400 E. Baltimore Street, Inc. v. State

Wilner, J., delivered the opinion of the Court. Md. Ann. Code Art. 27, § 418 provides, in relevant part, that every person who knowingly "exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.” Section 423 of that article, however, states that the "prohibitions and penalties imposed in this subtitle [which includes § 418] shall not extend to persons having bona fide scientific, educational, governmental, or other similar justification for possessing such matter, or to distributions thereof pursuant to such justification.” After a non-jury trial in the Criminal Court of Baltimore, appellants were convicted of having violated § 418, for which they were each fined $500. In an effort to overturn those convictions, they contend, first, that the court failed to make the necessary finding that the materials in question were obscene, and second, that § 418, when read in conjunc ¹⁴⁹ tion with § 423 and in the light of controlling constitutional limitations, is invalid, both as written and as applied to their activity. There is merit in their first contention but none in their second.

The cases against appellants, which were consolidated for trial, proceeded upon an agreed statement of facts, supported by certain agreed exhibits. The evidence, so produced, established the following: (1) On February 28, 1979, police officer Danny Brown walked into a bookstore at 420 E. Baltimore Street owned by appellant Block News, and, for $6.00 each, purchased from appellant Long, the clerk managing the store, two magazines entitled "Pretty Girl Film Review,” issues No. 3 and No. 4. (2) On May 9, 1979, police officer Melvin Kelbaugh also frequented that store and, for $7.50, purchased from appellant Craig, the clerk then in charge, a magazine entitled "Swedish Erotica,” issue No. 22. (3) On May 15, 1979, police officer Eric Husok entered a bookstore located at 1827 N. Charles Street owned by appellant Charles Books, Inc., and, for $9.95, purchased from appellant Stephens, the clerk in charge, three magazines — "Wet,” "Hot Baby,” and "Route Sixty Sex.” (4) On June 4, 1979, police officer Bruce Patton went to a bookstore at 400 E. Baltimore Street owned by appellant 400 E. Baltimore Street, Inc., where, for $6.00, he purchased from appellant Stoughton, the clerk in charge, a magazine entitled "Swedish Erotica,” issue No. 23.

(5) On November 16,1979, officer Husok visited the store at 420 E. Baltimore Street (appellant Block News) where, for $6.00, he purchased from appellant Redding (a/k/a Pierce), the managing clerk, a magazine called "American Erotica.” (6) In each instance, the officer promptly took the magazine(s) to a judge of the District Court who found them to be obscene. Based upon those determinations, the instant charges were filed. (7) In each instance, the police officer, dressed in mufti, entered the store, wandered about, selected the magazine(s) ¹⁵⁰ he wanted, took them to the clerk, and purchased them for the posted price. The magazines on display, including those purchased, were wrapped in cellophane, permitting the browsing customer to see the covers but not the inside pages.

(8) There were, throughout the stores, signs stating that "[t]he material sold in this store is sold only for scientific, educational, governmental or other similar justification and the customers agree that they are purchasing these materials only for scientific, educational, governmental or other similar justification,” or words of similar import. No one asked the officers whether, in fact, they were purchasing the magazines for any of those purposes; nor did they volunteer their purpose in making the purchase. The individual appellants, if called to testify, would have stated that, had the officers told them that they (the officers) were not buying the magazines for the reasons set forth on the signs, the appellants would not have accepted their money. (9) The three stores hold themselves out as "adult” book stores and are located in areas devoted or catering to "adult entertainment.” 1 The magazines purchased by the officers were fairly representative of the merchandise on display and offered for sale at the three stores.

(10) The policemen used public funds to pay for the magazines. There was "allocated in the vice unit a certain amount of money to make purchases in the area of obscenity and gambling and prostitution money. This general fund was used to make this evidentiary purchase.” The convictions rested upon these facts, upon the magazines purchased by the officers, and upon photographs of the signs posted in the stores (see ¶ 8 above), the magazines and photographs being admitted into evidence without objection. ¹⁵¹ In this appeal, appellants complain: "I. The appellants were denied due process of law and equal protection of the laws in violation of their constitutional rights under the First, Fifth and Fourteenth Amendments, when the Trial Court found the appellants guilty on the basis that the cases were tried on the theory that the obscenity of the materials was assumed.

II

The Trial Court erred in finding that the appellants did not come within the exemption of Article 27, Section 423, thereby denying to appellants due process of law and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution.

III

Article 27, Section 418 denied to appellants equal protection of the law because it creates an arbitrary and capricious classification.

IV

Article 27, Section 418, is inoperable and unenforceable because on its face it recognizes that obscene material has scientific, educational, governmental or other similar justification, some of the elements that the Supreme Court in Miller v. California mandated material cannot possess in order to come within the ambit of the First Amendment.” (1) Assumption of Obscenity Three proceedings were held in the trial court. The first, on March 25, 1980, was nominally for the purpose of considering appellants’ several motions to suppress the magazines and to dismiss the charges. Those motions, virtually identical in each case, rested on essentially the same grounds — that the underlying statutes were unconstitutional for a variety of reasons, that the charges were vague and insufficient, and that the magazines (and ¹⁵² their distribution) were constitutionally protected. It was agreed at that proceeding that, if those motions were denied, the case would proceed before the court, sitting without a jury, on an agreed statement of facts, and that the court would take the entire matter sub curia.

Pursuant to that agreement (and without objection), the court made the necessary inquiries under Maryland Rule 735d, accepted from appellants their waiver of a jury trial, and had placed in the record the agreed statement and exhibits recounted above. The second proceeding, which occurred on June 16, 1980, was taken up with discussion of the various legal issues raised by appellants. The primary thrust of appellants’ argument was that, even if obscene, by virtue of the signs scattered around the stores the magazines and their distribution were exempt from criminality under § 423. In that limited context, appellants expressed no objection to the court assuming that the magazines were, in fact, obscene, their point being that, because § 423 permitted obscene material to be exhibited and sold for certain purposes, it made no difference whether they were obscene.

They made clear, however, that they were not conceding obscenity in the event the court rejected their exemption argument. Again, the court held the matter sub curia. Judgment day was November 3, 1980. 2 The court, after noting that the "key issue” was an interpretation of § 423, observed that the cases "were tried on the theory that the obscenity of materials was assumed and that the defendants .. . 'could not be found guilty of these charges because of the application of the exemption.” That, as we have noted, had been the primary issue argued by appellants, both orally and in the extensive memoranda supplied to the court, although at the June 16 hearing, defense counsel made clear to the court that "[i]f you decide against us on a motion for judgment of acquittal then you as a finder of fact must make a ¹⁵³ determination by determining on a contemporary community standard .. . what would be in the minds of the jury.” It is evident from the record, however, that the court omitted to make that ultimate finding. Although it characterized the magazine covers as "sexually explicit” and concluded that such cover scenes were sufficient to alert appellants "that the material inside may be obscene” (emphasis supplied), the court never discussed the criteria necessary for a finding of obscenity and never actually made a finding that the magazines were, in fact, obscene.

After finding that the exhibition and distributions were not protected by § 423, the court simply entered sentence, and thus forgot that § 423 has no application and is entirely irrevelant unless the material is first found to be obscene under § 418. It is not necessary, of course, for a trier of fact to announce its verdict in the context of specific issues. But, whether trial is before a court or a jury, in order for a conviction to be sustained, the record must show in some way that, in rendering its verdict, the trier considered and at least implicitly made findings upon all of the factual issues necessary to support a verdict of guilt. In a jury trial, that requirement is normally satisfied through the court’s instructions, assuming they are proper ones.

In a non-jury trial, the record often tends to be less specific. Courts do not always articulate their findings on each and every element. Such silence is not necessarily fatal, however, if the requisite findings are fairly implicit in the court’s verdict and the record does not affirmatively indicate an actual omission to make such findings. The problem here is not mere silence from which a finding of obscenity might be inferred, but an affirmative (and erroneous) statement by the court clearly indicating that obscenity was assumed.

A court may not assume a critical element of guilt. This is not a case of insufficient evidence. With the agreed statement of facts and the exhibits, the court had before it enough evidence to support a finding that the magazines were obscene under § 418. The problem is it never made that finding; and, although, through our constitutionally ¹⁵⁴ mandated review of the material we might conclude that it was obscene, such a finding could not serve as a substitute for the required finding by the trial court.

We therefore must reverse the convictions. Because the error was one of trial procedure — the failure to make a necessary finding — and not of insufficient evidence to support such a finding, we shall remand the cases for new trials. Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978); State v. Boone, 284 Md. 1 (1978). (2) The Other Issues Appellants have made clear, both in the trial court and here, that their principal defense to these prosecutions is that of Constitutional and statutory interpretation — the three other issues noted earlier.

Those questions will therefore undoubtedly arise in the retrials, and for the guidance of the trial court, we shall address them. Maryland Rule 1085. Appellants argue that (1) their activities fell within the § 423 exemption; (2) if they did not, § 418, read in the light of § 423, creates an arbitrary classification by authorizing sales only to "formal educators, students or scientists or those in a governmental capacity”; and (3) the two sections, read together, contravene the definition of obscenity mandated by the Supreme Court in Miller v. California, 413 U.S. 15 (1973), by recognizing that "obscene” material has scientific, educational, or governmental value. In order to consider and resolve these challenges, it is necessary for us to trace the historical development of our obscenity law.

The publication and exhibition of lewd and obscene words and writings was initially a concern of the English ecclesiastical courts; but, by the Eighteenth Century, it had become punishable as a common law misdemeanor, either as a libel or as a public nuisance. The underlying rationale for making ¹⁵⁵ such activity criminal was that it tended to weaken the bonds of civil society, virtue, and morality. 3 The Maryland General Assembly first took note of the problem of obscenity in 1853 when it observed that the publication of obscene and licentious matter in the form of advertisements in newspapers and other periodicals had become more frequent, found that such matter was "exceedingly injurious to the morals of the community,” and decided that "the common law in this regard [should] be re-enacted and enforced.” It therefore made the publication of "any obscene or licentious matter” in any newspaper or other periodical a statutory misdemeanor, punishable by fine and imprisonment. See Laws of Md., 1853, ch. 183. The prohibition enacted in 1853 was extended in 1886 to cover the drawing, manufacture, production, exhibition, or distribution of any "obscene book, pamphlet, paper-writing, advertisement, circular, print, picture, drawing or other representation, figure or image on or of paper or other material of an indecent or immoral nature. .. .” Laws of Md., 1886, ch. 490.

In 1894, the statute was rewritten, without much substantive change; and, except for some amendments not relevant here, the law remained more or less the same until the 1960’s. 4 The word "obscene” was not defined in the statute and thus neither was the precise ambit of the statutory proscription; but that did not appear to have been a significant problem until the Supreme Court decided Roth v. ¹⁵⁶ United States and Alberts v. California, 354 U.S. 476 (1957), and made it one. 5 In Roth and Alberts the Court sustained convictions under the Federal and California obscenity laws, neither of which defined the critical term. In the context of this case, Roth did two important things: (1) it stated affirmatively and explicitly that which the Court had in the past merely assumed — "that obscenity is not protected by the freedoms of speech and press” ( 354 U.S. at 481-85 ); 6 and (2) it purported to give a Constitutional definition to the word "obscene.” The definition, or standard, chosen to determine whether a publication was obscene and thus subject to proscription was "whether 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 -. 7 If the statutory proscription rested upon that standard, said the Court, it did not offend Constitutional safeguards. In Monfred v. State, 226 Md. 312 (1961), cert. denied, 368 U.S. 953 (1962), the Court of Appeals adopted and engrafted into the Maryland obscenity statute the Roth test — at least, it said (p. 323), "until the Supreme Court specifically speaks further in this uncertain area.” See also Yudkin v. State, 229 ¹⁵⁷ Md. 223 (1962), and Levin v. State, 1 Md. App. 139 (1967), cert. denied, 247 Md. 740 , cert. denied, 389 U.S. 1048 . The area truly was uncertain.

The Supreme Court had a tiger by the tail, and as noted in a comprehensive article in 52 N.Y.U.L. Rev. 810, 820, in the first twenty years since Roth, there followed from that Court "no fewer than one hundred signed opinions ... in twenty-seven cases” dealing with obscenity. The subject of obscenity, remarked Justice Harlan in his dissent in Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-05 (1968), "has produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Indeed, he referred to it as the "intractable obscenity problem.” Id. 8 Part of what made the problem intractable was the "plurality” Opinion by Justice Brennan (joined only by Chief Justice Warren and Justice Fortas) in A Book Named "John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413 (1966) CMemoirs”) a case involving the burning question of whether the novel Fanny Hill, first published in 1749, could legally be banned in Boston in 1965. It was there noted that under the Roth 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.” (Emphasis supplied.) Id. at 418 . ¹⁵⁸ See also Ginzburg v. United States, 383 U.S. 463 (1966), and Mishkin v. New York, 383 U.S. 502 (1966). Whether prompted by the decision in Memoirs, or the general maelstrom into which the obscenity issue then found itself, or some other reason no longer apparent, the General Assembly decided in 1967 "generally to revise the laws of the State pertaining to obscene matter,” and thus enacted Laws of 1967, ch. 394, which, with changes not relevant here, is our current statute.

That statute — in particular §§ 418 and 423 •— has to be viewed, at least initially, in the light of the then-current law. Although new § 418 substantially rephrased the former section, it did not change the basic proscription against exhibiting and distributing obscene material. Because the legislature again declined to provide a statutory definition of obscenity, however, it left to the courts the task of supplying such a definition and thus circumscribing the scope of the basic prohibition. The statutory proscription, in other words, was as broad as the Supreme Court would allow. 9 At the time the statute was enacted, the controlling standards were assumed to be those explicated in the Brennan plurality Opinion in Memoirs, which standards had previously been applied to the former § 418 in Donnenberg v. State, 1 Md. App. 591 (1967).

Those standards, as noted, were definitional ones; they served to define the term and thus provide a constitutional perimeter within which § 418 could operate. They did not, however, purport to carve out any constitutional exceptions or exemptions. If the material met the modified Roth definition of obscenity, it could be regulated, no matter who was selling or buying it or for what purpose the material was exhibited, distributed, or used. That presented somewhat of a problem, however, one that ¹⁵⁹ both State and Federal courts had wrestled with for many years.

Chief Justice Warren alluded to it in his concurring Opinion in Roth, when, at p. 495 of 354 U.S., he noted: "The line dividing the salacious or pornographic from literature or science is not straight and unwavering. Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases.

It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” (Emphasis supplied.) Could material be obscene when viewed by the average person, because, to him, applying contemporary community standards, its dominant theme appealed to prurient interest, and yet, in the hands of a scientist studying obscenity, not be obscene because to him it did not appeal to the prurient interest?

Or, restated, if such material, meeting all the other criteria for obscenity, could be the proper subject of scholarly investigation and study, could it then be said to be "utterly without redeeming social value” and thus legally obscene? The dilemma normally arose in the context of attempts by the government (State or Federal) to seize or prevent the importation or mailing of materials it considered to be obscene, i.e., prior censorship as opposed to criminal prosecution. Most of the courts, applying pre-Memoirs criteria, recognized the need to distinguish between the pandering of lewd material to the public at large and the reception and use of such material for legitimate research and education purposes; and they usually did so by concluding that, in the hands of researchers, medical personnel, or art collectors, ¹⁶⁰ such material was simply not obscéne. See, for example, United States v. 31 Photographs, Etc., 156 F. Supp. 350 (S.D.N.Y. 1957), involving materials ordered by the Institute for Sex Research, Inc. (the "Kinsey” Institute) of Indiana University, and cases cited and reviewed therein; also People v. Marler, 199 Cal.

App. 2d Supp. 889 (Cal. App. 1962); but compare United States v. One Unbound Volume, Etc., 128 F. Supp. 280 (D. Md. 1955). That type of reasoning may have been prompted by the fact that the statutes in question purported to apply their sanctions to all obscene material and admitted of no exception therefrom for obscene material used for a "legitimate” purpose. That left the courts no way of making the desired distinction other than in a definitional context.

The effect of that, however, was to create a concept of "variable obscenity” — one that judged the obscenity of a publication, at least in part, on the basis of how it was purveyed, to whom it was purveyed, and the purpose for which it was purveyed. 10 This concept was given expression in several different contexts by Justice Brennan in Memoirs and the companion cases of Ginzburg and Mishkin.* 11 In seeming to adopt these various forms of variable obscenity, especially in and after Memoirs, the Supreme Court never satisfactorily addressed the question of whether ¹⁶¹ material could ever be "utterly without redeeming social value” if it had some value in a clinical setting or for purposes of research. One can only assume that the "social value” criterion enunciated hy Justice Brennan related to the intrinsic worth of the ideas being communicated in the publication, and not to any indirect value the publication might itself have as an object of study or as a therapeutic device in a clinical program. Otherwise, the variable obscenity concept, seemingly adopted in that trilogy of cases, would be flatly inconsistent with the "social value” standard so clearly expressed in the very same opinions. Variable obscenity, when so viewed, was one pragmatic answer to a real problem; but it created some vexing problems of its own.

Even if one accepts the initial proposition that the same publication can, at the same time, be obscene or not obscene depending upon who is looking at it, there is still the difficulty of regarding that which is otherwise obscene as not obscene when viewed, for example, (1) by a researcher (or those participating in research experiments) whose purpose in viewing it is to study (or assist in the study of) obscenity and its effects 12 or (2) by patients in a medically supervised clinic whose purpose in viewing it is to correct sexual dysfunction — i.e., to heighten their sexual appetites and awareness, to appeal to the prurient interest. 13 Even before Roth, this dilemma was the subject of some debate in legal circles, and eventually a way was found around it. The problem, in part, was one of overlapping concepts, of confusing a publication having some intrinsic literary, scientific, or artistic value sufficient to offset its ¹⁶² prurient appeal with one not having such offsetting intrinsic value but which might be the subject of legitimate study or clinical use, and thus become clothed with an extrinsic value for that limited purpose. The solution, devised or adopted by the draftsmen of the Model Penal Code, was to regard the first type of publication as simply not being obscene in the first instance, which is how the courts tended to regard it, 14 and to consider the second type as possibly falling within the proper definition of obscenity but nevertheless deserving of protection when used for legitimate research or clinical purposes. This was done by (1) adopting as a definitional condition of obscenity that the predominant appeal be to the prurient interest, thus recognizing "that a work of art or literature may contain elements of prurient interest that are subordinate to the positive values of the work”; 15 and (2) providing that "[i]t is an affirmative defense to prosecution . .. that dissemination was restricted to: (a) institutions or