Village Books, Inc. v. State

Orth, C. J., delivered the opinion of the Court. The definition of obscenity originally announced by the Supreme Court of the United States in Roth v. United States, 354 U. S. 476 , was significantly refined by the plurality opinion in Memoirs v. Massachusetts, 383 U. S. 413 . Recognizing that the Memoirs plurality test for the determination of obscenity vel non had represented a sharp break with the test announced in Roth , the Court ²⁷⁶ reformulated the test in Miller v. California, 413 U. S. 15 , and its siblings, 1 enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years. Miller made clear, however, 413 U. S. at 24, n. 6 , that its decision was not intended to hold all state statutes dealing with obscenity inadequate, recognizing that existing statutes “as construed heretofore or hereafter may well be adequate”, a recognition emphasized in United States v. 12 200-ft.

Reels of Film, 413 U. S. 123 . In Ebert v. Maryland State Board of Censors, 19 Md. App. 300 , we construed, in the light of the Miller cases, the term “obscene” as used in Code, Art. 66A, subtitle “Moving Pictures”, and particularly § 6 thereof, dealing with the duty of the Maryland State Board of Censors to disapprove films which are “obscene”. 2 We found that material is within the constitutionally permissibly proscribed depictions in Miller when it: “(1) portrays sexual conduct in a patently offensive way in that it contains patently offensive: (a) representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated; OR (b) representations or descriptions of masturbation, excretory functions, and lewd exhibitions of genitals; AND (2) taken as a whole: (a) would be found by the average person, applying contemporary community standards ²⁷⁷ of the State, to appeal to the prurient interest in sex; AND (b) does not have serious literary, artistic, political, or scientific value.” 19 Md. App. at 314-315 . This appeal requires us to construe Code, Art. 27, § 418A, subtitle “Obscene Matter”. That statute bestows upon the circuit courts of the counties and upon the equity courts of the Supreme Bench of Baltimore City the jurisdiction to enjoin the sale or distribution of any book, magazine, or other publication or article (including a motion picture film or showing) which is prohibited from sale or distribution.

The State’s attorneys of the county or Baltimore City in which a person sells or distributes, is about to sell or distribute, or has or is about to acquire possession with such intent, any such material which is obscene within the meaning of § 418 of Art. 27, may maintain an action for an injunction against such person. § 418A 1. Section 418 makes it a misdemeanor to knowingly send or cause to be sent, bring or cause to be brought, into Maryland for sale or distribution, or, in Maryland, to prepare, publish, print, exhibit, distribute, offer to distribute, “any obscene matter”. We read “obscene” as it appears in § 418, and, thus, as it is used in § 418A, as we construed it in Ebert with respect to Code, Art. 66A, that is, within the parameters enunciated in the Miller complex of cases. Since Ebert , however, the Supreme Court, on 24 June 1974, decided two other cases concerning obscenity, Hamling v. United States, 418 U. S. 87 , and Jenkins v. Georgia, 418 U. S. 153 .

We adopt, as applicable to Code, Art. 27, § 418 and § 418A, the definition and determination of obscenity set out in Ebert , as explicated, however, by Hamling and Jenkins . What we did in Ebert with respect to Code, Art. 66A and what we do in this opinion with regard to Code, Art. 27, § § 418 and 418A is to follow the dictates of the Supreme Court as to the basic guidelines for the trier of fact under the reformulated test for the determination of obscenity announced in Miller . Those guidelines must be: ²⁷⁸ “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . .; (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.” 413 U. S., at 24. With respect to (b), we have held that the statutes cover the sort of “patently offensive representations or description of that specific ‘hard core’ sexual conduct given as examples in Miller v. California.” With respect to (c), we rejected as constitutional standards, as did the Court in Miller , “the ambiguous concept of ‘social importance’ ”, and the “utterly without redeeming social value” test. 413 U. S. at 25.

With respect to (a), we now adopt the meaning of “contemporary community standards” as explicated in Handing and Jenkins . The Supreme Court has “a duty to authoritatively construe federal statutes where ‘a serious doubt of constitutionality is raised’ . . .” but must leave to state courts the construction of state legislation. United States v. 12 200-ft. Reels of Film, supra, at 130, no. 7.

The Court indicated in that case that it was prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of “patently offensive representations or description of that specific ‘hard core’ sexual conduct given as examples in Miller v. California.” In Hamling , it so construed the companion provision in 18 U.S.C. § 1461 . In so doing, the Court explicated in several areas the reformulated test announced in Miller . We note that the generic terms used in § 1461, dealing with mailing obscene matter, are “obscene, lewd, lascivious, indecent, filthy or vile” and that such terms used in § 1462, dealing with the importation or transportation of obscene matters, are “obscene, lewd, lascivious or filthy”. These terms are not defined in the statutes, nor is the method of determining them set out. ²⁷⁹ The Conteynporary Community Standard In Hamling it was contended that the standard in federal obscenity cases must be national ones and that the Court had not decided whether the Constitution requires the use of nationwide standards in federal obscenity prosecutions.

The Court disagreed with those contentions. It said, 418 U. S. 87 at 104-105: “We think that both of these contentions evidence a misunderstanding of our Miller holdings. Miller rejected the view that the First and Fourteenth Amendments require that the proscription of obscenity be based on uniform nationwide standards of what is obscene, describing such standards as ‘hypothetical and unascertainable,’ 413 U. S. at 31. But in so doing the Court did not require as a constitutional matter the substitution of some smaller geographical area into the same sort of formula; the test was stated in terms of the understanding of ‘the average person, applying contemporary community standards.’ 413 U. S. at 24.

When this approach is coupled with the reaffirmation in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 56 (1973), of the' rule that the prosecution need not as a matter of constitutional law produce ‘expert’ witnesses to testify as to the obscenity of the materials, the import of the quoted language from Miller becomes clear. A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law. Stone v. New York, Chicago & St Louis R. Co., 344 U. S. 407, 409 (1953); Schultz v. Pennsylvania R. Co., 350 U. S. 573 , 525-526 (1956). Our holding in Miller that California could constitutionally proscribe ²⁸⁰ obscenity in terms of a ‘statewide’ standard did not mean that any such precise geographic area is required as a matter of constitutional law. “Our analysis in Miller of the difficulty in formulating uniform national standards of obscenity, and our emphasis on the ability of the juror to ascertain the sense of the ‘average person, applying contemporary community standards’ without the benefit of expert evidence, clearly indicates that 18 U.S.C. § 1461 is not to be interpreted as requiring proof of the uniform national standards which were criticized in Miller . ” The Supreme Court has emphasized that a principal concern in requiring that a determination of obscenity vel non be made on the basis of “contemporary community standards” is to assure the material is judged neither on the basis of each juror’s personal opinion, or by its effect on a particular sensitive person or group.

Miller at 33 ; Roth , at 489-490; Mishkin v. New York, 383 U. S. 502, 508-509 . So explained the Court: “The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’, would reach in a given case.” Hamling, 418 U. S. 87, at 105 . The Court, however, went further: “But this is not to say that a District Court would not be at liberty to admit evidence of standards existing in some, place outside of this particular district, if it felt that such evidence would assist the jury in the resolution of the issues which they were to decide.” Id. at 106 . In Jenkins the Court had before it the constitutionality of a state statute.

Billy Jenkins was convicted, prior to Miller and its companion cases, of violating Georgia’s obscenity statute for showing the film “Carnal Knowledge” in a motion picture theatre. The statute defined obscene material in terms of the Memoirs definition and the jury was instructed under it. The Georgia appellate court affirmed ²⁸¹ the conviction. The Court said that its holding in Miller was “that it was constitutionally permissible to permit juries to rely on the understanding of the community from which they came as to contemporary community standards, and the States have considerable latitude in framing statutes under this element of the Miller decision.

A State may choose to define an obscenity offense in terms of ‘contemporary community standards” as defined in Miller without further specification, as was done here, or it may choose to define the standards in more precise geographic terms, as was done by California in Miller.” Jenkins, 418 U. S. 153, at 157 . That Georgia chose to define an obscenity offense in terms of contemporary community standards without further specification was accepted by the Supreme Court upon an implied judicial construction of the Georgia statute by the Georgia appellate court: “We agree with the Supreme Court of Georgia’s implicit ruling that the Constitution does not require that juries be instructed in state obscenity cases to apply the standards of a hypothetical statewide community. Miller approved the use of such instructions; it did not mandate their use. What Miller makes clear is that state juries need not be instructed to apply ‘national standards.’ We also agree with the Supreme Court of Georgia’s implicit approval of the trial court’s instructions directing jurors to apply ‘community standards’ without specifying what ‘community’.” Ibid.

We construe Code, Art. 27, § 418 and, therefore, § 418A, as permitting the trier of fact to determine obscenity vel non by applying “community standards’” without specifying what “community.”” Expert Testimony The Miller cases made abundantly clear that expert testimony is not necessary to enable the trier of fact to judge the obscenity of material which has been placed into evidence. See Paris Adult Theatre I v. Slaton, supra, at 56: Kaplan v. California, supra, at 120-121; Ebert v. Maryland State Board of Censors, supra, at 307-308. The ability of the juror to ascertain the sense of the “average person, applying ²⁸² contemporary community standards” without the benefit of expert evidence was emphasized in Miller . This rule was expressly affirmed in Hamling . “Expert testimony is not necessary to enable the jury to judge the obscenity of material which . . . has been placed into evidence.” Hamling, 418 U. S. 87, at 100 . “The jury was not bound .to accept the opinion of any expert in weighing the evidence of obscenity . .. .” Id.

See Jenkins, 418 U. S. at 159-160 . The Function of the Trier of Fact and the Appellate Court In Jenkins there was little to be found in the record about the allegedly obscene film other than the film itself. Georgia contended that under Miller the obscenity vel non of the film was a question for the jury, and the jury having resolved the question against Jenkins, and there being some evidence to support its findings, the judgment of conviction should be affirmed. The Court pointed out that the questions of what appeals to the “prurient interest” and what is “patently offensive” under the Miller obscenity test are “essentially questions of fact.” Miller , at 30.

The Court made clear, however, that it did not agree that a jury’s verdict that material is obscene virtually precludes all further appellate review that such material is protected by the First and Fourteenth Amendments. “Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact’, it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’ Not only did we there say that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,’ 413 U. S., at 25, but we made it plain that under that holding ‘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. . . .’ 413 U. S., at 27.” 15 Cr. L. at 3261. Triers of fact, in finding material obscene, must ²⁸³ observe “substantive constitutional limitations, deriving from the First Amendment. . . Idem.

The examples 3 of patent offensiveness given in Miller , while not purporting to be an exhaustive catalog of what juries might find to be patently offensive, “certainly intend to fix” such limitations. Mr. Justice Brennan summed it up neatly in his opinion concurring in the result in Jenkins : “After the Court’s decision today, there can be no doubt that Miller requires appellate courts — including this Court — to review independently the constitutional fact of obscenity. Moreover, the Court’s task is not limited to reviewing a jury finding under part (c) of the Miller test that ‘the work, taken as a whole, lack[ed] serious literary, artistic, political, or scientific value.’ Miller also requires independent review of a jury’s determination under part (b) of the Miller test that ‘the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” 418 U. S. at 163-164. THE INSTANT CASE On 16 November 1973 the Circuit Court for Prince George’s County, upon application of the State’s Attorney, and after hearing, issued an order under the authority of Code, Art. 27, § 418A permanently enjoining Village Books, Inc., Gary Wahl, Dennis E. Pryba, and Leroy Eichhorn “from the sale ²⁸⁴ or further sale or the distribution or further distribution or the acquisition, publication or possession within this State” of 24 designated publications.

It further ordered that a Special Investigator of the State’s Attorney’s