*1 TRANS-LUX DISTRIBUTING CORPORATION
MARYLAND BOARD OF STATE CENSORS 143, September Term, 1965 (Adv.)].
[No. *2 Decided, curiam, 29, 1965. June per 27, 1965. September Opinions filed The cause argued before C. and Ham- J., Prescott, Oppenheimer mond, Horney, Marbury, Sybert, Barnes, JJ. Jr.,
/. Cookman Adolph and Boyd, Kaufman, with whom Levin, Weisman, were Walter H. S. Dickstein and Leonard Cellar, Allan, Spett briéf, & on for Sheinberg the appellant. Oken, General,
Fred Assistant with whom were Attorney Finan, General, Redden, Thomas B. D. Attorney Roger General, brief, Attorney on the for appellee. Assistant J., delivered the of majority the Court. opinion Barnes, Horney dissent. JJ., Dissenting opinion by Sybert, Hor- ney, J., ,115, at page infra.
After the
Court of the United
Supreme
invalidated
Maryland’s
licensing
statute1
requiring
by Maryland State
Board of Censors
of
(the Board)
pictures
to their
prior
exhibition,
its decision Freedman v.
Maryland, 380 U. S.
51,
734,
85
13
1,
Ct.
L.
2d
S.
March
(decided
1965),2
Ed.
the General
Assembly Maryland enacted
Chapter 598
Acts of
as
(Act
1965)
an emergency measure which
Code,
66A,
1.
Article
1 to 26.
Sections
2. This
State,
case reversed our decision in Freedman v.
233 Md.
498,
(1964).
“After whole, sub- goes a Board finds that the of candor in descrip- limits stantially beyond customary sex, deals purposely that it tion representation in a manner which appeals with sex effectively interest, impor- that it is without social the prurient artistic, tance, identifiable cul- and that it lacks tural, be consid- might thematic or other value which ered redemptive.” 1965, Board, 22, to the Act of on pursuant
Also April Baltimore City (Cir- Court of filed the Circuit petition Board’s and its affirming finding for an order Court) cuit Prendergast viewed licensing. Judge of the film for disapproval 27, 1965, arguments heard testimony, film on took April 28 indicat- an informative oral on opinion April and rendered An order Board’s be correct. finding found the ing he 30 and an signed April this on duly effectuating on May taken to this Court 10. on hearing the case We advanced June heard morning day, arguments film the viewed the afternoon, filed and after conference later the same of counsel Court, reversing per by majority curiam order *4 forthwith. the mandate issue directing Circuit Court and action in the reversing our reasons for our gives This opinion Circuit Court. issues are for decision: presented
Three to us principal 1965, Maryland the addition of the Act of is the 1. With for of motion statutory requirement pre-showing censorship constitutional on its face? pictures film obscene under the definition of es- obscenity
2. Is the Court of tablished the the United ? by Supreme States 102 and assum- question from federal constitutional
3. the Apart of Ar- forth in 6 standards set ing, arguendo, that the Section enforced con- too and uncertain to be vague ticle 66A are not film the standards? stitutionally, transgress Maryland does
I. Maryland the present Court that agree We with the Circuit censorship statutory picture plan pre-showing Freedman, the Prior to its decision constitutional on its face. Corp. City Film indicated in Times Supreme Court had 391, 43, (1961) 2d 365 U. 81 Ct. Chicago, S. Ed. S. L. pictures of motion that a of submission statutory requirement unconstitutional was not necessarily advance exhibition Freedman Supreme under all circumstances.3 The Court to the enactment case held that the statute Maryland prior of the First the Act of was unconstitutional as a violation as made of the United Amendment the Constitution States of the Fourteenth applicable the provisions Amendment because: as construed Court Supreme film, If exhibitor was re-
1) the Board disapproved instituting judicial to assume the burden of quired proceedings film constitutionally and of the court that the persuading after had expression; 2) the Board declined license protected film, review, its exhibition was prohibited judicial pending take; and, such long judicial however review might 3) Maryland statute no assurance of de- provided prompt judicial termination. repealed the Act of General and re-
By Assembly enacted of Article 66A of the Code with the Section 19 obvious intention of the three set forth in the fully meeting objections Freedman We think the succeeded in ac- opinion. Legislature this result. The new complishing provides Section film duly submitted to the Board for examination licensing “shall be reviewed within approved days, five unless (5) the Board shall under disapprove” provisions 6. In the event of the Board is disapproval, required Section been, Douglas, were, 3. Black and and for some time have JJ. that all such statutes are unconstitutional under all circumstances.
103 thereafter, to to days apply than three (3) not later “within determina- for City judicial for Baltimore Court the Circuit obscene, debase or or to tends such film as to whether tion of crimes, morals, meaning within to Sec- or incite corrupt “notice of such application that required 6 . is also tion . .” It mail, to prepaid, first class postage be sent by shall forthwith for licensing.” such film of person presenting the address the filing five after within required days Circuit Court film and with- hearing, conduct a view application its and order re- “enter decree hearing, in after the days two or be disap- film and licensed be approved that said quiring of 6 hereof.” if of said in Section proved provisions violation film, order disapproves is further if the It provided may licensing appeal presenting then person in accordance with of Appeals such determination Court Procedure,4 and of Rules of the Court Maryland Appeals hearing “shall case its calendar to the ear- advance such upon review, liest date” and in its the Court practicable Appeals added, “The “shall film.” Then is burden subject view the licensed film should not be shall proving approved that the rest on the Board.” full procedural compliance already
We have indicated with the in the Circuit Court and in this Act 1965 had Court. used,
The General in as a model the New Assembly part, Books, injunctive York Kingsley involved Inc. procedure Brown, 1325, 1 77 Ct. 2d 1469 (1957) U. S. L. S. Ed. in Mr. suggested Brennan’s Freedman Justice In our (see p. Ct.). opinion, 740 of the Act S. carries Freedman— requirement out the “* * * assured, the exhibitor be must [T]hat construction, statute or that the judicial authoritative will, period, censor within brief either issue specified to restrain go showing license court film. in advance of a final imposed judicial restraint Any on the must determination merits be limited similarly may 4. The be entered at time the order filed after days but not later than 30 therefrom. preservation the status for the quo shortest fixed *6 judicial with sound period compatible resolution.” forth, The General also set Assembly provided, already as that the burden of that the film proving approved should not be Board, and licensed rest shall on the Board so that not- withstanding its character anas administrative must es- body, tablish its disapproval by weight of the credible evidence before the Circuit Court. This is a of the rule statutory change we indicated applicable was findings to of the in Board Board Censors Film, 454, 833, v. Times 462, 212 Md. A. 2d 129 838 (1957).
II. We now consider whether the film is obscene within the meaning the decisions of the Court of the Supreme United States. The case of Roth v. United v. Alberts (and Califor
nia), 476, 1304, 354 U. 77 1 S. Ct. 2d (1957), S. L. 498 Ed. and the per subsequent curiam opinions Court Supreme 5 applying the manner, Roth-Alberts Rule as summary well as cases, relevant federal prior and state have been so thoroughly and carefully analyzed and considered in the and dis majority senting opinions 312, in the State, case of Md. 226 Monfred 173 A. 2d 173 (1961), that we think no it would useful serve to purpose further have extended discussion of cases. those See also the interesting discussion of helpful the constitutional and other issues involved in this in a book entitled litigation Schwartz, “Censorship” by Morris Alan U. espe L. Ernst IV, Part cially Constitution,” and the “Obscenity 199- pages what, Our task 225. is ascertain or if limita any, additions tions have been declared by Supreme regard Court in Ohio, rule 184, 1676, Jacobellis v. by U. Ct. S. S. 22, L. 2d filed opinions Ed. 1964. June
In Jacobellis there a division of regard to obscenity 5. The test of Roth-Alberts as enunciated Mr. Justice Brennan, majority Supreme “[Wjhether for the of the Court is: applying community average person, contemporary stan- dards, ap- the dominant theme material taken as whole peals prurient interest.” national, three local involved “community” whether two community, local be the it should indicating that justices community national be should that it indicating justices in the Fortunately issue. this on silent remaining four justices either issue as under thorny bar, this not resolve we need case at is, in film in this case “community,” theory applicable therefore, We, this pass upon do not obscene. our opinion, clarification issue, for further to wait preferring particular itself. Court Supreme issue amplified in Jacobellis in his opinion Brennan Mr. Justice definition follows: the Roth-Alberts clarified within the constitutional are Although pictures 1. from excluded obscenity of expression, of freedom guarantee “utterly when without only but protection, constitutional be proscribed a work “cannot social redeeming importance” *7 importance. unless it is without social ‘utterly’ sex, art, scien- literature and e.g., 2. ‘portrayal “[T]he works, material the deny tific itself sufficient reason to is not ” “material and and speech press,’ constitutional freedom of * ** or with sex in a manner which advocates ideas dealing form or other that has or scientific or artistic value literary any and de- obscenity branded as may social be importance, nied constitutional protection.” instance, finding
3. In first be a “that the there must material ‘goes limits candor’ substantially beyond customary “in of such matters” and description representation decency, absence of such from standards of society’s deviation do not we see how official into the inquiry alleged prurient can be with the Four- squared guarantees the First and teenth Amendments.”
4. The standard is a involved national and not community local a standard.
We have concluded that the Roth-Alberts test as amplified by clarified Mr. Brennan is in the case applicable Justice bar, noted, at except, as we have we do not find to necessary determine whether the na- applicable standard is community tional or local.
turn We The film facts. produced Denmark in 1959 and was directed di- by distinguished producer rector, minutes, for a It runs is Danish Johan Jacobsen. The with subtitles. characters are
language picture English a man, a Rye Preben Lerdorff and woman played by played a Birgitte There is brief of an appearance insur- Federspiel. Victor Montell. ance collector played by of the film beginning appears At the from language Holy 4:15, Cain, a mark Gen. “And set Scripture, upon Lord him kill should him.” The first scene in any finding lest raincoat, a male clad in a burly figure, walking shows along day a road. The is dark there lonely intermittent rain. and actions the man appearance suggest The he a that shore, cottage He comes a near sea fugitive. upon and looks it over before he knocks at the door. A carefully comely young woman answers the door and he on explains he is vaca- tion, way, has lost his and is a looking for place stay. She clothing him in his dry stay invites and to lunch. While lunch, is in the kitchen she he looks preparing around the room radio is in carefully and notes the room. having While lunch, he his plies questions hostess with about herself and her background. learns He that she alone. To his she surprise, him to He night. invites him spend accepts. She motions room, the fire in place retires to her living bedroom and while, room, locks the bedroom door. After he roams the learns her from a he name paper night is passed finds. without incident.
The following morning they breakfast together. He in- visitors, about bus quires transportation and the bus schedule. and, he into the seeing walks after yard her bicycle, Later takes knife and pocket out slashes the rear tire. comes She out *8 from the in they engage house and conversation. tells She him has cottage she lived at the for three years since the Second World War. learns he is not married and is to pleased She learn this. then he
He bids her farewell and leaves. watches as walks She Later, in she de- away. cottage, turns on the radio. His broadcast, is she Later scription being but not to hear it. appears in he returns to in day, cottage the meantime (having in not far from rested a thicket to for the cottage allow passage time) she smiles welcome. He that explains a scarf he adjusts her as he caresses bus. he missed the Later mustn’t,” this ignores but he “You her neck. says around She fol- as he away walks her again. mild rebuke and caresses She overlooking a hill on a bench to goes lows at distance. She whose her dead husband about soliloquy the sea and voices he died under that her. recalls haunt continues to She memory her bury to requested he had her and that name calling torture for a new life. look death and ring her after wedding scene, open talk evening is they In the following of his He learns past. reminiscences fire. He further recounts in cot- dead; this they happy were that her husband himself, is she— room, he asks “Who tage. After she leaves room he finds an auto- searching the out.” After I must find drawer, it in his As this puts pocket. in a matic desk pistol himself, find out her— “I must all about says scene ends he her.” I want in garb and following morning appear swimming
The they in front the cottage. beach Her walk hand hand one, conventional. has one-piece entirely suit is a She bathing swim, toweling made of material. After the on a beach robe beach robe and the woman shown wrapped carrying water falls from bathing dripping her wet suit as it. The man sand and the woman walks over to on the him and lying kiss and he fondles They lies down beside him. her. The scene intercourse, having are sexual clearly implies but there they is no nude For the most showing figures. part only the necks are shown. indicates parties shoulders She satisfac- tion as the scene concludes. wedding her ring
Thereafter she buries the sand and tells him “All is well.” around the and she They romp yard playfully pile knocks over a of wood which he had accidentally previously He some carefully piled utters up. angry speaks words. She voice, to him in a they after which kiss. soothing is at man next scene with the and woman in bed night side side. He her and hus- inquires fondles about her again band. “We came here replies: get away She from it all. We had Then a wonderful time. some friends came here. be- They longed also He underground. joined the Resistance. He came and went Then one frequently. day he came no more. He *9 kill or be killed. We “Life is to man The caught.” says, “Paul loved me. He screamed my no replies,
have choice.” She him man tortured had The who tortured him. they name as anof unusual bite.” Surreptitiously scar on his arm in the shape his arm. conceal upper the man down his sleeve to rolls is dressed to go was raining. following morning The She tells the He her not to grocer’s. out she is and says going He is knocks her down. instantly an go, argument, and after hides in is a knock door and the man the There at the sorry. agent door is an insurance who bedroom. The at the person her has collect the on fire insurance policy. come to premium the door has ajar, The man in the bedroom the slightly with if in his hand the caller for him. pistol ready looking for use is her goes to desk to write check to the pay premium She finds gone. the The insurance man pistol agent leaves emerges from her bedroom. He hid for her explains he sake alarmed, to avoid gossip. now continues to search for She the pistol. room, scene on next shows them the couch in the living dressed, in
fully arms. him each other’s asks about She pistol gives but he no clear answer. rises to pour She some wine from small each decanter and drinks some the wine. He lies on down the couch. The next scene shows her astride him again movements of the parties that sexual imply intercourse is being They performed. are both fully clothed. She kisses him and says you.” “I love As she reaches a climax scar on man’s arm bite-shaped revealed. She realizes murderer, that he is her husband’s and falls back in anguish. falls She backward over and lies man. He still on his back. arises, then
She recovers pistol from his jacket pocket and goes into the kitchen and asks herself what she should do. “He confess,” must she says. He calls to her and they talk. of- She fers go with him away and says “I must know you com- pletely.” He notices that she acts strangely and then goes to jacket, finding pistol gone. scene,
In the final she points him pistol at and asks “Why”? scorns He her and demands that she give him pistol. aims it at him She says “Talk about Paul.” He re- *10 me. “You used says other. She love each they minds her that Paul.” me about “Tell loathsome,” demands again You and are with collaborator was a he he that as admits is horrified She and killed tortured they and that the war during the Nazi SS pistol. lowers the in the neck.” She shot him her husband. “We of glass wine throws but it from her He not seek to take does out run he is about to As to the door. in face and runs her “One he he says, As dies door, him in the back. she shoots the goes hand she in her pistol the still With animal kills another.” casts the pistol the path down walking slowly out the door and film ends. to one side as the in film, the lower the Board by produced
In addition to the The court, was by evidence following produced the Trans-Lux: Act of 1930 under the Tariff of Customs United Bureau States after the into United for entry the film States admitted in Early obscene. the film was not Bureau had determined that in 1963, in 150 theatres film exhibited over was less by It been not and of Columbia. has viewed the District 250,000 incidents. When than without untoward persons Denmark, three “Bodils” first in the film was awarded exhibited in the as the best States) 1) to an “Oscar” United (equivalent female year per- Danish for the the best picture 2) male 3) performance formance for and for the best year, that 1964, Film for the In International year. January Importers Birgitte and Distributors of America awarded Federspiel, film, lead in of female award for the best performance its in foreign female actress an year imported picture. The film was licensed authorities for ex- appropriate in and been in hibition has exhibited Chicago City. that film, director producer in Jacobsen, Johan evidence, his affidavit admitted into stated he has been of producer director films for 26 has years, produced 34 films and directed films and twice has received all three awards from Danish Film Critics—one in “The Soldier again Knocks,” in “A Jenny,” Stranger the film involved this case. The film opened Copenhagen and ran for 15 weeks. He explained primary was interest in the maintenance high standard for which noted, Danish films are rather se, per than and “I profits, have been never in a position where- sexual exploiting activity to the level in I had to descend of sensationalism. My repu- motive on the screen for the sole statement.” He further as this stated: testimony tation stands to learn that the censors concluded that “I shocked was frankly of a as a serious treatment question I intended this which was more than an nothing contemporary importance of vital me make it very plain Let that it ‘obscenity.’ exercise intended, nor was it intended to any part interest.” prurient sensation seeker basis for Mr. in some detail the gives philosophical Jacobsen scenes, the film has been objection and how the two to which raised, in the film as a of art significance were crucial work com- a serious film. The first scene shows the complete *11 having mitment of two antithetical characters —the woman the — idealistic, the man character and cynical pragmatic achieving harmony a and of life and awakening hope. The second scene shows the effort woman to supreme break down the barrier which has created and suspicion repre- woman, sents a desperate effort threatened again with isolation, to By communicate. her actions she assumes the posi- tion of and of dominance total commitment to the man as well man, protectiveness the female. The detached and tenderness, triumphant yet and moved to is insulated this from all-embracing love and brutality corruption world with which he could not At cope. the moment of sexual fulfillment, the discovery is made that the man is her husband’s murderer. The .groan pleasure and pain the dramatic of the essential expression ambivalence in the relationship. Favorable criticisms from critics, motion following picture were introduced into evidence:
George Browning who has written reviews for the Baltimore Post, American, News News Press, the United the New York World Telegram, Office, the Box Motion Picture and Daily the Film Daily, Crowther,
Bosley leading motion picture critic for the New York Times. Cook,
Alton reviewer for the New York World Telegram and Sun. Simon,
Marion reviewer for The National Observer.
Ill Globe. Miller, for The Boston Margo reviewer York Carroll, for the New News. Daily Kathleen reviewer Mon- for The Christian reviewer Science Guidry, Frederick H. itor. for The Boston-Herald. reviewer Hughes,
Elinor Inquirer. Murdock, Philadelphia for The reviewer T. Henry Review of Saturday for The Lit- Hollins reviewer Alpert, articles picture has written erature and who Charm, Arts, Esquire, Theatre Magazine, York Times New magazines. and other Partisan Review critics, an affi- introduced In these addition to Trans-Lux Paramount Publishing davit of head of the Mayer, Arthur an of hun- operator for 40 years Advertising Department who is contribu- during period, frequent dreds of theatres that who has lectured Saturday Variety tor to The Review In affi- at a number of universities and schools. this prominent davit, the film “is a serious gave Mr. Mayer written, work which directed and acted with professional of the film—and of two competence” scenes of—is not to the complained prurient interest. He fur- ther stated: “While the in- close undoubtedly explores terms, timacy between a man and woman in sexual I do not believe that the subject handled in such a fashion of- as to fend short, reasonable and mature man or In woman. it is film, my opinion that this rather than appealing the prurient interest, is a work of professional competence which explores a moral problem genuine contemporary significance.”
A of portion Marion review may Simon’s be to illus- quoted stated, trate the critical It in opinion. part: “There’s nothing lewd about this stark two-char- hatred, love, acter drama of and in revenge postwar ** Denmark. n — “Birgitte Federspiel gracefully long-limbed, with — a face like Claudette Colbert’s remains discreetly clothed throughout, except one beach scene where the black-and-white camera is to glued her face. Pre- ben Rye almost Victorian as Lerdorff the hunted former Nazi who collaborator comes knocking at Miss she has lived for where cottage, isolated
Federspiel’s murdered for a husband tribute in bitter years three underground. Danish in the his activities war exile Cain’s parable out their they play “Here of direction, taut, deftly realistic Mr. under Jacobsen’s evil, and re- and good spite of questions probing has woven into screen- Metherling Finn spite are scences so the two debated And play. [scenes] between these two relationship of the a part much woman, victim, and judged killer people—man made film couldn’t have been with- judging—that out them.” court of before the lower no evidence Board offered the film to the appealed indicating opinion other
expert of of- a serious work art. It only or was not interest prurient itself, that the two scenes contending film in evidence the fered of up- film met the burden proof imposed of complained do not In our agree. on it Act of 1965. We by the the film itself—establishes weight testimony including — art, subject with a dealing film serious work of that the is a to the interest. appeal prurient and does not social importance social im- without “utterly redeeming It most not certainly film “deals with sex in a manner which advo- portance,” and social having importance,” cates ideas artistic value not limits of candor in the de- go beyond customary “does constitutionally of such matters.” The be may scription for exhibition the Board Roth- denied a license under the Rule as Bren- amplified explained by Alberts Mr. Justice nan in Jacobellis.6 legal history curious film had a New York. In that 6. The Regents (cor University the Board of York New State Maryland pre-showing responding censorship of Board for pictures) declined license the film. Its action was re Court, Appellate Supreme Division, Depart by the Third versed Presiding Judge Bergan being a 4 to 1 decision with ment Judge Herlighy writing opinion. majority dissenting See Corp. Regents, Distributing v. Board of 2d N.Y.S. Trans-Lux Appeals Thereafter on Court New York 333. Bergan granted), Judge who, having (certiorari mean- been
113 film, as was in the involved obscenity” “thematic There is no to regard Court) Supreme the before urged (unsuccessfully “The of adultery approval Chatterley’s “Lady Lover” —and 7— of blasphemy. allegedapproval Miracle” 8-— from bar, quotation with a film begins at the In the case man, the woman with of the with death and ends the Writ Holy in- to is not calculated This charge. murder facing possible wedlock, rather of but outside of sexual relations dicate approval contrary. the standards,” the Browning, George
In regard “community written and has critic in Baltimore who lives picture testified that many for years for Baltimore newspapers reviews commun- transgress day the film present his did not opinion The un- and this was not contradicted. ity testimony standards critics, already- of the other the testimony producer contradicted above, to, and other mentioned indicate testimony referred film As does not national standards. transgress the community film does not community violate either standard we need community decide which standard applies. disqualified Appeals, of
time had been elevated to the Court was appeal. judges Appeals of New hear the of the Court of being 3, Desmond, J., Scileppi, York divided to3 C. Burke and JJ. Appellate of of the reversal Division reinstatement Vorhis, Regents, Dye, order of the Board Fuld and Van JJ. provisions being for Con affirmance. Under the of the New York stitution, Judge Appellate Depart Division, Third Williams of up ment, Appeals, case was called sit with the Court of reargued, Judge so was cast vote for reversal Williams reversed, (see Appellate Division 4 to was 3 Trans-Lux Corp. Board, although ironically 88) Distr. a ma v. 14 N. Y. 2d Bergan jority Appeals Judge then constituted if Court having included, Bergan contrary opinion, Judge were was of the Regents voted for reversal of Appellate Board of when a member Supreme Division. The Court of the United granted certiorari, per Appeals in a reversed Court 15, referring airiam filed March 1965 to Freedman v. State Maryland, 1, decided 1965. As this action March a result of Supreme Court thereafter in New exhibited York. Regents, Corp. 587, 7. Picture 74 Commercial v. 346 Ct. U. S. S. 286, (1954). 98 329 Ed. L. 8. Joseph Wilson, 777, Burstyn, S. Inc. 343 U. S. Ct. (1952). L. Ed. *14 III. of Ar- the standards In our film does not violate opinion, assuming, arguendo n , 66A, 6, not too
ticle are they Section vague indefinite to be enforced at all. is that (b)
The definition of subsection “obscenity” whole, “if, calculated film is as its obscene when considered de- purpose or dominant sexual substantially to arouse effect and if as to out- sires effect is so probability great this whatever other film weigh may (Emphasis merits the possess.” been already It seems clear to from has supplied). us what stated that both other establishes itself and the evidence that it is not obscene under this definition.9 cor- films tend to debase or defining
Subsection what (c) or states this is its “if dominant rupt morals effect its purpose effect is erotic or or if acts of sexual pornographic; portrays it lewdness, immorality, impliedly lust or or if it or expressly desirable, presents such acts as acceptable proper patterns conduct.” Here the film and other (Emphasis supplied). again evidence establishes that the dominant or effect is not purpose erotic or im- Nor does it acts of sexual pornographic. portray lewdness, lust or as sexual un- morality, relationships and, noted, married persons are as implied already implied desirable, sexual are no relations means as presented accept- conduct, able or proper patterns of but rather the contrary presented.
There is no contention that the film incites to crime as de- fined does (d), obviously Subsection it not. indicated, however, As we have even if the stan- Maryland film, dards in 6 were the Board could Section violated refuse to license under Roth-Alberts constitutionally it Rule, as amplified finding and the of the lower explained, court to the contrary clearly erroneous and its order must reversed. be nudity, such, held 9. We was not obscene under Section Board, 10, 6 in Fanfare Films 839 v. Censor 234 197 A. 2d Md. (1964) involving Travel,” picture Figure the motion “Have —Will following Film, our decision in Board of Censors Times bar, however, (1957). Md. A. 2d In there the case at nudity
no involved. J., in which dissenting opinion, HornEy, filed the following J., Syb^rt, before retirement. concurred Court, of this members of the majority me that the It seems to sexual inter- of illicit acts overt a film portraying in approving Supreme of the the majority even course, further than has gone and, has doing, in so required, has United of the Court showing prohibits which statute Maryland disregarded illicit acts If such relations. immoral sexual of unlawful what, other than obscene, envisage is difficult to are not obscenity. constitute would hard-core pornography, the re- affirming of the lower court the order In my opinion, pic- to license the Board of Censors fusal State *15 been reversed. Knocks,” not have ture, should Stranger “A elimina- For, gratification, of sexual these illicit acts when admitted, de- virtually which, “would tion of as the producer considered are picture,” film a serious motion as stroy is clear film), remainder of the or without the with (either film, this was assuming of the even that the dominant effect or thoughts lascivious is to arouse not its calculated purpose, of Art. 66A. 6(b) which is expressly prohibited desires § this, of inhibited the exhibition a film such as wherein Surely, an man woman between unmarried immorality acts sexual surmised, be taken nothing to be will indubitably leaves as acts de- or such approving as viewing public sanctioning sirable, contrary of behavior or acceptable proper patterns of im- a portrayal Art. 66A. Such provisions 6(c) § said, hold, to be a seri- as the can be morality hardly majority of social dealing subject importance work of art with ous interest. prurient does not above, it seems ob
On for the reasons stated contrary, the film far what is goes beyond permitted vious to me that Roth-Alberts forth in Roth v. United under the test—set Alberts v. 354 U. as California), (1957) which, (and S. — Ohio, in Jacobellis is still amplified v. U. (1964), S. land, in deter the law the and the standards to be applied mining what is and what not obscene are still those local and not those of the nation as a whole. Fur community thermore, it should be out that the bar is pointed clearly case at from Jacobellis on distinguishable the facts in in Jacobellis fleeting the sexual act was a one while this case both acts were not but were only protracted over-emphasized deliberately on by extraordinary demonstrations of satisfaction the part this, the female Other than as participant. Judge Prendergast out, pointed there is a vast difference between what written as poetry prose and that which is on a mo- vividly portrayed tion screen. picture On one hand that which written may be so to be phrased erotic or while on the pornographic, other hand be, sexual activity shown on a screen could as it here, unlawful obscenity. Sybert,
Judge who participated in the consideration of this case, collaborated of this writing dissent his re- before tirement.
SAMPSON INC. (MD.), BROTHERS OF BOARD
COUNTY OF COMMISSIONERS PRINCE COUNTY
GEORGE’S Term, September [No. 1964.]