Wagonheim v. Maryland State Bd. of Censors

• Decision Date: 22 October 1969
• Docket Number: No. 212,212
• Citation: 255 Md. 297,258 A.2d 240
• Parties: Howard WAGONHEIM, Agent; Grove Press, Inc.; 5 West Amusement Co., Inc. v. MARYLAND STATE BOARD OF CENSORS.
• Court: Maryland Court of Appeals

Page 297

255 Md. 297

258 A.2d 240

Howard WAGONHEIM, Agent; Grove Press, Inc.; 5 West Amusement Co., Inc. v. MARYLAND STATE BOARD OF CENSORS.

No. 212.

Court of Appeals of Maryland.

Oct. 22, 1969.

Arnold M. Weiner (Joseph S. Kaufman, Isaac M. Neuberger, Melnicove, Asch, Greenberg & Kaufman, Baltimore, and Edward deGrazia, Washington, D. C., on the brief), for appellants.

Francis B. Burch, Atty. Gen., and Thomas N. Biddison, Jr., Asst. Atty. Gen., Baltimore, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

This is an appeal from an order of the Circuit Court of Baltimore City (Carter, J.), directing that the motion picture film entitled, 'I Am Curious (Yellow)' be disapproved for licensing as being in violation of the provisions of Code (1957), Art. 66A, § 6, in that the film 'meets the tests of obscenity previously laid down by the Courts * * *.' ¹

The primary issue before this Court is whether this film is protected matter under the First Amendment of the United States Constitution. We think not and accordingly affirm the action of the lower court.

This film was produced by Sandrew, a Swedish studio, and was directed by Vilgot Sjomar, a prote ge of Ingmar Bergman. Its producers would claim that it represents a kaleidoscopic portrait of Sweden, portraying problems and trends on the contemporary social and political scene. An effort has been made to devolop the film along two story lines which strive to merge toward the end of the film, but never quite make it. The total effect is that the whole presents more of a framework than a plot. ² The film was the subject of a decision by the United States Court of Appeals for the Second Circuit in United States v. A Motion Picture Film Entitled 'I Am Curious- Yellow,' 404 F.2d 196 (1968). The court in a two to one decision found it to be constitutionally protected. Judge Hays, in writing the majority opinion, made the apt comment that: 'As with many other contemporary artistic productions there can be a difference of opinion as to what the picture is 'about'.' Id. at 198. Various critics and experts who have written and testified concerning the film characterize it, as a quest for identity with reality, on the part of the young heroine, amidst the shifting sands of social, moral, political, economic, and cultural transition. Her search for identity has been billed as representative of the younger generation in Sweden, their hope for a classless society, their adherence to non-violence, and their demonstrable hostility against the Franco-type totalitarian state.

The film in reaching for its social message employs the 'man on the street' interview format, with Lena accosting persons from all walks of life, questioning them about their social and political beliefs. However, when the viewer ultimately realizes that the sexual scenes have little or nothing to do with what was developed by the 'cinema verite ' technique, not only do the sexual sequences appear artificially interjected into the film, but in retrospect, the many interviews seem a contrived ruse to give the movie social value. As one of the expert witnesses called by the State, Dr. Paul Yaffe, tersely put it, 'Basically you have two themes running parallel, one never touching the other. Basically, one is this phony setting of class values and class structures and class problems. The other is the sexual activity of an episodic nature.'

The matter of the plot was also the subject of comment by Chief Judge Lumbard in his dissent in the Second Circuit opinion wherein he stated: 'The sexual aspect of the film does not arise from the plot, as that is non-existent (emphasis supplied); it arises from a decision by the director, Vilgot Sjornan, to produce a film which would shock the audience. He testified that in making the film he deliberately broke sexual taboos or cliches knowing that this would be shocking to the public.' Id. at 203.

There are several brief interviews with the late Dr. Martin Luther King, wherein he comments on his non-violent methods, and with the Russian poet Yevgeny Yevtushenko. However, these appear to be a part of a facade for the main objective of the picture, namely to purvey shocking and titillating sexual sequences. As Judge Friendly stated in his concurring opinion in the Second Circuit '* * * a truly pornographic film would not be rescued by inclusion of a few verses from the Psalms.' Id. at 201.

Again, quoting from Judge Hays in the Second Circuit opinion:

'It seems to be conceded that the sexual content of the film is presented with greater expliciteness than has been seen in any other film produced for general viewing. The question for decision is whether, going farther in this direction than any previous production, the film exceeds the limits established by the courts.' Id. at 198.

Actually, the film vividly depicts six different acts of sexual intercourse in various positions and locales. Among the more unusual scenes is an episode of copulation in the crook of a tree; a second occurs on the balustrade of the royal palace in Stockholm in rhythm to the Swedish national anthem, while a distraught sentry endeavors to stand at attention as he views the efforts of the two out of the corner of his eye. This is considered one of the humorous episodes of the film. There are a number of scenes depicting complete nudity of the male and female leads, including numerous views of both the female and male genitals. There are representations of fellatio and cunnilingus, as well as the suggestion of sodomy in one of the intercourse scenes, and of castration in the fantasy scene.

The dialogue is entirely in Swedish with English subtitles. The English translation of the Swedish dialogue, as contained in the scenario which was filed as an exhibit, reveals that the translation in many instances goes beyond that contained in the English subtitles from the standpoint of use of lascivious expression. ³ In fairness to the film it should be stated that there are times when the love scenes are intorduced with some grace and a discussion of them in an opinion might tend to represent them too crudely out of context. However, the overriding theme is sex per se, although perhaps not presented with the abruptness that might appear from the written word.

This Court in Hewitt v. Maryland State Board of Censors, 254 Md. 179, 254 A.2d 203 (1969), a case in which the film 'Odd Tastes' was disapproved for licensing, had occasion to again set forth the legal test for obscene films. Judge Barnes writing the opinion for the Court stated:

'Our definition of obscenity-the Roth-Alberts test-was restated with somewhat different emphasis perhaps, by the Supreme Court in A Book Named 'John Cleland's Menoirs of a Woman of Pleasure' v. Attorney General, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 5-6 (1966), hereinafter referred to as Memoirs, in which Mr. Justice Brennan, for the Supreme Court, stated:

'We defined obscenity in Roth (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498) in the following terms: '(W)hether to the average person 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 1304. 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.'

'We recognized and applied this latest statement of the applicable rule in Sanza v. Maryland State Board of Censors, 245 Md. 319, 326-327, 226 A.2d 317, 320-321 (1967), in which we sustained the Circuit Court and the Board in their finding that certain films, shown in an arcade in 'the Block' in Baltimore, were obscene. * * *' Id. at 182-183, 254 A.2d at 205.

See also Redrup v. New York, 386 U.S. 767, 770, 771, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).

Applying the tridentated test of A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), as adopted by this Court in Hewitt, supra, and Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A.2d 317 (1967), and set forth above, we find the film qualifies as obscene under all three categories. In arriving at this conclusion we cannot ignore the visual impact of a motion picture as contrasted with the printed word. I Am Curious-Yellow, supra (Lumbard, J., dissenting); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). Cf. Landau v. Fording, 245 Cal.App.2d 820, 54 Cal.Rptr. 177 (1966), aff'd per curiam, 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317 (1967).

It should be noted that this is not a case wherein we are bound to follow the ruling of the lower court unless we find it to be clearly erroneous (Maryland Rule 886 a), but rather the duty of this Court is to make an independent constitutional judgment on a mixed question of law and fact, as to whether the subject matter before us is obscene. This obligation was cogently expressed by Judge Oppenheimer, writing the opinion of this Court, in Sanza, supra, wherein he stated:

'In determining whether the films are obscene, we are deeply mindful of our obligation to make an independent constitutional judgment on the facts of the case, Jacobellis (Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793) supra, at 378 U.S. 190, 84 S.Ct. at 1679, and that the administration of a censorship system for motion pictures presents peculiar challenges to constitutionally protected speech. Freedman, supra, at 380 U.S. at 57, 85 S.Ct. at 738. We are mindful too that 'we are judges, not literary...