Mangum v. Maryland State Bd. of Censors

• Decision Date: 25 November 1974
• Docket Number: No. 109,109
• Citation: 328 A.2d 283,273 Md. 176
• Parties: A. Kelly MANGUM, III, Indiv. and as Manager of North Cinema, Inc. v. MARYLAND STATE BOARD OF CENSORS.
• Court: Maryland Court of Appeals

Page 176

273 Md. 176

328 A.2d 283

A. Kelly MANGUM, III, Indiv. and as Manager of North Cinema, Inc. v. MARYLAND STATE BOARD OF CENSORS.

No. 109.

Court of Appeals of Maryland.

Nov. 25, 1974.

William E. Seekford, Towson, for appellant.

Norman Polovoy, Deputy Atty. Gen. (Francis B. Burch, Atty. Gen., and Josef E. Rosenblatt, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., SINGLEY, SMITH, DIGGES, ELDRIDGE and O'DONNELL, JJ., and CHARLES E. ORTH, Jr., Special Judge.

ELDRIDGE, Judge.

In this case, petitioner challenges a decision of the Circuit Court of Baltimore City (James W. Murphy, J.) which upheld the Maryland State Board of Censors' refusal to grant a lecense for exhibition of the film 'Deep Throat.'

On May 23, 1974, petitioner, on behalf of North Cinema, Inc., submitted the motion. picture entitled 'Deep Throat' to the Maryland State Board of Censors for review pursuant to Maryland Code (1970 Repl. Vol., 1974 Cum.Supp.), Art. 66A, § 17. The next day, the Board of Censors issued a rejection order and filed a petition for review in the Circuit Court of Baltimore City, as required by Art. 66A, § 19(a). On May 30, 1974, petitioner filed a petition for continuance in the circuit court. On May 31, 1974, after a hearing, the court granted petitioner's motion for a continuance, but the court issued an interlocutory injunction temporarily restraining further showing of the film 'Deep Throat' in the State of Maryland until such time as the court had rendered a final judgment in the matter. The petitioner took an appeal from the interlocutory injunction on the same day, May 31, 1974. On July 31, 1974, the Court of Special Appeals, on respondent's motion, dismissed the appeal from the interlocutory injunction on the ground that it was moot. Subsequently, this Court denied a petition for a writ of certiorari to review the dismissal by the Court of Special Appeals.

While the appeal from the interlocutory injunction was pending, the trial judge viewed the movie at a closed showing at the court house and, again, at petitioner's request, at the theater of the petitioner. At a hearing before Judge Murphy, the film itself together with the rejection order and the minutes of the May 24 Censor Board meeting were introduced. The petitioner presented five 'expert witnesses.' All five of the expert witnesses testified that they did not believe that 'Deep Throat' was patently offensive to community standards. All but one stated that the film did not appeal to the prurient interest of the average adult. Only Dr. Nachand, a psychologist, testified to artistic and scientific value, though two other witnesses made reference to the 'parody' or 'satire' involved in the film. All of the petitioner's experts had difficulty describing what to them would be pornographic. Only Paul Walker, a psychology instructor at the University of Baltimore, got beyond words such as 'unhealthy,' 'morbid,' 'pathological.' Mr. Walker stated that films which advocated 'brutality,' 'exploitation,' or 'violence' would be pornographic. ¹

On June 24, 1974, which the appeal from the interlocutory injunction was still pending, Judge Murphy issued his opinion and order disapproving the film 'Deep Throat' for licensing by the Board of Censors and affirming the May 24, 1974, finding of the Censor Board. Judge Murphy found the film to be obscene under the definition set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). On the same day, the petitioner filed a notice of appeal to the Court of Special Appeals. Because of the importance of the issues in this case, we granted a writ of certiorari prior to a decision by the Court of Special Appeals.

The petitioner advances three principal arguments for reversing the circuit court's decision. (1) The appeal from the issuance of the interlocutory injunction on May 31, 1974, deprived the circuit court of jurisdiction. ² (2) The film 'Deep Throat' is not obscene under the current Supreme Court definition of that term. (3) Maryland courts may not, consistent with Art. 8 of the Maryland Declaration of Rights, construe the word 'obscene' in the Maryland movie censorship law, Code Art. 66A, to be the same as the current Supreme Court definition of 'obscene' for First Amendment purposes.

I.

While generally the filing of a notice of appeal in a case deprives the trial court of jurisdiction to proceed further in that case, there are exceptions to this rule. Bullock v. Director of Patuxent Institution, 231 Md. 629, 633, 190 A.2d 789 (1963); Cook v. Boehl, 188 Md. 581, 592, 53 A.2d 555 (1947); Dietrich v. Anderson, 185 Md. 103, 111, 43 A.2d 186 (1945); Barnum v. Barnum, 42 Md. 251, 294 (1875); Smiley v. Atkinson, 12 Md.App. 543, 549-551, 280 A.2d 277 (1971), aff'd, 265 Md. 129, 287 A.2d 770 (1972); Raimondi v. State, 8 Md.App. 468, 475-476, 261 A.2d 40 (1970). One well recognized exception is where the appeal is taken from an interlocutory or preliminary injunction. The authorities, with apparent unanimity, hold that while an appeal from an interlocutory injunction is being pursued, the trial court may proceed with any other issue or matter in the case. Ex parte National Enameling & Stamping Co., 201 U.S. 156, 162, 26 S.Ct. 404, 50 L.Ed. 707 (1906); DePinto v. Provident Security Life Ins. Co., 374 F.2d 50, 51, n. 2 (9th Cir. 1967); Janousek v. Doyle, 313 F.2d 916, 920-921 (8th Cir. 1963); Phelan v. Taitano, 233 F.2d 117, 119 (9th Cir. 1956); Students Challenging Reg. Agcy. Proc. v. United States, 353 F.Supp. 317, 320, n.2 (D.D.C.1973); O'Brien v. Avco Corp., 309 F.Supp. 703, 705 (S.D.N.Y.1969); Doudell v. Shoo, 159 Cal. 448, 114 P. 579, 582 (1911); Nomm v. Nomm, 164 Cal.App.2d 633, 330 P.2d 839, 840 (1958); Cloud v. Dyess, 172 So.2d 528, 531 (La.App.1965); Appeals of Sheaffer and Herkscher, 100 Pa. 379, 382 (1882); Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex.Civ.App.1970); Lynch v. Clinch Motor Co., 131 Va. 202, 108 S.E. 641, 642 (1921).

Moreover, in the present situation, it was even clearer that the trial court should have been able to exercise jurisdiction despite the pendency of the appeal from the interlocutory injunction. Where the prior restraint of a film exhibition is involved, the First Amendment requires that procedures to review the film be as expeditious as possible. Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Article 66A, § 19, of the Maryland Code was amended in 1965 to conform to this requirement. See Dunn v. Maryland State Board of Censors, 240 Md. 249, 213 A.2d 751 (1965); Star v. Preller, 352 F.Supp. 530 (D.Md.1972), remanded for reconsideration, 413 U.S. 905, 93 S.Ct. 3054, 37 L.Ed.2d 1016 (1973), on remand, 375 F.Supp. 1093 (D.Md.1974), aff'd, -- U.S. --, 95 S.Ct. 217, 41 L.Ed.2d -- (1974) (decided October 29, 1974). The State also has an interest in requiring that allegedly obscene films be reviewed quickly. If no decision on the action of the Censor Board could be made until an appeal from an interlocutory injunction were completed, the purpose of Article 66A in requiring expeditious reviewing of the film would be frustrated whenever either side appealed from any appealable interlocutory action taken by the circuit court before a finding of obscenity was made.

We therefore reject the petitioner's argument that the appeal from the interlocutory injunction deprived the circuit court of jurisdiction during the pendency of the appeal.

II.

Petitioner contends that the film 'Deep Throat' is not obscene under the meaning of that term set forth by the Supreme Court in Miller v. California, supra. In this connection, a brief review of some of the Supreme Court cases would be useful.

The Supreme Court held in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952), that 'expression by means of motion pictures is included within the free speech . . . guaranty of the First and Fourteenth Amendments.' However, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court held that 'obscenity is not within the area of constitutionally protected speech or press.' Four justices joined Mr. Justice Brennan in stating (354 U.S. at 484, 77 S.Ct. at 1309):

'All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion-have the full protection of the (First Amendment) guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.'

The Court went on to adopt, as a definition of obscenity, the following (id. at 489, 77 S.Ct. at 1311):

'Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

The Court in Roth made it clear that it was using the term 'obscenity' to include a limited range of material dealing with sexual matters. Mr. Justice Brennan said for the Court (id. at 487, n. 20, 77 S.Ct. at 1310):

'We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz.: '. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . ."

For nine years following Roth, the Supreme Court did not alter its definition of obscenity. Probably the most significant discussions of the definition were the various opinions in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8...