Hewitt v. Maryland State Board of Censors

Barnes, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court of ¹⁸¹ Baltimore City (O’Donnell, J.), passed August 2, 1968, in which the film “Odd Tastes” was disapproved for licensing as being in violation of the provisions of Code (1957), Art. 66A, § 6 (b) as found by the appellee, Maryland State Board of Censors (the Board). The Board, finding the film to be obscene, petitioned the Circuit Court for a determination of its obscenity in accordance with the applicable provisions of the Maryland law. The appellant, William E. Hewitt, trading as Baltimore Film Society, submitted the film to the Board for approval and licensing, was a party to the proceedings before the Board and the Circuit Court and took a timely appeal to this Court from the order of August 2, 1968.

We have viewed the film as required by Art. 66A, § 19 (a). At the trial in the lower court, the Board called three expert witnesses: Dr. Robert M. Vidaver, on the issues of appeal to prurient interest and contravention of contemporary community standards; Professor William R. Mueller of Goucher College and Reuben Kramer, a prominent sculptor of national reputation, the testimony of the two last mentioned witnesses being limited to the issue of redeeming social value. The appellant, Hewitt, called two witnesses in the lower court: Dr. Sol Gordon, a clinical psychologist, and Albert D. Gerber, a Philadelphia attorney and legal advisor to makers of “sexploitation” films. We will now consider the test to be applied, the qualifications and testimony of these witnesses.

There were three issues of mixed law and fact involved before the Board and the lower court arising from our previous decisions applying the constitutional requirements imposed by decisions of the Supreme Court of the United States in regard to freedom of speech. In Dunn v. Maryland State Board of Censors, 240 Md. 249, 255 , 213 A. 2d 751, 754 (1965), Judge (now Chief Judge) Hammond, for the Court, aptly stated: “We think it plain that save in the rare case where there could be no doubt that the film is obscene the Board will not meet the burden of ¹⁸² persuasion imposed on it by the Constitution and the statute without offering testimony that the picture is obscene in that (a) the average person, applying community standards, would find that its dominant theme, taken as a whole, appeals to prurient interest, (b) that the film goes substantially beyond customary limits of candor in description or representation of sex or other matters dealt with, and (c) that it is subject to proscription because it is utterly without redeeming social importance considered in light of the fact that * * sex and obscenity are not synonymous’, Roth, 354 U. S. 476, 487 , 1 L. Ed. 2d 1498, 1508 , and the fact that material dealing with sex in a manner that advocates ideas or has literary, scientific or artistic value or any other form of social importance may not be branded as obscenity.” Our definition of obscenity — the Roth-Alberts test — was restated with somewhat different emphasis perhaps, by the Supreme Court in A Book Named “John Clelands' Memoirs 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 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 . 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; ¹⁸³ 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, 326-27 , 226 A. 2d 317, 320-21 (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. Dr. Vidaver (because of a misprint, referred to as Dr. Ridaver in Sanza) testified before the Circuit Court as an expert in Sanza and his testimony was relied upon by the Chancellor in that case and by us on appeal.

The appellant conceded at the argument of the case before us that there was sufficient evidence before the Chancellor from Dr. Vidaver’s testimony from which he could find that the dominant theme of the film “Odd Tastes” taken as a whole, appeals to the prurient interest. He earnestly argued in both his brief and at the oral argument that Dr. Vidaver’s testimony was not sufficient to sustain the Board’s burden of proof to establish that the film was patently offensive because it affronted contemporary community standards relating to the description or representation of sexual matters. At the threshold of the appellant’s argument on this issue is the contention that Dr. Vidaver is not qualified as an expert witness to express an opinion having any probative value on the issue. We do not agree with this contention.

Dr. Vidaver’s qualifications as an expert witness are impressive and, as we have already indicated, both the Chancellor and this Court relied upon his expert testimony on this issue — as well as other issues — in Sanza . In Sanza , Judge Oppenheimer, for the Court, summarized Dr. Vidaver’s qualifications as follows: “Dr. Robert M. Vidaver 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 ¹⁸⁴ 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’ post-graduate 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.” ( 245 Md. at 328 , 226 A. 2d at 321 ) In addition to these qualifications, Dr. Vidaver testified in the lower court in the present case in reply to a question in regard to his training in audio-visual techniques for use in treating mental-health problems: “Well, what we were trying to do was set up a closed-circuit video-tape television system at the University of Maryland Psychiatric Institute as a means of training medical students in a variety of professional skills and psychiatric diagnosis. Included in my work was a — were trips throughout the country to hospitals, universities, and psychiatric synods that already had some use of either film or video tape in training or in treatment, and these ranged from the University of Mississippi Psychiatric Institute through those of the East and West Coast, and required me to learn something of the techniques of audio-visual communication.” The film contains a series of episodes of various types of sexual perversion. It is well summarized by Dr. Vidaver in his testimony as follows: “(The Court) What is its relationship to sadism, as you saw it ? “(Mr. Whiteford) I object to the Court’s question. “(The Court) Overruled, because the Court saw the gory details of the knife being plunged ¹⁸⁵ in Madam Clary’s bosom, and saw the unhappy scene which, I suppose, for want of a better word we would characterize this as being a tragedy, in the Greek definition, or distinction between comedy and tragedy, as the central figure fell on his own knife. What is its relationship to sadism and, of course, I am referring, also, to the blowtorch applied to the reinforcing bars to which the young Negress’ hands were strapped.

What is its relationship to sadism? “(The Witness) A very strong one I believe, sir. Sadism we usually talk of as being different from merely violence or aggression, in that it has sexual overtones, or is a combining of the sexual and aggressive drives. So, when we speak of a sadistic assault, meaning a- sexual encroachment of the body of another, was especially used by the producers and directors of this film to heighten the sexual excitement, to emphasize the sexual theme, to sell, to pander, as it were, the sexual qualities of the film to an American audience already somewhat dulled to ordinary sexuality; to make it more appealing and stimulating — . “I do feel that the appeal was very cleverly used to stimulate not so much the normal sexual drive of heterosexual relations and sexual intercourse, but a variety of perverted and infantile sexual themes. “It starts out, of course, with the appeal to the kind of incestual fantasies of mother and boy child, with Ruthie opening her breasts to the infant Charles, and then, if imagination hasn’t caught on already, going through a routine with her mouth and lips that is highly suggestive of fellatio to the infant. “From there, of course, there is the kind of brother-sister incestual stimulation of Melaine ¹⁸⁶ and the growing Charles. Both of these had, at least, been man-woman, and have led us into this kind of heterosexual perspective.

When he moved to the boarding school— “(The Court) He said his father found out about it and sent him away to Switzerland, as I recall. “ (The Witness) So you have, there, the theme of punishment for the sexual fantasy which, again, is stirring to the audience. “In the boarding school, Thomas’ sister seemingly enters— “(The Court) Seemingly, I think, is a good word. Thomas’ sister quote — I think that should be in quotes. “(The Witness) Yes, sir — since we have already seen two women in a state of relative nakedness, we are quite caught up in the expectation as viewers that this would be another woman, when suddenly she unmasks and turns out to be a boy. “There is the sexual confrontation of both homosexuality and the fantasies of women with a penis that is, again, a kind of problem area often for adolescents and small children who are still struggling to firm up sexual identification. “Following this, it causes the homosexual relationship between Thomas and Charles, and it is suggested, if not the actual portrayal, of fellatio and the delight thereof. “From there on, we have repeated castration themes with the implication that if you play with sex or play with yourself, you will end up much the same as the hero — literally castrated and bleeding his life away. “These are not only sexual themes to my perspective, but have primitive and unhealthy pathological sexual themes. Far from bringing ¹⁸⁷ out any catharsis in a normal sense or a ventilation of sexual drives, it presses, pushes, stimulates the most unhealthy of sexual feelings which might be present in all of us, and most of us try our best to repress and keep in control. “So what we are left with is the kind of stimulation in sexual areas that we have no way to discharge.” In regard to whether or not the film was patently offensive as exceeding contemporary community standards, Dr. Vidaver testified that it exceeded contemporary community standards with respect to candor in motion picture films “to display it for entertainment purposes.” He further stated: “If this was a medical documentary whose audience was to be professional persons, social workers, psychiatrists, doctors, then the purpose of the film might be to display the sexual aberrations possible in society, either educational or informational. But, since they were not even accurate in their portrayal of Oriental or African culture, we don’t see an educational or informational purpose, here, but an entertainment one.

And the entertaining value, as I see it in the film, comes through its ability to stimulate sexual energies in the individual. “I found it to be patently offensive if I had paid money to see it in the theater in the expectation of humorous satire, tragedy, what-have-you— biography — and had thrust upon me this kind of assault at unconscious feelings or drives — homosexual, regressive, perverted — under the guise of watching a panorama of human behavior, I would feel upset and disturbed, and I would find this patently objectionable.” In contrasting the treatment of sexual matters in the film, “Odd Tastes” with other films, including a film in ¹⁸⁸ which “sexual activities were displayed” but which had been licensed by the State Board of Censors, Dr. Vidaver testified: “The crucial difference, though, is that it represented a natural development of the characterization and plot. We had real, live people — teenagers — portrayed; their families, their work, their school, their sport activities, their leisure, and as part of their human existence, there was the expression of sexual needs. For good or bad, morality aside, it was in the portrayal of real human beings or the attempt at it, in everyday life, that was followed through in that aspect which was sexual. “This is diametrically different from ‘Odd Tastes,’ where we see virtually nothing about the people except their sexual proclivities. We know really nothing about any of the women or Thomas or Charles as a person — his thoughts, feelings, hates, loves, skiils, failures, foibles — we don’t know them as human beings.

All we know them as is as something of sexual animals. You can tell anything about the size, shape, and configuration of their buttocks, and nothing about the rest of their human existence. And this kind of an exaggeration and misshapen portrayal of the sexual drive is what gives to this picture, ‘Odd Tastes,’ a dominant theme which is prurient — not just the portrayal of nakedness, nudity, or sexuality.” It is clear to us from Dr. Vidaver’s testimony that his opinion was that the film, “Odd Tastes,” exceeded the limits of the community’s toleration for what is shown in motion pictures, not merely that the sexual activities shown in the film would not be tolerated in the community. Dr. Vidaver’s testimony in this regard is, in our opinion, stronger in support of his opinion on this issue than ¹⁸⁹ was his testimony on the same point which we found legally sufficient in Sanza .

We said in Sanza: “Nor do we agree with the appellants’ contention that there is no evidence that national standards have been affronted. While most of Dr. Vidaver’s testimony went to the effect of the material on the