Village Books, Inc. v. State's Attorney

McWilliams, J., delivered the opinion of the Court. This trek into the malodorous marshes of obscenity will be somewhat less frustrating than usual, mainly because the question presented is narrow in scope. We are required to decide only which, if any, of the magazines in question are “hard-core pornography.” Early in January 1971 counsel for the appellants (Village Books) informed the appellee, the State’s Attorney for Prince George’s County (Marshall), that Village Books intended to open an “adult bookstore” in Prince George’s County. Two days later counsel furnished Marshall with 100 samples of the books and magazines Village Books intended to sell.

On 11 January Marshall filed ⁷⁸ in the Circuit Court for Prince George’s County an “Application for [the] Injunctive Relief” provided by Code (1971 Repl. Vol.), Art. 27, § 418A. 1 He also prayed the ⁷⁹ issuance of the ex parte injunction provided by Maryland Rule BB72. 2 In his complaint Marshall said he had reviewed the samples and, he avowed, they were obscene within the meaning of Art. 27, § 417. 3 He stated he had ⁸⁰ advised counsel for Village Books that his clients “would be prosecuted should they attempt to sell such obscene publications.” Counsel responded he would see him (Marshall) in court. The verification reflects nothing more than that “the facts contained in [the application] are true to the best of [Marshall’s] knowledge and belief.” In his prayer for relief Marshall sought a “temporary” order commanding Village Books to cease and desist violating the statute. Such an order was passed forthwith.

The order also required the “matter [to] be set down for hearing as prescribed by Art. 27, Sec. 418A 2.” We have not found in the transcript anything which would enable us to say with certainty that the order was ever served on Village Books. In any event the order seems to have been passed improvidently. There was no assertion of “specific facts” from which it might appear “that immediate, substantial and irreparable injury * * * [would] result to the applicant before an adversary hearing * * * [could] be had.” Rule BB72 a. Nor were the requirements of BB72 b observed.

Village Books answered on 27 January, admitting the essential allegations of the complaint, claiming First Amendment protection and demanding an “immediate hearing by jury trial” on all issues. On 2 February Marshall and counsel for Village Books met with the trial judge, Powers, J. (now C. J.), in chambers. Immediately after the meeting and before the hearing in open court Judge Powers denied Village Books’ motion to dismiss; Marshall was allowed, without objection, to amend his application so as to reduce the number of items claimed to be obscene from 100 to 21.

Counsel for Village Books insists Judge Powers denied his request for a trial by jury but the transcript seems not to reflect any such ruling. The point was not pressed at argument but since it was raised in the brief we shall discuss it later in this opinion. Directly following the discussion in chambers the hearing in open court got under way. Marshall offered the ⁸¹ magazines and, without objection, they became Plaintiff’s Exhibits 1 through 21.

Declaring the exhibits to be hard core pornography, requiring no further proof, he rested his case. Village Books produced as the first of its two witnesses Dr. Richard Kastner. His practice has been restricted to psychiatry for about ten years. He said he had gone through the books but that there might be one or two he had not seen.

In respect of Number 1, “Fun and Games” he was asked if he could “voice an opinion as to whether or not that magazine’s dominant theme, considered as a whole, appeals to the prurient interest or not?” He replied, “Not particularly.” The same question was put to him in respect of Number 2, “New Directions, No. 16.” He replied: “Well, I have the same feeling about all of the literature here, and that is, the nature and quality of the photographic and contextual material here is not that unusual, nor is it that aberrant among the average practicing male and female in their sexual contacts, so whether it would appeal to their prurient interest really is an incidental thing. I don’t think it would necessarily. And I would refer to all of these in general, as I have gone over them.” What follows is another excerpt from his testimony: “Q. In consideration of Exhibit No. 18, do you have any opinion whether or not that would appeal to the prurient interest of the so-called average homosexual ? “THE COURT: Male homosexual? “MR. DIETZ [Counsel for Village Books] : Male. “THE WITNESS: Male homosexual, not particularly.

Because if you understand the nature of homosexuality you will understand this is a way of life and, therefore, this is a wholly acceptable matter to them. If it is so, then this ⁸² book would merely be demonstrating their own normal behavior. If it is normal behavior to them I can’t see how it would be lascivious.” The second witness was 23 year old Raymond Pechin. After three years’ service in the Marine Corps he was employed, in 1969, by Potomac News Company.

At the time of trial he was its national sales manager. Excerpts from his testimony follow. “Q. As part of your duties with the Potomac News Company do you have the opportunity to travel, and if so explain to the court what you do, where you go, what type of places you visit? A. During the past two years I have traveled across the United States, to San Francisco; Los Angeles; Detroit, Flint, Michigan; Chicago; New York; Dallas; Houston; Philadelphia; Baltimore; and Washington. “Q. How about Atlanta, Georgia? A. Yes, sir, Atlanta, Georgia, also.

I just come back from a trip there. “While at these places I visit adult book stores and ask how the merchandise is selling. If it is I take a re-order; if not I ask why. It’s just in sales to make sure sales are all right.” * * * “Q. In your travels to the various book stores all over the United States have you had an opportunity to see the twenty-one magazines that are before you now and other magazines of that general type? A. Yes, sir.

These are what are called in the business—called ‘Beaver Books.’ 4 They are not what we call ‘hard-core pornography.’ In Los Angeles, San Francisco, New York and Baltimore they sell outright hard ⁸³ core, no social redeeming texts whatsoever. It’s just nothing but pictures of hard-core pornography. In the Washington area it’s much more restricted. Baltimore, New York and the two cities in California are the most wide open. “Q. Material like these twenty-one magazines that you have before you, are they sold on a nation-wide basis, and if so are there a lot of sales or small amount of sales ?

A. Oh, yes, these are sold on a nation-wide basis. Books such as this one (indicating) sells a minimum of, like, ten thousand.” * * * “Q. You mentioned you traveled to the cities that you mentioned going to adult book stores. Could you tell us what an adult book store is? A. In an adult book store in Washington you must be eighteen years of age to get in, eighteen or twenty-one, depending upon the owner of that store.

Across the nation I’d say 95 per cent of them are very strict and make you be at least eighteen to get in. And they figure a person eighteen years of age can look at—at nude pictures, I suppose. But this is the age set on it. It has nothing but adult books, magazines, adult pocket books.” * * * “Q. Are you a member of any organization in the community, such as the P.T.A., the Rotary Club or—.

A. No, but I will join the P.T.A. when my children are old enough to go to school. “Q. Are you familiar with the contemporary community standards relating to the description or representation of sexual matters? A. Not particularly. I’m not qualified like a doctor would be. I know what appeals to me, what I would like to look at.

If anything did offend me I wouldn’t look at it. It’s just like a radio sta ⁸⁴ tion, if I don't like what’s on the radio I turn the channel. “Q. You know what sells? A. Yes.” Judge Powers enjoined Village Books “from any sale, distribution, or possession with intent to sell or distribute the following magazines: 1. Fun and Games, Volume 2 No. 1 2.

New Directions No. 16 3. Nude Lark No. 29 4. One plus One Volume 2 No. 1 5. Yum Yum No. 2 6.

Love Date Volume 1 No. 1 7. Yum Yum 8. Sex Confidential 9. Naked Love Number Seven 10.

Eclipse Vol. 1, No. 3 11. Eclipse Vol. 1, No. 4 12. Masturbation and Youth 13. Auto-Fellatio & Masturbation 14.

The Boy Lovers 15. Ted & Blair 16. Nudist Youth No. 9 17. Allen & Jim 18.

Teen Nude” The concluding paragraph of his order called for the surrender and destruction of the magazines. We shall consider first Numbers 1 through 11. During argument counsel for Village Books called them “garbage.” He also identified them, in the argot of the trade, as “split-beavers.” The magazines differ from each other but very little. In the main they consist of good to excellent professional photographs of nude young adults together with varying amounts of textual material.

There are females alone; there are male and female couples; there are trios—two females and one male or two males and one female; there are quartets—two females and two males. There is an indiscriminate mixture of blacks ⁸⁵ (male and female) and whites (male and female). They have been photographed in a wide variety of poses, postures, positions and arrangements. Their facial expressions range from utterly blank to lewd and lively.

All of the photographs have in common the conspicuous display of the genital area, flaunting it in explicit and chromatic detail. Oddly enough, and as counsel for Village Books was quick to emphasize, no penis is either fully erect or tumescent. Although some photographs suggest that sexual activity is but inches and seconds away the depiction of actual fellatio, cunnilingus, pederasty, copulation, masturbation or any other subsidiary variation of those activities has been studiously avoided. In general (except Number 8) the accompanying texts are innocuous.

Before we proceed to make our independent constitutional appraisal of the exhibits, as required by Jacobellis v. Ohio, 378 U. S. 184 (1964), we must first give some thought to what is meant by the expression “hard core pornography.” In Hewitt v. Maryland Board of Censors, 254 Md. 179, 196 (1969), Judges Barnes said, for the Court: “In our opinion, the most apt definition of ‘hard core pornography’ we have seen is that given by Judge Fuld [now Chief Judge] of the Court of Appeals of New York in People v. Richmond County News, Inc., 9 N.Y.2d 578 , 216 N.Y.S.2d 369 , 175 N.E.2d 681 (1961), cited with approval by the Court of Special Appeals in Levin v. State, 1 Md. App. 139, 145 , 228 A. 2d 487, 489 (1967), cert. denied, 389 U. S. 1048 , 88 S. Ct. 767 , 19 L.Ed.2d 840 (1968): “ ‘It [hard core pornography] focuses predominantly upon what is sexually morbid, grossly perverse and bizarre, without any artistic or scientific purpose or justification. Recognizable “by the insult it offers, invariably, to sex, and to the human spirit” (D. H. Lawrence, Pornog ⁸⁶ raphy and Obscenity [1930], p. 12), it is to be differentiated from the bawdy and the ribald. Depicting dirt for dirt’s sake, the obscene is the vile, rather than the coarse, the blow to sense, not merely to sensibility. It smacks, at times, of fantasy and unreality, of sexual perversion and sickness and represents, * * * “a debauchery of the sexual faculty”.’ ” In respect of the instant case we think what Judge Fuld went on to say is of some significance, despite the strong dissent in which two members of his court joined. “* * * The fact is, however, that, while the magazine contains many stories or pictures which are aesthetically tasteless and without any redeeming social worth, none of them is pornographic.

Numerous pictures and cartoons of nude or semi-nude women and numerous descriptions and depictions of sexual arousal and satisfaction are to be found in ‘Gent,’ but it contains nothing which smacks of sick and blatantly perverse sexuality. Whether or not, therefore, the defendant had previous knowledge or notice of the content of the magazine, we may not say that its sale constituted a violation of our obscenity statute. “Were we to judge the magazine before us in terms of our personal views of its social value, of its moral and aesthetic worth, we would condemn it out of hand for its vulgarity no less than for its banality. Basic principles of jurisprudence, however, command us to put to one side all personal predilections, including our distaste for commercial exploitation of sensuality. It is our conclusion that the magazine, appraised as objectively as is possible in the light of First Amendment concepts, may not be adjudged obscene without impairing the vital ⁸⁷ social interest in freedom of expression.” 175 N.E.2d at 686 .

In his concurring opinion in Jacobellis Mr. Justice Stewart compounded the confusion when he said: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it * * 378 U. S. at 197 . In a later dissent, however, Ginzburg v. United States, 383 U. S. 463, 499 (1966), he said: “In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General’s brief, of the kind of thing to which I have reference.” The Solicitor General’s description follows: “* * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion * * In the per curiam opinion in Redrup v. New York, 386 U. S. 767 (1967), the Supreme Court reversed a New York and a Kentucky conviction and an Arkansas injunction in cases much like the case at bar.

There the books and magazines bore names such as Lust Pool, Shame Agent, High Heels, Spree, Gent, Swank and Bachelor. The Court said: “In none of the cases was there a claim that the state in question reflected a specific and lim ⁸⁸ ited state concern for juveniles. See Prince v. Massachusetts, 321 U. S. 158 ; cf. Butler v. Michigan, 352 U. S. 380 . In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.

Cf. Breard v. Alexandria, 341 U. S. 622 ; Public Utilities Comm’n v. Pollak, 343 U. S. 451 . And in none was there evidence of the sort of ‘pandering’ which the Court found significant in Ginzburg v. United States, 383 U. S. 463 .” 386 U. S. at 769 . In Central Magazine Sales, Ltd. v. United States, 389 U. S. 50 (1967), the Supreme Court reversed, wthout opinion, citing only Redrup, a finding of the trial court ( 253 F. Supp. 485 ) that the magazine “Exclusive,” containing photographs much like the ones in the case at bar, was obscene (i.e., hard core), a finding which had been affirmed on appeal ( 373 F. 2d 633 ).

The Supreme Court has also reversed, without opinion, citing only Redrup, findings of both state and federal courts declaring magazines to be obscene which contained photographs of nude males and females and in which the genitalia were conspicuously displayed. Bloss v. Dykema, 398 U. S. 278 (1970); Carlos v. New York, 396 U. S. 119 (1969); I. M. Amusement Corp. v. Ohio, 389 U. S. 573 (1968); Conner v. City of Hammond, 389 U. S. 48 (1967); Potomac News Co. v. United States, 389 U. S. 47 (1967); Mazes v. Ohio, 388 U. S. 453 (1967); A Quantity of Books v. Kansas, 388 U. S. 452 (1967). The precise meaning of “hard core pornography” continues to elude us and other