Maryland State Board of Censors v. Times Film Corp.

Hammond, J., delivered the opinion of the Court. On the ground that their inclusion made the moving picture “Naked Amazon” obscene, the Maryland State Board of Censors ordered deleted from the picture all scenes showing bodies below the waist of the Camayura Indians, who live in the jungles of Brazil, entirely unclothed. On appeal to the Baltimore City Court by the producer, Judge Byrnes reversed the Board, which in turn duly appealed to this Court. The parts of the Maryland censorship statute here pertinent are found in Code, 1956 Supp., Art. 66A, Sec. 6.

Paragraph (a) of that section requires the Board to examine all' films to be exhibited in the State and to approve such as are “moral and proper” and to disapprove such as are “obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes.” Paragraph (b) provides: “For the purposes of this article, a motion picture film or view shall be considered to be obscene if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever other merits the film may possess.” Paragraph (c) ⁴⁵⁷ provides: “For the purposes of this article, a motion picture film or view shall be considered to be of such a character that its exhibition would tend to debase or corrupt morals if its dominant purpose or effect is erotic or pornographic; or if it portrays acts of sexual immorality, lust or lewdness, or if it expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior.” The parties meet head-on in their views as to constitutionality of the statute and as to whether it was rightfully applied by the Board. The Board says that prior restraint of motion pictures is constitutional; the producers that it is not. The Board says that the Maryland statute is tightly drawn and not subject to the infirmities of vagueness and lack of proper standards and, so, is valid; the producers that it is vague and without tests that can constitutionally serve as measurements. The Board urges that it rightly interpreted the statute and properly applied its standards; the producers say that the Board misinterpreted and misapplied the statute and that, in any event, there was no basis in fact for the finding it made.

We think that the lower court, in finding the picture not to be obscene or pornographic, came to the right conclusion and, therefore, we do not reach the constitutional questions. We assume, without deciding, that prior restraint of motion pictures is constitutional and that the Maryland statute is aimed at an evil grave, imminent and pervasive enough to justify whatever invasions it makes of rights protected against State action by the First and Fourteenth Amendments, and that it is not so vague that it is without sufficiently definite standards, although such an assumption may be unwarranted, if not legally naive. See Burstyn v. Wilson, 343 U. S. 495 , 96 L. Ed. 1098 ; Butler v. Michigan, 352 U. S. 380 , 1 L. Ed. (2d) 412, 25 Law Week 4165; Gelling v. Texas, 343 U. S. 960 , 96 L. Ed. 1359 ; Commercial Pictures Corp. v. Regents of University, 346 U. S. 587 , 98 L. Ed. 329 ; Superior Films v. Dept. of Education of Ohio, 346 U. S. 587 , 98 L. Ed. 329 ; Holmby Productions, Inc. v. Vaughn, 350 U. S. 870 , 100 L. Ed. 770 ; Brattle Films v. Commissioner of Public Safety (Mass.), 127 N. E. 2d 891 ; Hallmark Productions v. Carroll (Pa.), 121 A. 2d 584 ; Capitol Enterprises ⁴⁵⁸ v. Regents of the University of the State of New York, 149 N. Y. S. 2d 920; Adams Theatre Co. v. Keenan (N. J.), 96 A. 2d 519 . See also the concurring opinion of Judge Frank in United States v. Roth, 237 F. 2d 796, 801 , and the opinion of Judge Bok in Commonwealth v. Gordon, 66 Pa.

Dist. and County Reports 101. Cf. Dennis v. United States, 341 U. S. 494 , 95 L. Ed. 1137 ; the opinion of the majority in United States v. Roth, supra; and Adams Newark Theatre Co. v. City of Newark (N. J.), 126 A. 2d 340 . One Zygmunt Sulistrowski, who is described as an “explorer and photographer, and a man of adventure”, headed an expedition to the Matto Grosso region of the Brazilian jungles, financed in part by the American Museum of Natural History.

The expedition took motion pictures in color, some of which form a part of the picture “Naked Amazon” which is largely a factual showing of the lives of the natives of the jungles of Brazil. After scenes depicting pre-lenten festivities in Rio de Janeiro including dances which the narrator describes as “exotic, voluptuous and sensuous”, but which the Board did not find objectionable, the expedition group is shown proceeding by boat up the Amazon River. During this river trip, against a scenic background of the Brazilian jungle, a few nonfactual or staged scenes appear. The voyage through the primeval beauty of the jungle — the camera was .focused on wild animals, fish, birds, butterflies, and sundry flora and fauna — is sought to be made dramatic by suggesting the struggle of the group against the natural dangers of the country by scenes such as those of a man struggling with what is represented to be a dangerous boa constrictor.

When the group makes contact with the Camayura Indians, the scenes are entirely genuine and documentary. The Indians are aborigines who are said to bring to mind pictures of prehistoric man. Their physical structure and features are ugly and primitive compared with the current concept of physical attractiveness. They were described by one reviewer as particularly “homely and unprepossessing”.

They are shown in their daily activities with the narrative discussion pointing out their unusual customs and rituals. When presented to the Maryland Board for censor ⁴⁵⁹ ship, the film already had been edited, as a prerequisite to approval by both the motion picture industry censorship body and the New York State Censors so that, as Judge Byrnes noted, “* * * intimate parts of the body cannot be seen.” None of the scenes portray any action which is even suggestive of sexual activity. The natives are quite unaware that they are without clothing and the narration accompanying the scenes in no manner suggests that they are sexually excited, or exciting, rather, the photography and narration dwell on their unusual customs and rituals, which seemingly give the appearance of rather childlike games. The Chairman of the Board testified that the deletions were made under the authority of paragraphs (a), (b) and fc) of Section 6 of Art. 66A, Code, 1956 Supplement, specifically and expressly on the ground that the film was “* * * obscene and/or pornographic as defined in said law.” He said that it was the considered judgment of the Board “* * * that the showing of nudity, of nude people, in a pseudo-documentary, which this officially is, is calculated to arouse sexual desires of substantial numbers of people.” He pointed out that the Maryland law does not provide for banning a film to certain categories or groups of the public.

If it is passed, it is available to all who have the desire and opportunity to see it. He said the Board felt that the public would find the film shocking and tending to arouse sexual desires “certainly in irresponsible numbers of people”. The Chairman said that the Board’s interpretation of the statute was that possible obscenity was not to be weighed with the artistic or other merits of the film as a whole, but rather that particular “views” are to be considered, and the obscenity of those views is to be weighed against the artistic or other merits of the same views. He testified that the Board read the statute as using “pornographic” as substantially synonymous with “obscene”, and acted on that reading.

Judge Byrnes, who saw the whole film once, and the deleted parts twice, noted that the film as presented to the Board had been prepared so that close-ups of the natives sliowing their bodies below the waist had been omitted, and found that “* * * the producers were unsuccessful in their ⁴⁶⁰ efforts to attribute a pornographic theme to the movie” and therefore it did not come. under the ban of the statute. He continued: “The Board was of the opinion that showing of the uncensored film might have an undesirable effect on ‘segments of our population’. As this Court does not believe that such reasoning comes within the restrictions contained in Article 66A, it must order the restoration of the eliminated scenes.” We think the Board’s basis of decision and its findings were predicated not only on the unsound legal ground remarked on by Judge Byrnes but on another false legal premise. First, the Board acted on the assumption that a scene could be eliminated because its possible obscenity outweighed any of its merits, considering that scene alone.

It did not weigh the scenes it found objectionable in relation to the picture as a whole to determine whether overall worth more than counterbalanced possible obscene or pornographic bits or sequences. The Board’s interpretation is in the teeth of the words and implications of the statute. Paragraph (b) of Sec. 6 of Art. 66A, Code, 1956 Supp., says that: “* * * a motion picture film or view” shall be considered obscene “if, when considered as a whole”, its main purpose and effect is to arouse sexual desires “and if the probability of this effect is so great as to outweigh whatever other merits the film may possess.” (Emphasis supplied.) The Board defends its position by saying that since the statute refers to a “view”, single scenes can be considered alone and not in relation to the picture as a whole. The weakness in the argument is that Sec. 1 of Art. 66A defines the word “view” as used in the article to mean “what is usually known as a stereopticon view or slide” and it is clear to us that the statute means that the picture must be considered in its entirety in determining whether the merits it has outweigh the possibility of obscenity or pornography in a part or parts.

The later cases say that our opinion on this aspect of the case is the