Sanza v. Maryland State Bd. of Censors

• Decision Date: 08 February 1967
• Docket Number: Nos. 35,152,s. 35
• Parties: John SANZA v. MARYLAND STATE BOARD OF CENSORS. Joseph FERRIS, t/a Plaza Enterprises, Ltd. v. MARYLAND STATE BOARD OF CENSORS.
• Court: Maryland Court of Appeals

Page 319

245 Md. 319

226 A.2d 317

John SANZA v. MARYLAND STATE BOARD OF CENSORS.

Joseph FERRIS, t/a Plaza Enterprises, Ltd. v. MARYLAND STATE BOARD OF CENSORS.

Nos. 35, 152.

Court of Appeals of Maryland.

Feb. 8, 1967.

Lawrence B. Coshnear, Baltimore (James R. White, A. David Gomborov and Silbert & Gomborov, Baltimore, on the brief), for appellants.

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

Before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES, McWILLIAMS and CHARLES E. ORTH, Jr. (specially assigned), JJ.

OPPENHEIMER, Judge.

The Circuit Court of Baltimore City affirmed the actions of the Maryland State Board of Censors in disapproving the licensing of a series of silent sixteen millimeter films designed for showing in coin operated machines in an amusement arcade in the area of Baltimore City known as 'the Block.' Of the twenty-five films submitted to the Board by the appellant Sanza, five were chosen by stipulation of the parties to stand the test of judicial determination under Code (1966 Supp.), Article 66A (the Act), Section 19. Some weeks after the hearing before Judge Harris and the order thereon, the appellant Ferris submitted three similar films to the Board. These films were also disapproved, and, at another hearing, Judge Harris again affirmed the Board's action. ¹ After the appeal from Judge Harris' order sustaining the Board's disapproval of the Ferris application, the appellants moved to consolidate the cases on the grounds that the appellants own and manage the same business at the same location and that both appeals involve the same subject matter and present the same legal issues. We granted the motion. The same law firm represented both Sanza and Ferris at the hearings below and on these appeals. In view of the identity of the subject matter and nature of all the films involved, and of the appellants' motion to consolidate for the purposes of the appeal, we take all motions made on behalf of either appellant as made on behalf of both appellants and as applicable to both proceedings, and we consider all the testimony offered at both hearings as applicable to each of the two series of films.

The appellants contend that the Board has not met the burden imposed on it under the 1965 amendment of the Act and our decisions thereon of proving the films obscene; and that, in any case, the Act has constitutional infirmities which render it invalid. Since Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) and the ensuing reenactment of Section 19 of the Act by Chapter 598 of the Laws of 1965, we have decided five cases involving the validity of Board actions refusing the application for licenses for the showing of motion pictures. Trans-Lux Distributing Corp. v. Maryland State Board of Censors, 240 Md. 98, 213 A.2d 235 (1965); Dunn v. Maryland State Board of Censors, 240 Md. 249, 213 A.2d 751 (1965); Hewitt v. Maryland State Board of Censors, 241 Md. 283, 216 A.2d 557 (1966); Leighton v. Maryland State Board of Censors, 242 Md. 705, 218 A.2d 179 (1966); and Hewitt v. Maryland State Board of Censors, 243 Md. 574, 221 A.2d 894 (1966). In some of these cases we discussed and, in effect, decided the constitutionality of certain provisions of Article 66A, but each decision (other than the first Hewitt case, which held invalid the procedure of the lower court in ascertaining and admitting the opinion of a panel of jurors on the question of obscenity) turned on whether, on the particular facts, the Board had met the burden imposed upon it by the statute of proving the films were obscene under the Roth-Alberts test. As to each of the four films involved, the Court held the burden had not been met. We shall, therefore, first consider whether there is sufficient evidence to support the Board's findings that the films involved in this case are obscene.

I

The Roth-Alberts test of obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), reiterated in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), is summarized in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General (the 'Fanny Hill' decision), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 5-6 (1966), as follows:

'We defined obscenity in Roth in the following terms: '(W)hether to the average persons, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S. at 489, 77 S.Ct., at 1311. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) 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.'

The films here involved are designated only by several numbers. They have no titles and no sound effects. Prior to their submission to the Board, they had been shown in slot or coin machines in an arcade at 411 E. Baltimore Street. Evidence as to the character of the neighborhood was admitted by the court below, on the Board's proffer that the manner in which the allegedly obscene material is presented is relevant under Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). An employee of the Board testified that 'the Block' in which the arcade is located contains nine night-clubs, four book shops, and a burlesque house. The employee testified further that when she went to the arcade in which the films were being exhibited prior to their submission for licensing the bars and night clubs advertised their 'girlie' revues by displaying photographs of women almost totally nude. The book stores in the section sold paper-back books which revealed on their covers nude males and females, with the genitals and pubic area exposed. One side of the arcade in which the films were being shown presented a large placard advertising 'Hollywood Models on Parade,' and displayed pictures similar to those in the nightclub advertisements. The front half of the arcade was taken up with several pin-ball machines, a cigarette machine and a peanut machine. The rear half was partitioned off and contained twenty-one peep-show type, coin-operated viewing machines, accessible only to persons over 18 years of age.

The films are viewed by customers in booths. The customer enters a booth and deposits either ten or twenty-five cents; the coin releases a portion of the film for viewing; after that portion has been shown, the film automatically stops until another coin is deposited in the machine. To see an entire film, the customer usually has to deposit four coins.

Each of the eight films involved shows one or more young women on a bed, sofa, or stool, clad in fragmentary undergarments of all or substantially all of which she voluptuously divests herself. Through the entire film, each woman writhes in various poses, clearly inviting and then simulating sexual intercourse. Judge Harris, in his two opinions, describes each of the films in detail, and our viewing of the films enables us to say that his descriptions are accurate, except that we do not agree with his findings that the films necessarily suggest sexual perversions. We do not rest our decision in any way upon the findings by the court below of the portrayal of sexually deviant practices.

At the court hearings the Board adduced a number of witnesses, two of whom we find were qualified as experts in their particular field under the requirements set forth in the second Hewitt case. Dr. Robert M. Bidaver is Director of Psychiatric Education for the State of Maryland, Department of Mental Hygiene. Born in Minneapolis, Minnesota, he lived in the midwest during the early part of his life. He was graduated from Columbia University and studied medicine at the City University of New York, interned at the University of Maryland and the University Hospital, had three years postgraduate training at the Yale Institute and has been on the faculties of the Johns Hopkins Hospital and the University of Maryland. He was Chief of the Psychiatric Section of Medical Service, United States Army. He had viewed the films, and testified that:

'Clearly to my thinking the dominant theme and my professional statement of the films was the visual selling of sexual and neurotic pleasure * * * the intent as I perceived it and the effect of the movements and gyrations of the several women portrayed were to evoke sexual and neurotic feelings, to arouse these and force them upon any viewer's mind, to focus attention on the most sexual, provocative area of the female, intimate in our culture and to urge upon the viewer by means of photography by exhibiting certain elements of parts of the body to arouse sexual feelings in people.'

In his opinion, the films would appeal to the prurient interest of the average man. He testified further that:

'As a professional opinion, based on a wide knowledge of human behavior, or in thousands of individuals, a close-up and discussions at numerous tests of personal lives of what does and what does not arouse our sexual feeling, my professional opinion would be, without basing it on actual syndromes, that such films do have sexual arousement.'

The late George Browning had been connected with the newspaper business practically all his working life. He was a drama and motion picture critic for the Baltimore News and earlier, for the Post for at least fifteen years, and, for a short period, had been a critic on the New York World Telegram. At the time he testified, he was executive secretary of the Motion Picture Owners Association and reviewed motion pictures periodically, although not regularly, for out-of-town publications with...