Trans-Lux Distributing Corp. v. Maryland State Bd. of Censors

• Decision Date: 01 September 1965
• Docket Number: No. 143,TRANS-LUX,143
• Citation: 213 A.2d 235,240 Md. 98
• Parties: DISTRIBUTING CORPORATION v. MARYLAND STATE BOARD OF CENSORS. ,
• Court: Maryland Court of Appeals

Page 98

240 Md. 98

213 A.2d 235

TRANS-LUX DISTRIBUTING CORPORATION v. MARYLAND STATE BOARD OF CENSORS.

No. 143, Sept. Term, 1965.

Court of Appeals of Maryland.

Order June 29, 1965.

Opinion Sept. 27, 1965.

J. Cookman Boyd, Jr., Baltimore, and Adolph Kaufman, New York City (Walter S. Levin, Baltimore, and Leonard H. Dickstein and Weisman, Celler, Allan, Spett & Sheinberg, New York City, on the brief), for appellant.

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

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

PER CURIAM ORDER

For reasons to be stated in an opinion to be hereafter filed, it is ordered by a majority of the Court of Appeals of Maryland this 29th day of June, 1965, that the order appealed from be, and it is hereby, reversed, costs to be paid by the appellee.

And be it further ordered that the mandate in this case be issued forthwith.

OPINION

BARNES, Judge.

After the Supreme Court of the United States invalidated Maryland's statute ¹ requiring licensing by the Maryland State Board of Censors (the Board) of motion pictures prior to their exhibition, by its decision in Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (decided March 1, 1965), ² the General Assembly of Maryland enacted Chapter 598 of the Acts of 1965 (Act of 1965) as an emergency measure which became effective upon its signature by Governor Tawes on April 8, 1965. The Board, on April 19, 1965 was presented by the appellant, Trans-Lux Distributing Corporation, with the motion picture 'A Stranger Knocks' (the film) in order to obtain a license. The Board reviewed the film on April 22, 1965, disapproved it under Section 6 of Article 66A and made the following finding:

'After reviewing the entire film and considering it as a whole, the Board finds 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 the 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.'

Also on April 22, the Board, pursuant to the Act of 1965, filed a petition in the Circuit Court of Baltimore City (Circuit Court) for an order affirming the Board's finding and its disapproval of the film for licensing. Judge Prendergast viewed the film on April 27, 1965, took testimony, heard arguments and rendered an informative oral opinion on April 28 indicating that he found the Board's finding to be correct. An order effectuating this opinion was duly signed on April 30 and an appeal taken to this Court on May 10.

We advanced the case for hearing and on June 29, 1965 viewed the film in the morning of that day, heard arguments of counsel and after conference later the same afternoon, filed a per curiam order by a majority of the Court, reversing the Circuit Court and cirecting that the mandate issue forthwith. This opinion gives our reasons for our action in reversing the Circuit Court.

There principal issues are presented to us for decision:

1. With the addition of the Act of 1965, is the Maryland statutory requirement for pre-showing censorship of motion pictures constitutional on its face?

2. Is the film obscene under the definition of obscenity established by the Supreme Court of the United States?

3. Apart from the federal constitutional question and assuming, arguendo, that the standards set forth in Section 6 of Article 66A are not too vague and uncertain to be enforced constitutionally, does the film transgress the Maryland standards?

I.

We agree with the Circuit Court that the present Maryland statutory plan for pre-showing motion picture censorship is constitutional on its face. Prior to its decision in Freedman, the Supreme Court had indicated in Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961) that a statutory requirement of submission of motion pictures in advance of exhibition was not necessarily unconstitutional under all circumstances. ³ The Supreme Court in the Freedman case held that the Maryland statute prior to the enactment of the Act of 1965 was unconstitutional as a violation of the First Amendment to the Constitution of the United States as made applicable to the States by the provisions of the Fourteenth Amendment as construed by the Supreme Court because:

1) If the Board disapproved the film, the exhibitor was required to assume the burden of instituting judicial proceedings and of persuading the court that the film was constitutionally protected expression; 2) after the Board had declined to license the film, its exhibition was prohibited pending judicial review, however long such judicial review might take; and, 3) the Maryland statute provided no assurance of prompt judicial determination.

By the Act of 1965, the General Assembly repealed an re-enacted Section 19 of Article 66A of the Code with the obvious intention of fully meeting the three objections set forth in the Freedman opinion. We think the Legislature succeeded in accomplishing this result. The new Section 19 provides that any film duly submitted to the Board for examination and licensing 'shall be reviewed and approved within five (5) days, unless the Board shall disapprove' the film under the provisions of Section 6. In the event of disapproval, the Board is required 'within not later than three (3) days thereafter, [to] apply to the Circuit Court for 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 * * *.' It is also required that '[n]otice of such application shall be forthwith sent by first class mail, postage prepaid, to the address of the person presenting such film for licensing.' The Circuit Court is required within five days after the filing of the application to conduct a hearing, view the film and within two days after the hearing, 'enter its decree and order requiring that said film be approved and licensed or be disapproved if in violation of the provisions of said Section 6 hereof.' It is further provided that if the order disapproves the film, then the person presenting the film for licensing may appeal such determination to the Court of Appeals in accordance with the Maryland Rules of Procedure, ⁴ and the Court of Appeals 'shall advance such case on its hearing calendar to the earliest practicable date' and in its review, the Court of Appeals 'shall view the subject film.' Then is added, 'The burden of proving that the film should not be approved and licensed shall rest on the Board.'

We have already indicated that full procedural compliance with the Act of 1965 was had in the Circuit Court and in this Court.

The General Assembly used, in part, as a model the New York injunctive procedure involved in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) as suggested in Mr. Justice Brennan's opinion in Freedman (see p. 740 of [213 A.2d 238] 85 S.Ct.). In our opinion, the Act of 1965 carries out the requirement in Freedman----

'* * * [That] the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution.'

The General Assembly also provided, as already set forth, that the burden of proving that the film should not be approved and licensed shall rest on the Board so that the Board, notwithstanding its character as an administrative body, must establish its disapproval by the weight of the credible evidence before the Circuit Court. This is a statutory change of the rule we indicated was applicable to findings of the Board in Board of Censors v. Times Film, 212 Md. 454, 462, 129 A.2d 833, 838 (1957).

II.

We now consider whether the film is obscene within the meaning of the decisions of the Supreme Court of the United States.

The case of Roth v. United States (and Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 498 (1957), and the subsequent per curiam opinions of the Supreme Court applying the Roth-Alberts Rule ⁵ in a summary manner, as well as relevant prior federal and state cases, have been so thoroughly and carefully analyzed and considered in the Majority and dissenting opinions in Monfred v. State, 226 Md. 312, 173 A.2d 173 (1961), that we think it would serve no useful purpose to have further extended discussion of those cases. See also the interesting and helpful discussion of the constitutional and other issues involved in this litigation in a book entitled 'Censorship' by Morris L. Ernst and Alan U. Schwartz, especially Part IV, 'Obscenity and the Constitution,' pages 199-225. Our task is to ascertain what, if any, additions or limitations have been declared by the Supreme Court in regard to that rule by Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, opinions filed June 22, 1964.

In Jacobellis there was a division of opinion in regard to whether the 'community' involved is local or national, three justices indicating that it should be the local community, two justices indicating that it should be the national community and four justices remaining silent on this issue. Fortunately in the case at bar, we need not resolve this thorny issue as under either theory of applicable 'community,' the film in this case is, in our opinion, not obscene. We, therefore, do not pass upon this particular issue, preferring to wait for further clarification of...