Dunn v. Maryland State Bd. of Censors

• Decision Date: 20 October 1965
• Docket Number: No. 260,260
• Citation: 213 A.2d 751,240 Md. 249
• Parties: John DUNN et al. v. MARYLAND STATE BOARD OF CENSORS.
• Court: Maryland Court of Appeals

Page 249

240 Md. 249

213 A.2d 751

John DUNN et al. v. MARYLAND STATE BOARD OF CENSORS.

No. 260.

Court of Appeals of Maryland.

Oct. 20, 1965.

William M. Nickerson, Baltimore (Richard C. Whiteford and Due, Whiteford, Taylor & Preston, Baltimore, on the brief), for appellants.

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

Before PRESCOTT, C. J., HAMMOND, HORNEY, MARBURY, OPPENHEIMER and McWILLIAMS, JJ., and KENNETH C. PROCTOR, Specially Assigned Judge.

HAMMOND, Judge.

The Maryland State Board of Censors refused to license the motion picture 'Lorna' and then, as required by Sec. 19 of Art. 66A of the Code as reenacted by Ch. 598 of the Laws of 1965, applied to the Circuit Court of Baltimore City '* * * for a judicial determination as to whether such film is obscene, or tends to debase or corrupt morals, or incite to crime, within the meaning of Section 6 hereof.' Judge Prendergast viewed the film, and the next day '* * * having determined upon consideration of the film, the pleadings, and the argument of counsel that said film is in violation of the provisions of Article 66A, Section 6 * * *,' ordered that the film 'Lorna' be disapproved for licensing by the Board.

In its petition for judicial determination, the Board recited that it had found that the film:

'* * * goes substantially beyond customary limits of candor in description and representation of sex, that it deals purposely and effectively with sex in a manner which appeals to prurient interest, that it is without social importance, and that it lacks any identifiable artistic, cultural, thematic or other value which might be considered redemptive.'

This phraseology would appear to be a stereotyped form which the Board believes embodies the standards of the Supreme Court as to what must be found if a film is to be held obscene. The Board made the same finding, word for word, as to the film 'A Stranger Knocks,' after which 'Lorna' appears to have been crudely and vulgarly patterned to some significant extent, and Judge Prendergast found that film to be obscene. In Trans-Lux Distributing Corp. v. Maryland State Board of Censors, Md., 213 A.2d 235, we held that 'A Stranger Knocks' is not obscene under the definition of obscenity promulgated by the Supreme Court and does not transgress the standards of Maryland's film censorship statute, assuming those standards to be constitutional and valid.

In his opinion in this case Judge Prendergast held that the provisions of Sec. 6 of Art. 66A were constitutionally valid. '* * * I think the statute that is now in force and effect meets the requirements in a line of cases decided by our highest court.' On the facts he found the film to be (a) '* * * utterly obscene and * * * completely violate of the Maryland statute and of all the decisions I have read as announced by the Supreme Court of the United States'; and (b) '* * * utterly without any value, scientific, social, cultural, or artistic,' and concluded: 'For these reasons, and because the Court has no evidence to rule to the contrary, I will enter and order affirming and approving the ruling of the Board * * *.'

It seems too plain for serious doubt that the legislative direction in Code (1957), Art. 66A, Sec. 6, that the Board shall disapprove such films '* * * as are obscene, or * * * tend, * * * to debase or corrupt morals * * *' (even as limited by the definitions of the terms 'obscene' and 'tend to debase or corrupt morals' spelled out later in Sec. 6) is so broad as to be fatally at variance with the rulings of the Supreme Court as to what the State constitutionally can ban from the public's viewing.

In the Trans-Lux case, we referred to the holding in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, that only what is obscene is without the constitutional protection of freedom of speech and expression, and reiterated the definition of what is obscene as spelled out in Roth and as stabilized, for the foreseeable future at least, by the decision in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 12 L.Ed.2d 793. The opinion of the Court in Jacobellis, 378 U.S. at 191, 84 S.Ct. at 1680, 12 L.Ed.2d 800, said Roth had defined obscene material as follows: material is obscene if '* * * to the average person, applying contemporary community standards [national standards said Justice Brennan; local standards said Chief Justice Warren in dissent with Justice Clark], the dominant theme of the material taken as a whole appeals to prurient interest * * *.' Obscenity is excluded from constitutional protection only because it is '* * * utterly without redeeming social importance * * *' Id. 378 U.S. at 191, 84 S.Ct. at 1680, 12 L.Ed.2d 800, and the portrayal of sex in art, literatute and scientific works is not itself reason to deny material the constitutional protection of freedom of speech and press, and material dealing with sex in a manner that advocates ideas or that has literary or scientific or artistic value of any other form of social importance may not be branded as obscenity. The constitutional status of a film, or other material, may not be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance. To be obscene, the material must go substantially beyond customary limits of candor and thus must deviate from society's standards of decency in the description or representation of matters dealt with.

In Trans-Lux, because the film was not obscene under the federal standards, we said '* * * even if the Maryland standards in Section 6 were violated by the film, the Board could not constitutionally refuse to license it under the Roth-Alberts Rule, as amplified and explained * * *.' We hold that the right and power of the Board to ban films as 'obscene' or as tending 'to debase or corrupt morals' under Sec. 6 of Art. 66A extends only to motion pictures which are obscene under the Roth test referred to and paraphrased in Trans-Lux and in this opinion. The cases of Kingsley Int'l Pictures Corp. v. Regents of Univ. of N. Y., 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, and Roth and Jacobellis, following Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, and Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, make is manifest that only material which is obscene under the Roth test can be censored or suppressed by a state, and that a state may not effectively substitute its definition of what is obscene for the Roth definition. The Maryland definition of what tends to debase or corrupt, found in Sec. 6, is almost word for word that of the New York statute which was held unconstitutional in Kingsley.

The Maryland definition of 'incite to crime' is highly suspect, if not entirely invalid, under the holding in Winters, but there is no need to rule on that point in this case because neither the Board nor Judge Prendergast made a finding that 'Lorna' did incite to crime, and, although the film portrayed scenes of revolting brutality and violence, the commission of crime is not made appealing, profitable, desirable or commonly accepted behavior.

We think that Judge Prendergast's finding that 'Lorna' should not be licensed for exhibition cannot be sustained on this record because the Board did not meet its burden of proving that the film is obscene. The Supreme Court, in striking down Maryland's censorship law in 1965 in Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, held that a law which...