Mangum v. Maryland State Board of Censors

Eldridge, J., delivered the opinion of the Court. In this case, petitioner challenges a decision of the Circuit Court of Baltimore City (James W. Murphy, J.) which upheld the Maryland State Board of Censors’ refusal to grant a license for exhibition of the film “Deep Throat.” On May 23, 1974, petitioner, on behalf of North Cinema, Inc., submitted the motion picture entitled “Deep Throat” to the Maryland State Board of Censors for review pursuant to Maryland Code (1970 Repl. Vol., 1974 Cum. Supp.), Art. 66A, § 17.

The next day, the Board of Censors issued a rejection order and filed a petition for review in the Circuit Court of Baltimore City, as required by Art. 66A, § 19 (a). On May 30, 1974, petitioner filed a petition for continuance in the circuit court. On May 31, 1974, after a hearing, the court granted petitioner’s motion for a continuance, but the court issued an interlocutory injunction temporarily restraining further ¹⁷⁸ showing of the film “Deep Throat” in the State of Maryland until such time as the court had rendered a final judgment in the matter. The petitioner took an appeal from the interlocutory injunction on the same day, May 31, 1974.

On July 31, 1974, the Court of Special Appeals, on respondent’s motion, dismissed the appeal from the interlocutory injunction on the ground that it was moot. Subsequently, this Court denied a petition for a writ of certiorari to review the dismissal by the Court of Special Appeals. While the appeal from the interlocutory injunction was pending, the trial judge viewed the movie at a closed showing at the court house and, again, at petitioner’s request, at the theater of the petitioner. At a hearing before Judge Murphy, the film itself together with the rejection order and the minutes of the May 24 Censor Board meeting were introduced.

The petitioner presented five “expert witnesses.” All five of the expert witnesses testified that they did not believe that “Deep Throat” was patently offensive to community standards. All but one stated that the film did not appeal to the prurient interest of the average adult. Only Dr. Nachand, a psychologist, testified to artistic and scientific value, though two other witnesses made reference to the “parody” or “satire” involved in the film. All of the petitioner’s experts had difficulty describing what to them would be pornographic.

Only Paul Walker, a psychology instructor at the University of Baltimore, got beyond words such as “unhealthy,” “morbid,” “pathological.” Mr. Walker stated that films which advocated “brutality,” “exploitation,” or “violence” would be pornographic. 1 On June 24, 1974, while the appeal from the interlocutory injunction was still pending, Judge Murphy issued his opinion and order disapproving the film “Deep Throat” for licensing by the Board of Censors and affirming the May 24, 1974, finding of the Censor Board. Judge Murphy found the ¹⁷⁹ film to be obscene under the definition set forth in Miller v. California, 413 U. S. 15 , 93 S. Ct. 2607 , 37 L.Ed.2d 419 , reh. denied, 414 U. S. 881 , 94 S. Ct. 26 , 38 L.Ed.2d 128 (1973). On the same day, the petitioner filed a notice of appeal to the Court of Special Appeals. Because of the importance of the issues in this case, we granted a writ of certiorari prior to a decision by the Court of Special Appeals.

The petitioner advances three principal arguments for reversing the circuit court’s decision. (1) The appeal from the issuance of the interlocutory injunction on May 31, 1974, deprived the circuit court of jurisdiction. 2 (2) The film “Deep Throat” is not obscene under the current Supreme Court definition of that term.. (3) Maryland courts may not, consistent with Art. 8 of the Maryland Declaration of Rights, construe the word “obscene” in the Maryland movie censorship law, Code Art. 66A, to be the same as the current Supreme Court definition of “obscene” for First Amendment purposes. I. While generally the filing of a notice of appeal in a case deprives the trial court of jurisdiction to proceed further in that case, there are exceptions to this rule.

Bullock v. Director of Patuxent Institution, 231 Md. 629, 633 , 190 A. 2d 789 (1963); Cook v. Boehl, 188 Md. 581, 592 , 53 A. 2d 555 (1947); Dietrich v. Anderson, 185 Md. 103, 111 , 43 A. 2d 186 (1945); Barnum v. Barnum, 42 Md. 251, 294 (1875); Smiley v. Atkinson, 12 Md. App. 543, 549-551 , 280 A. 2d 277 (1971), affd, 265 Md. 129 , 287 A. 2d 770 (1972); Raimondi v. State, 8 Md. App. 468, 475-476 , 261 A. 2d 40 (1970). One well recognized exception is where the appeal is taken from an interlocutory or preliminary injunction. The authorities, with apparent unanimity, hold that while an appeal from an interlocutory injunction is being pursued, the trial court ¹⁸⁰ may proceed with any other issue or matter in the case. Ex parte National Enameling & Stamping Co., 201 U. S. 156, 162 , 26 S. Ct. 404 , 50 L. Ed. 707 (1906); DePinto v. Provident Security Life Ins.

Co., 374 F. 2d 50, 51, n. 2 (9th Cir. 1967); Janousek v. Doyle, 313 F. 2d 916, 920-921 (8th Cir. 1963); Phelan v. Taitano, 233 F. 2d 117, 119 (9th Cir. 1956); Students Challenging Reg. Agcy. Proc. v. United States, 353 F. Supp. 317, 320, n. 2 (D.D.C. 1973); O’Brien v. Avco Corp., 309 F. Supp. 703, 705 (S.D.N.Y. 1969); Doudell v. Shoo, 159 Cal. 448 , 114 P. 579, 582 (1911); Nomm v. Nomm, 164 Cal.App.2d 663 , 330 P. 2d 839, 840 (1958); Cloud v. Dyess, 172 So. 2d 528, 531 (La. App. 1965); Appeals of Sheaffer and Herkscher, 100 Pa. 379, 382 (1882); Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 773 (Tex.Civ.App. 1970); Lynch v. Clinch Motor Co., 131 Va. 202 , 108 S. E. 641, 642 (1921).

Moreover, in the present situation, it was even clearer that the trial court should have been able to exercise jurisdiction despite the pendency of the appeal from the interlocutory injunction. Where the prior restraint of a film exhibition is involved, the First Amendment requires that procedures to review the film be as expeditious as possible. Freedman v. Maryland, 380 U. S. 51 , 85 S. Ct. 734 , 13 L.Ed.2d 649 (1965). Article 66A, § 19, of the Maryland Code was amended in 1965 to conform to this requirement.

See Dunn v. Maryland State Board of Censors, 240 Md. 249 , 213 A. 2d 751 (1965); Starv. Preller, 352 F. Supp. 530 (D. Md. 1972), remanded for reconsideration, 413 U. S. 905 , 93 S. Ct. 3054 , 37 L.Ed.2d 1016 (1973), on remand, 375 F. Supp. 1093 (D. Md. 1974), affd, 419 U. S. 956 , 95 S. Ct. 217 , 42 L.Ed.2d 173 (1974). The State also has an interest in requiring that allegedly obscene films' be reviewed quickly. If no decision on the action of the Censor Board could be made until an appeal from an interlocutory injunction were completed, the purpose of Article 66A in requiring expeditious reviewing of the film would be frustrated whenever either side appealed from any appealable interlocutory action taken by the circuit court before a finding of obscenity was made.

We therefore reject the petitioner’s argument that the ¹⁸¹ appeal from the interlocutory injunction deprived the circuit court of jurisdiction during the pendency of the appeal.

II

Petitioner contends that the film “Deep Throat” is not obscene under the meaning of that term set forth by the Supreme Court in Miller v. California, supra. In this connection, a brief review of some of the Supreme Court cases would be useful. The Supreme Court held in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502 , 72 S. Ct. 777 , 96 L. Ed. 1098 (1952), that “expression by means of motion pictures is included within the free speech . . . guaranty of the First and Fourteenth Amendments.” However, in Roth v. United States, 354 U. S. 476 , 77 S. Ct. 1304 , 1 L.Ed.2d 1498 (1957), the Court held that “obscenity is not within the area of constitutionally protected speech or press.” Four justices joined Mr. Justice Brennan in stating ( 354 U. S. at 484 ): “All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” The Court went on to adopt, as a definition of obscenity, the following (id. at 489): “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” The Court in Roth made it clear that it was using the term “obscenity” to include a limited range of material dealing ¹⁸² with sexual matters.

Mr. Justice Brennan said for the Court (id. at 487, n. 20): “We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10 (2) (Tent. Draft No. 6, 1957), viz.- '. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . .’ ” For nine years following Roth , the Supreme Court did not alter its definition of obscenity. Probably the most significant discussions of the definition were the various opinions in Manual Enterprises, Inc. v. Day, 370 U. S. 478 , 82 S. Ct. 1432 , 8 L.Ed.2d 639 (1962), and Jacobellis v. Ohio, 378 U. S. 184 , 84 S. Ct. 1676 , 12 L.Ed.2d 793 (1964).

In Manual Enterprises, Inc. v. Day, supra, Mr. Justice Harlan, in announcing the judgment of the Court, took the position that where material was aimed at a particular deviant group, the test for obscenity was whether the material was patently offensive to community standards. In Jacobellis v. Ohio, supra, Mr. Justice Brennan argued for a national community standard in testing obscenity. Mr. Justice Stewart saw only “hard core pornography” as being constitutionally unprotected and, as to a definition of that, stated: “I know it when I see it, and the motion picture involved in this case is not that.” ( 378 U. S. at 197 .) In A Book Named “Memoirs” v. Attorney General of Mass., 383 U. S. 413 , 86 S. Ct. 975 , 16 L.Ed.2d 1 (1966), the Supreme Court again wrestled with the definition of obscenity for constitutional purposes. The plurality opinion of three justices built on the Roth definition, as elaborated in subsequent cases, to define obscenity as follows ( 383 U. S. at 418 ): “ . . . [t]hree elements must coalesce: it must be established that (a) the dominant theme of the ¹⁸³ 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.” The Supreme Court’s view of the significance of the Memoirs definition was set forth in Miller v. California, supra, where Chief Justice Burger observed (413 U. S. at 21-22): “While Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth , the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was ‘utterly without redeeming social value’ — a burden virtually impossible to discharge under our criminal standards of proof.” Following the Memoirs case the Court, for a period of seven years, seemed to be unable to form a majority which agreed on a definition of what constituted obscene, pornographic material subject to governmental proscription.

In Redrup v. New York, 386 U. S. 767 , 87 S. Ct. 1414 , 18 L.Ed.2d 515 , reh. denied, 388 U. S. 924 , 87 S. Ct. 2091 , 18 L.Ed.2d 1377 (1967), and in many cases following it, the Supreme Court summarily reversed convictions for the dissemination of materials that at least five members of the Court, for whatever reasons, found to be constitutionally protected. See Miller v. California, supra, 413 U. S. at 22. Recently in Miller v. California, supra, and four other cases decided on the same day, 3 five members of the ¹⁸⁴ Supreme Court seemed to reach agreement on a definition of obscenity for First Amendment purposes. Miller involved a conviction under then section 311.2(a) of the California Penal Code for knowingly distributing obscene matter.

The Court formulated a constitutional definition of obscenity in the following language (413 U. S. at 24-25): “The basic guidelines for the trier of fact 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, Kois v. Wisconsin, supra, [408 U. S:] at 230, quoting Roth v. United States, supra, [354 U. S.] at 489; (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. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U. S., at 419 .. . .” The Court further explained this standard (id. at 25): “It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. “(b) Patently offensive representations or descriptions of masturbation, excretory functions,., and lewd exhibition of the genitals.” The Supreme Court made clear that the Miller definition reached only “hard core” pornography. Chief Justice Burger stated in Miller (id. at 27): ¹⁸⁵ “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 specifically defined by the regulating state law, as written or construed.” See also Jenkins v. Georgia, 418 U. S. 153 , 94 S. Ct. 2750 , 41 L.Ed.2d 642 (1974); Hamling v. United States, 418 U. S. 87 , 94 S. Ct. 2887 , 41 L.Ed.2d 590 (1974), for recent applications of the Miller test. 4 In sum, under the Miller definition a film depicting sexual matters would be obscene or hard-core pornography, and thus beyond the protection of the First Amendment, if it meets the following test: (a) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; and (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined as, (1) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or (2) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. ¹⁸⁶ See Ebert v. Md. St. Bd. of Censors, supra, 19 Md. App. at 314-315. In the instant case, the trial judge as trier of the facts viewed the film “Deep Throat” and found that it was obscene under the Miller test.

The court found that it was hard-core pornography and “was nothing more or less than a so-called ‘stag’ film . . . .” On the basis of our viewing the film, it is clear that this is an accurate categorization. 5 The film “Deep Throat” is for the most part a series of explicit depictions of sexual acts, including cunnilingus, fellatio, masturbation, normal and anal intercourse, and group sex. Effort was obviously made by the film makers to concentrate on the actors’ genitals during the scenes of sexual activity. Well over half of the length of the film was devoted to displaying these explicit sexual acts. The satirical scenes referred to by some of petitioner’s witnesses were brief and sophomoric, serving as little more than introductions to the scenes of explicit sexual activity. 6 This case is the first case in which the question of hard-core pornography has been considered by this Court since the Miller definition was formulated by the Supreme Court.

The film is clearly within the Miller definition of obscenity or hard-core pornography. In fact, “Deep Throat” would probably be deemed obscene under any meaningful definition of that term, including that set forth by the plurality opinion in Memoirs. It is noteworthy that in other jurisdictions where the matter has arisen, “Deep Throat” has consistently been found to be obscene. See United States v. One Reel of Film, 481 F. 2d 206 (1st Cir. 1973); Coleman v. ¹⁸⁷ Wilson, 123 N.J.Super. 310, 302 A. 2d 555 (1973); People v. Mature Enterprises, Inc., supra; S.S. W. Corporation v. Slaton, 231 Ga. 734 , 204 S.E.2d 155 (1974).

III

Petitioner next argues that Article 8 of the Maryland Declaration of Rights prohibits us from construing the term “obscene” in the movie censorship law as having the same meaning as the Miller definition of constitutionally unprotected obscenity. His view is that, by so construing the statutory term, this Court would be performing a legislative function in violation of the' separation of powers principle contained in the Delaration of Rights. 7 In the Miller case, the Supreme Court held that, with respect to state statutes regulating obscene material, “we now confine the permissible scope of such regulation to works which depict or describe sexual conduct.” (413 U. S. at 24.) The Court went on to say that such “conduct must be specifically defined by the applicable state law, as written or authoritatively construed." (Ibid., emphasis supplied.) The majority opinion of the Supreme