United 1304, 354 U. S. 77 S. Ct. 1 L.Ed.2d 1498. In test, reference to that this Court stated in Don nenberg State, v. App. 597-598, 1 Md. 591 at 232 A. 2d 264 at 268-269 :

“We understand the Roth-Alberts definition of obscenity average person, ap- —‘whether plying contemporary community standards, dominant theme of the material taken as a whole appeals prurient to the interest’ —as reiterated Ohio, Jacobellis v. 378 U. S. elaborated

<672 States, Ginzburg v. United ad 383 U. S. York, in Mishkin New

justed 383 U. S. Book Named in A ‘John Cle summarized v. At land’s Memoirs Pleasure’ Woman of General, torney decision) Fanny (the Hill following test for ob U. S. 413 establishes scenity : coalesce; es- it must be

“Three elements must tablished that:

“1) taken of the material dominant theme The prurient appeals to a interest a whole

in sex. designed for

a) the material is where to a primarily disseminated group, clearly deviant sexual defined large, public than the rather requirement satis- prurient-appeal is the mа- if the theme of fied dominant appeals a whole taken as terial prurient interest sex group. of that members “2) patently offensive be- material contemporary commun- it affronts

cause description relating ity standards representation matters. of sexual utterly “3) redeem- without The material ing value. social three federal constitu-

Each of above indepen- applied criteria must be tional weighed against dently and neither others, any nor canceled determining ques- a) an As aid to obscenity, setting in which tion of may presented be material was pander- Thus evidence of considered. purveying ing tex- business —‘the graphic openly matter adver- tual or appeal to the erotic interest— tised to purveyor’s relevant’ and ‘where a

673 sexually pro- emphasis is on the sole publications, aspects of his vocative accept court could his evaluation on ” its face value.’ recognized by Court, uniformly It has been this Appeals Supreme Court of and the United States obligation reviewing an court has make judgment independent, reflective constitutional Ohio, Maryland supra, Wagonheim facts. Jacobellis v. v. 297, 240, Censors, Board State Md. 258 A. 2d 255 Censors, Maryland Sanza v. State Board Md. 245 State, App. 139, 226 A. 2d v. 228 A. Levin Md. 2d 487, Donnenberg State, supra, State, v. Lancaster App. 602, Md. A. 2d 716.

I As A “Taken Whole” making judgment, In case constitutional de- analysis special requirement mands of the the al- legedly obscene material “taken a whole.” There be may “whole”, question proper be some as what is general agreement there consideration “whole” is not restricted to first test set out above. Concept annotation in 5 A.L.R.3d 1158 “Modern Obscenity” at 1178-1179 summarizes the situation: Judging 7. material ‘as whole’

“§ Generally “[a] obscenity

“The earlier standard under which judged by could be ex- the effect of an isolated cerpt writing taken from book other re- was jected Case, requires [supra] the Roth which challenged that material as obscene must judged ‘as a whole.’

“ [b] Where text is accompanied by ^{[*] [*] [*]} illustrations challenged “Whether illustrations as obscene may apart accompanying be considered from the question depends upon text seems a which circumstances the individual case.

674

event, present time there is not sufficient at authority possible to point make it state generalized rules.” Supreme has never defined “whole”

While the Court States, Ginzburg supra, specifically, Roth in v. United 942, States, 463, 16 L.Ed.2d v. U. S. 86 S. Ct. United 383 31, apparent approval the trial Court cites allegedly approach item must be court’s that the obscene is, apparent at an in its entire context which considered Roth, minimum, at physical item In 354 S. itself. U. 490, approves 1312, the trial 77 S. the Court court’s Ct. instructions:

“ books, pictures circulars must ‘The context, judged whole, entire as their you trier not to consider de- are fact] [the separate reaching portions con- tached or ” clusion.’ Thus, Supreme has considered insofar Court issue, they it intend the trier facts consider seems allegedly physical obscene. at least the entire item Maryland Appeals provide from the Cases Court State, 312, guidance. A. 226 Md. 173 more Monfred 395, den., (1961) 82 Ct. cert. 368 U. S. S. 2d 173 specifically textual the Court considered the L.Ed.2d conjunction re with the illustrations. material With gard said at Md. at set of exhibits one 317, 173 at 174-175: A. 2d though obviously pictures, in-

“. . . the even strictly appeal, are not ob- to arouse sex tended And, point with re- which more scene. obscenity, spect the textual mat- to the issue of accompanying the is in the main ter illustrations Instead, purports de- discuss in innocuous. lights technique using tail the shadows Therefore, photographing the nude. since obscene, magazine is not taken as whole we convicting in think the trial court also erred [the selling for it.” defendants] State, 223, 182

See Yudkin A. 2d 798. also v. 229 Md. obscenity In in this Court has each considered cases deciding physical least the entire item the issue before question obscenity. State, supra, In v. in- Levin photographs. volved three sets of threе While Court every photograph, photo- it did not did a view review graph representative introduced as of the set from which came; Donnenberg accompanying it was no text. there State, supra, specifically v. the five Court considered pages “pseudo-intellectual” and one-half text accom- panying State, supra, the illustrations. In Lancaster v. film; this Court viewed the entire no film contained auditory portion. or textual

Thus, Maryland appears rule be established in reviewing that appellate the trier of fact and the court physical must consider at least item entire that allegedly deciding obscene before whether entire physical proper item constitutes a “whole” and before de- ciding obscenity. approach

A similar is used other state and federal recognize proper decisions which that the “whole” varies case, usually from case no less than ‍‌‌‌​‌‌​​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌‌‌​‌‌​​​‌‌‌​​‌‌‌‌​‌‌‌‍the entire physical Thus, item. Zenith in International Film Cor poration Chicago, v. (7th 1961), 291 F. 2d Cir. mainly procedures

Court while concerned fair em phasized licensing procedure films, pub for judged lication could not be on the basis of scenes isolated from States, the rest of it. In v. Ackerman United 293 449, (9th 1961), F. 2d writings Cir. held was that the subjects public serious authors on may concern judged merely by selecting be phrases words but must considered as “whole.” Thus Ackerman the Ninth Circuit considered the dominant theme of letters and en together pictures deciding closed whether defendant had mailed obscene material. Court The in United States 1,000 Copies Magazine v. “Solis”, Entitled 254 F. Md., 1966) pages

Supp. (U.S.D.C., read the fifteen eighteen page of text the title viewed the' besides concluding page pictures nude women before full dominantly magazine question essentially “is designed picture of nude it is book women and boys . interested in such . . men who would be clearly required illus- pictures.” The that text and indicating together, although be considered trations socially salvaged by рictures might worthless not be text. worthwhile States, 2d 340 F. in Hadelman United Courts 1965)

(10th (concerning the of sex manuals Cir. sale illustrations), News Com In Re Louisiana which had no La., 1960), (U.S.D.C., Wil pany, Supp. 241 187 F. 83, Dana, Theatres, Pa. 173 Inc. v. 405 liam Goldman den., (1961) 82 2d cert. 368 U. S. S. Ct. A. censorship 93, (holding Pennsylvania’s movie 7 L.Ed.2d alia, saying, the law inter law of 1959 unconstitutional rest), censoring the part of a isolated from allowed movie of obscenity the basis all could not decided on stated States, Books, 358 F. excerpts. In Inc. v. United isolated 1966), 935, (1st was relevant the held it 2d Cir. Court considering front physical consider both the item to when part the of “whole”. back covers involving However, and il- both words while in items together, lustrations, must be considered several the two of innocuous that the mere insertion indicated cases have salvage illustrations. In otherwise obscene text not will State, supra, pages Donnenberg one-half of v. five and finding prevent this from not Court innocuous text did A result reached in obscene. similar was the material 1,000 Copies Magazine Entitled v. United States of supra. “Solis”, Eagle position Flying Publica is that of A reasonable 1961), States, (1st tions, 2d v. 285 F. Cir. Inc. United jury the must consider the the Court said wherein including text, jury is not controlled the the “whole” Fly interpretation of the the illustrations in its text... allowing points the ing Eagle out distinction the between allowing the jury ignore accompanying the text and part jury considering that it is text to after the decide determining that should be considered “whole” obscenity. the theme dominant dealing

However, point other out that cases merely obscenity problems of certain consideration the the physical In those cases entire item insufficient. surrounding beyond physical court look item must In the “whole.” Ginz circumstances which are relevant to pre burg supra, States, v. the circumstances United dissemination, item, including advertis sentation of the ing, publisher’s set pandering, commercial attitude of ting, exploitation open of erotica were commercial State, Donnenberg part su In v. the relevant “whole.” pra, “purveyor’s emphasis” held sole within the obscene was a consideration relevant Maryland “whole” Roth State test. Sanza Censors, supra, Appeals Board held the Court neighborhood it was in which relevant consider part movie was to be shown as of the “whole”. is al- physical

A entire item that consideration legedly starting delineating point is a obscene may beyond physical item “whole”. Numerous factors be considered when relevant.

II The Instant “Taken As A Whole” In Case case, particular start Looking we facts in this alone; deciding car- the cartoon whether consider biographical conjunction toon in box of material with the judge; page all this is- the of nine of cartoon ; sue; newspaper page the the entire 24 cartoon and cartoon, newspaper, page 24 and certain the entire beyond newspaper itself. We hold relevant factors conjunction proper is the cartoon “whole” newspaper con- with the and other relevant outside entire inextricably siderations. think the cartoon is bound We periodical. to the the entire While iconoclastic nature of disagree expressed emphatically we most the ideas suggestion they not periodical, in this there is no were sincerely merely importantly, held, or more were inserted provide background pub- pseudo-intellectual for the topics lication of are the cartoon. While different con- newspaper, sidered in the articles of the their different throughout. attitudes and ideas are uniform considering We must not tasteful- recall that we are accuracy beyond ness, criticism, required by of or social worth minimum Fanny amount decision.1 Hill newspaper is, fact, We must bear in mind that it puerile style which tries in its own to communicate ideas critique public. part page This cartoon is of a six publishers presented public. which the have importance public view of the historical of of criticism especially newspapers, media, officials this Court lightly critique by will hold obscene such consid- ering although, independent paper from rest of the repeat, may we we not be accord with of its ideas. reading newspaper A there no shows that are pictures Although any way relating other to sex acts. frequent Anglo-Saxon there use of commonfour letter profanities dealing excretion, these are not with sex way used in a cretory attention to the sex act or ex- direct employed itself, act are rather to describe Hence, ideas or as exclamations. the inartistic cartoon of masturbating only a man is the illustration or text di- rectly generally paper related to sex or excretion. The report tries to items of current interest and make com- alleged inequities society. ments on the appears newspaper It also that this was not dissemi- way society nated in such a who masturbating. as to cater to members buying picture an interest a man would have appears periodical Instead it in- 1. A Book Named “John Cleland’s Memoirs a Woman Attorney General, 413, 419, Pleasure” v. U. Ct. S. S. 978, that a book need not be deemed obscene’. holding Supreme 16 L.Ed.2d 1. “The Judicial Court erred in ‘unqualifiedly worthless before it can be proscribed A book cannot be unless it is found to utterly redeeming though value. This is even without social so possess requisite prurient appeal the book is found to be and to patently offensive.”

679 its iconoclastic tended to attract subscribers who shared society. attitude towards

Ill Social Worth unique al- case is if not since instant unusual legedly pub- pornographic purports cartoon to criticize lic other official. This is unaware of case Court object alleged obscenity an elected which the public guidance in either case official. find no direct We obscenity statutory dealing law or involv- law for with ing public figures. presented, must note that

Under facts this Court public person depicted of- cartoon is an elected surrounding its ficial and that text directs caustic performance criticism du- at that officer’s of his official appellant obscenity vio- ties. While was convicted of an lation, public involvement of a official introduces Supreme relevance of those cases which define the constitutionally protected priv- increased breadth of the ilege public In New York discuss officials’ conduct. 710, Company Sullivan, 254, Times 84 376 U. S. S. Ct. city L.Ed.2d civil case which a commissioner paid sued several defendants for libel on a “edi- based advertisement”, torial said at the Court 376 U. S. at at 726: S. Ct. guarantees require,

“The constitutional we think, prohibits public a federal rule of- damages recovering defamatory ficial from for a relating falsehood to his official conduct unless proves he made the statement was with ‘ac- is, knowledge tual malice’—that disregard was false or with reckless of whether it was false or not. defamatory

The Court considered the criticism: against background profound “. . . of a na- principle tional commitment that debate public uninhibited, robust, should issues may wide-open, that it well include ve- hement, caustic, unpleasantly and sometimes government public sharp attacks on officials. * * * protection The constitutional does not truth, upon popularity, turn ‘the or social util- ity of the and beliefs which are offered.’ ideas Button, 415, 445, N.A.A.C.P. v. 371 U. 83 S. S. 328, 344, 270, Ct. 9 L.Ed.2d 405.” 376 U. S 84 S. Ct. at 721.

Having action, started with a civil defamation the Su- preme special Court extended the consideration of criti- Louisiana, public cism of v. officials Garrison 379 U. 64, 209, 125, S. 85 13 L.Ed.2d a criminal S. Ct. case in- volving judges, criticism of wherein the said in Court 67, 379 U. S. at 85 Ct. at 212: S. outset, whether,

“At the we must decide in view differing history purposes of crimi- libel, nal York New Times rule also limits power impose state to criminal sanctions for public criticism of the official conduct of officials. We hold it doеs. public

“Where criticism of officials is con- cerned, argument we see no merit in the criminal libel statutes serve interests distinct laws, from those secured civil libel and there- subject fore should not be to the same limita- tions.” Garrison, Court, Supreme 73,

Also in 379 S. at 85 U. 215, 9, privacy recognizes S. Ct. at n. noted the law of figures public newsworthy severe limitations where or Baer, 75, facts are concerned. In Rosenblatt v. 383 U. S. 669, 597, 86 specifically S. Ct. 15 L.Ed.2d the Court more official, public saying: defined the term clear, therefore, ‘public “It official' designation very applies at the least those among hierarchy government employees have, appear public have, who sub- responsibility stantial for or control over the

681 85, governmental conduct of affairs.” 383 U. S.

86 S. Ct. 676. Butts, 130, Publishing Company U. S. Curtis v. 1094, again 1975, 18 Supreme 87 S. Ct. L.Ed.2d including York Times v. broadened New Sullivan “public figures” public in addition officials. wide-open,

The Court’s debate has dedication caustic postures. repeatedly variety been voiced in a Watts See States, 705, 1399, v. 22 L.Ed.2d United 394 U. 89 Ct. S. S. 664; Thompson, 727, Amant v. 88 S. St. 390 U. S. Ct. 1323, 262; Pickering Education, Board L.Ed.2d 811; S. U. 88 S. Ct. 20 L.Ed.2d also Commissioner, 36, Brukiewa v. Police 257 Md. 263 A. 2d (1970). 210 particular wide-open

Of in the relevance debate in- Supreme stant case are the comments of the Court in Bridges California, v. 252, State 62 314 U. S. S. Ct. of 190, 192, prosecution 86 L. contempt Ed. a for court allegedly attempting pending for interfere with liti- gation. Bridges, said, 270, In the Court at 62 314 U. S. S. atCt. 197 : assumption respect judiciary

“The for the by shielding judges published can be won from wrongly appraises criticism character public opinion. American it prized For is a privilege speak mind, American one’s al- though always good taste, perfect not with on public silence, all institutions. And an enforced limited, solely however preserv- in the name ing dignity bench, probably would en- gender resentment, suspicion, contempt much more it respect.” than would enhance Pennekamp Florida, 331, See v. 1029, 328 U. S. 66 Ct. S. 1295, contempt 90 L. Ed. involving another case an al- leged attempt judicial to influence administration in Bridges; which the Pennekamр Court followed is note- worthy in judicial involves cartoon critical of Pennekamp, Bridges, the convic-

administration. as in 367, Craig Harney, tions were U. reversed. In S. contempt 67 S. Ct. of court 91 L. Ed. another allegedly case based on an too in its crit- editorial harsh judge, na- icism of a on local the Court commented judges, 376, 377, at ture of 1255. 331 U. S. at S. Ct. “Judges fortitude, supposed are to be men of * * * hardy Judges able to thrive climate. they Mary- who stand reelection do [as may run on their records. That be land] rugged expected. is Dis- environment. Criticism appropriate, if cussion of their conduct is necessary." judge, Press

Insofar as the articles in the Free criticize they allowed seem to well the area criticism within Pennekamp. Supreme Bridges, Craig, and dealing it is case are While instant we true obscenity charge contempt an not a of court conviction, important fact this Court cannot overlook which, making Free least Press was criticisms face, right protected by constitutional their are true, course, speech. amendment free It is first is as which known to be shield removed to criticism disregard false, of the truth or made with reckless Company v. thereof, York pointed in New Times out contempt Sullivan, cases supra; cite the libel and but we criticism, though only even the value of to show social Although inaccurate, public Freudian con- officials. conduct, as ex- for human cepts of motivation sexual recently, cartoon, pressed fire have come under the say those they that this Court could are not so discredited Through utterly cen- without social worth. are ideas many authority attempted repress turies, have to those in widely accepted, example later as ideas that have been Debs, Eugene Copernicus, and Dar- Galileo ideas of Arkansas, Epperson 393 U. 89 S. Ct. v. S. win. See purposes is of the first amendment of the basic One 266. us, minority. the idea of the protect ideas While judge get gratification аny can kind of from the sexual performance judicial farfetched, of his is think duties we protection. is the idea well the first within amendment produced only expert to re- The State one as direct deeming value, parish opin- priest, social who based his proposition judge ion on the have that criticism a could only by strong supported social value if evidence. Assum- ing priest competent expert, concept to be a this obviously contrary have to the rationale the cases we All experts heretofore cited. defense testified cartoon, context, redeeming did have value. social State, controlling precedent

The State cites as Levin v. supra, upon wherein called rule ob- this Court was scenity males, photographs depicting each with nude large penis emphasizes in full erection. The State here, there, emphasis genitalia. there is an on the male The photographs Court’s decision that in Levin were clearly distinguishable present obscene ‍‌‌‌​‌‌​​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌‌‌​‌‌​​​‌‌‌​​‌‌‌‌​‌‌‌‍is from the case. photographs presented in Levin were without accompanying only text whereas here there is not consid- critique erable text attempt judicial but also an at a of a system, distasteful, vulgar, revolting, however shallow or critique might Thus, inaccurate that be. two cases have little in common. record,

On making independent our constitu- facts, Donnenberg State, tional determination of the v. supra, judge we granted must hold trial have should acquit allegedly the motion to ma- because the obscene utterly terial redeeming was not without social value. Community

IV Standards quoted We have heretofore tests set three out Donnenberg State, supra, clarity repeat but for we community standards test which also must be met before obscenity can be found. patently

“The material offensive because affronts contemporary community relating standards de- scription representаtion of sexual matters.” controversy

There is some as to whether the standard 684 local, applied not

to be is national or but we will discuss question the record here shows the material because State, Donnenberg does not v. affront either standard. 591, 598-599, 264, supra, App. 1 Md. 232 A. 2d 268. only purported expert Of the three witnesses State’s two, Paulin, Father and Mr. on the com- testified Gatta munity standards issue. The conclusion that former’s contemporary not cartoon violated standards was based concerning knowledge upon publications sexual of other nationally locally, upon but matters available either told, thought people would he had been what he most what This, theological plus tes- and moral ideas. dislike his own determining question timony obviously valueless in opin- community his as to standards. Mr. Paulin based community simple basis that ion standards on the as public depicted of sex. This tes- exhibition cartoon question timony be of on the also fails to assistance issue, relating is, to sexual what other material which community. openly matters is available qualifications experts, Three of the four defense whose standards, community objected to, were not testified as maga Playboy Esquire citing Portnoy’s Complaint, zines, (which is avail “I am Curious-Yellow” movie locally, many country yet parts see able in Censors, Wagonheim Maryland Md. Board 255 State Mary nom., Press, 297, 240, Inc. v. 258 A. 2d sub Grove 984, Censors, Board 397 U. S. S. Ct. land State 1496, , 1115, 393, Ct. U. S. 90 S. 25 L.Ed.2d 682; 26 L.Ed.2d 399 U. S. S. Ct. 25 L.Ed.2d galleries, in 558), display art art works sexual addition the cluding Picasso. In those of Rembrandt and Complaint Portnoy’s The copies of defense introduced Beardsley, Aubrey of which Drawings both Collected Mary Montgomery County, openly purchased in had been land. books, of art magazines, and the movie works frankly as the cartoon sexual matters

cited as deal nationally and, as well general, openly available are locally. extremely could It seems doubtful State produce any contrary question if the on this evidence record, making in our to be retried. On issue were facts, independent determination сonstitutional judge State, supra, Donnenberg must the trial v. we hold acquit granted al- motion to because the should have contemporary legedly does not affront obscene material local, standards, community or in that either national available, material, readily mat- other deals with sexual equally ters in an frank manner. Appeal to Prurient Interest

V principal prurient The interest definition sex legal Roth, 487, supra, purposes from at comes U. S. 20, Supreme at n. wherein the Court de- S. Ct. * * * thoughts tendency “a to excite lustful fines it as itching; longing; uneasy longing; or . . . with desire prurient morbid . .” The a . basic definition of interest although subsequent in sex remains the same cases have inquiry determining scope broadened whether appeal Ginzburg prurient an is made to interests. See v. States, supra, York, supra. United Mishkin New v. prosecution presents The here no evidence that would finding support appeal prurient of an to interests. Oropollo appealed witness felt that the cartoon to a sex, morbidity being morbid interest defined as pathological organism a state an interferes with approach This its function. too broad to fit within the definition, Roth type which describes narrower of re- action, i.e., “itching, longing.” Oropollo’s Under defini- tion, any pathological justify number conditions could finding morbidity (e.g., pathological avoidance of sex) all prurient interest while limits interest Roth uneasy longings itchings. Further, Oropollo considered Insofar cartoon out of context. as the witness Father appeal prurient interest, testified on ap- Gatta he also proached incorrectly. problem First, he considered the Second, cartoon alone and out of he context. felt the car- merely toon was obscene because it showed a sexual ab- Third, erration. he balanced three elements of ob- against scenity one considering the other instead of elements, judged independently, whether all coalesced. Paulin, supra. expert, Donnenberg, The last State Leo D. depicted public felt exhibi the cartoon obscene since appeal public depictions All not tion of of sex do sex. they were, interest, obviously pub all prurient lic, if since Roth scholarly inquiry would be obscene. See into sex States, supra, S. at 77 S. Ct. United 354 U. 1310. directly there experts

All four defense testified interest, appeal prurient only an absence of was all. All defense appeal to sexual interests at but also no po- at the reader’s was directed experts felt the cartoon Gurel, feelings. a Dr. feelings As and sexual litical penis said, a there psychologist, there is “Just because impact primary the doesn’t mean that the [in cartoon] sexual.” the cartoon is carry proving be- Thus, its burden the did not State allegedly obscene car- yond doubt reasonable prurient interest surroundings appealed ato toon and expert opinion question on is a which sex. Since differ, the case for could, remand perhaps, we would reversal, only ground for if this were the trial new above, re- III we will out in and IV not as set since obscene, repeat, to be trial. We without new verse utterly tests, i.e., it be fail all three must material must value, contempo- redeeming it must exceed social without community depicting sexual matters rary standards prurient in sex. interest appeal to the and must

Judgment without a reversed paid new trial. Costs to County Montgomery by Council.

APPENDIX Summary Newspaper A. parts directly

Those Free Press most connected cartoon, Judge Pugh” with the after the “Dear headline page three, begin page (the page on nine same as the cartoon) although page interrupted continue page drawings. with other articles full page opening On Free nine the sentences declare the Judge Pugh, i.e., judi- Press’ attitude toward he is not cially impartial judge. operates prosecutor as a not a following approximately paragrаphs article of (14 presented quotes of which are the words of Pugh himself) paper tries to substantiate this accu- example they sation. rape As their first cite trial quotes reporting colloquy Giles brothers. After Pugh Giles, between Free John Press lists Pugh prosecutor, indicating errors of and the the case Supreme was reversed the United States Court. Their example burglary next is a 1967 trial of a man named They Pugh prejudiced jury Barnes. claim refer- ring newspaper articles, and the severe sentence was because Barnes lived in the District of Columbia. Their example final rape in this section is the case of Gordon wherein, according Leon Pugh Contee Press, Free manifested racial bias. The article indicates the Court granted Appeals of a retrial.

The remainder of the article is divided into three sub- by headings. divisions indicated underlined The subhead- ings (1) Pugh paranoia, are: conspiracy on and Walter Washington; Pugh (2) censorship on freedom, 1961; (3) Pugh picketing, on 1965. subdivision,

In the first the indicates, Free Press through quote, Pugh’s feeling a that criminals come in- Montgomery County to from the District of Columbia and Pugh gives intending severe sentences keep to Washington. criminals in

In the second censorship, subdivision on the Free Press quotes involving from Yudkin v. Henry State Miller’s Cancér, Pugh

book, Tropic judge to indicate trial as of ques- prurient felt interest was aroused book his quotes Pugh saying article as to Yudkin:“.... tion. The thing you only the court can conclude is that were liberty. trifling your . . .” the Free Press- to which with trifling here? How does responded, with whom “Who liberty?” one one’s own trifle with picketing, presents the article In subdivision Pugh, quotes purportedly from to the effect that several right right petition, in- a of does not while there is public trying of officials. influence the clude to behavior Pugh greater put emphasis a Press felt on the The Free democracy prac- opposed to the empty of verbalization section, again quote purport- it. The final tice of being given, Pugh is that edly from but without source admitting right person- Pugh, picket, did not to while ally it. condone immediately surrounding- page center of nine

In. page a. the rest of the and set off from the cartoon Judge Pugh indicating in biographical sketch line is Judge Pugh charged County- has its sentence that first Montgomery County investigate Jury to Grand charge response Free Press for subversion. history presents Jury, Free Press a brief the Grand deciding Pugh, effective was the ex- the most rebuttal [appearing quoting in the- of his own statements tensive larger Among presented the facts article outlined above]. genealogy Pugh biographical sketch are brief in the bank, wife, directorship a local fra- his former and his affiliations, county with draft ternal association board, phone his home address number with the bearing encouragement gifts. him to call visit pages page joined Turning 10 and 10 is criticizing grand juries. one article page lengthy 15 in necessary pages the entire article it is to remove To read According newspaper. from the rest 1Ó-and 15 fails, grand jury purposes, has three article in each of them. purpose, first to serve as the conscience of the com-

The

689' munity protecting prosecution, unfair individuals from selectivity process of fails due to the artificial the se- alleged being lecting jurors, young, the result poor working minority people, as well members as hardship- groups or those who would from economic suffer grand service, effectively pay jury all due to the are low excluded, grand white, leaving jury mainly a middle- the managerial class, elderly body propertied, of the classes. people The article feels “run” that since these are the who country, grand jury the the does not serve as conscience- majority community. for the of the grand according purpose jury, second the-

article, against watchdog is to serve official as miscon- However, grand jury duct. the article feels the fails in since, purpose this as concluded in its discussion of the purpose, grand jury people first on the are who those benefit from official misconduct and thus do not want improve quo. the status grand purpose jury, presented by

The third article, provide opportunity is to par- an for citizen ticipation government. purpose The article holds this grand jury fails since prosecutor’s- has become the stamp. stamp heightened rubber This rubber effect is grand juries the facts that consist of individuals who mystified by law, are only the technicalities serve periods, for except brief have prosecutor’s- no staff staff, independent and are not allowed experts. to hire

Moving general into a shortcomings- discussion of the grand jury, although grand the article states jury defendant, is useless to the very helpful can prosecutor following ways: (1) By in the using body “ordinary grand jury citizens” on the as a — scapegoat bringing for not controversial indictments prosecutor avoid; (2) which the That wishes Attorney, by using grand State’s his jury access to the report, may prosecute people media; in the (3) mass strategy allowing aAs to avoid the defendant to have a judicial preliminary hearing; (4) preparing That in prosecutor trial can force adverse witnesses to talk judicial protection; constitutional or to him without full greater grand (5) prosecutor the access of the to The jury transcript opposed the defendant. secrecy “mystery” grand

The decries the article jury proceedings, specifically the mass the exclusion of lawyers prospective The ar- media and for defendants. coercion of ticle feels that this situation allows witnesses making they into would not otherwise statements that make. strategies the article with with remainder of deals grand juries may avoid tes- called

which activists before rights. invoking tifying, fifth amendment such as their quotes Free Press page paragraphs several On the investigate grand Pugh’s charge jury the from Washington since, quoting Pugh, it Free Press “advo- para- next . . the of the cates the destruction state. quotes Free Press graph of Inde- the Declaration the government perform its pendence when a ceases to right proper purposes people to alter the the nine, quotes, page to the material on it. These tied abolish Free Press believes strengthen impression investigated Judge Pugh as subversive and should be Free Press. Pages 13, joined together, as the center of the 12 and black, montage triangular paper, page a in white are two montage figures repre- Appearing are purple. in officers, President, military senting judge, a infan- Intermingled try policeman. with the a riot soldiers and radio, figures goods car, such as a televi- are consumer sion, machine, can, records, washing hot soda bottle and dogs, pattern. appear- small box-like houses Also building ing factory, office and school with are a montage flying part flag upside of the down. This school explosion sign capped an dollar atomic Surrounding explosion cloud. is the mushroom repeated large print. phrase demons” “out majority, pa- A in the remainder of the articles society, particularly per deal law as with law source injustice. example, a cure For there are instead of fund, community in- A articles on: bail dissemination legal rights, formation individual’s the collection brutality concerning alleged police sup- information (this port being brought against police topic actions throughout appears pa- in several different articles alleged informer, per), biography police an a column listing alleged in the arrest and detention violations of law drug suspects, testify be- the refusal of witnesses alleged investigating committee, fore a Senate shoot- ing George’s County person by an of innocent a Prince officer, police inappropriate of appropriation the federal private firms, Washington funds to re- a list of tax war i.e., people paying they sistors who are which taxes Vietnam, pay lengthy feel for en- the in a article war containing titled “Youth verses and Law Order” several paragraphs alleged inequities application short of in the law, secrecy of the In- and of the Central evasiveness telligence Agency, a of list contract awards the De- partment of the Defense to four different universities development weapons, of and several articles concern- ing shortcomings justice. military of The attitude of uniformly harsh, critical, the articles is and iconoclastic. Appendix Summary Expert Testimony B. of in testimony State’s case chief included the of expert Ralph three Oropollo, witnesses: P. Father Ernest Gatta, T. Leo D. Paulin.

Ralph Oropollo, P. a psychologist, clinical his received degree Rutgers bachelor’s and master’s in education from University. Oropollo spends pri- bulk of his time in practice D.C., Washington, although vate in he had also police departments worked Maryland for several Mary- other states and for several state institutions Oropollo’s opinion land. theme of dominant the ma- page Press, terial on whole, nine of Free taken as a appealed was that it to a morbid interest in sex. Mor- bidity by Oropollo was pathological defined as a of state organism an that interferes with its Oropollo function. cartoon, by itself, felt the taken would a show morbid drawing cartoon, part

interest'on the of the artist agree others to interests. that the artist wanted with his cross-examination, developed it that while Oro- On was nine, pollo page had read he had not read all on cross-examination rest of the When asked issue. opinion an as to the dominant theme whether he had whole, Oropollo responded page as that nine taken a in- page an opinion was his that nine was criticism judge, part was dividual cartoon who is the article’s criticism Oropollo then said the criticism. howеver, car- judicial power; was of exercise acknowledged Oropollo part toon of this criticism. was not cartoon, way primitive and the taken article together context, judge conveyed of the cartoon the idea exercising through pow- receiving gratification his sexual ers. Gatta, State, testifying next for the T.

Father Ernest undergraduate Mary’s degree from Semi- St. received his school, theology at nary. he studied sacred Thereafter receiving degree, as a described the- an ‍‌‌‌​‌‌​​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌‌‌​‌‌​​​‌‌‌​​‌‌‌‌​‌‌‌‍which he S.T.L. degree ology comparable had to master’s. Gatta worked Montgomery County area since parish priest aas in the qualified an priest, parish he he was 1956. As a said redeeming community expert and social standards on with mari- on his and his encounters based studies values family young problems problems from tal sex confiden- people. experience primarily was based on His parishioners and a smaller number tial from confessions many Although people counseling unsure how sessions. counseled, actually the number he Gatta was sure had familiarity deal- large. only publications with was Gatta’s read, observed, ing on he had not what but with sex is brought from parishioners him public racks or what store tipie time; writing publishing in this no or he had done page Having nine and not all of read some field. cartoon,, alone taken .paper, stated rest Gatta text, accompanying exceeded of context from the and out. of sex- it. a misuse because showed standards, community Further, re- had no Gatta felt the cartoon ual activities. deeming primary purpose was the social value since its misuse; socially there depiction sexual if were of this against sexual redemptive purpose, when balanced misuse, to social purpose, was As overshadowed. worth, on a cir- personal attack Father felt that Gatta judge cross-examination cuit would worthless. On majority developеd felt of what the that while he aware sex, dealing with of local about materials residents felt allowed was would be he not aware of the limits what exposed community, having never been available in the Portnoy’s Esquire magazine, Philip Com- Roth’s book masturbation, “I dealing am plwint or the movie acknowledged he con- that what Curious-Yellow.” Gatta by his the- affected sidered to be an aberration would be ology morality than what was available rather judges, acknowl- public. Gatta the local Criticisms by strong edged, supported if would have worth social However, he had not read evidence. admitted Gatta enough suffi- page nine decide there was whether con- supporting cient in this since he was evidence article sidering surrounding text. the cartoon alone without Further, text, bal- he said that worth in when against obscenity, outweighed. anced was witness, Paulin, expert Leo last attended D. State’s years law for one and a half but did not finish. school advertising Currently, publisher locals he was the of three Montgomery County. Paulin described as an himself pub- expert description in the of sexual matters through lishing business, having acquired expertise his at, publisher, glanced the fact that his activities as he read, public competitive papers, speak- his but did ing community groups. opin- with various civic Paulin’s ion, looking reading page after nine and one some Press, pages the other of the Free was that the cartoon community page nine affronted standards since the public depicted cartoon of sex. cross-ex- exhibition On amination, newspapers Paulin his were adver- said 80% tising only news, and that he subscribed to no % maga- Playboy papers. given wire When a service magazine’s cover, April,

zine of Paulin stated the April”, pictures the centerfold “Miss and Bri- some gitte pornogra- Bardot in a semi-dressed state were all phic. Playboy magazines He admitted that and other pornographic Playboy readily more than available were Also, acknowledged Montgomery County. in he that he Portnoy’s Complaint had not read or seen “I am Curious- questioned political Yellow.” if there a mes- When was sage cartoon, page en- nine and the Paulin testified the decisions; page judge through tire attacked how- a his ever, although Paulin an attack on the admitted was judge’s decisions, personal at- he concluded that it was message tack. He admitted that if there were connected necessary text, with the cartoon it would be get message. read the of Mr. Paul- text to At the close testimony, in’s the State rested. intro-

The first case in chief two witnesses defense’s Complaint Portnoy’s duced two books as defense exhibits: masturbation, Roth, describing and Philip specifically Aubrey Beardsley, Drawings con- The which Collected length. drawings penises feet in tains men with several purchased operated Both books were bookstore Attorney. intro- the wife of the A later witness State’s complete “I am duced the scenario of Curious-Yellow” pictures. book form with over expert presented Ronald The defense four witnesses: Gross, Getlein, Rev. Earl Brill. Frank Dr. Lee Gurel experts All all of ob- four defense testified on elements scenity, qualified com- except Dr. Gurel who was munity standards. expert Ronald

The witness for the defense was first Gross, Acad- Editor-in-Chief Vice-President emy Development, non-profit research for Educational organization consulting in the field of educational contemporary lit- problems. American Gross also teaches University City, and erature York in New York at New books, the recent be- has written or edited several most ing Arts and The Poor. He edited several an- has thologies essays papers problems, on educational published poems including graphic two volumes of one poetry, pictures. which combines words with He also has essays major contributed articles and critical in several magazines including Review, New York Book Times Harpers, Saturday Review. He is chairman grants committee of the Foundation General Semantics language for research in as behavior. has served Gross Education, UNESCO, consultant to the U. S. Office of College Libraries, Association of Read- Research Digest, Foundation, publishing ers the Ford and several companies including Simon & Schuster and Dell Publish- ing Company. awards, In the area of academic Gross stated Kappa, he was a member Phi Beta scholastic honorary, Shakespeare was a fellow at the Institute England, magazine literary an received award literary critic, criticism. He stated that in his work as a major one of his functions was to ascertain and evaluate the dominant theme of different After a brief works. cross-examination, qualified expert an Gross each of obscenity three elements of the tests. cartoon,

As to surrounding in its with the context text, Gross felt the dominant theme was that the cartoon judge powers, particularly relating abused his in cases matters, to sexual judge’s preoccu- due to the own sexual pation and, therefore, cartoon, he was unfit for office. The opinion, in Gross’ directed attention to the connection be- judge’s punishments tween the unfair sexual his own gratification. appeal Gross felt the theme did not to a prurient sex, interest nor arouse sexual an lust average person. community standards, As to testi- Gross fied trend, there especially areas, was metropolitan explicit matters, towards more characterization of sexual citing example Portnoy’s Complaint. as an Gross felt the page cartoon on nine contemporary did exceed stan- regard dards depiction to candor in the of sexual activity. Gross stated that he had seen the “I am movie political Curious-Yellow” but considered the cartoon more redeeming value, in nature. As to social Gross felt the very great, exposed cartoon’s value was since abuse of '696 official, po-

power public especially the exercise of power by expression the official as an of sexual litical examples other similar criti- need. cited several Gross starting political with modern theatre cisms of behavior testimony going .and was back ancient Greece. Gross’ not altered cross-examination. expert Frank next witness for the defense was Evening

Getlein, Washington employed who is the critic, political and newspaper an art columnist .Star stated he had been an art critic editorial writer. Getlein eight years, approximately 22 .and columnist for the last syndicated to Evening His art column with Star. including Boston newspapers 40 and 50 between n Globe, Journal, Free Evening Detroit New York and the in published Press. and 20 books has between Getlein field,' including many monographs on individual the art is, by Print Bite artists. of his books entitled One leading and report, in the field of satire his own book in irony being prints, a text or reference book used as including many colleges the Smithsonian. and institutions pub- currently working to be He on several other books relationship specialty He his to be lished. considered defining sense politics in a broad politics, art between social and values. include ideas the Free had read the entire issue of stated he Getlein evaluating dominant theme con- Press. In the cartoon’s laughter, text, Getlein, response of felt initial after his judge, is that identified the theme of the cartoon sexually cartoon, expressed himself the text but not the decisions, through severity especially in- his those cartoon, according Getlein, volving contended sex. The judge a means of his decisions as sexual used severe not, remotely, appeal to (cid:127)expression. did even The cartoon Getlein, in the prurient element interest. To sexual i.e., message, convey political an (cid:127)cartoon was used to Getlein, politiсal person. To this cartoon attack on a through criticizing political sex- approach its officials old, years scatological least 500 is at ual or references beginning printing, going printing. Before back to the expression felt Getlein criticism could be shown carvings in stone and wood as in ancient cathedrals. Get- go beyond lein felt the cartoon did not the limits of can- generally dealing dor allowed in available works of art sex, citing display promi- art works on several galleries. However, cross-examination, nent art Get- newspaper, probably many lein indicated that his respected newspapers, print other would not this cartoon. pointed newspapers; redirect On it was out the same print probably that would not this cartoon would also not many print depicting of art works sexual matters rec- ognized masters, including Rembrandt and Picasso. Get- acknowledged magazines newspapers lein that art Evening with more selective circulation than the Star probably publish depict- would works of art masters ing activity. given sexual When definition of hardcore pornography Donnenberg State, App. from Md. remotely Getlein testified this cartoon was not even pornography. to hardcore

connected Gurel, expert, Dr. Lee the next received a defense degree University, bachelor’s from Clark master’s de- gree degree University, and doctor’s from Purdue degrees being psychology. Currently all employed in he is psychologist. pro- Veterans Administration as a His working experience psycholog- fessional in the included general hospital, being ical service of a medical chief psychologist neuropsyehiatric hospital, directing in a and psychiatric programs the evaluation of and treatment. taught He University at of Colorado and consul- is College tant for the Albert of Einstein Medicine in New City. York published Dr. has between and 45' Gurel professional journals, рresented learned articles in approximately thirty professional papers meetings at of psychologists. in, among appeared His articles have others, journals Psychological of the American As- Psychiatric Association, sociation plus and the American Neurology Psychiatry, the Archives American of Psychiatry, Counseling Psychology. Journal Journal Psychological He is a member of the American Associa- Association, tion, Psychological Maryland Eastern Psychological District of Association and the Columbia Psychological practice is certified Association. Gurel Maryland. psychologist as a Press, Washington at Free Dr. looked As Gurel newspaper. the cartoon and read the entire issue opinion His was the dominant theme of the cartoon judge, Judge in context was that a identified viewed Pugh, ac- satisfaction from his derives sadistic sexual validity judge. tivities as a Dr. testified that Gurel long recognized psychological concept has been psychology. dates asked back to works When classical lust if this cartoon in context would stimulate sexual thoughts average re- person, lascivious an Gurel sponded : hardly possibility

“I can conceive of the this cartoon would arouse and lascivious lust thoughts average person. I don’t ... very much do with think it has [the cartoon] penis is a there sex all. Just because there at impact primary the car- doesn’t mean that * * * car- I don’t that the toon is sexual. think stimulating sexually toon all.” 1969, Play- April, comparing the cartoon with When cover, magazine, magazine, boy its Dr. stated the Gurel Brigitte centerfold, essay Bardot were pictorial questioned stimulating the cartoon. When all more than masturbation, Dr. stated that masturbation about Gurel by practically population, practiced the male 100% citing Kinsey’s study of the males admitted that 96% testimony masturbating. response for the direct looking cartoon, by Oropollo he, by at the was Statе suffering from mor- the artist was able to conclude that that, excluding Oropollo, he bidity, testified Dr. Gurel reputable psychologist such who would make knew no single piece of evidence. simplistic based on evaluation drawing evaluating a done emphasized that He further intending something create artistic a cartoonist completely drawings in- in a clinical different from done journal state- supporting his terview. He cited articles psychologist whether opinion ments. his as a When asked redeeming value, social cartoon in its context had very responded, portrays “I the cartoon Gurel think that being well the idea there can hidden motivation be expressed activity.” in some kind of common cross-examination, diffi-

On it stated would Gurel imagine being sexually anyone cult for him to stimulated by looking considering cartoon, car- at the content, toon both in and out of he could not conceive being sexually stimulating to a male homosexual. even Brill, expert The last for the defense was Rev. Earl degree whose the Uni- education consisted of a B.A. from versity Pennsylvania, theology from the bachelor theology Philadelphia Divinity School, from master of Theological Seminary, comple- Princeton and the recent requirements degree tion of the in American a Ph.D. history Washing- University intellectual ton, at American Episcopalian chaplain D. C. Brill is the Ameri- University can professorial and a lecturer in American During years chaplain, civilization. he ten has been students, counseling Brill has done fre- considerable with quently topic published of sex. Brill books several including is Dead Sex and Other Post Mortems. One of principal relationship his interests is the of attitudes values, and ethics He he with morals. was stated graphic aware of the arts and literature available greater Washington they analysis area as related to his of culture. He testified that had “I he seen am Curious- Yellow”, Portnoy’s Complaint. and reаd Washington

As Press, Free Rev. Brill read all page nine, pages read the between nine and 15 in this issue, and opinion skimmed the rest of the issue. his the dominant page theme of the cartoon on nine taken in political context Judge was a Pugh attack on for the reasons i.e., accompanying text, outlined that he derived sexual judi- satisfaction from the misuse of his powers. Further, cial Brill testified this would not theme

possibly prurient arouse in sex. He did not feel interest depict- the cartoon exceeded limitations of candor in the ing redeeming value, that sex. As to social Rev. Brill felt clearly political as a criti- the cartoon had social value justice Montgomery cism of administration the County. by saying: He concluded his direct examination

“Now, you regard the whether administration very justice adequate inadequate, it’s clear or political that the American tradition calls political contin- us submit our institutions to scrutiny criticism, and reason ual for that in- such criticism within this does [as cartoon] redeeming deed have social value.” although cross-examination, Brill stated On Judge Pugh, personal is a attack attack focuses car- political attack. asked about rather When text, separate responded that he Brill toon alone from through After establish- pages nine 15 unit. considered obscene, Brill ing depictions Rev. that some could be to be obscene. stated he did not consider this one Orth, J., concurring: agree judgment I because

I concur con- was not sufficient sustain the evidence Although news- appellant it is clear that sold viction. cartoon, did offending paper containing the evidence corpus ob- was delicti —that the cartoon not establish the con- confounding the usual because in scene. The case is jury impartial cept An word the cartoon is obscene. I have appellant’s peers find it obscene and did in fact up- man, called so often little doubt but that reasonable pru- law, though cautious and on in even the criminal de- is, his own Left to dent as would so consider it. he dictionary defini- apply he vices would be inclined judge, drawing Certainly of a tion of obscene. crude askew, fly sitting bench, judicial robes on the his large penis in genitalia exposed, his pants open, his his grasped hand in the act masturba- full erection in his tion, caption “HE’ D’ COMM with the double-entendre (sic)1 accepted of de- is offensive to standards JUDJE” senses, cency modesty, indecent, repulsive to the is is lewd, loathsome,2 especially so when hawked to may general public public street. But what on the dictionary meaning by application of ob- of a obscene by application of necessarily scene is not what is obscene interpretation of the word. The Su- constitutional may preme not consti- Court has established that State tutionally of material as obscene inhibit the distribution 1) as the dominant theme of the material unless taken sex; 2) prurient appeals whole interest in the ma- patently contempo- terial offensive because it affronts rary community relating description or standards representation matters; 3) material of sexual utterly redeeming value, emphasizing without social coalesce, the three elements ma must and that no such utterly proscribed terial can be unless it to be is found redeeming obscenity without social value. test of This United, States, arose from the definition in v. Roth Ohio, U. S. in Jacobellis v. reiterated S.U. States, Ginzburg elaborated United S. 383 U. 463, adjusted York, in Mishkin v. New 383 U. S. 502 summarized Book in A Named “John Cleland’s Memoirs (Fanny Hill), a Woman Pleasure” 383 U. S. 413. of The opinions in those were cases rendered with no real unanimity among the members of the left have obscenity deplorable in a law Jaeobellis is state. judgment illustrative. The of the Court —that the ma by terial was obscene —was not announced Mr. Justice opinion only Brennan. He delivered an in which Mr. Jus Goldberg joined. tice He reiterаted the Roth test. Mr. Jus merely judgment. tice White concurred in the Mr. Jus Black, joined by Douglas, tice Mr. Justice concurred judgment view, and for reason restated his shared * * Vulgar. experience orgasm.” 1. “COME.* To The American Dictionary Heritage Language (1969). English of the * * * accept decency 2. “OBSCENE. 1. Offensive to standards of Inciting the feelings; modesty. indecent; or 2. lustful lewd. 3. Offensive repulsive senses; Id. loathsome. Douglas, press Mr. that freedom Justice safeguarded by speech Amendment and made First obligatory Amendment on the the Fourteenth States preclude censorship in whatever form. Mr. Justice Stew- judgment. art But he had come to be- concurred and Fourteenth Amendments lieve that “under the First constitutionally are limited to laws in this area criminal attempt pornography.” did to define hard-core He em- of material he understood to be further the kinds stating, description, shorthand braced within that “[A]nd doing intelligibly perhaps so. But I never succeed could it, picture involved I I and the motion know it when see at 197. I observe in this is not that.” 378 U. S. case court on this basis would be rather difficult pornography; material was hard-core determine whether have to be based on whether such determination would to be hard- know the material Mr. Stewart would Justice it. pornography when he saw And Chief Justice core asked, ‘hard- opinion “But who can define in his Warren greater clarity any than pornography’ ‘obscen- core with joined Mr. ity’?” 201. The Justice 378 U. S. at Chief gov- Clark, that “no Because he felt dissented. Justice federal, state, be forced it or local—should ernment —be material, including that repressing all to choose between allowing decency, and unrestrained within the realm of material, vile”, any publish no matter how there license to attempted Roth of reason. The Court in must be rule provide at 200. But the such a rule. 378 U. S. Chief Jus- the enforcement of this rule to the tice would commit courts, appropriate and federal and he would ac- state judgments pursuant Roth He cеpt made to the rule. their supply “a evidence” standard of review would sufficient merely any something —“requiring more than evidence something than on the record less ‘substantial [in- * * * cluding allegedly as a whole.’ obscene material] way only I reasonable can see to obviate This is the sitting necessity Super as the Censor this Court’s throughout obscenity all the Nation.” 378 U. S. at 202- dissented. dis- Mr. Harlan also He would 203. Justice

703 tinguish between the Federal and the States. Government former, Roth apply As he would standards as amplified opinion Enterprises, in Manual Inc. v. his Day, 370 U. 478. As to latter make S. he would rationality. prohibit federal test one of “I would not them any which, whole, banning from material taken as a has judicial reasonably proceedings found in been state fundamentally manner, treat with sex in offensive under rationally judging established criteria for material.” such 378 felt U. S. at 204. On that basis he that acted the State permissible condemning within limits in the film. What regard opinions we have Jaco- discussed respect only bellis is with of the to the various notions meaning Justices as basic First Amendment guarantee speech pointed press. of free As shall be out, expressed opinions there were also differences in the meaning as to the Roth itself. terms used test is surprising It not that Mr. Black “No Justice observed: one, including Court, what can know what is and is * * * constitutionally under rul- obscene this Court’s ings.” test, event it is Roth as set out ac- cording State, understanding Donnenberg to our it in v. App. 591, 598, applied 1 Md. which determin- must ing Except whether for or not material obscene. hard- is pornography, proof, core which is such that no other viewing required other than the of it is to determine that it is speaks it obscene itself since for and screams aloud obscene, State, for all to hear it is see Levin v. App. State, Donnenberg supra, Md. I am practically impos- constrained to conclude required proof sible to meet State the burden of of it to show material is obscene. This because of the nature of the three elements which coalesce must obscene, them,, proving material to be manner of scope appellate regard and the of review with them. to The is first element that of dominant theme concurring opinion 3. In his Associated in Press v. Walker and dissenting Publishing (decided opin- in Butts Curtis Co. v. in one ion) 388 U. S. 171. appeals prurient material taken as a whole interest key adjective “prurient”. in sex. The word is This is de- Heritage Dictionary Eng- fined in The American of the Language (1969) Obsessively lish as “1. in im- interested proper matters, especially of a sexual nature. 2. Charac- interest; by prurient thoughts. terized an such Arous- 3. ing interest; prurient appealing or an literature.” such enough. Thus that the material involves is not It must sex improper obsessive in .arouse an interest matters of a sexr pruriens, ual nature. “Prurient” derives from Latin present participle prurire, itch, yearn for, lasciv- of be States, supra, ious. in Roth v. United So note 20 appealing to material which sex a manner deals with having prurient interest characterized as “material is tendency thoughts.” pertinent part The excite lustful n of International Diction- the definition New Webster’s “* ** ary Itching; (Unabridged, 1949) given: 2d ed. is uneasy longing; persons, longing; hav- desire or desire, ing itching, longings; or morbid lascivious * * n curiosity, propensity, or lewd patently is of- element that the material second is community contemporary fensive because it affronts n standards relating representation description or community patent It standards sexual matters. is it can determined whether must.be ascertained before be n major- there the material affronts them. But is no ity Court, by opinions Supreme to this disclosed “community” time, agreement are in as to whether who desig- national, geographical local or some other means opinion in Jacobellis nation. Mr. Brennan Justice his “community” did not see how “local” definition n could delineating of ex- properly employed the area pression protected the Federal Constitution. rejecting Expressly at 193. the constitu- U. S. obscenity question determined in each tional to be n case community particular local the standards arises, said: constitu- from the case he which “[T]he allegedly an work deter- tional status of obscene must be all national is after of a standard. It mined on the basis 705 expounding.” 378 national Constitution we are U. S. Jacobellis, justices, including at 195. Three in Chief Jus- Warren, tice it should a local indicated be commu- justices nity. on the Four remained silent issue. Chief opinion Justice his stated that he believed that “there ” provable “per- is no ‘national standard’ and said that events, haps there should none.” He “At all be observed: one, has this Court not been able enunciate and it to would expect be unreasonable to He local courts to define one.” States, felt that in Roth v. when United obscenity U. S. said that be defined reference “community standards”, community it meant stan- dards, a national I also not standard. feel that there nois provable throughout national standard. Communities Nation are I why diverse and can no see sound reason adopted by community standard one be forced on must community though, another as even Justice rec- Chief ognized accepted, may ‘community’ approach “such a being proscribed well result material as in one obscene community but not in another.” 378 U. S. at 200. The des- ignation of certain acts as crimes has never been uni- throughout community form the States. But the local “community” purpose be the State? should Or for the obscenity a standard for further be broken down so separate as to consist areas within the State? Con- ceivably what affronts the standards of a rural commun- ity may in a State affront the standards of one of city big its communities. The mores ‍‌‌‌​‌‌​​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌‌‌​‌‌​​​‌‌‌​​‌‌‌‌​‌‌‌‍and morals of the community may substantially one different than those simply point I of the other. out that we posi- are in the only lacking tion question of not an answer as to Supreme by “community” what the Court means but that directly conflicting opinions among justices there are “community” as to what means. How can the element be proved when terms which it is are stated not de- fined? difficulty

I further “community standard”, have I Judge be it or local. am in national accord with Learned thoughts Hand’s in United v. Kennerley, States 209 F. 1913) quoted in the Brennan (D.C.S.D.N.Y. community- Jaeobellis,

opinion at 192-193. A 378 U. S. average of the time.” “Ob- conscience standard is “the point present critical in the com- “the scene” indicates promise and shame at which the com- candor between pre- munity may here and now.” Thus the have arrived age embalmed; place “while an and are not cise morals of things always they shock- presuppose that some will vague subject ing taste, matter is left public the general gradual development notions what is of about gradual de- not allow a decent.” But Roth test does the general It velopment about what is decent. notions by doing it prescribes and so establishes what is obscene community permits compromise be- It no standard. freely by the com- candor and arrived at tween shame community by munity tell- foists a standard on the but way ing I of no to deter- prohibit. know it what it cannot ascertaining by community what than mine standard community cannot, community permits. “[T]he issue, liberty speech press are at condemn where generally Opinion Mr. Jus- tolerates.” that which it dissenting part, Harlan, concurring part in tice California, 171. the com- 361 U. S. Now Smith munity says it cannot must tolerate what Roth test persuaded prohibit I am and this sets standard. today movies, apparent pornography so much of the theatre, legitimate personal conduct literature and the community, appears accepted of individuals to be average conscience of the not because it is decent to time, definition of obscen- the constitutional because short, ity obliges community accept it. In the stan- ap- the tеst and the can be dard is established test plied only relation to the standard. utterly is that material with

The third element “Utterly” permits redeeming of no social value. de out absolutely; entirely” gree; “completely; it means Heritage Dictionary English Language American 4. The (1969). degree: “to an absolute or extreme to the full extent: * * * * * * altogether, fully, thoroughly, totally.” One pressed is hard to find material that can be said to be utterly redeeming without social value. But see Levin v. State, supra, State, App. and Lancaster v. 7 Md. 602. And may it redeeming have though some social value even it contemporary fact offends community standards re lating to description representation or of sexual mat though, ters and perhaps, because, even appeals prurient Obscenity interest in sex. is excluded from protection only constitutional “utterly because it is redeeming importance”, without social por and “[t]he trayal sex, e.g., art, works, literature and scientific is not deny itself sufficient reason to material the con protection stitutional speech press.” freedom of States, supra, Roth v. United at 484. Mr. Justice Bren nan said in Jaeobellis: “It dealing follows that material * * * with sex in a ideas, manner that advocates or that literary has or any scientific or artistic value or other importance, may social not be branded as obscen form of ity and protection. denied the may constitutional Nor constitutional status of the material be made to turn on ‘weighing’ a importance against of its prurient social its appeal, for a proscribed work cannot be it is unless ‘ut terly’ importance.” without social (cita 378 U. S. at 191 omitted; emphasis supplied). tions regard proving

With to the manner of the three ele- ments which may must coalesce a prohibit before State obscene, material Appeals as the Court of has stated that ordinarily judge may neither the who sit on the circuit judges court nor appellate of quali- court would be fied to any determine whеther the elements or of them given are absent as to enlightening material without tes- timony, judges literary experts are not or historians philosophers. Censors, or v. Board Sanza 245 Md. 330; Censors, Dunn v. Board 240 Md. 255. This enlightening testimony expert must come from witnesses. Dictionary English 5. Webster’s Third New International Language Unabridged (1968). however, certainly average person, “The testimony qualified give expert might degree that he have area. The fact not, education, sociology theology per or does qualified; se, the mere fact make him nor does worker, officer, probation that he is a social Something teacher, priest, rabbi. minister or course, not, an required. more is He need be authority an affirmative there must be showing opportunity to an cross-examine [and special possessed of some that he is thereon] information, knowledge how- and sufficient opinion acquired, his which would elevate ever conjecture, speculation or realm of above the reaction, respect personal one of the Roth promulgated in of the test three elements recently Fanny His expanded Hill. most knowledge may have ac- information been quired profession or it or in his in his business avocation, sport might by-product an be sought assiduously may or hobby. it or He have * * * casually. may The he have absorbed many lights It and shadows. ‘expert’ term has authority recognized a man who is can denote and, accurately, once perhaps a fellow who city. point those- At what between went express an extremes he will be allowed two for the stand will be opinion on the witness But judge first instance. in the to decide trial be, qualifi- may his his status in life whatever assumed; they must estab- can not be cations quantity quality evidence. lished occasionally may require ad- some that evidence exigencies justment, depending upon the of the trial moment, in such circumstances of full measure judge to exercise the will need Hеwitt v. judgment, and discretion.” skill his Censors, Md. 585-586. Board of qualified express an Ordinarily to whether witness is subject testify, opinion as to which he is called to on the pass upon trial in the matter for the court to first is a ruling and the court’s will not reversed un- instance upon been an error of law is shown have based less it to judicial the result of an abuse of dis- or to have been obscenity State, 223. “In liti- v. 229 Md. cretion. Yudkin however, required gation, to scrutinize this Court will be judge closely rulings respect of the trial more competency qualifications offered of witnesses * * * mindful, judge experts. trial must be there- The as rulings fore, obligation re- assess his in this of our to instead, merely, gard light objective of correctness their not, determining has, he has abused his of whether or v. the law.” Hewitt or he is in error as to discretion that supra, persons Censors, who Board at 582-583. That of by is qualify experts to come as under Hewitt are hard opinion Hewitt discussion in the shown the detailed in that experts testified of offered as who the witnesses qualified Eight to as not were found the Court case. opinion expert. that four express an an The Court felt as circumstances, “might appropriate be able others obscenity.” But qualify expert area of as witnesses they, of unnecessary decide whether it found testimony did not them, qualified, their were so because position was obscene. support the material Censors, supra, Board adduced Board Sanza of Appeals found of number of witnesses. particular

only qualified experts in their two were requirements in Hewitt.6 forth field under the set express qualified an 6. Dr. Robert M. Bidaver was found the the prurient appealed interest of opinion average the film Psychiatric Education for man. He was “Director of in, Hygiene. Maryland, Department Born Mental State of early during Minneapolis, Minnesota, part midwest he lived in the University graduated from Columbia his life. He was York, City University New interned studied medicine at the University Hospital, University Maryland had three and the training years postgraduate and has been on Institute at the Yale University Hopkins Hospital and the faculties of the Johns the Maryland. Service, Psychiatric Medical Section of He was Chief Army.” States United testify qualified George Browning, deceased, found now was State, App. 450, Williams v. 5 Md. we traced the history appellate jurisdiction in review of the sufficiency evidence criminal cases. noted We question jury non-jury comes before us in how cases and applied we set out the test to be in determin- ing whether or not the evidence was sufficient to sustain Jacobellis, however, the conviction. In opin- the Brennan expressly rejected ion the contention that the determina- tion whether material was obscene “can be treated as purely judgment jury’s factual on which a verdict is conclusive, all or that event the decision can essentially be' left courts, to state or lower federal Supreme exercising only [the a limited review Court] such as that ruling needéd to determine whether the be- * * * supported by low is ‘sufficient evidence’. Since it only ‘obscenity’ is is excluded from the constitutional protection, question particular whether a work is ob- necessarily implicates scene an issue of constitutional * * * duty law. facing Our admits of no ‘substitute for up tough problems- to the individual of constitutional ” judgment every obscenity involved in case.’ 378 U. S. opinion principle 187-188. The reaffirmed the obscenity independent casés Court had to make an judgment constitutional on the facts of the case as to constitutionally whether the material pro- involved is Appeals tected. Id. at 190. The Court of and this Court recognized obligation independent have to make an judgment constitutional on the facts of such cases. Sanza Censors, supra; State, v. Board Donnenberg supra. say baldly, is opin- What meant when we said case, reviewing ion of the Court in the instant that “the community relating description as to local representation newspaper standards of sexual the- matters. He “had been connected with practically working business all his life. He .was picture earlier, and motion critic drama for the Baltimore News and years, and, period, Post critic for the for at least fifteen for a short had Telegram. been a testified, the New York World At the time he secretary he was executive' of the Motion Picture Own pictures periodically, ers Association reviewed motion al though regularly, publications -not for out-of-town with nation circulation, including Office,’ published City wide ‘Box in Kansas Daily and Motion Picture in New York.” 245 Md. 328-329. obligation independent, reflec make an has court Supreme judgment facts?” The on the constitutional tive obligation recognizes a claim of a whenever right constitutionally Bachellar protected involved. See 1312, Maryland, 1313. It said S. Ct. v. State of Kansas, (1927) at 274 U. 385: Fiske v. State S. finding by of facts review the “And this Court will right denied as a where a Federal has been State court finding by record to be without evi of a shown result support it; of law as to a dence to or where conclusion finding intermingled right of fact are so Federal necessary, pass upon to in order to the Fed as make it question, analyze Pennekamp to v. eral facts.” 331, Florida, 328 U. S. the Court said: State of imposed upon has “The Constitution meaning authority final to determine the Court application of those words of that instru- require interpretation ju- ment which to resolve responsibilty, dicial issues. we are With compelled to examine for the state- ourselves ments in issue and the circumstances under they made to which were see whether or not they carry present do a threat of clear and dan- ger good impartiality to order of the they courts or whether are of a character which Amendment, principles of the First adopted by Due Process of the Four- Clause Amendment, protect. highest teenth When court of a state has reached a determinаtion issue, give upon respectful such an we most at- reasoning tention its and conclusion but its authority is not final. Were it the con- otherwise expression stitutional limits of free in the Na- vary tion would lines.” state People York, In Stein State New 346 U. S. said, at 181-182: the Court course, this cannot “Of allow itself to by completely be bound state court determina- tion of issue essential to decision aof claim right, of federal else federal law could be frus- by finding. trated distorted fact But that does give weight mean that we no to the decision below, approach or the record de novo or with open latitude of choice appel- some state courts, late such as the Ap- New York Court of peals. Brandéis, Mr. Court, long Justice for this ago warned that the Fourteenth Amendment not, guaranteeing does process, due assure * * * immunity judicial from only error. It is miscarriages gravity magnitude of such they expected cannot happen be in an en- lightened system justice, tolerated they do, it if that cause tous intervene to re- view, Constitution, in the name of the Federal weight conflicting support evidence * * * decision a state court. — jury judge knowing

A and the trial local conditions, events, hearing close to the scene of observing parties the witnesses and —have advantages any same undeniable appel- over determining charge late tribunal of coer- determining cion of a as confession the main charge guilt of of the crime. When the issue has fairly reviewed, been tried and and there no judg- indication that of constitutional standards disregarded, ment have been we will accord to great and, the state’s own decision in the ab- by facts, sence of impeachment conceded decisive respect.” Alabama, noted, In Blackburn v. State 361 U. S. it of established, course,

note 5 at 205: “It is well that al- though respect this Court will accord to the conclusions [involving the state courts cases of this nature confession], escapе voluntariness of we cannot the re- scrutinizing sponsibility of the record ourselves.” It held: according judge’s “After all the deference to the trial de- duty determine compatible cisión which is with our questions, escape the con- constitutional we are unable to fairly char- clusion that Blackburn’s confession can be only involuntary.” In Edwards v. acterized as At 205. Carolina, held that South S. the state courts U. peace petitioners’ conduct constituted breach of Supreme may State under law. The Court said: “[W]e accept binding upon their decision to that extent. us duty But remains our in a case such as nevertheless independent this make an of the whole examination convicting arresting, record.” It found clear “in punishing petitioners under the dis- circumstances by record, infringed peti- closed Carolina South protected rights speech, constitutionally tioners’ of free assembly, petition free and freedom to for redress their grievances.” Haynes Washington, At 235. In v. State of duty U. S. 503 the found it settled well adjudication resting requires upon it constitutional subject right the matter of a federal of an be the independent by said, it. It at 515-516: determination

“While, Court, purposes in this review judge or of determination trial jury ordinarily will be taken eviden- to resolve tiary may conflicts and be entitled some weight respect even with to the ultimate conclu- voluntariness, sion on the crucial issue of we responsibilities by permitting cannot avoid our ‘completely ourselves state bound court determination issue to de- essential right, cision of a of federal claim else federal law could be frustrated distorted fact find- * * * ing.’ are, As state courts such in instances this, charged primary as responsibility the with protecting rights, basic essential we ac- appropriate cord an substantial effect their resolutions of conflicts in evidence as to the occurrence or factual nonoccurrence happenings. particularly ap- evеnts and This is posite judge jury because the trial are clos-

(cid:127)714 afforded the and thus best

est to the trial scene contradictory testimony. opportunity to evaluate * * * precluded the ver- But we cannot be determining jury the a from whether diet of the confession was circumstances under which made that its admission in evidence were such process.” to a denial of due amounts Louisiana, And see Cox v. State of note U. S. opinions Su at 545. I think the effect of the preme of a constitutional that when a violation right appeal properly is asserted and before us judgment clearly erroneous rule to the lower court’s as evidence, case, and, non-jury the rule that on the in a go to the permitting case to trial court did not err in jury inferences if or rational there was evidence guilty jury the accused therefrom on could find which case, appro beyond doubt, jury a are not a reasonable question. priate regard Rather with to the constitutional ap independent we our own must resolve matter alleged praisal record, including the obscene entire weigh necessity material, doing and in so we must And judge credibility of the witnesses. evidence and obscene, question we material when the is whether testimony light of wit judgment must make our in the qualified experts on the nesses we are satisfied are subject testimony. of their judgment examina-

Making my independent from an difficulty here, in con- I no tion of record have the whole taken cluding the material dominant theme of in sex. appeal prurient interest as a does not whole designed primarily dis- for and The material was not clearly group defined deviant sexual seminated large. cartoon public I think it clear accompanying to arouse it were such as and the text na- improper of a sexual an matters obsessive interest itching ture,, average person produce in the an or to uneasy longing desire or or to make him sexual longing. simply not to estab- was sufficient еvidence tendency lish that material had even a to excite lust- thoughts. pro- I ful have doubt that the witnesses serious quali- duced the State were shown on the record to be experts obscenity as fied as to the elements of but even they were, testimony if their was not sufficient to show appealed that dominant theme of the material to a prurient interest in sex. determination alone would This good conviction; reason to reverse the one of the ele- necessary obscenity ments to establish constitutional has proved. not been

I cannot determine from the record whether or not the community material contemporary affronts re- standards lating description representation or of sexual mat- State, points out, ters. The opinion of the Court prove contemporary community did not what stan- are, dards either Appellant national or local. adduced particular permitted some evidence that material was community the local parts country and other but I do not feel prove this evidence was sufficient contemporary community possible standards. It is not determine contemporary that the material here affronted community standards when the standards are themselves not delineated. proved Thus the second element was not good this alone would be reason to reverse the con- viction. may

It be that public criticism of a official can- not be utterly said to be importance. without social I point out, however, although speech the shield of free press protects false as well as true statements criti- public officials, cal of if the false are statements malicious lies the shield is removed. The See A. Company S. Abell Barnes, (1970). 258 Md. 56 opinion of the Court “cannot important overlook the fact the Free Press was making which, criticisms face, pro- least on their are tected right constitutional speech.” of free It is true that the State prove did not attempt even prove that the dominant theme of the judge material —that powers, abused particularly his relating cases to sex- ual matters due to his own preoccupation sexual lie,

therefore I was unfit for office—was a malicious entirely think opinion places too of the Court emphasis redeeming much on the social value of the ma- strongly terial. I feel that the material should be con- personal sidered for at- what it is—a and malicious vile Pugh, record, may though, tack on it J. Even from the not utterly importance, said to to be without social dignify by referring expressed to even the ideas Copernicus, such men as me ut- and Darwin is to Galileo terly absurd. inquiry

I observe this could not consider its that Court jury if foreclosed the of the even no claim verdict right I the involved. violation of a constitutional were agree alone, that cartoon con- not the cartoon the junction relevant newspaper entire and other with the determin- outside be considered in considerations were to being ing or the cartoon was obscene. That whether not jury that were so on instructions the evidence went to the charged: patently incorrect. The court considering get question of we to the “When argued cartoon, case that in the it has been the of itself in and can be considered the cartoon printed material to the reference without It also the has cartoon. page 9 which surrounds argued that the cartoon and contended been relationship or in con- to be considered must I ad- page 9. printed material on text with you, of the you up to members it is vise can or not the cartoon jury, decide whether to apart from separate be considered it, surrounding or whether printed text material context with be considered it has to not or jury, you, question It ais material. in and cartoon may consider You decide. may it in contеxt itself, you consider material.” obscenity non

n This vel jury determine allowed text, newspaper regard without cartoon aas whole or “other relevant outside considerations” even jury if the found that the cartoon and the text were re- charge This lated. clear error in the ap- was material rights compels pellant’s reversal in event. Supreme composed

As the past, was in the recent herein, as has been indicated two members “have consis- tently utterly adhered to view that State is with- power suppress, punish out control or the distribution any writings ground pictures upon of their ob- scenity. A opinion has third held to the State’s power narrowly area is limited to a distinct and clearly class of pornog- identifiable material [hard-core raphy]. have Others subscribed to a not dissimilar stan- dard, holding may constitutionally State in- literary hibit the distribution material as obscene un- elements less three discussed proved]. herein are [the * * * Another Justice has not viewed the ‘social value’ independent judgment element an factor in the of ob- scenity.” Redrup York, v. State New U. 386 S. 767 of Nevertheless, (per curiam, 1967). appears it that a ma jority and, of of the members the Court then from all majority of indications a of members the Court as constituted, agree obscenity now that is not within constitutionally protected speech press,7 the area of ex or cept prohibit that the First Fourteenth Amendments making private possession mere of obscene material a Georgia, Stanley 557, crime. v. State 394 U. S. 568. may the dissemination obscene material be con Since stitutionally inhibited, desiring I feel that the States to opportunity fair within do so should have a reasonable suppress such material in actions to criminal or rules civil, personam present in in or rem. The of the rules Su opportunity afford preme not and the Court do grips inclined to come with the matter. does not seem York, Kentucky Redrup Austin v. v. v. New and Gent Ar 767, opiniоn, in one decided 386 U. S. kansas were obscenity within the is not area constitu- 7. “We hold that States, speech press.” supra, tionally protected Roth v. United 485. at 718

judgments Redrup in were In each reversed. the defen- books; selling obscene Austin dant was convicted of in offering sale, the conviction obscene literature for was magazines the State court declared ob- Gent certain enjoined scene, their and ordered sur- distribution their description render and no factual destruction. With given opinion, not- content of the material ing that in a claim that none of cases was there question specific statute in and limited state reflected sug- juveniles; concern for in none there that was gestion by pub- upon privacy an assault individual impos- lication in a manner so make it obtrusive as to it; exposure unwilling sible for an individual avoid “pan- and that in none was there evidence of the sort of Ginzburg dering” significant found v. United the Court States, supra, vari- held that whichever the Court brought “is ous constitutional views of its members judg- us, it is that upon bear before clear cases Har- at 771. Mr. Justice ments cannot stand.” 386 U. S. dissented, remarking lan, by Clark, joined Mr. Justice ruling not the materials could constitution- ally States, adjudged was the Court obscene deliberately ex- disposing of on the them issue was thought dispositions He did from cluded review. processes on S. reflect well Court. U. Red majority 772. late of the Court have relied Of setting findings rup summarily that ma aside state constitutionally v. each of terial obscene. Cain was Ohio, 1110, Kentucky, March v. 90 S. Walker Ct. Minnesota, Hoyt 7 CrL 15 June 1970 1970, per opinion 4075, 29 curiam CrL June said, judgment majority simply Red “The is reversed. rup York, 18 L.Ed. U. S. Ct. New S. Burger and Mr. Jus 2d In Cain Mr. Chief Justice 515.” that The Justice’s view was tice Harlan dissented. Chief inflexibly deny to “we not each of States should power adopt own standards as to ob enforce its and materials; ought scenity pornographic to be and States varying problems free deal with conditions position set out Mr. Harlan reaffirmed his arеa.” Justice the same opinions Roth Jaeobellis. Walker in his substantially for the same reasons. The dissented Justices court, pointed out that trial endeavor- Justice Chief ing Supreme apply articulated the standards resting Court, obscene, held that the materials were its finding of Roth conclusion on a the three elements proved. appellate had court to dis- been Ohio refused judgment. today reverses, cit- turb that “Yet the Court ing only Redrup.” summary He dissented from such disposition only expressed because of the reasons Cain, justification, I “but also because find no constitu- otherwise, assuming tional or for this Court’s the role supreme of a censorship unreviewable board ‍‌‌‌​‌‌​​​‌‌‌‌‌​‌​​​​‌‌​​​‌‌‌‌​‌‌​​​‌‌‌​​‌‌‌‌​‌‌‌‍of States, subjectively judging piece the 50 each of material brought regard findings before it without or con- courts, clusions of other state or federal. That is not one purposes for which this Court was established.” In Hoyt Blackmun, Mr. Justice with whom the Chief Jus- joined, tice and Mr. Justice pointed Harlan dissented. He out, Walker, as did the Chief Justice in that the trial court apply endeavored to the standards articulated the Su- preme Court and reached a conclusion that the materials were obscene and that six of the seven Justices on the appellate State court held the materials obscene as a mat- law, citing ter Redrup and other decisions of the Su- preme agree Court. He could not trial State court appellate and the State obviously court were “so misguided holding in their they summarily are to be authority reversed Redrup.” on the For him the devel- opment of obscenity the state law of in the constitutional sense was stage. still in the unsettled He found himself generally in accord with the views of Mr. Justice Harlan expressed Roth, Jaeobellis Fanny Hill and with those of the Chief Justice in Cain and Walker. urge Supreme I would Court to come grips obscenity issue and make some order out of the chaos

it has created. The State obscenity law of in the consti- tutional sense should be high settled. It is time the Su- preme good. did so for the common

Case Details

Case Name: Dillingham v. State

Court Name: Court of Special Appeals of Maryland

Date Published: Jul 15, 1970

Citation: 267 A.2d 777

Docket Number: 314, September Term, 1969

Court Abbreviation: Md. Ct. Spec. App.