United Artists Corp. v. Maryland State Bd. of Censors

• Citation: 210 Md. 586,124 A.2d 292
• Decision Date: 01 October 1956
• Docket Number: No. 40,40
• Parties: UNITED ARTISTS CORPORATION and Carlyle Productions, Inc., v. MARYLAND STATE BOARD OF CENSORS. ,
• Court: Court of Appeals of Maryland

Page 586

210 Md. 586

124 A.2d 292

UNITED ARTISTS CORPORATION and Carlyle Productions, Inc., v. MARYLAND STATE BOARD OF CENSORS.

No. 40, Oct. Term, 1956.

Court of Appeals of Maryland.

July 13, 1956.

Franklin G. Allen and William L. Marbury, Baltimore (Piper & Marbury, Baltimore, on the brief), for appellants.

C. Ferdinand Sybert, Atty. Gen. (Norman P. Ramsey, Deputy Atty. Gen., on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This appeal is from an order of the Baltimore City Court affirming an order of the Maryland State Board of Censors eliminating a scene from the motion picture named 'The Man with the Golden Arm.' The appeal was taken by United Artists Corporation, the distributor of the film, and Carlyle Productions, Inc., the producer.

The original Act providing for censorship of motion pictures in Maryland was passed by the Legislature forty years ago. That Act provided that the Maryland State Board of Censors shall consist of three members, who shall be appointed by the Governor by and with the advice and consent of the Senate. It directed that the Board 'shall approve such films, reels or views which are moral and proper, and shall disapprove such as are sacrilegious, obscene, indecent, or immoral, or such as tend, in the judgment of the Board, to debase or corrupt morals.' Laws 1916, ch. 209.

It was originally held by the United States Supreme Court in 1915 in Mutual Film Corporation v. Industrial Commission of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed. 552, that freedom of speech and publication was not violated by an Ohio statute which provided for the creation of a Board of Censors to approve only such films as are of a moral, educational, or amusing and harmless character. But in 1952 the Court in Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 72 S.Ct 777, 96 L.Ed. 1098, held that the New York statute which permitted the banning of motion picture films on the ground that they are 'sacrilegious' was invalid as an unconstitutional abridgement of free speech and free press as applied to the banning of the motion picture 'The Miracle.' Again in 1952 the Court held that a municipal ordinance which authorized a local Board of Censors to deny a license for the showing of a motion picture which the Board is of the opinion is 'of such character as to be prejudicial to the best interests of the people' offended the Due Process Clause of the Fourteenth Amendment of the Federal Constitution. Gelling v. State of Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359.

In 1955 the Court in Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S.Ct. 117, 100 L.Ed. ----; Id., 350 U.S. 919, 76 S.Ct. 193, held that the Kansas statute authorizing the Board of Censors to disapprove of such motion picture films as are 'cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals', G.S.1949 Kan. 51-103, was unconstitutional as applied to that case.

In 1955 the Legislature amended the statute by striking out the word 'sacrilegious' and stating more specifically what types of films the Board must disapprove. The new law, Laws 1955, ch. 201, Code Supp.1955, art. 66A, § 6, provides as follows:

'(a) The Board shall examine or supervise the examination of all films or views to be exhibited or used in the State of Maryland and shall approve and license such films or views which are moral and proper, and shall disapprove such as are obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes. All films exclusively portraying current events or pictorial news of the day, commonly called news reels, may be exhibited without examination and no license or fees shall be required therefor.

'(b) For the purposes of this Article, a motion picture film or view shall be considered to be obscene if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever other merits the film may possess.

'(c) For the purposes of this Article, a motion picture film or view shall be considered to be of such a character that its exhibition would tend to debase or corrupt morals if its dominant purpose or effect is erotic or pornographic; or if it portrays acts of sexual immorality, lust or lewdness, or if it expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.

'(d) For the purposes of this Article, a motion picture film or view shall be considered of such a character that its exhibition would tend to incite to crime if the theme or the manner of its presentation presents the commission of criminal acts or contempt for law as constituting profitable, desirable, acceptable, respectable or commonly accepted behavior, or if it advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs.'

The 1955 Act also gives to any person submitting a film to the Board for examination the right to take an appeal not only to the Baltimore City Court, but also from a decision of the Baltimore City Court to the Court of Appeals of Maryland. Laws 1955, ch. 201, Code Supp.1955, art. 66A, § 19. This is the first appeal that has been brought to the Court of Appeals under this statute.

Appellants submitted the film to the State Board of Censors for approval and license, and the Board found that one of the scenes violates the statute. This scene, which runs less than two minutes, shows Frankie Machine, a young Chicago tought, played by Frank Sinatra, taking a narcotic after six months in the United States Public Health Service Hospital for Drug Addicts at Lexington, Kentucky. Ostensibly he was cured, but all the pressures were there waiting for him. The scene shows him rolling up his sleeve, and tying a necktie around the upper arm, while a dope 'pusher' prepares the drug for injection. While the particular kind of narcotic is not named the picture shows the powdered narcotic, the liquid solution, the spoon, and the hypodermic needle. The 'pusher' takes the filled needle and advances toward Frankie. The actual injection is not shown, but the viewer sees the needle being removed from the arm. Just before the needle is pulled out, Frankie indicates by a facial twitch that he felt a slight pain from the injection. Complete relaxation follows.

On January 12, 1956, C. Morton Goldstein, Chairman of the State Board of Censors, issued the following order: 'Following Frankie entering Louie's room and removing his coat, eliminate all views from the point where Frankie is shown rolling up his sleeve down to the point immediately preceding his reclining on couch.'

Appellants appealed to the Board for a re-examination of the film. The film was re-examined on February 8 by the chairman and the vice chairman, and on February 10 the Board passed another order sustaining its order of January 12.

On February 20 appellants appealed from the Board's order to the Baltimore City Court. They attacked the statute as unconstitutional, and also charged that the Board's order was arbitrary, capricious, and beyond its powers.

At the trial in the Court below, George J. Schaefer, sales supervisor for the producer of the film, testified that the film as presented to the Board had been passed by the censors without any elimination in every State, except Maryland, and had also been shown without elimination in England and on the Continent. He added that in Holland it received a scientific and cultural award resulting in the remission of admission taxes to patrons who viewed the picture. He also explained why appellants have opposed so strenuously the cutting of the scene:

'If you will recall, Frankie, when he goes home from Lexington, believes that he has been cured, and we later find out that, because of his surroundings and circumstances, things over which he has no control, he has a craving for a 'fix.' * * * That is what we call a climax, applying to that point. He refuses to go with the 'pusher,' as you may call him; and finally succumbs and does go over. You go into the room, and see the 'pusher' open the drawer. * * * It is my belief that the climax at that particular point was the surrendering of Frankie to the injection. If you had shown that picture without that terrific impact, and all of a sudden simply show him lying on the couch, it is my opinion * * * would have done harm to the presentation of the picture, to the dramatic climax.'

Chairman Goldstein informed the Court that the Board had ordered the elimination of the scene on the ground that it 'teaches' the use of, or methods of use of, narcotics or habit-forming drugs; but he admitted that the Board did not consider whether the scene 'advocates' such use or methods of use.

On May 17 Judge Byrnes upheld the constitutionality of the statute, and further decided that the scene violates the statute because it 'teaches the use of, or the methods of use of, narcotics or habit-forming drugs.' He thereupon entered the order affirming the order of the Board.

Appellants suggested...