Ebert v. Maryland State Board of Censors

Orth, C. J., delivered the opinion of the Court. This appeal concerns the power of the State to regulate the exhibition of motion picture films. The specific question posed is whether an order of the Circuit Court in Baltimore City, entered 22 March 1973, disapproving 30 peep show films submitted for licensing by Ellwest Stereo Theatres, Inc. (Stereo) through its agent John Ebert, was proper. We vacate the order and remand the case for further proceedings.

I At long last the Supreme Court of the United States has attempted to clarify the muddled law surrounding the regulation of obscenity vis-a-vis the constitutional right of free speech. On 21 June 1973 it decided five cases: Miller v. California, 413 U. S. 15 , 93 S. Ct. 2607 ; Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 93 S. Ct. 2628 ; United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U. S. 123 , 93 S. Ct. 2665 ; United States v. Orito, 413 U. S. 139 , 93 S. Ct. 2674 ; and Kaplan v. California, 413 U. S. 115 , 93 S. Ct. 2680 .

The ³⁰³ “tortured history” of the Court’s obscenity decisions was marked by the divisiveness of the Justices. The Court had categorically settled one thing, that obscene material is unprotected by the First Amendment. Roth v. United States, 354 U. S. 476, 485 , 77 S. Ct. 1304, 1309 . But “[a]part from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power.” Miller, 413 U. S. at 22 , 93 S. Ct. at 2614 .

Nine years after the Roth decision, in Memoirs v. Massachusetts (the Fanny Hill case), 383 U. S. 413 , 86 S. Ct. 975 , the Court veered sharply away from the Roth concept, and with only three Justices in the plurality opinion, articulated a new test of obscenity. 1 Even that test was eventually abandoned as unworkable by its author (see the dissenting opinion of Mr. Justice Brennan in Paris, 413 U. S. at 69 , 93 S. Ct. at 2642 ) and no member of the Court today supports the Memoirs formulation. Miller, 413 U. S. at 73 , 93 S. Ct. at 2614 . In the absence of a majority view, the Court, in Redrup v. New York, 386 U. S. 767 , 87 S. Ct. 1414 , adopted the unhappy expedient, and followed it thereafter in a number of cases, of summarily reversing convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Miller , n. 3.

Although the Court recognized that the States had a legitimate interest in prohibiting dissemination or exhibition of obscene material, Stanley v. Georgia, 394 U. S. 557, 567 , 89 S. Ct. 1243, 1249 ; Ginsberg v. New York, 390 U. S. 629, 637-643 , 88 S. Ct. 1274, 1279-1282 , the States were left completely at loose ends with an unworkable test that, in any event, was not the law of the land because it did not represent a majority of the court. 2 ³⁰⁴ II In Miller and its siblings a bare majority of the Supreme Court agreed on what it described as “concrete guidelines” to isolate obscenity from expression protected by the First Amendment and attempted to provide “positive guidance” to the federal and state courts alike. 3 Obscene Material The Court in Miller, n. 2, 413 U. S. at 18 , 93 S. Ct. at 2612, noted that the words “obscene material”, as used therein, had a specific judicial meaning which derived from the Roth case, i.e., obscene material “which deals with sex.” It explained: ‘This Court has defined ‘obscene material’ as ‘material which deals with sex in a manner appealing to prurient interest,’ Roth v. United States, 354 U. S. 476, 487 , 77 S. Ct. 1304, 1310 , 1 L.Ed.2d 1498 (1957), but the Roth definition does not reflect the precise meaning of ‘obscene’ as traditionally used in the English language. Derived from the Latin obscaenus, ob, to, plus caenum, filth, ‘obscene’ is defined in the- Webster’s New International Dictionary (Unabridged, 3d ed., 1969) as ‘la: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate ... 2: offensive or revolting as countering or violating some ideal or principle.’ The Oxford English Dictionary (1933 ed.) gives a similar definition, ‘offensive to the senses, or to taste or refinement, disgusting, repulsive, filthy, foul, abominable, loathsome.’ The material we are discussing in this case is ³⁰⁵ more accurately defined as ‘pornography’ or ‘pornographic material.’ Tomograph’ derives from the Greek (porne, harlot, and graphos, writing). The word now means ‘1: a description of prostitutes, or prostitution. 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behaviour designed to cause sexual excitement.’ Webster’s New International Dictionary, supra. Pornographic material which is obscene forms a subgroup of all ‘obscene’ expression, but not the whole, at least as the word ‘obscene’ is now used in our language.” We find it clear, however, that the Court was equating “obscene material” with hard core pornography.

It said, 413 U. S. at 27, 93 S. Ct. at 2616: “Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct * * It pointed out, 413 U. S. at 28, 93 S. Ct. at 2617: “If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then ‘hard core’ pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, Mr. Justice Douglas contends.” And it referred to the agreement of the majority on concrete guidelines “to isolate ‘hard core’ pornography from expression protected by the First Amendment.” Idem. It observed, in discussing the protection given speech and press to assure unfettered interchange of ideas, that “the public portrayal of hard core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.” 413 U. S. at 35, 93 S. Ct. at 2621. See Hewitt v. Board of Censors, 243 Md. 574 ; Donnenberg v. State, 1 Md. App. 591 ; Levin v. State, 1 Md. App. 139 . The Permissible Scope of Regulation Because it is obscene material which is without the ambit of First Amendment protection, and as obscene material in ³⁰⁶ its specific judicial meaning “deals with sex” in the concept of hard core pornography, the permissible scope of regulation is confined to works which depict or describe such sexual conduct. 4 That conduct must be specifically defined by the applicable state law.

The Court emphasized that it was not its function to propose regulatory schemes for the States, but it nevertheless gave “a few plain examples of what a state statute could define for regulation”: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller, 413 U. S. at 25 , 93 S. Ct.at 2615. Also state regulation must be limited to works “which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller, 413 U. S. at 25 , 93 S. Ct. at 2615 . A state statute which is so limited in its regulation of obscenity is constitutional.

It is not necessary, however, that the States desiring to regulate obscene material must now enact new statutes. Existing state statutes “as construed heretofore or hereafter, may well be adequate.” Miller , n. 6, 413 U. S. at 24, 93 S. Ct. at 2615. The Court made clear that the applicable State statute may contain the required definitions either as written “or authoritatively construed.” Idem. It pointed to the alternative of judicial construction throughout Miller in referring to the limitations in a regulating state law “as written or construed.” Of course, ³⁰⁷ the Legislature could always define other specific “hard core” conduct.

In United States v. 12 200-Ft. Reels of Super 8 MM. Film, supra, n. 7, 413 U. S. at 130, 93 S. Ct. at 2670, the Court, after observing that it must leave to state courts the construction of state legislation, noted that it had a duty to construe authoritatively federal statutes where a serious doubt of constitutionality is involved. It said: “If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene’, ‘lewd’, ‘lascivious’, ‘filthy’, ‘indecent’, or ‘immoral’ as used to describe regulated material [in federal statutes], we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard-core’ sexual conduct given as examples in Miller v. California, supra, 413 U. S. at 25, 93 S. Ct. at pp. 2615-2616.

The Determination of Obscenity Under the authority of a statute which, as written or construed, is constitutionally limited in accordance with the Miller dictates, it is for the trier of fact in a judicial proceeding to determine whether the material challenged is obscene. 5 The trier of fact may make this determination from the alleged obscene material itself. In Paris, the Court held that it was not error to fail to require “expert” affirmative evidence that the materials were obscene when ³⁰⁸ the materials themselves were actually placed in evidence. It said, 413 U. S. at 56, 93 S. Ct. 2634 : “The films, obviously, are the best evidence of what they represent. ‘In the cases in which this Court has decided obscenity questions since Roth , it has regarded the materials as sufficient in themselves for the determination of the question.” It noted, n. 6: “This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand.

Cf. Wigmore on Evidence (3d ed.), §§ 556, 559. No such assistance is needed by jurors in obscenity cases; indeed the ‘expert witness’ practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony * * * ‘Simply stated hard core pornography . . . can and does speak for itself.’ United States v. Wild, supra, 422 F.2d, at 36 (CA2 1970), cert. denied, 402 U.S. 986 , 91 S.Ct. 1644 , 29 L.Ed.2d 152 (1971).” 6 In Kaplan the Court referred to its holding in Paris. It said, 131 U. S. at 121, 93 S. Ct. at 2685: “We also reject in Paris Adult Theatre I v. Slaton, supra, any constitutional need for ‘expert’ testimony on behalf of the prosecution, or for any other ancillary evidence of obscenity, once the allegedly obscene materials themselves are placed in evidence.

Paris Adult Theatre I, supra, 413 U. S. at 56, 93 S. Ct. at 2634-2635 (1973). The defense should be free to introduce appropriate expert testimony * * It held that the prosecution’s introduction of the book itself into evidence was sufficient, as a matter of constitutional law, to establish the book’s obscenity. Although the contested material can and does speak for ³⁰⁹ itself, the Court dictated “basic guidelines” for the trier of fact. They must be: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, * * *, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller, 413 U. S. at 25 , 93 S. Ct. at 2615 (citations omitted).

The Court expressly rejected, as constitutional standards, “the ambiguous concept of ‘social importance’ ”, and the “utterly without redeeming social value” test. Miller, 413 U. S. at 25 , 93 S. Ct. at 2615 and note 7. “At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.” Miller, 413 U. S. at 26 , 93 S. Ct. at 2616 . 7 The Court also settled doubt about the “contemporary community standards” to be applied, at least sufficiently for the State to adopt a rule. It concluded in MiUer that “neither the State’s alleged failure to offer evidence of ‘national standards,’ nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact.” 8 413 U. S. at 31 , ³¹⁰ 93 S. Ct. at 2619 .

In Kaplan, 413 U. S. at 121, 93 S. Ct. at 2658 , the Court affirmed that contemporary community standards of the State, as opposed to national standards, are constitutionally adequate to establish whether a work is obscene. Miller and its companion cases gave guidance in other areas relating to the determination of obscenity. In Miller the Court, speaking of the legitimate interest of the States in regulating obscene material, indicated that such interest existed “when the mode of dissemination carries with it a significant aanger of offending the sensibilities of unwilling recipients or of exposure to juveniles.” 413 U. S. at 19, 93 S. Ct. at 2621. In Paris, however, the Court categorically disapproved the theory “that obscene, pornographic films acquire . constitutional immunity from state regulation simply because they are exhibited for consenting adults only.” 413 U. S. at 57, 93 S Ct. at 2635.

It asserted that it had never declared that the only legitimate state interests were in regulating the exposure of obscene material to juveniles and unconsenting adults, and pointed out that the States “have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions.” It said: “In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to ³¹¹ enforce effective safeguards against exposure to juveniles and to the passerby.” Id. The Court discussed the right of privacy as affecting regulation of obscenity. Prior decisions of the Supreme Court recognizing a right of privacy guaranteed by the Fourteenth Amendment included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ ” Roe v. Wade, 410 U. S. 113, 152 , 93 S. Ct. 705, 726 , quoting Palko v. Connecticut, 302 U. S. 319, 325 . “This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing. * * * Nothing, however, in this Court’s decisions intimates that there is any ‘fundamental’ privacy right ‘implicit in the concept of ordered liberty’ to watch obscene movies in places of public accommodation.” Paris, 413 U. S. at 65 , 93 S. Ct. at 2639-2640 . In Orito, 413 U. S. at 141-144 , 93 S. Ct. at 2677 -2678 and 12 200-Ft.

Reels, 413 U. S. at 128 , 93 S. Ct. at 2669, the Court reaffirmed prior holdings that commerce in obscene material is unprotected by any constitutional doctrine of privacy. In Paris it held “That the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called ‘adult’ theatres from which minors are excluded.” 413 U. S. at 69, 93 S. Ct. at 2642. We have one further observation. It is clear from the Court’s opinion in Paris, supra, that the holdings of Miller and its siblings are as applicable to civil procedures for the regulation of dissemination and exhibition of obscene material as they are to criminal prosecutions. 413 U. S. at 18, 93 S. Ct. at 2633.

III In the light of the “concrete guidelines” and “positive guidance” now supplied by the Supreme Court, we look at the Maryland law. The General Assembly of Maryland has made it a crime “to sell, lease, lend, exhibit or use any motion picture film or ³¹² view in the State of Maryland” unless it has been duly approved and licensed by the Maryland State Board of Censors (Board). Code, Art. 66 A, § 2. The Board was created by statutory enactment more than a half a century ago.

Acts 1916, ch. 209. See Code, Art. 66 A, § 3. Much maligned and frequently attacked, it has in recent times become an endangered species, and today is unique, its counterparts in other States having become extinct. In Maryland it is viable and actively functioning; it is its action which started this case on the way to this Court.

The Licensing Procedure The procedure for the approval or disapproval of films by the Board has by statutory amendment, Acts 1965, ch. 598, been tailored to fit the constitutional criteria dictated by Freedman v. Maryland, 380 U. S. 51 , 85 S. Ct. 734 . Code, Art. 66A, § 19 now requires that any film submitted to the Board for examination and licensing be reviewed and approved within 5 days unless it is disapproved, in which event the Board shall apply within 3 days to the Circuit Court of Baltimore City for a judicial determination. The Court shall conduct a hearing within 5 days and within 2 days thereafter shall enter its decree and order requiring that the film be approved and licensed or disapproved. If the film is disapproved the person presenting it for licensing may appeal such determination to this Court.

Stereo does not contest the constitutionality of this procedure. THE LICENSING CRITERIA The State Statute as Written and Previously Construed Code, Art. 66A, § 6 (a) commands the Board to approve and license such films “which are moral and proper” and to disapprove such