State v. Randall Book Corp.

Lowe, J., delivered the opinion of the Court. Judge Cullen H. Hormes for the Circuit Court for Baltimore County granted Randall Book Corporation’s motion to dismiss charging documents alleging 252 violations of Md. Ann. Code, Art. 27, § 416D, which created the crime of advertising the human body depicting sadomasochistic abuse, sexual conduct or sexual excitement. When that section was enacted, 1 the Legislature, for reasons unbeknownst to us, first added to the original bill, 2 then struck from it, an additional prerequisite to conviction that such depictions be "obscene”. 3 Although the myriad judicial guidelines for gleaning legislative intent are of little help ³² here, it is clear that the Legislature was cognizant of obscenity, if not as preoccupied with it as was the Supreme Court during that era. We can only surmise, if not conclude, that the Supreme Court’s admitted frustration in attempting to define obscenity for First Amendment purposes 4 suggested the removal of the controversial term in a vain hope of avoiding that constitutional charybdis.

Because the definitions of the proscribed depictions (especially "sadomasochistic abuse”), absent the limiting descriptive adjective "obscene”, were read on their face as vague and .overbroad, 5 Judge Hormes declared the statute unconstitutional, and dismissed the charges against Randall. He pointed out that: "The objectionable sections of the statutes under the heading 'Nudity and Sexual Displays’ are definitions in Art. 27, Sec. 416A, most particularly (c) and (e). The definition of sadomasochistic abuse is broad, going beyond the association of sexual satisfaction with the infliction of pain on others or the receipt of abuse or physical pain to the extent that it would include one who is clothed and bound or physically restrained. ³³ It would appear literally that any religious publication portraying the Crucifixion on its cover would be in violation of the law. What about a cover portraying the fettered young Hardy boy and his girl classmate in a novel entitled 'Kidnapped at Cape Cod’?

Even the term 'sexual conduct’ is too broad. The portrayal in a medical text of the self examination of one’s breast could be considered '... touching of ... the breasts of the female . . .’ under Sec. 416A. Therefore, it is ORDERED, that the indictments of Randall Book Corporation T/A Rye Book Store in cases number 75585, 75586 and 75587 are DISMISSED because of the unconstitutional vagueness or overbreadth in Art. 27, Sec. 416A.” Pursuant to its limited authority to appeal, Md. Cts. & Jud. Proc.

Code Ann., § 12-302 (c) (1) (1980 Repl. Vol.), the State promptly took advantage of the opportunity. Prior thereto, the Court of Appeals had decided to review a conviction under the same statute. In the brief opinion of Blaine Wilson Smiley v. State, 294 Md. 461 (1982), practical in result if frugal in explanation, the Court of Appeals declared that "the legislature, in enacting this section was broadly prohibiting advertising depicting obscenity.” By doing so, the Court could then look to the guidelines of Miller v. California, 413 U.S. 15, 20 (1973), which, despite the Supreme Court’s dilemma in this field, did "categorically settle” — "that obscene material” (whatever that means) "is unprotected by the First Amendment.” Id. at 23 .

Smiley substantially narrowed the breadth of the definitions disturbing Judge Hormes. While he was poignantly correct in suggesting that the Crucifix depicted sadomasochism, as apparently defined absent the unseen adjective, no "reasonable person” would classify it as "obscenely” sadomasochistic when that legislative purpose is read into it. Such was the test the Court of Appeals drew from Colautti v. Franklin, 439 U.S. 379, 390 (1979), to determine whether the statute was "so indefinite that 'it encour ³⁴ ages arbitrary and erratic arrests and convictions.’ ” As pragmatically limited it now gives fair notice to