*1 297 protection to defen- pose is to afford these statutes against period claims’ after time dants ‘stale ought diligence person ordinary for a to be sufficient bring an In Mal- to action.” “Limitations Professional Review, 47, Actions,” practice Maryland Law 49 “Develop- (1968). note We would also the article Limitations,” ments Harvard Law—Statute of Review, (1950), Latv it is stated:
“* * * primary underly- consideration ing legislation undoubtedly such fair- one of ness to the comes a when defendant. There time ought he expecta- secure in be reasonable his wiped tion that the slate has been clean of an- obligations, ought cient and he not to be called lost, on to a claim resist when ‘evidence has been faded, memories have and witnesses have dis- ” appeared.’ p. Id.
In view of what we have stated we think application “discovery rule,” ap- here gives plied, exercising individual reasonable dili- gence statutory period the full benefit in which suit, to file at the protecting while same time the defen- claims,” from dant “stale as was intended the statute.
Judgment affirmed, appellants pay costs. WAGONHEIM, et al. v. MARYLAND STATE
BOARD OF CENSORS 212, September Term, [No. 1969.]
Decided 1969. October *3 argued The cause was before Hammond, J., and C. Singley Marbury, Barnes, McWilliams, Finan, and Smith, JJ. Weiner,
Arnold Joseph M. with whom were S. Kauf- man, Neuberger, Melnicove, Asch, Isaac M. Greenberg & and Edward deGrazia on the brief, appel- for Kaufman lants. Burch, Attorney General,
Francis B. and Thomas N. Biddison, Jr., Attorney General, Assistant appellee. for
Finan, J., majority opinion delivered the of the Court. J., Barnes, J., concurs. Hammond, C. and McWil- JJ., liams and Singley, Concurring dissent. opinion by J., page 311, Barnes, at Dissenting opinion by Mc- infra. page 323, Williams, J., at infra. J.,
Dissenting McWilliams, Ham- J., SlNGLEY, J., page concur at mond, C. infra. appeal an from an order of the This is Circuit City J.), directing (Carter, of motion Baltimore that the ” picture entitled, disap- (Yellow) film “I Am be Curious proved licensing being provi- for of the as violation 66A, (1957), of Art. film sions Code § obscenity previously “meets tests laid down * * the Courts primary issue Court is whether before this protected film is Amendment of matter under First the United think not and ac- States Constitution. We cordingly affirm court. the action lower by Sandrew, studio, produced
This film was Swedish by Yilgot Sj ornan, protege Ing- and was directed Bergman. producers mar repre- claim Its would it Sweden, a kaleidoscopic portrait portraying sents problems contemporary po- and trends on the develop litical scene. An effort has made been the film July 11, 1969, Maryland 1. On Board of filed State Censors petition pursuant to Section 19 of Article 66A of the Anno- Maryland (1967 Replacement Volume) judicial tated Code of picture determination as to whether a certain motion titled “I (Yellow) Am Curious is entitled to be exhibited within State ” Maryland considering provisions Section 6 Article 66A said Code. This film was Board for submitted licensing July 1, 1969, by applicant, examination and on How- Wagonheim Press, Inc., ard Board and Grove “manufacturer.” The July 8, disapproved film under the viewed it provisions of 6 of Section Article 66A of the Code. The Order disapproval as read follows: reviewing film, considering “After a the entire whole, goes substantially the Board the film finds that *4 beyond customary description rep- in limits candor and sex, purposely effectively resentation of it deals and appeals prurient sex in a manner which to in- with the terest, importance, is without social and that it artistic, cultural, lacks identifiable thematic or other plight redemptive.” value which be considered testimony of The lower court viewed the film and listened to the approximately witnesses for film a two weeks and reviewed the _ prior rendering opinion. second time by to film was viewed its The required by 19(a) September 8, 66A, this Court as Art. on § 1969, prior hearing argument by representing ap- to counsel the Inc.; pellants, Wagonheim, Agent; Howard Grove Press 5 West Co., Inc., appellee, Maryland Amusement Censors. and the Board of State merge the along story to toward which strive two lines quite total effect film, make it. The never end of the but a than of a presents more framework the whole is that subject the United of a decision plot.2 film the The was in United Appeals for the Second Circuit States Court “I Am Entitled Curious- A Motion Picture Film States to (1968). The court in a two Yellow,” 404 F. 2nd 196 constitutionally protected. found it to be one decision writing majority opinion, made the Judge Hays, in many contemporary other apt that: “As with comment a difference of productions be there can artistic Id. at 198. Various picture ‘about’.” as to what con- experts written and testified who have critics and identity quest for cerning it as a film characterize heroine, young reality, part amidst on the of the with economic, social, moral, political, shifting sands identity for has been Her search and transition. cultural generation younger representative billed society, Sweden, hope their adher- for classless their non-violence, hostility and their demonstrable ence against Franco-type totalitarian state. message reaching employs film in its social
The format, interview with Lena ac- “man the street” life, questioning costing persons from all walks of them However, political social and beliefs. when their about ultimately realizes that the sexual viewer scenes have “Lena,” young characters in the film are 2. The main drama “Borje,” young actor, “Vilgot,” student, and director. making making together. Lena, a film In hav- film three Borje, finally director, ing whose interested leaves the become Borje. young ready access, up apartment she has to take with gradually the film reveals her as a In the meantime girl life shop. picture with her frustrated father in a frame who lives youth father, who with her in his idealistic Lena is disillusioned Spain frightened fight in and the civil war who became went convey impression is car- Lena endeavors to that she and fled. gave up rying protest father much on the which her and interviewing people scurrying about her about Sweden film shows political the pickets protests some of ethical attitudes. She situations, political of a sort and social seeks sexual freedom violently against sequence enjoyed by men, and in one rebels Borje, a dream women. In from her his love life other who conceals with fantasy him. All of him then she shoots castrates put together collage this is form. *5 little nothing or by to do developed with what was technique, “cinema only venté” do the sexual se- quences artificially appear interjected film, into the but many in retrospect, interviews seem contrived ruse give the movie value. expert As one of the wit- by State, Yaffe, nesses called tersely it, Dr. Paul put “Basically you running have two parallel, themes one touching never Basically, the other. phony one is this setting of class values and class structures and class problems. The other activity is the sexual episodic anof nature.” plot
The subject matter of the was also the of com- by Judge ment Chief Lumbard in his dissent in the Sec- ond Circuit wherein he aspect stated: “The sexual of the film as that is non- plot, does not arise from the existent ; (emphasis supplied) it arises from the decision director, Vilgot Sjornan, produce a film which would shock the audience. He making testified that deliberately the film he broke sexual taboos or cliches knowing shocking public.” this would be Id. to the at 203.
There are several brief interviews with the late Dr. King, Martin Luther wherein he comments on his non- methods, violent and with the poet Yevgeny Russian However, appear part Yevtushenko. these to be of a fa- objective picture, cade for the main namely purvey shocking titillating sequences. sexual As Judge Friendly concurring opinion stated his “* * * truly Second pornographic Circuit film would not be rescued inclusion of few verses from the Psalms.” Id. at 201.
Again, quoting Judge Hays from in the Second Cir- opinion: cuit
“It seems to conceded that the con- be sexual presented greater tent of the film is ex- with plicitness any than has been seen other film general viewing. produced question for whether, going decision is farther this di- production, film previous rection than *6 by the courts.” limits the established exceeds Id. 198. at of vividly depicts acts
Actually, film six different the positions and locales. in intercourse various sexual copula- episode of Among an more unusual is the scenes tree; on the in a occurs balus- tion the crook of second rhythm royal palace in to the of in trade the Stockholm distraught sentry anthem, en- national while Swedish of he the efforts deavors to at attention as views stand eye. of is considered two out of the corner his This the episodes of the film. There are one of the humorous nudity depicting complete number of male scenes leads, including of both the and female numerous views genitals. representations There are female and male cunnilingus, suggestion fellatio and as well as the scenes, sodomy in one of the and of castra- intercourse fantasy tion in the scene. dialogue entirely English is in Swedish with sub- English dialogue,
titles. The translation Swedish exhibit, contained in the which was filed as an scenario many goes the in reveals translation instances be- yond English that contained the subtitles from the standpoint expression.3 use lascivious Attorney appellee 3. The General his brief for the lists the following instances of uncommon sex in the movie: singing (1) you Lena’s “In Rio de Janeiro can fuck for display sculpture free”; (2) depict- Indian erotic ing vagina; (3) a man with his hand on a woman’s girl discussion between Lena and another methods of that Lena’s posing about different masturbation; (4) dialogue, you “Are lena’s making fucking stupid?”; (5) love scene detailed showing naked, parties completely both ex- room genital area, showing attempted inter- male standing against Borje course scene a wall and also a (6) caressing girl’s tongue; scene breasts with his Borje depicting and Lena sexual intercourse between parties although palace which, balustrade vividly displayed; (8) clothed, scenes of the act of intercourse depicting nudity at the retreat scene Lena posi- looking showing at a sex manual various unusual (9) intercourse; tions for sexual scene at the retreat ground showing Borje throwing and commit- Lena to the ting depicting cunnilingus, an act of followed a scene In film be fairness it should stated there are times when love are introduced with scenes some grace might opinion and a of them in an tend discussion However, represent crudely too out of context. them overriding se, per although perhaps theme is sex presented might abruptness appear with the from the written word. Maryland in Hewitt v. This Court State Board Cen-
sors,
(1969),
254 Md.
“Our definition of Roth-Al- —the *7 berts test —was restated with differ- somewhat emphasis by perhaps, Supreme ent the Court in A Book ‘John Named Cleland’s Memoirs Aof Attorney General, Woman Pleasure’ vs. 413, 418, 975, 977, S. 1, U. 86 S. Ct. 16 L.Ed.2d (1966), Memoirs, 5-6 hereinafter referred to as Brennan, in which Mr. Justice for the Court, stated: obscenity
‘We defined in Roth in the fol- lowing terms: average to the “[W]hether parties completely the Borje’s penis both nude kissing with Lena vagina; (10) he as caresses her a discussion regarding horny”; which (11) sex “makes them both depicting water; in (12) scene intercourse scene de- picting sexual in a tree intercourse between Lena and Borje; (13) showing fully scene the naked bodies of the lying engaged sodomy floor in two ual either or sex- intercourse with the man behind the woman. This dramatically emphasizes also scene the erotic effects of (14) copulation; fully showing followed a scene Borje’s genitals, followed a scene in which the nude Borje another, chases nude Lena from one room to position floor throws her to the and mounts her in n They sexual intercourse. then shown with loins en- tangled, floor; copulating (15) fantasy on the in scene Borje knife; which Lena shoots and him castrates with a (16) dialogue: big fucking a_ Lena’s “He’s shit and I’ll get cock”; kill him when I hold of I’ll him. cut off his (17) again nudity emphasis clinic with at an on the genital area of male and female.” community contemporary person, applying standards, mate- theme of dominant appeals prurient in- rial taken as a whole 489. defini- terest.” U. S. at Under this cases, tion, subsequent elaborated in three as must estab- elements coalesce: must be (a) lished that ma- dominant theme of the appeals prurient terial taken as a whole ato sex; (b) patently interest material is offensive contemporary because it affronts community relating descrip- standards to the representation matters; tion or of sexual (c) utterly the material without redeem- ing value.’ recognized applied
“We state- latest Mary- applicable ment of the in Sanza vs. rule Censors, 319, land Board 245 Md. 326- State 317, (1967), in we 226 A. 2d 320-21 sustained the Circuit the Board finding films', their an certain shown Baltimore, arcade in ‘the Block’ in were ob- * * Id. scene. at 182-83. Redrup York, See also v. New 386 U. S.
(1967).
Applying
Aof Book
the tridentated test
Named “John
Cleland’s
Memoirs
Attorney
Woman
Pleasure” v.
General,
(1966),
adopted by
It should be noted that not a case wherein we ruling unless court of the lower
are to follow the bound (Maryland clearly Rule erroneous we find a), to be duty in- make an is to but rather the this Court question judgment dependent on a mixed constitutional subject fact, matter before as to whether the law and cogently expressed obligation was This us is obscene. writing opinion Judge Oppenheimer, of this Court supra, Sanza, he wherein stated: determining are ob- the films
“In
whether
obligation
deeply
scene,
of our
are
mindful
we
judg-
independent
an
constitutional
to make
supra,
Jacobellis,
case,
on the facts of the
ment
190, and that the administration
at 378 U. S.
system
pictures pre-
censorship
for motion
of a
challenges
constitutionally pro-
peculiar
sents
supra,
speech. Freedman,
at
In addition to have reviewed the testimony many experts contained in the record representing pro views, con, social, both as to the and cultural the film or artistic attributes the lack petitioners, thereof. The witnesses as well as the possessed respected exhibitor, were individuals who ar- backgrounds tistic, educational cultural in the Bal- repeat opinions timore area. see little need to We their have but want it known that we considered them reaching conclusions. our difficulty finding
This has little that the domi- *9 film, whole, appeals nant theme of the taken as to prurient patently interest sex and is offensive community relating contemporary it affronts standards representation description or matters. sexual regard only It is to the third element of “Roth- with Attorney in A Book Alberts” test as set forth Gen- eral, supra, with which must coalesce the other two stan- dards, However, presents pause. which occasion for reviewing light after all in a of the evidence most favor- appellants’ able to the that the film contention does have something value, judgment our social it is utterly redeeming pre- social value. without have We viously, opinion, attempts this stated that questions film depict use social makers to the restless- youth identity, against ness of and its search for an in- ambience, patently tellectual were strained and contrived. do po- We not think that concern Lena’s with social and problems, artificially depicted, litical supplies so the re- deeming quality required to sustain film. We meaningful find no nexus between this concern and her problem twenty-three with her lovers. As was stated Judge Curious, in 1 supra: Lumbard his dissent4 Am say one can alleged sig-
“Whatever about the film, nificance of the captive which on- looker awas continuous and unrelieved bore- except scenes, dom for the sexual it is almost impossible anything to remember about it. The only impact picture has only and the im- designed pact it was to have are the sexual 6, 1969, 4. On October United States District Court for the Press, had before District of Kansas it the cases of Grove Inc. Theatre, Menghini, Lakeside Drive In vs. Kansas and Inc. vs. et (Nos. KC-2997), obscenity al. and wherein KC-2992 statutes challenged injunctions sought of Kansas were were to en join proceedings pending County in the District Courts of Johnson Wyandotte County, Kansas, proceedings concern application question of the Kansas statutes to the film (Yellow).” “I Am The Court found the Curious statutes con obscenity question. However, not reach the stitutional Court stated and did present Judges agree on the “All Judge [dissent], with Lumbard’s statement but because we did question, not reach the we do not hold.” so *10 only scenes; arises interest to the viewer its uncertainty of mutual of the method from the gratification in hero and heroine sexual indulge. will next partici- heterosexual, the the sex is
“While indulge pants and cunnilin- in acts of fellatio say gus. acts bear no conceiv- Needless to these except value,' that relevance to able appeal. Moreover, the sexual scenes of box-office nothing to do the remain- whatever with have picture.” Id. at 203. of the der Judge Murphy, presided in the States who United or as York District of New for the Southern District Court A Motion Picture Film v. of United States at the trial Supp. Curious-Yellow,” 465 285 F. Entitled “I Am (1968) observed: message, pub- whether is
“If the film has taking poll structure of the lic on the social advocacy society or the of nonviolence Swedish merely suspect anti-Francoism, I it is or would portraying providing dross, for sexual vehicle pornography.” Id. at and hardcore deviation 472. nothing protec-
Finding film that in this merits Amendment of the United States Con- tion the First disap- stitution, that it should be we are Maryland licensing proved Code, 66A, Article under Section 6. appellants other issues of a technical nature
The raised proceed to discuss. which we shall hearing appellants complain at the judge court, refused to the Attor- lower ney the trial order all office disclose the names of the ex- to General’s they requested analogy perts film. An whom view the process where due of law re- made to situation upon request, divulge quires State, all evidence Brady Maryland, to the defense. v. favorable 373 U. S.
309 (1967); Bar Maryland, 66 ; S. (1963) 386 U. Giles v. 83 Cir., 1964) ; United Warden, (4th F. 2d 842 bee v. ; Speiser Cir., 1967) (7th Poole, 2d 645 F. v. States (1958). Randall, U. S. hearing the lower disputed before It is not adversary In nature. censorship is of an cases court only requested appellants the instant case the proposed the State of the actual witnesses which names may hearing, all of individuals who use at the but requested by the film for the view have been State to witness, purpose being for con- possible or used as concerning aspects with the obscene sultation the State discovery film. in civil cases We do not think that goes promulgated by Maryland that which Rule *11 attorney product in accumu- essence the work of the Furthermore, preparation in if it lated the of the case. relating Maryland be Rule 728 were to contended that discovery applicable, think to criminal cases were we Kardy J., opinion of v. Shook Md. the this Court 237 524, 540, issue, (1965) dispositive 207 A. 2d 83 Prescott, J., writing wherein C. for the Court stated: * * “* State, And, 226 Williams v. Md. par-
we held where demand for a bill of beyond required ticulars went far was un- what calculated, der Rule 728 and was so much indictment, amplify allegations to the of ‘to but require by complete disclosure the State of the justified upon,’ evidence relied the court was sustaining exceptions the State’s to de- the mand.” Id. at 540. appellants constitutionality
The also attacked the by prior procedure Maryland provided restraint (Art. 66A). Statute think We these contentions were generally answered in Trans-Lux Distrib. Court Corp. Censors, v. State Board Md. A. 213 2d (1965), Maryland reviewed Statute in light by Chapter of its amendment the Acts of revising which amendment had effect Sec- guidelines sug-
tion 19 of Article 66A conform to the
to
gested by
Supreme
in Freedman
the United States
Maryland,
(1965).
Finally, argue appellants judgment that the Appeals United States Court of for the Second Circuit (Yellow), supra, in I Am Curious is conclusive on the case, in State’s judication federal statute under which ad- preempting was made must be read as right subject state later to film further re- public showing. straint in advance of The short answer to this is that the United States Court in Freed- recognized Maryland, supra, long man v. that as aas safeguard procedural suggested state follows the there- validly may police power in, it its exercise to effectuate *12 system. censorship only adjudi- It is our belief that an Supreme cation the United States Court would be binding regard upon this Court with to the film before Maryland, Rights, us. Declaration of Constitution Ar- ticle 2. affirming disapproving In order the lower court’s licensing (Yellow)”
film “I Curious Am the basis obscene, that are mindful of it is we Justice Stewart’s Ginzburg States, in United observation 383 U. S. “Censorship society’s (1966) that, reflects a lack of yet, itself”; confidence likewise in we sensate to our obligation Amend- protection of the First to withhold the Consti- from who wrote the ment material which those protect. tution never intended to affirmed, appellants to
Order pay costs. J., concurring:
Barnes, reasoning, entirely I statement concur with the application in law facts however, (a) opinion, I am additional Court. given pandering aspect of emphasis should be to the redeeming “utterly without case when the third test (b) be addi- social value” is considered and there should scope upon applicability tional or comment pic- when a motion test the Court has before it third regard ture which two in is obscene under first tests prurient contempo- to sex and an affront to interest rary community standards.
(a) majority considering test, opinion, In the third suggested by pandering aspect of the case is the ob- attempt servation that the film makers’ to raise so-called questions” “patently “social was strained and contrived” “artificially failing depicted” and the result was so “redeeming quality supply required social sustain majority opinion approval the film.” The also cites with portion Judge dissenting opinion of Chief. Lumbard’s v. A Motion Picture Film Entitled United States “I Curious-Yellow,” 196, 202, Am 404 F. 2d in which he states, say (of these fellatio and “Needless acts cun- nilingus) bear no conceivable relevance to value, except appeal.” (Emphasis of box sup- office plied.) observations, heartily Id. I at 203. these With concur, additionally emphasize I but would that the rec- ord discloses to me there is substantial evidence pandering of pandering, which indicates the sex. This my brings opinion, present case within the ambit the decision of the the United States *13 Ginzburg States, v. United 86 S. Ct. 383 U. S. 942, 16 (1966). L.Ed.2d 31 Ginzburg,
In majority justices there awas clear of five Brennan, opinion Court, i.e., for the of the Mr. Justice majority opinion, who wrote the concurrence with the Warren, C.J., Clark, Fortas, White and JJ. Justices Black, Douglas, Harlan and and each Stewart dissented dissenting opinions. wrote Ginzburg stated: view, (of advertising),
“This evidence
in our
determining
ques
was
relevant
the ultimate
and,
obscenity
tion of
in the context of this rec
ord,
ambiguity
serves to
all
resolve
and doubt.
representation
petitioners’
The deliberate
publications
erotically arousing,
example,
as
accept
stimulated
pru
the reader
them as
;
titillation,
saving
rient he looks for
not for
in
Similarly,
representa
tellectual content.
such
tion
public
would tend to force
confrontation
potentially
aspects
with the
offensive
work;
height
appeal
an
brazenness
such
publications
ens the offensiveness of the
to those
who are offended
such material. And the
presentation
circumstances of
and dissemina
equally
tion of material are
relevant
to deter
mining
importance
whether social
claimed for
was,
material
in the courtroom
in the circum
stances, pretense
reality
or
it was the
—whether
upon
basis
which was traded in the market
place
spurious
litigatioh
or a
pur
claim for
poses.
purveyor’s
emphasis
Where the
sole
sexually provocative
aspects
pub
of his
lications,
may
that fact
be decisive in the de
obscenity. Certainly
termination of
prose
in a
which,
here,
necessarily
cution
does not
im
ply suppression
involved,
materials
the.
they originate
subject
fact that
or are
used as
pandering
application
is relevant
to the
(383
the Roth test.”
U. S. at
We 319, A. 2d 317 Censors, 226 245 Md. Board State Board Maryland recently State (1967) in Hewitt v. and 203, 193-95, 210-211 A. 2d Censors, M!d. (1969), involving picture “Odd Tastes.” the motion present not of the pandering case is of sex The Ginzburg evi- and the involved in same nature as that regard as was clear and definite dence in to it is not as Hewitt, supra. the the evidence in In the instant case pandering subtle, present none aspect is is more but it the less. scenario, apparently prepared for
In the
which
sale
is
conjunction
picture,
in
the
there is an ob-
with
motion
emphasis
aspects
pic-
vious
on the sexual
of the motion
revealing
object
gain
ture
as its
the “material
for the
through
appeal
curiosity
ap-
an
creator
to the
and
sexual
petite.” Ginzburg, supra,
383 U. S. at
Ct. at
S.
947-948,
apparent
looking
of this case in the lower court:
“You have a says book on the cover 250 illus- you trations. If count the illustrations in this book, you will approximately find 100 of the 250 have to themes, do with sexual out of the 250. That is 100 out of forty per- is against cent of the total six minutes of 120 you film, if minutes of the minutes or 135 you period of some find in a will look will 160, you 83 or —pages about have some 89 to againt others, which is pictures 80 sexual twenty-five percent, which a hundred about significant emphasis very there is indicates say film in this pornography we is * *” book,* mo- appears pandering of sex It thus By entirely by generated profit motive. picture tion scenario, Press the concentration on sex in the Grove book, by selling it sells sex sells the book *15 picture. the motion all) argument (if by appellants relevant at
The only picture to those mem- that the motion will be shown years age community of 18 or older rather bers of the findings impaired by by of the District Court John- County, Kansas, in a “The State son recent case entitled Entitled ‘I Am v. A Motion Picture Film Kansas of 6122, ”, I, No. Div. No. Curious-Yellow’ which 5, September 1969, on and modified Order was filed 15, September importance of no for this case on detail A, Judge copy 1969. of District Herbert Kansas was W. case forwarded to this Walton Attorney 1, 1969, by on General October copy being appellants. counsel for the In sent to case, picture motion involved case at Kansas (an the Kimo Theatre “art the- Bar was shown at South Park, atre”) County, Ad- Overland Johnson Kansas. for the motion vertisements Grove Press furnished City picture published in the Kansas and the Kan- Times 24, 1969, stated, City 17 sas to June “Ad- Star from June picture adults.” The mission motion ad- restricted to was “ likely permanently vertised as ‘a landmark shatter remaining many conventions,’ says movie of our last Wil- Magazine.” In liam of none of the Wolfe Cue advertise- ments, 21, 1969, one of June other than the was there any of theme. The mention other District Court found
315 although 21 mentioned on the advertisement June Zen, non-violence, com- “alleged politics, such themes as import subjects, mitment, the whole and other socialism of the reader of and the attention the advertisement purposeful and deletion centered on obvious ” implies the word ‘sex.’ 18, 1969, advertising no men- newspaper of June In the restrictions; 19, age on June 20 all of tion was made at years 21, persons over 18 was a restriction to there identification; 22, age on there was of June with suitable over; and, years 18 June 23 a restriction to those only.” 24, simply “adults the advertisements stated samplings on officers took random enforcement evenings 24, 1969, among persons 23 and June leaving (which approximately per- 825 the theatre seats sons) years age. appeared 21 of- who to be under One Sunday, persons, stopped ficer on three of June 10 age; years persons stopped whom were under 21 night, the other officer on the same seven were under years age. evening, Tuesday June from those On those, stopped years age six were under and of also, years age. three were under On June ticket seller at the theatre sold a ticket to view the mo- lad, picture years age, tion an identified with- asking youth age asking out his or iden- see his admitted, tification. The lad was thereafter the ticket asking age taker neither his nor for identification. *16 24,1969. episodes There were similar on June May 18, 1969, Op- The Contract between Dickinson erating Co., through Dickinson, Inc. Glen W. Jr. and Press, through Barney Rosset, Inc. one Grove of its chief officers, picture to motion exhibit the at the Kimo South provided Press, Theatre Inc. that Grove would receive gross receipts $1,500 week, of in a excess but 90% following percentages: not less than the fixed first week: ; ; '70 second third and weeks: 60 fourth and fifth % % ; weeks: 50 sixth week: 45 The minimum run was % %. to be for six negoti- weeks with additional time to be Press, pay ated. Grove Inc. to was of the advertís- 90% ing advertising costs and all and costs materials content Press, were to at the discretion of Inc. The be Grove Co., provided Operating contract further that Dickinson entirety in Inc. to exhibit the film its was and was necessary print, to cut or alter the other than make to authority, repairs required public or when official or Press, without the written consent of Grove Inc.
(b) out, majority applied points we Roth As the test amplified pic- and in Memoirs to a motion restated Censors, Maryland ture in Hewitt v. Board State 179, 182-83, supra, 203, (1969), Md. A. 2d applied present in the restated “rule” has case. been my uncertainty regard opinion, In in in view of the majority justices Supreme of a view five test, applicable aspects on it was Court various Hewitt, supra, wise for. us in as well as in the instant case, apply comprehensive the most detailed and test writing majority justices or enunciated obscenity plurality Supreme in Court cases indicated, my opinion that Court. As I have is it. the film in the Bar case at is well within the three tests mentioned and is obscene under those tests. argument Attorney able and of General Attorney General, appellee’s Assistant both orally us, doubt,
brief however, before has made me i.e., “utterly that the third test that the material is with- redeeming vigor— value” —at least its full out picture properly applied a motion because of the pictures, hand, motion the one difference between and. writings, novels, pamphlets other on the other. early Supreme ap- As as 1952 when the Court first plied provisions regard of the First Amendment speech press pictures to freedom of and of the to motion (“The Miracle”), Joseph Burstyn, Wilson, Inc. v. U. 72 S. Ct. 96 L. Ed. S. Mr. Justice Clark, speaking (Reed for the and Frank- furter, concurring; dissents) JJ. there were no observed
317 expression, the difference the two of between methods follows: liberty expression of that means
“To hold guaranteed by pictures is the First of motion however, Amendments, is not and Fourteenth problem. follow the end of our It net does requires freedom to Constitution absolute every every picture exhibit kind at motion places. all much evi- all and at That times this Court dent from the series decisions communication respect with other media of pictures motion Nor does it follow that of ideas. gov- necessarily subject precise rules to the erning any particular expres- method other pe- own present its tends to method Each sion. problems.” culiar 781, 502-503, 96 L.
(343 72 Ct. at U. at S. S. 1106) at Ed. Kings concurring opinion in in his
Mr. Justice Clark Chatterley’s Regents (“Lady Corp. v. ley Pictures 1362, 1372, 684, 3 702, 79 S. Ct. Lover”), U. S. 360 (1959) stated: 1512, 1524 L.Ed.2d however, confusion, were grounds for “I see no films, or ‘pornographic’ those a statute to ban immorality, perver- ‘portray acts sexual ” original.) (Emphasis in or sion lewdness’ Court, Brennan, for a unanimous Mr. Justice Maryland, 51, 60-61, U. stated in Freedman S. (1965) L.Ed.2d that: S. Ct. prior requirement
“The submission to cen- Times sor Film sustained is consistent with recognition our films differ from other expression.” forms of recognized
This difference is also Judge Hays, Circuit in the Second Circuit case involv- ing film case in which it is stated:
“No doubt the standards pic- motion judged tures are to be differ in parcicu- some *18 (404 applied to be to books.” from those lars 198) F. at 2d between the two
In the distinction the State Courts carefully fully expression and has been methods 820, App. pointed Fording, 2d In Landau v. 245 Cal. out. (1966) appellate Reptr. court for Cali- 54 177 Cal. fornia stated:
“Furthermore, we think that the constitu- mean that protection tional afforded does not impact picture a of motion as distin- visual disregarded. guished other media can from be obviously are different from other forms Films Maryland, expression (Freedman v. 380 U. S. 51, 649, 734]). p. at 61 L.Ed.2d 85 S. Ct. [13 significance picture motion medium The technological par- features of the is due to the unique sight medium. The combination of ticular picture a and characterizes motion sound that by presented compre- makes the ideas movies larger a audience than is the hensible to case except (see other medium television ma- L.J., 696, in 60 Yale fns. terials cited 27 28, 707-708, Cal.L.Rev., 122, pp. 42 fn. at sound, 53, 128). p. Even in the absence of at high degree movies a of attention and re- assure light focusing tention. of an intense a screen and the semi-darkness of the room where suggestions distracting ideas eliminated contribute to the forcefulness of movies and unique (60 audience their effect on the Yale L.J., supra, 708). p. at medium, of the nature of the
“Because we picture may think motion sexual scenes guar- transcend the bounds constitutional long description frank antee before same word.” Id. scenes in the written at 181. interesting discussion of See also the this matter Appeals York of New in Trans-Lux Dist. Court
319 N.Y.S.2d 248 Regents, 14 Corp. N.Y.2d Board v. 259, 85 Ct. per curiam, S. U. S. (1964), rev’d v. citing only Freedman (1965) 13 L.Ed.2d that the inferred Maryland, supra, from it can be on the basis Supreme was Court reversal and that inadequacy York statute procedural of the New of obscen- the issue Supreme did not consider Court (Note Cusack, Corp. 380 U. S. ity. Film Teitle Cf. (1968) in which L.Ed.2d 966 1), 88 S. Ct. Chicago under invalid statute held Freedman, the is- it had not considered but noted obscenity. sue of *19 person, ap- average to the “whether
The Roth test was standards, community domi- contemporary the plying appeals to taken as a whole material nant theme the of apd only a ma- interest,” test in which prurient it is the justices Supreme has ever of the Court jority of five agreed. 483-485, 476, case, 77 S. Ct. Roth 354 U. S.
In the 1498, (1957), 1308-1309, 1506-1507 L.Ed.2d Supreme Court stated: phrasing of the First
. . unconditional protect every not intended to Amendment was slight- having All . . . ideas even the utterance redeeming importance . . . have the est social guaranties protection ... But im- full history plicit Amendment in of First obscenity rejection utterly re- of without rejection deeming importance. This social judg- in is mirrored the universal that reason restrained, obscenity re- ment should be agreement of over in flected the international nations, obscenity laws all States, obscenity laws enacted and in the 20 Congress 1842 to 1956. This is the from Chap- expressed by judgment this Court same Hampshire . are cer- linsky New . . ‘There narrowly limited classes tain well-defined speech, prevention punishment any thought which have never been raise problem. the lewd Constitutional These include and obscene ... It has been well observed any part ex- such utterances are no essential position ideas, slight and are such step value aas to truth that benefit that may outweighed clearly be derived from them is morality the social interest order and ours.)
(Emphasis continued: obscenity area “We hold that is not within the constitutionally protected speech press.” or forth. The Court then set out the Roth test above set i.e., (a) then, tests, the.ma- When did the other two “patently (b) must be terial must be offensive” “utterly redeeming purportedly social value” without come into the law?
Apparently,
“patently
came from
offensive test”
opinion in Man-
opinion
of Mr. Justice Harlan
his
Enterprises,
Day,
ual
Inc. v.
370 U. S.
S. Ct.
however,
“test,”
1432, 1434,
(1962). This
Some have Memoirs, supra, brought in law the decision into the alas, again But, receive the in 1966. “test” not did Court, majority opin- approval Supreme of the receiving only approval of Mr. ion Brennan Justice Mr. Mr. Mr. Chief Justice Warren and Fortas. Justice Clark, indeed, dissenting opinion in Mem- Justice in his oirs “novel” and observed that the social value was test only Supreme three members Court held that, pointed opinion, it. He in further out his such rejects which, indicated, test Roth test to as above majority Supreme agree. did of the Court Redrup York,
Even in
the case
New
386 U. S.
(1967)
87 S. Ct.
Where this does situation leave required lower Federal Courts and State Courts their apply Supreme effort to decisions Court obscenity policeman United States cases? Like the Penzance,” “The Pirates their Gilbert and Sullivan’s happy one.” I “lot is not a have concluded that required point follow the “three motion is test” in binding picture far cases so authoritative holding Court of the United States *21 required apply concerned, but that we are and follow original indirectly Roth test. This conclusion is importance present some in the case because state- concurring opinion Judge Friendly
inment of Circuit in the SecondCircuit case: governing
“If the rule were still what Mr. Justice Brennan States, stated in Roth v. United 476, 489, 354 U. S. 77 S. Ct. 1 L.Ed.2d (1957), namely average ‘whether to the person, applying contemporary community stan- dards, the dominant theme of the material taken appeals prurient might interest,’ as whole I join Judge well Chief Lumbard for affirmance.” (404 200) F. 2d at governing
IAs have concluded that the rule is indeed very test, the Roth this would mean that the excellent opinion Judge really of Chief Lumbard should be the opinion might of the Second Circuit in that case. I add parenthetically my opinion, that, in it should have been majority opinion theory.1 even on the other reiterate, however,
I that I think this Court was wise supra, case, in both the recent Hewitt and in the ma- jority opinion apply point the “three test” in view of Supreme Supreme the unsettled state of the decisions of the Court obscenity majority If a field. finally point (unfortunately adheres to the three test my viewpoint), applied from we will have the correct majority finally rule; if a test, adheres to the Roth appellants complain applied cannot if we have a stricter ultimately required law, determined, test than the us to do. might that,
I add as we observed in the case, Hewitt support my position 1. I note in judge the three court Kansas, the United States District Court for the District of consisting Hickey, Judge, Stanley Circuit Theis, Dis- Judges, Press, trict recent Grove case of Inc. vs. State of Kansas, Theatre, al Menghini, et and Lakeside Drive In Inc. vs. al, (consolidated cases) per et curiam Nos. KC-2992 KC-2997 in a 6, 1969, unanimously agreed filed October with. Judge opinion. Lumbard’s Chief *22 211), Mr. Justice supra (254 254 A. 2d at Md. at Georgia, Stanley recent case in the Marshall 1249-50, 22 L.Ed.2d 557, 568, 89 Ct. S. S. U. equate 7, 1969), cases April (decided seems to continuing Roth subsequent decision in Roth as to the stated, Supreme he for the Court: test as following “Roth that decision cases holding. by today’s we impaired As are not reg- said, power to have retain the States broad simply ex- obscenity; power ulate that does possession by in the tend to mere the individual privacy of his own home.” community finally although
I add that the “national” may thought reasonably apply de- standard well be to to involving cisions of the Federal Courts the nation as whole, expert testimony present and the case is support sufficient to the conclusion that the film does of- community standard, grave fend a national I have doubts majority ultimately Court will decide the exercise the States of their “broad regulate power obscenity,” to required the States will be apply a “national” rather than a “State” standard as “contemporary community standard.” a When State Augean seeks to clean the obscenity pre- stables of or to offending vent the accumulating, material from it should apply be able to consider and community standard of community, its own required and not be attempt evaluate the of other communities not under standards jurisdiction. hope its I majority indeed of the Su- preme Court of the United States will ultimately reach this conclusion. J., dissenting
McWilliams, agree I do not majority’s with the conclusion that the State has met its burden of satisfying the “Roth test.” We have triple held that standard announced Supreme Court in Roth v. States, United 354 U. S. (1957), Ohio, Jacobellis v. 378 U. 184 (1964) S.
(opinion Brennan, J.), A Book Named “John Cle- Attorney land’s Memoirs a Woman Pleasure” v. Mass., (1966) (opinion General of Bren- U. S. 413 nan, J.), Maryland applied standard to be determining writings pictures, whether certain or includ- ing pictures, motion should be afforded constitutional protection they or whether in- are obscene and therefore eligible for an I exhibition license.1 Because think the “utterly film redeeming value,” is not without I (reluctantly regret) would and with reverse court below. *23 Brennan, opinion Jacobellis, supra,
Mr. Justice
in his
recognized
said the Roth decision
“* * *
obscenity
that
is excluded from the con-
protection only
‘utterly
stitutional
because it is
redeeming
importance,’
without
social
and that
portrayal
sex,
art,
e.g.,
of
‘the
literature and
works,
scientific
not
is.
itself sufficient reason
deny material
protection
the constitutional
of
speech
press.’
484,
freedom of
Id. at
487.”
Id.
191.
at
impressed
argument
my
with
I am not
the
1.
of
brother Barnes
concurring
required
[emphasis
his
that “we
in
to
the
are
added]
original
apply
the
Roth
and follow
test” inasmuch
as that
is
only
expressly approved by majority
test which has been
a
of
any
Supreme
Magrath,
Obscenity
Court at
one time.
See
Roth,
Grapes
Sup.
important
1966
Ct. Rev. 7.
Cases:
It
is
of
however,
note,
Supreme
the intent
that
of the
Court when it es-
“original”
provide
Roth
standard
tablished
was
“safe-
guards
adequate
charge
to withstand
in-
constitutional
States,
firmity.”
(1957).
Roth v. United
U.
354
S.
489
Mr.
Brennan, writing
majority
for a
Justice
v. New
the Court
in Mishkin
York,
(1966), pointed
U.
502
S.
out
“[s]tates
adopt
obscenity only
other
free to
definitions of
to the extent
stay
adopted
by
those
within the bounds
set
that
tional criteria
also
the constitu-
* *
the Roth
definition
*.” Id.
at 507. There is
“three-point”
Court,
little doubt
test
favored
justices
plurality
Supreme Court,
of a
a substantial
majority
states,
(1966)
of the several
see
New S. 770-71 result, he said As
“* * * dealing in a man that material with sex ideas, Kingsley ner Int’l Pictures that advocates Corp. Regents, v. U. S. or that has lit erary or scientific or artistic value or other may importance, form of social not be branded obscenity pro and denied the constitutional may tection. Nor constitutional status ‘weighing’ on a of its material be made to turn against appeal, importance prurient its proscribed for work cannot be unless ‘utterly’ importance.” Id. without social ap opinion of Mr. Brennan with We cited the Justice Distributing Corp. Maryland proval in Trans-Lux Censors, 98, 105 (1965). State Board Md. Fanny Hill), supra, (i.e.,
In
Mr.
Memoirs
Justice Bren
disregard
nan wrote that courts could not
the word “ut
terly”
applying
when
the third element
the standard
complied
which we follow.
Mr.
Bren
We
with
Justice
Maryland
in Hewitt v.
Board
nan’s caveat
State
Cen
sors,
(1966),
“ ‘It consider remains to whether book “utterly can be said to be without social im- portance.” mindful We are that there was ex- yert testimony, much which was sprained, to the effect is a that Memoirs structural novel merit; literary displays with that the book a gift a comedy; skill in characterization and history plays part that it a of the devel- English novel; opment and that it con- moral, namely, a tains that sex with love is su- perior fact that the But the to sex a brothel. may testimony min- indicate this book has some literary mean it is of imal value does not importance. interpret “so- social do not We requiring importance” cial as that book test appeals prurient pat- and is interest unqualifiedly ently worthless offensive must be (Emphasis before it can deemed be obscene.’ supplied.)” Id. 595. at interpretation also Mr. Brennan’s
We noted Justice the criterion:
“Hence, even on the view of the court below only [Fanny possessed that Memoirs Hill] value, judgment its must be modicum social added.) (Emphasis .. .’’Id. reversed. by stating opinion concluded our We “* * * difficulty we have no whatever conclud- ing ‘redeeming value,’ that, if Memoirs has case, minori, then, the film in does so tawdry may cheap, it be however dull * * testimony produced ‘experts’ *. The finding support, not Board finding judge, the film trial but a is ‘not redeeming (Em- utterly without social value.’ ” phasis supplied.) Id. at 596. my reading Roth, it, I Jacobellis As see based Hewitt, Hill, Fanny own decision a mo- and our constitutionally protected picture2 be if there will tion “* * * majority opinion indicated that cannot we 2. In its picture impact ignore the to motion as with of a contrasted visual Judge concurring printed in his Barnes seems word.” suggest apply of of to the standards that different determination state, pictures. are opposed obscenity to motion This in books recognized course, the two media ship always between there differences has pictures subjected censor motion to a has subject prior written word is restraint. The scheme may although possession be a offense criminal its such restraint *25 Vol.). (1967 Code, Repl. The 27, 417-18 Art. if it obscene. §§ pic- prior motion Supreme approved restraint has presence importance even is mere of matters fact, outweighed by though may, in be the matters Arnebergh, prurient appeal. film’s See Zeitlin v. Cal. 800, 901, 920, 152, 165, Rptr. P. 2d 2d 31 Cal. (1963).
Applying ques- I the above film observations tion that it is obscene in the technical sense. The ma- jority unnecessary opinions found it to detail the many expert to me witnesses who testified but seems that some comment should made. The defense offered be impressive array
an
witnesses. Some who testified
considered to be the
foremost authorities
this state
picture,
the motion
these
few have testified
previous censorship
State
cases. Dr. Richard A.
Macksey, Acting Director of the Humanities Center of
Hopkins University,
taught
the Johns
he
stated that
has
more than a dozen different courses about
and film
films
making and that he
ais member of the
Board
Maryland Film Festival. He
the film
said
is “concerned
* * *
clearly
generations,”
with
conflicts between
“the
of non-violence
par-
doctrine
as this
relates
Sweden’s
Europe”
ticular
role
and with “the kind of malaise
Sweden,
ostensibly
the so-called welfare state in
society.”
film,
continued,
The
classless
he
covered “a
range
wide
of social attitudes” and had “artistic merit.”
Johnson,
F.
Dr. Lincoln
Chairman of the Fine Arts
Department
College,
of Goucher
has
pic-
studied motion
long
censorship
procedural
as the
tures so
Freedman v.
safeguards.
scheme has
Maryland,
51,
(1965).
380 U. S.
However,
60-61
Supreme
applied
Court has
held
never
the standard
to books
Judge Friendly-
films should not be the same. As
opposed
put it:
nothing
“.
that would
doctrinal
I
opinions
. .
find
Court’s
justify
embarking
a lower court
on such a
might
innovation,
import
further
confu-
already
subject
sufficiently
into
sion
confounded. Jaeo-
bellis related to
majority
a film and neither
nor the
dissenting opinions suggested
stricter
standard
apply.
per
would
curiam
5-to-4
affirmance in Landau
Fording,
388 U. S.
87 S. Ct.
Chairman views, on the University. he Paulson stated Dr. kins published average, he has and that a week two films literary testified further He criticism. works * * * * * “* merit. esthetic artistic film with this is judged relatively coherent, together; it is It holds important dealing sub- very an movies; with it is best * * * relationship ject, between [the] breakdown parents authority people, symbols between has so- film Moreover, he stated and children.” important dealing with it is “in sense that cial merit *27 problems.” social Department Stephany of the Chairman is Jaromir Maryland Photography and he Institute at the and Films history. making Addi- film and in film courses
teaches Maryland tionally, Film Chairman he has been appeared occasions three court and he has Festival testify the He that testified Board of Censors. to for the further com- and he offered the merit film has artistic together” strongly put and “is “[i]t rather is ment that outstanding certainly within the films made one the year.” last testimony im- witnesses was less of the State’s
pressive. the movie Kramer testified that was Reuben “totally as the sex scenes “contami- inartistic” inasmuch reg- picture.” He conceded that he does not the nated expertise ularly and has no the movies attend “cinematographic Furthermore, art medium.” he stated very opinion in his few films have artistic just stupid.” However, “are he merit and indicated that stupid.” film not “is Subjects Specialist Forshaw, Senior William Department Library Humanities at the Pratt testified preservation he is “interested American a film consultant and historian film” is the Balti- opinion, of Art. He more stated that in Museum his minority among as a one he described his col- literary leagues, no or filmhad merit. by employed City Paul Yaffe Dr. Baltimore Testing Director of Educational Schools as Service. part-time practicing psychologist with “more He is also average ability techniques.” projective than in the area of pose expert emphasized as an He that he did “not study.” films, experience from or Dr. Yaffe tes- either “pretended” film to have tified that in his socially redeeming pointed He value. out that “the so- * * * cially meaningful if situation is shallow and film were to stand on it alone it could no real re- have deeming features in the sense that it would be instruc- clarify situations, tional or would like.” and the interesting Judge It is to note that in the court Carter “* * * by impressed below stated that he was the testi- * * * mony witness, interpreted one at least as [he] * * * it, film, strongly who testified that this is a serious put together, confusing some, but that it would not together hold without the sex scenes.” produced appellant The reviews were written by prominent they equally movie critics were im- pressive. Alpert, Hollis whose have reviews been noted previous decisions, this Court in see Trans-Lux Distrib- uting Corp. Maryland Censors, Board supra, State Saturday wrote Review purpose “* * * explore say film’s director something, was through methods, political cinematic about the and social *28 country, climate of his Sweden.” To the same effect are Life, reviews Richard in Canby Schickel Vincent Times, the New York John Simon in the New York Times, Holiday, Gregory Richard Atcheson McDonald Globe, Evening in the Boston Bernard L. Drew in The Times, Hartford Ernest Schier the Philadelphia Bul- letin and the of the reviewer National Observer. The unfavorably by film was reviewed Kilpatrick James J. Angeles in the Los and Rex Times Reed in the New York Times. Attorney
The deny does General not that the creden- appellant’s tials of the witnesses impressive, he but argues that “this not opinions does free the they ex- analysis.” pressed from agree. critical I must I am bound however, they say, that to reflect at “a least modicum of Hewitt, supra. I cannot Memoirs, supra; value.” social social however, film’s majority, that agree with the Hays Judge As not intertwined. were themes sexual put it: is T Am Curious’ that more clear is even
“It redeeming value. social utterly without opinions may weight attach to we Whatever picture’s to the ‘experts’ who testified our- or not we importance, and whether particu- picture ideas consider the selves artistically interesting production larly or the T Am quite that Curi- successful, certain it is pre- to and does strive present ideas does ous’ artistically. It falls within ideas sent these amend- first effort that the ambit of intellectual designed protect.” United States ment was “I Am Curious Film Entitled Picture A Motion (2nd -Yellow,” 199-200 Cir. F. 2d 1968). concurring opinion, he did
Judge Friendly, said in his “* * * simply episodes were not feel that the sexual relationship lugged whatever bore no “* * * conscientiously Moreover, could not theme.” he purpose say between the serious connection nudity wholly displays episodes and is want- the sexual ing.” Id. at 201. Judge sugges I
Finally, must take issue with
Barnes’
States,
Ginzburg
tion
v. United
found
here,
be
where,
film can neither
shown
present
li
approved and
it is
until
be advertised
nor would it
v.
See United States
of
the Board
Censors.
censed
(D.
Supp. 902
Md.
Copies Magazines,
F.
of
pandering in
1967).
did find evidence
be
we
To
sure
Maryland
Board
State
in Hewitt
our recent decision
case
(1969).
Censors,
The evidence
“Q. T Am (Mr. Weiner) How does this (Yellow)’, in with the other films fit Curious Well, A. those theatres? are shown at which Secondly, foreign all, film. it is a first of it is meric, film, my exceptional mind thirdly, theatres seri- in these two films shown ously problems. These two the- serious consider simply are enter- which show films atres They impor- are films which tainment films. artistically, which have some cultural tant questions impor- significance,. raise public opinion. tance, am influence and I sure “Q. your opinion, the film T Am does And in things you these have (Yellow)’ do Curious Oh, yes, indeed.” just A. described? appear nor
Furthermore, not claimed does it is standing alone, suggestive film, of its the title pandering found Compare evidence content. State, A. Judge Lancaster v. 2d 716 Murphy in Chief 1969). (Md. App.
333 notoriety ac- film has I have doubt that the no pub- quired abundant more has been the result confiscatory licity generated by of the United action ensuing Service, fed- decisions States Customs any one than financial success eral courts and the film’s reputation expect will the film’s advertisement or book.41 my action of brothers not suffer as result majority.
, supposed, however, I en- have It must not be thought seeing enjoy I I it. film. thusiasm this did not crashing “to not for us bore. it is it was Nevertheless * * * duty quality [film]. Our is determine the of a respect freedom of ex- and enforce full measure the guaranteed by pression constitutions.” state federal 134, 151, McCauley Cancer, 2dWis. Tropic (1963). 554, 1140, N.W.2d A.L.R.3d Judge Judge Singley Hammond have Chief autho- they expressed me to rized state that concur in the views foregoing opinion. in the According appellant, 4. to the film “[t]he was na- distributed tionally As of people Francisco, ami opened City and it first York New on March 1969. * * * July 870,000 has been to more exhibited than York, Philadelphia, Washington, cities New San Angeles, Houston, City, Antonio, Los Atlantic Mi- San Beach, Seattle, Norfolk, Boston Portland. The film currently being places, shown in these some of which are in the
jurisdictions contiguous Maryland, the State and contracts showing have also been executed with exhibitors for in 27 addi- tional cities.”