Hewitt v. Maryland State Board of Censors

Hammond, C. J., delivered the opinion of the Court. We here decide the first moving picture censorship case since the passage of Ch. 598 of the Laws of 1965, now § 19 of Art. 66A of the Code, in which (by stipulation of the parties) we have not had to view the suspect film. Our relief at this is great and joy fills our hearts. The exhibitor here, in claiming the right to show the films without the approval of the Board of Censors, does not say they are not obscene (as the lower court found them to be) but relies solely on the claim that the court hearing specified by § 19 of Art. 66A to be held within five days after the filing of the case was not held until the seventh day.

The statute directs the Board to approve or disapprove a film within five days of its submission and, if the Board disapproves, requires it to apply within three days to the Circuit Court of 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 § 6 hereof.” The statute then provides: ⁵³⁰ “The Circuit Court for Baltimore City shall, within five (5) days after the filing of said application, conduct a hearing, and shall in connection therewith view such film; within [two] (2) days after such hearing said court shall enter its decree and order requiring that said film be approved and licensed or be disapproved if in violation of the provisions of said § 6 hereof.” In the present instance the two films involved — “Alimony Lovers” and “The Wicked Die Slow” — were timely disapproved by the Board and it, within three days thereafter, filed a petition with the court requesting the judicial determination spelled out by § 19 of Art. 66A. Due to a belief that the exhibitor did not want the speedy hearing afforded it by the statute, the Attorney General’s office did not arrange for the court to view the film and conduct a hearing within five days. An inquiry of counsel for the exhibitor brought the answer that the belief of the Attorney General was wrong. As a result, on the seventh day Judge Sodaro viewed the pictures, heard argument and decided in a written opinion that the films are obscene.

The exhibitor now argues that because the Board’s petition to the Circuit Court was not heard within five days the exhibitor is free to show the films without approval. The Attorney General takes the position that the exhibitor is estopped to make the contention and, in any event, the court’s disapproval came within seven days of the filing in court of the petition and within fifteen days of the submission of the films to the Board, so that the purposes of the statute and the protections it affords the film-makers and exhibitors were gratified. It appears that the appellant, Hewitt, who trades as the Baltimore Film Society, some two weeks before submitting to the Board the films here involved, had submitted two other pictures titillatingly titled “Room and Broad” and “Touch of Leather.” Because this Court was then considering a case in which counsel for Hewitt had ⁵³¹ argued the validity of the statute and the scope of its application, he wrote an assistant attorney general a letter on December 17, 1968, saying: “This will confirm our recent telephone conversations in regard to the two most recent films [Room and Broad and Touch of Leather] submitted to the Censor Board by Baltimore Film Society * * *. I have agreed in their behalf that the time for trial as required by statute is hereby waived by them.

I will notify you when Baltimore Film Society will be prepared for trial * * * ” The Board notified Baltimore Film Society that both Alimony Lovers and The Wicked Die Slow had been rejected and that suit had been filed in the Circuit Court, but the Society did not tell its lawyer. After the five days had run, the assistant attorney general called Baltimore Film’s lawyer and learned that his client could not stipulate as to Alimony Lovers and The Wicked Die Slow. As a result, view, trial, argument and decision all came on the seventh day. While it was the feeling of the assistant attorney general that Baltimore Film Society did not want any trial as to any obscene movie until after this Court had acted, we do not think Baltimore Film waived its right to a speedy trial or is estopped from asserting that the statute was fatally disobeyed.

Its letter was written before the films here involved had been submitted and specifically referred to “the most recent films submitted to the Censor Board by Baltimore Film Society” as those as to which the statutory times for