Sanza v. Maryland State Board of Censors

Oppenheimer, J., delivered the opinion of the Court. ³²⁵ The Circuit Court of Baltimore City affirmed the actions of the Maryland State Board of Censors in disapproving the licensing of a series of silent sixteen millimeter films designed for showing in coin operated machines in an amusement arcade in the area of Baltimore City known as “the Block.” Of the twenty-five films submitted to the Board by the appellant Sanza, five were chosen by stipulation of the parties to stand the test of judicial determination under Code (1966 Supp.), Article 66A (the Act), Section 19. Some weeks after the hearing before Judge Harris and the order thereon, the appellant Ferris submitted three similar films to the Board. These films were also disapproved, and, at another hearing, Judge Harris again affirmed the Board’s action. 1 After the appeal from Judge Harris’ order sustaining the Board’s disapproval of the Ferris application, the appellants moved to consolidate the cases on the grounds that the appellants own and manage the same business at the same location and that both appeals involve the same subject matter and present the same legal issues. We granted the motion.

The same law firm represented both Sanza and Ferris at the hearings below and on these appeals. In view of the identity of the subject matter and nature of all the films involved, and of the appellants’ motion to consolidate for the purposes of the appeal, we take all motions made on behalf of either appellant as made on behalf of both appellants and as applicable to both proceedings, and we consider all the testimony offered at both hearings as applicable to each of the two series of films. The appellants contend that the Board has not met the burden imposed on it under the 1965 amendment of the Act and our decisions thereon of proving the films obscene; and that, in any case, the Act has constitutional infirmities which render it invalid. Since Freedman v. Maryland, 380 U. S. 51 (1965) and the ensuing reenactment of Section 19 of the Act by Chap ³²⁶ ter 598 of the Laws of 1965, we have decided five cases involving the validity of Board actions refusing the application for licenses for the showing of motion pictures.

Trans-Lux Distributing Corp. v. Board of Censors, 240 Md. 98 , 213 A. 2d 235 (1965) ; Dunn v. Board of Censors, 240 Md. 249 , 213 A. 2d 751 (1965) ; Hewitt v. Board of Censors, 241 Md. 283 , 216 A. 2d 557 (1966) ; Leighton v. Board of Censors, 242 Md. 705 , 218 A. 2d 179 (1966); and Hewitt v. Board of Censors, 243 Md. 574 , 221 A. 2d 894 (1966). In some of these cases we discussed and, in effect, decided the constitutionality of certain provisions of Article 66A, but each decision (other than the first Hewitt case, which held invalid the procedure of the lower court in ascertaining and admitting the opinion of a panel of jurors on the question of obscenity) turned on whether, on the particular facts, the Board had met the burden imposed upon it by the statute of proving the films were obscene under the Roth-Alberts test. As to each of the four films involved, the Court held the burden had not been met. We shall, therefore, first consider whether there is sufficient evidence to support the Board’s findings that the films involved in this case are obscene.

I The Roth-Alberts test of obscenity, Roth v. United States, 354 U. S. 476 (1957), reiterated in Jacobellis v. Ohio, 378 U. S. 184 (1964), is summarized in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General (the “Fanny Hill” decision), 383 U. S. 413, 418 , 16 L. Ed. 2d 1, 5-6 (1966), as follows: “We defined obscenity in Roth in the following terms: ‘[W]hether to the average persons, 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 subequent 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 ³²⁷ community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” The films here involved are designated only by several numbers. They have no titles and no sound effects. Prior to their submission to the Board, they had been shown in slot or coin machines in an arcade at 411 E. Baltimore Street.

Evidence as to the character of the neighborhood was admitted by the court below, on the Board’s proffer that the manner in which the allegedly obscene material is presented is relevant under Ginzburg v. United States, 383 U. S. 463 , 16 L. Ed. 2d 31 (1966). An employee of the Board testified that “the Block” in which the arcade is located contains nine night-clubs, four book shops, and a burlesque house. The employee testified further that when she went to the arcade in which the films were being exhibited prior to their submission for licensing the bars and night-clubs advertised their “girlie” revues by displaying photographs of women almost totally nude. The book stores in the section sold paper-back books which revealed on their covers nude males and females, with the genitals and pubic area exposed.

One side of the arcade in which the films were being shown presented a large placard advertising “Hollywood Models on Parade,” and displayed pictures similar to those in the night-club advertisements. The front half of the arcade was taken up with several pin-ball machines, a cigarette machine and a peanut machine. The rear half was partitioned off and contained twenty-one peep-show type, coin-operated viewing machines, accessible only to persons over 18 years of age. The films are viewed by customers in booths.

The customer enters a booth and deposits either ten or twenty-five cents; the coin releases a portion of the film for viewing; after that portion has been shown, the film automatically stops until another coin is deposited in the machine. To see an entire film, the customer usually has to deposit four coins. Each of the eight films involved shows one or more young women on a bed, sofa, or stool, clad in fragmentary undergarments of all or substantially all of which she voluptuously divests herself. Through the entire film, each woman writhes in various poses, clearly inviting and then simulating sexual in ³²⁸ tercourse.

Judge Harris, in his two opinions, describes each of the films in detail, and our viewing of the films enables us to say that his descriptions are accurate, except that we do not agree with his findings that the films necessarily suggest sexual perversions. We do not rest our decision in any way upon the findings by the court below of the portrayal of sexually deviant practices. At the court hearings the Board adduced a number of witnesses, two of whom we find were qualified as experts in their particular field under the requirements set forth in the second Hewitt case. Dr. Robert M. Bidaver is Director of Psychiatric Education for the State of Maryland, Department of Mental Hygiene.

Born in Minneapolis, Minnesota, he lived in the mid-west during the early part of his life. He was graduated from 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 postgraduate 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. He had viewed the films, and testified that : “Clearly to my thinking the dominant theme and my professional statement of the films was the visual selling of sexual and neurotic pleasure * * * the intent as I perceived it and the effect of the movements and gyrations of the several women portrayed were to evoke sexual and neurotic feelings, to arouse these and force them upon any viewer’s mind, to focus attention on the most sexual, provocative area of the female, intimate in our culture and to urge upon the viewer by means of photography by exhibiting certain elements of parts of the body to arouse sexual feelings in people.” In his opinion, the films would appeal to the prurient interest of the average man.

He testified further that: “As a professional opinion, based on a wide knowledge of human behavior, or in thousands of individuals, a close-up and discussions at numerous tests of personal lives of what does and what does not arouse ³²⁹ our sexual feeling, my professional opinion would be, without basing it on actual syndromes, that such films do have sexual arousement.” The late George Browning had been connected with the newspaper business practically all his working life. He was a drama and motion picture critic for the Baltimore News and earlier, for the Post for at least fifteen years, and, for a short period, had been a critic on the New York World Telegram. At the time he testified, he was executive secretary of the Motion Picture Owners Association and reviewed motion pictures periodically, although not regularly, for out-of-town publications with nation-wide circulation, including “Box Office,” published in Kansas City and Motion Picture Daily in New York. 2 He testified that the five films which he had veiwed had absolutely no theme. He did not think he was qualified to testify as to national community standards, but, on the basis of local community standards, he was of the opinion that the films went beyond customary limits of candor in portraying sex.

The appellants adduced no testimony of any kind that the films involved have any literary, educational or social value. Mr. Sanza testified that the five films first reviewed had not, as far as he knew, been shown in any other city. The films had been produced, he believed, in California; he did not know who produced them or made them. They were ordered by catalog.

The types of films involved are referred to in the trade as “art,” “bikinis,” “pinups” or “beavers.” He was asked by the court in what parts of the film there is art and answered: “Well, you take a model, when she has to do a show, or a strip artist in a burlesque show, when she strips off her clothing she is performing art according to the ³³⁰ burlesque house. That’s all this girl is doing, is to strip her clothing off and make different poses with her body. You can take the same pictures in a camera club. You can get a girl who will take her clothing off, she will strip down to her panties, and roll over this way or roll over that way, and people take pictures of It * * * This is art.

The field has been broadened so much in the last ten years nobody can determine what is art and what isn’t art. There is no more obscenity in these films here than you can buy on any news stand in the United States.” In determining whether the films are obscene, we are deeply mindful of our obligation to make an independent constitutional judgment on the facts of the case, Jacobellis, supra, at 378 U. S. 190 , and that the administration of a censorship system for motion pictures presents peculiar challenges to constitutionally protected speech. Freedman, supra, at 380 U. S. 57 . We are mindful too that “we are judges, not literary experts or historians or philosophers,” Fanny Hill, supra, concurring opinion of Mr. Justice Douglas at 383 U. S. 427 , and that ordinarily neither the judge who may sit in the circuit court to review the action of the Board nor the judges of this Court would be qualified to determine whether a film fails to meet the three tests laid down in Roth-Alberts without enlightening testimony.

Dunn, supra, 240 Md. at 255. While we are not experts, there are uncontradicted facts in respect of the eight films before us which, in our opinion, are weighty in the determination we must make. Each of the films appeals to an interest in sex, and nothing else. Sex is not only the dominant subject in each, it is the only subject; there is nothing in any of the pictures except the “strip-tease,” the obvious invitation and prelude to intercourse and then the simulation of the act.

There is no story, no background, no character other than the writhing woman. In Trans-Lux, supra, this Court held that the Board had not met its burden of showing that “A Stranger Knocks” was obcene, even though there were several scenes portraying sexual intercourse, because we found the dominant theme of the picture was not erotic or pornographic. The Supreme Court came to a similar conclusion ³³¹ in Jacobellis as to the film “The Dovers” although that picture, too, had “an explicit love scene.” In the films before us, the portrayal of the sexual act on the part of the woman is not essential to a story, as it was in “A Stranger Knocks”, or to a final incident, as in “The Lovers”; it is the core and only substance of each picture. There is no pretense that any film has any social value, redeeming or otherwise.

In the second Hewitt case, we found evidence of redeeming social value in the claim that the picture “This Picture is Censored” was an argument against censorship, even though, in fact, the scenes were not actual excisions from censored pictures. In this case, not a modicum of such value is apparent or claimed. The films are not shown in a theatre, but are viewed only by a single spectator in a booth. Margaret Mead, the anthropologist, points out the distinction between “the pornographic, condemned in every society, and the bawdy, the ribald, the shared vulgarities and jokes, which are the safety valves of most social systems.” She contrasts the music hall with “the pornography primarily designed to be brooded over in secret.” Mead, Sex and Censorship in Contemporary Society, New World Writing 7, 23-24 (New American Library 1953).

In the case before us, the films are part of an apparatus often referred to as a peep show, in which the solitary observer pays, minute by minute, for the gratification of his voyeurism. In determining whether, under these circumstances, the films are obscene, the expert testimony adduced by the Board, to which we have referred, is enlightening. The gist of Dr. Bidaver’s testimony was that the theme of the film is an appeal to a prurient interest in sex. Mr. Browning was of the opinion that the material goes substantially beyond customary community limits of candor in the portrayal of sexual matters.

While Mr. Browning confined his opinion to local standards, Dr. Bidaver’s testimony was not so limited. His experience, particularly as Chief of the Psychiatric Section of the Army Medical Service, was on a national basis. Asked whether the pictures would affect a great many average persons throughout the United States, he said that he thought the pictures are sensual and arousing to the average individual. ³³² The appellants offered no testimony in contradiction to that of Dr. Bidaver and Mr. Browning. They contend, however, that the pictures have not been proved to be obscene because there is not sufficient evidence that they affront contemporary community standards.

They argue that there is no evidence that national community standards are affronted, and that if local community standards are to be taken, then toleration of “the Block” by local authorities shows that the exhibition of the films in that section of Baltimore would not violate the standards of the community. The Board argues that these very conditions in “the Block” tend to prove the film is obscene under the five to four decision of the Supreme Court in Ginzburg that the manner in which the material is promoted may be relevant in the determination of whether it is obscene. As Judge Barnes, for the Court, pointed out in Trans-Lux, at 240 Md. 104 -05, a majority of the Justices of the Supreme Court have not as yet agreed on whether the “community” involved in the Roth-Alberts test is local or national. If the test be on a local basis, it is true that “the community cannot, where liberty of speech and press are at issue, condemn that which it generally tolerates.” Opinion of Mr. Justice Harlan, concurring in part and dissenting in part, Smith v. California, 361 U. S. 147, 171 (1959); Yudkin v. State, 229 Md. 223, 229-30 , 182 A. 2d 798 (1962).

However, the only relevant evidence on the record before us as to conditions on “the Block” is that the section contains a number of night-clubs and a burlesque house, is saturated with photographs of almost nude women, and that the book stores in the section sell books with pictures of nude males and females on their covers. Nudity is not necessarily obscenity. Sunshine Book Co. v. Summerfield, 355 U. S. 372 (1958); Monfred v. State, 226 Md. 312, 316 , 173 A. 2d 173 (1961); Excellent Publications, Inc. v. United States, 309 F. 2d 362, 365 (1st Cir. 1962); and see Annot., “Modern Concept of Obscenity,” 5 A.D.R.3d 1158, 1176 (1966). If it be assumed that in the night-clubs and burlesque house in “the Block” there are jokes and scenes of a ribald or bawdy kind, that assumption does not lead to the conclusion that obscenity of the nature of the films here involved is present or would be tolerated. “Sex and obscenity are not synonymous.” Roth , at 354 U. S. ³³³ 487; 5 A.L.R.3d, supra, at 1175-76 and cases therein cited; see also Mead, supra.

We find no evidence on the record before us that, even in “the Block,” the community has tolerated such patent obscenity as that which is the substance of the films. 3 Nor do we agree with the appellants’ contention that there is no evidence that national standards have been affronted. While most of Dr. Bidaver’s testimony went to the effect of the material on the prurient interest of the average man, he also testified that, while the gyrations shown on the films might be acceptable between husband and wife, “the performance for anybody else would be beyond the bounds of propriety.” Unlike the situation as to the films “A Stranger Knocks” (Trans-Lux) and “Lorna” (Dunn) there was no showing by the appellants that the films had been exhibited elsewhere in the coun ³³⁴ try; indeed, the appellant Sanza admitted that, as far as he knew, they had not been shown except in Baltimore. Finally, with the gloss of Dr. Bidaver’s uncontradicted testimony, the pictures speak for themselves. We do not deem it necessary to decide whether the methods of advertising the showing of the films in the arcade and the location of the booths within the area of “the Block” constitute “pandering” under the Ginzburg doctrine.

However, in determining whether the films are obscene we do consider, inter alia, the method in which the films are shown- — the viewing in a booth by a single spectator, in the position of a peeping Tom, who feeds his coins into the machine presumably in the hope that he will be even more titillated by what will come than by what has gone before. We believe that the manner of the particular presentation is relevant to a consideration of whether the film is an appeal to prurient interest, not only under Ginzburg , but under the Roth-Alberts test before Ginzburg was decided. Based on the nature of .the films, the manner of their showing, on what we find to be their obvious intent and purpose -and on the expert, uncontradicted testimony to which we have referred, we hold that the subject of the films as a whole and in every part