Hewitt v. Maryland State Bd. of Censors

• Decision Date: 01 September 1966
• Docket Number: No. 60,60
• Parties: William E. HEWITT t/a Rex Film Distributors v. MARYLAND STATE BOARD OF CENSORS. ,
• Court: Maryland Court of Appeals

Page 574

243 Md. 574

221 A.2d 894

William E. HEWITT t/a Rex Film Distributors v. MARYLAND STATE BOARD OF CENSORS.

No. 60, Sept. Term, 1966.

Court of Appeals of Maryland.

July 22, 1966.

Richard C. Whiteford, Baltimore, for appellant.

Fred Oken, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., on the brief), Baltimore, for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

McWILLIAMS, Judge.

We shall be concerned here with the sequelae of Hewitt v. Md. State Bd. of Censors, 241 Md. 283, 216 A.2d 557 (1966). We reversed the order of the trial judge (Byrnes, J.) disapproving the licensing of a film entitled 'This Picture Is Censored.' We remanded the case for a new hearing, which took place on 8 March 1966. This appeal is from the order of the trial judge (Harris, J.) disapproving, again, the licensing of the film, pursuant to the provisions of Code, Art. 66A, § 19 (1957 Cum.Supp.1965). ¹ Since there is a description of the film in Hewitt, we shall not repeat it here.

Can such an order of the trial judge, in proceedings brought pursuant to § 19 of Art. 66A, be supported without expert testimony is the single, narrow issue we are called upon, for the first time, to decide. Necessarily excluded, however, would be those 'rare case(s) where there could be no doubt that the film is obscene * * * (and where the film) not only speaks for itself but screams for all to hear that it is obscene.' Dunn v. Md. State Bd. of Censors. 240 Md. 249, 255, 257, 213 A.2d 751, 754 (1965).

It will be recalled that Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (as expanded in Fanny Hill ²) requires the trial judge to find, before the film can be proscribed, that 'three elements must coalesce: it must be established that (a) (whether to the average person, applying contemporary community standards) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' Mr. Justice Brennan, who announced the judgment of the Court in Fanny Hill and in whose opinion the Chief Justice and Mr. Justice Fortas joined, went on to say:

'A book (film) can not be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book (film) can neither be weighed against nor canceled by its prurient appeal or patent offensiveness.'

See also Dunn, supra, 240 Md. at 253, 213 A.2d 751.

In Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962) Yudkin, who displayed and sold copies of Henry Miller's Tropic of Cancer, was charged with violating Code, Art. 27, § 418 (1957 Cum.Supp.1965). Yudkin 'was not permitted to offer the testimony of certain witnesses, such as professors of English literature, literary critics, authors of books, and other persons, who may have been able to qualify as experts' id. at 226, 182 A.2d at 800 (emphasis supplied), who would testify that the book was not obscene; that it would not arouse the prurient interest of the average person; that it had literary merit; and that it had received critical acceptance as literature. In reversing Yudkin's conviction we held it was error to exclude the proffered expert testimony. Judge Horney, who wrote the Court's opinion, quoted Mr. Justice Frankfurter as saying that the 'psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts.' ³

In Levine v. Moreland, 229 Md. 231, 237, 182 A.2d 484, 487 (1962), decided the same day as Yudkin, the question whether Tropic of Cancer was lawfully removed from the Montgomery County Public Library was considered. In remanding the case for further proceedings, Judge Horney, who again spoke for the Court, said:

'For if and when a trial of the issue of obscenity takes place, both sides will, of course, have full opportunity to summon such expert and other witnesses as each may desire to testify regarding literary merit, contemporary community standards and prurient interest. We point out, however, that the testimony of such witnesses (if it is otherwise competent) is admissible and should then be received.

'While it is true that an exhibit of allegedly obscene material-such as Tropic of Cancer-speaks for itself and must in every case be perused and examined with care by the trier of facts that has the responsibility of determining the issue of obscenity, that does not mean, as we pointed out in Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962), decided contemporaneously herewith, that other competent evidence tending to show obscenity or the lack of it should be excluded as irrelevant or immaterial.

'Of course, the Qualifications of expert or skilled witnesses to testify is a matter for the trial court to pass upon in the first instance. See Yudkin v. State, supra.' (Emphasis supplied.)

In Trans-Lux Distributing Corp. v. Md. State Censor Board, 240 Md. 98, 112, 213 A.2d 235, 243 (1965) we reversed the order of the trial judge disapproving the licensing of the film 'A Stranger Knocks.' Judge Barnes, for the Court, said:

'The Board offered no evidence before the lower court of any expert or other opinion indicating that the film appealed to the prurient interest or was not a serious work of art. It only offered in evidence the film itself, contending that the two scenes complained of in the film met the burden of proof imposed upon it by the Act of 1965.'

In Dunn, supra, the Board offered only the film, 'Lorna.' ⁴ Judge Hammond, for the Court, said:

'In our view, neither the judge who may sit in the circuit court to review the action of the Board nor the judges of this Court ordinarily would be qualified to determine whether a film exceeded these constitutional standards or tests Without enlightening testimony on these points. In 'A Stranger Knocks,' while the Board did not offer such testimony, the producer and would-be exhibitor of that picture did. For example, it was shown that the United States Bureau of Customs had admitted the film as not obscene, and that it had been exhibited in twenty-three states to not less than 250,000 people without apparent harmful effects. The philosophical background of the picture was described by its producer in an affidavit. Favorable criticisms by experienced critics all over the country were presented. Other experts in the field testified that the picture was not obscene.' 240 Md. at 255-256, 213 A.2d at 754. (Emphasis supplied.)

'Testimony of the type given as to 'A Stranger Knocks' and offered in Yudkin and Levine as to 'Tropic of Cancer' should be available to the Board as to almost every film it thinks is obscene. * * * (W)e do not feel qualified to say by virtue of a viewing of the picture only-anymore than was Judge Prendergast, in our opinion-that to the average person applying either local or national contemporary community standards the dominant theme of 'Lorna' was an appeal to prurient interest, or that the picture exceeded customary limits of candor in its representations of sex or the sexual mores of the community pictured or that it was utterly without redeeming social importance or literary or artistic value.' 240 Md. at 257, 213 A.2d at 755.

In Hewitt, supra, the trial judge arranged for a jury panel to view the film and thereafter based his order, in part, on the answers to questionnaires submitted to them. In reversing his order and remanding the case, we said:

'It will also be observed that there was no showing that any of the jurors had the expertise, skill or experience necessary to be able to give expert or meaningful testimony on the nature and limits of contemporary community (whether local, regional or national) standards of tolerance in the area of obscenity, or the customary limits of candor in the description or representation of sex, or the factors to be considered in determining whether a film has redeeming social importance. We do not, at this time, hold that such a showing would have been essential to the admissibility of their testimony, assuming they were, in all other respects, competent witnesses; we simply say we find it difficult to perceive how such testimony can, in these circumstances, be helpful to the trial judge.' 241 Md. at 292, 216 A.2d at 562. (Emphasis supplied.)

In his concurring opinion in Fanny Hill, Mr. Justice Douglas was moved to observe:

'We are judges, not literary experts or historians or philosophers. We are not competent to render an independent judgment as to the worth of this or any other book, except as in our capacity as private citizens. * * * If there is to be censorship, the wisdom of experts on such matters as literary merit and historical significance must be evaluated.' (Emphasis supplied.)

The author of a note entitled The Use of Expert Testimony in Obscenity Litigation, 1965 Wisc.L.Rev. 113, 131-32 ⁵, after discussing a number of recent decisions, including Yudkin, supra, concludes:

'Obscenity litigation appears to be on the increase, and it is, therefore, important that the lower courts be equipped with evidentiary rules which will enable them to effectively utilize expert testimony in these lawsuits. In the meantime, the lower courts should take it upon themselves to become aware of the problems involved in the use of expert testimony in obscenity actions, and exercise that judicial supervision which is most likely to make such testimony reliable and effective. It is extremely important that trial courts develop this ability in any event, for the evidentiary rules that appellate courts eventually evolve for future guidance...