Wagonheim v. Maryland State Board of Censors

Finan, J., delivered the majority opinion of the Court. Barnes, J., concurs. Hammond, C. J., and McWilliams and Singley, JJ., dissent. Concurring opinion by Barnes, J., at page 311, infra.

Dissenting opinion by McWilliams, J., at page 323, infra. ³⁰⁰ Dissenting opinion by McWilliams, J., in which Hammond, C. J., and SlNGLEY, J., concur at page 323, infra. This is an appeal from an order of the Circuit Court of Baltimore City (Carter, J.), directing that the motion picture film entitled, “I Am Curious (Yellow) ” be disapproved for licensing as being in violation of the provisions of Code (1957), Art. 66A, § 6, in that the film “meets the tests of obscenity previously laid down by the Courts * * 1 The primary issue before this Court is whether this film is protected matter under the First Amendment of the United States Constitution. We think not and accordingly affirm the action of the lower court. This film was produced by Sandrew, a Swedish studio, and was directed by Yilgot Sj ornan, a protege of Ingmar Bergman.

Its producers would claim that it represents a kaleidoscopic portrait of Sweden, portraying problems and trends on the contemporary social and political scene. An effort has been made to develop the film ³⁰¹ along two story lines which strive to merge toward the end of the film, but never quite make it. The total effect is that the whole presents more of a framework than a plot. 2 The film was the subject of a decision by the United States Court of Appeals for the Second Circuit in United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 404 F. 2nd 196 (1968). The court in a two to one decision found it to be constitutionally protected.

Judge Hays, in writing the majority opinion, made the apt comment that: “As with many other contemporary artistic productions there can be a difference of opinion as to what the picture is ‘about’.” Id. at 198. Various critics and experts who have written and testified concerning the film characterize it as a quest for identity with reality, on the part of the young heroine, amidst the shifting sands of social, moral, political, economic, and cultural transition. Her search for identity has been billed as representative of the younger generation in Sweden, their hope for a classless society, their adherence to non-violence, and their demonstrable hostility against the Franco-type totalitarian state. The film in reaching for its social message employs the “man on the street” interview format, with Lena accosting persons from all walks of life, questioning them about their social and political beliefs.

However, when the viewer ultimately realizes that the sexual scenes have ³⁰² little or nothing to do with what was developed by the “cinema venté” technique, not only do the sexual sequences appear artificially interjected into the film, but in retrospect, the many interviews seem a contrived ruse to give the movie social value. As one of the expert witnesses called by the State, Dr. Paul Yaffe, tersely put it, “Basically you have two themes running parallel, one never touching the other. Basically, one is this phony setting of class values and class structures and class problems. The other is the sexual activity of an episodic nature.” The matter of the plot was also the subject of comment by Chief Judge Lumbard in his dissent in the Second Circuit opinion wherein he stated: “The sexual aspect of the film does not arise from the plot, as that is nonexistent (emphasis supplied) ; it arises from the decision by the director, Vilgot Sjornan, to produce a film which would shock the audience.

He testified that in making the film he deliberately broke sexual taboos or cliches knowing that this would be shocking to the public.” Id. at 203. There are several brief interviews with the late Dr. Martin Luther King, wherein he comments on his nonviolent methods, and with the Russian poet Yevgeny Yevtushenko. However, these appear to be part of a facade for the main objective of the picture, namely to purvey shocking and titillating sexual sequences. As Judge Friendly stated in his concurring opinion in the Second Circuit “* * * a truly pornographic film would not be rescued by inclusion of a few verses from the Psalms.” Id. at 201.

Again, quoting from Judge Hays in the Second Circuit opinion: “It seems to be conceded that the sexual content of the film is presented with greater explicitness than has been seen in any other film produced for general viewing. The question for decision is whether, going farther in this di ³⁰³ rection than any previous production, the film exceeds the limits established by the courts.” Id. at 198. Actually, the film vividly depicts six different acts of sexual intercourse in various positions and locales. Among the more unusual scenes is an episode of copulation in the crook of a tree; a second occurs on the balustrade of the royal palace in Stockholm in rhythm to the Swedish national anthem, while a distraught sentry endeavors to stand at attention as he views the efforts of the two out of the corner of his eye.

This is considered one of the humorous episodes of the film. There are a number of scenes depicting complete nudity of the male and female leads, including numerous views of both the female and male genitals. There are representations of fellatio and cunnilingus, as well as the suggestion of sodomy in one of the intercourse scenes, and of castration in the fantasy scene. The dialogue is entirely in Swedish with English subtitles.

The English translation of the Swedish dialogue, as contained in the scenario which was filed as an exhibit, reveals that the translation in many instances goes beyond that contained in the English subtitles from the standpoint of use of lascivious expression. 3 ³⁰⁴ In fairness to the film it should be stated that there are times when the love scenes are introduced with some grace and a discussion of them in an opinion might tend to represent them too crudely out of context. However, the overriding theme is sex per se, although perhaps not presented with the abruptness that might appear from the written word. This Court in Hewitt v. Maryland State Board of Censors, 254 Md. 179 , 254 A. 2d 203 (1969), a case in which the film “Odd Tastes” was disapproved for licensing, had occasion to again set forth the legal test for obscene films. Judge Barnes writing the opinion for the Court stated: “Our definition of obscenity — the Roth-Alberts test — was restated with somewhat different emphasis perhaps, by the Supreme Court in A Book Named ‘John Cleland’s Memoirs of A Woman of Pleasure’ vs. Attorney General, 383 U. S. 413, 418 , 86 S. Ct. 975, 977 , 16 L.Ed.2d 1, 5-6 (1966), hereinafter referred to as Memoirs, in which Mr. Justice Brennan, for the Supreme Court, stated: ‘We defined obscenity in Roth in the following terms: “[W]hether to the average ³⁰⁵ person, 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 subsequent 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 community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.’ “We recognized and applied this latest statement of the applicable rule in Sanza vs. Maryland State Board of Censors, 245 Md. 319, 326-27 , 226 A. 2d 317, 320-21 (1967), in which we sustained the Circuit Court and the Board in their finding that certain films', shown in an arcade in ‘the Block’ in Baltimore, were obscene. * * Id. at 182-83. See also Redrup v. New York, 386 U. S. 767, 770, 771 (1967). Applying the tridentated test of A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U. S. 413 (1966), as adopted by this Court in Hewitt, supra, and Sanza v. Maryland State Board of Censors, 245 Md. 319 , 226 A. 2d 317 (1967), and set forth above, we find the film qualifies as obscene under all three categories. In arriving at this conclusion we cannot ignore the visual impact of a motion picture as contrasted with the printed word.

I Am Curious-Yellow, supra (Lumbard, J., dissenting) ; Freedman v. Maryland, 380 U. S. 51 (1965). Cf. Landau v. Fording, 245 Cal. App. 2d 820 , 54 Cal.

Rptr. 177 (1966), aff’d per curiam, 388 U. S. 456 (1967). It should be noted that this is not a case wherein we ³⁰⁶ are bound to follow the ruling of the lower court unless we find it to be clearly erroneous (Maryland Rule 886 a), but rather the duty of this Court is to make an independent constitutional judgment on a mixed question of law and fact, as to whether the subject matter before us is obscene. This obligation was cogently expressed by Judge Oppenheimer, writing the opinion of this Court in Sanza, supra, wherein he stated: “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 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.” Id. at 330. In addition to viewing the film we have reviewed the testimony of the many experts contained in the record representing views, both pro and con, as to the social, artistic and cultural attributes of the film or the lack thereof. The witnesses for the petitioners, as well as the exhibitor, were individuals who possessed respected artistic, educational and cultural backgrounds in the Baltimore area.

We see little need to repeat their opinions but want it known that we have considered them in reaching our conclusions. This Court has little difficulty in finding that the domi ³⁰⁷ nant theme of the film, taken as a whole, appeals to a prurient interest in sex and is patently offensive in that it affronts contemporary community standards relating to the description or representation of sexual matters. It is only with regard to the third element of the “RothAlberts” test as set forth in A Book v. Attorney General, supra, which must coalesce with the other two standards, which presents any occasion for pause. However, after reviewing all of the evidence in a light most favorable to the appellants’ contention that the film does have something of social value, it is our judgment that it is utterly without redeeming social value.

We have previously, in this opinion, stated that the attempts of the film makers to use social questions to depict the restlessness of youth and its search for identity, against an intellectual ambience, were patently strained and contrived. We do not think that Lena’s concern with social and political problems, so artificially depicted, supplies the redeeming social quality required to sustain the film. We find no meaningful nexus between this concern and her problem with her twenty-three lovers. As was stated by Judge Lumbard in his dissent 4 in 1 Am Curious, supra: “Whatever one can say about the alleged significance of the film, which to this captive onlooker was a continuous and unrelieved boredom except for the sexual scenes, it is almost impossible to remember anything about it.

The only impact the picture has and the only impact it was designed to have are the sexual ³⁰⁸ scenes; its only interest to the viewer arises from the uncertainty of the method of mutual sexual gratification in which hero and heroine will next indulge. “While the sex is heterosexual, the participants indulge in acts of fellatio and cunnilingus. Needless to say these acts bear no conceivable relevance to any social value,' except that of box-office appeal. Moreover, the sexual scenes have nothing whatever to do with the remainder of the picture.” Id. at 203. or as Judge Murphy, who presided in the United States District Court for the Southern District of New York at the trial of United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 285 F. Supp. 465 (1968) observed: “If the film has a message, whether it is public poll taking on the social structure of the Swedish society or the advocacy of nonviolence or anti-Francoism, I would suspect it is merely dross, providing a vehicle for portraying sexual deviation and hardcore pornography.” Id. at 472 . Finding nothing in this film that merits the protection of the First Amendment of the United States Constitution, we are of the opinion that it should be disapproved for licensing under Maryland Code, Article 66A, Section 6.

The appellants raised other issues of a technical nature which we shall proceed to discuss. The appellants complain that at the hearing in the lower court, the trial judge refused to order the Attorney General’s office to disclose the names of all the experts whom they requested to view the film. An analogy is made to the situation where due process of law requires that the State, upon request, divulge all evidence favorable to the defense. Brady v. Maryland, 373 U. S. ³⁰⁹ 83 (1963); Giles v. Maryland, 386 U. S. 66 (1967); Barbee v. Warden, 331 F. 2d 842 (4th Cir., 1964); United States v. Poole, 379 F. 2d 645 (7th Cir., 1967); Speiser v. Randall, 357 U. S. 513, 525 (1958).

It is not disputed that the hearing before the lower court in censorship cases is of an adversary nature. In the instant case the appellants requested not only the names of the actual witnesses which the State proposed to use at the hearing, but all of the individuals who may have been requested by the State to view the film for the possible purpose of being used as a witness, or for consultation with the State concerning the obscene aspects of the film. We do not think that discovery in civil cases as promulgated by Maryland Rule 417 goes to that which is in essence the work product of the attorney accumulated in the preparation of the case. Furthermore, if it were to be contended that Maryland Rule 728 relating to discovery in criminal cases were applicable, we think the opinion of this Court in Kardy v. Shook J., 237 Md. 524, 540 , 207 A. 2d 83 (1965) dispositive of the issue, wherein Prescott, C. J., writing for the Court stated: “* * * And, in Williams v. State, 226 Md. 614 , we held that where a demand for a bill of particulars went far beyond what was required under Rule 728 and was calculated, not so much to amplify the allegations of indictment, but ‘to require complete disclosure by the State of the evidence it relied upon,’ the court was justified in sustaining the State’s exceptions to the demand.” Id. at 540.

The appellants also attacked the constitutionality of the prior restraint procedure provided by the Maryland Statute (Art. 66A). We think these contentions were generally answered by this Court in Trans-Lux Distrib. Corp. v. State Board of Censors, 240 Md. 98 , 213 A. 2d 235 (1965), which reviewed the Maryland Statute in light of its amendment by Chapter 598 of the Acts of 1965, which amendment had the effect of revising Sec ³¹⁰ tion 19 of Article 66A to conform to the guidelines suggested by the United States Supreme Court in Freedman v. Maryland, 380 U. S. 51 (1965). The appellants further contend that the Board acted with insufficient evidence to sustain its refusal to license the film and that because of this the lower court lacked jurisdiction to enter an order disapproving the film.

Without entering into a prolonged discussion, as to whether the administrative procedure followed by the Board is not subject to review where it is clear that there has been a d& novo judicial determination, Universal Film v. Chicago, 288 F. Supp. 286 (1968), we think that the Board made a conscientious effort to follow the guidelines set forth in Hewitt v. Board of Censors, 243 Md. 574, 585, 586 , 221 A. 2d 894 (1966), and that there was sufficient expert testimony on which it could properly base its decision. Finally, the appellants argue that the judgment of the United States Court of Appeals for the Second Circuit in I Am Curious (Yellow), supra, is conclusive on the State’s case, in that the federal statute under which adjudication was made must be read as preempting the right of a state later to subject the film to further restraint in advance of public showing. The short answer to this is that the United States Supreme Court in Freedman v. Maryland, supra, recognized that as long as a state follows the procedural safeguard suggested therein, it may validly exercise its police power to effectuate a censorship system. It is our belief that only an adjudication by the United States Supreme Court would be binding upon this Court with regard to the film before us.

Constitution of Maryland, Declaration of Rights, Article 2. In affirming the lower court’s order disapproving the film “I Am Curious (Yellow)” for licensing on the basis that it is obscene, we are mindful of Justice Stewart’s observation in Ginzburg v. United States, 383 U. S. 463, 498 (1966) that, “Censorship reflects a society’s lack of confidence in itself”; yet, we are likewise sensate to our ³¹¹ obligation to withhold the protection of the First Amendment from material which those who wrote the Constitution never intended to protect. Order affirmed, appellants to pay costs. . On July 11, 1969, the Maryland State Board of Censors filed a petition pursuant to Section 19 of Article 66A of the Annotated Code of Maryland (1967 Replacement Volume) for judicial determination as to whether a certain motion picture titled “I Am Curious (Yellow) ” is entitled to be exhibited within the State of Maryland considering the provisions of Section 6 of Article 66A of the said Code.

This film was submitted to the Board for examination and licensing on July 1, 1969, by the applicant, Howard Wagonheim and Grove Press, Inc., “manufacturer.” The Board viewed the film on July 8, 1969, disapproved it under the provisions of Section 6 of Article 66A of the Code. The Order of disapproval read as follows: “After reviewing the entire film, and considering it as a whole, the Board finds that the film goes substantially beyond customary limits of candor in description and representation of sex, that it deals purposely and effectively with sex in a manner which appeals to the prurient interest, that it is without social importance, and that it lacks any identifiable artistic, cultural, thematic or other value which plight be considered redemptive.” The lower court viewed the film and listened to the testimony of witnesses for approximately two weeks _ and reviewed the film a second time prior to rendering its opinion. The film was viewed by this Court as required by Art. 66A, § 19(a) on September 8, 1969, prior to hearing argument by counsel representing the appellants, Howard Wagonheim, Agent; Grove Press Inc.; 5 West Amusement Co., Inc., and the appellee, Maryland State Board of Censors. . The main characters in the film are “Lena,” a young drama student, “Borje,” a young actor, and “Vilgot,” the director.

The three are making a film together. In making the film Lena, having become interested in Borje, finally leaves the director, to whose apartment she has ready access, to take up with Borje. In the meantime the film gradually reveals her life as a young girl who lives with her frustrated father in a picture frame shop. Lena is disillusioned with her father, who in his idealistic youth went to fight in the civil war in Spain and who became frightened and fled.

Lena endeavors to convey the impression that she is carrying on the protest which her father gave up and much of the film shows her scurrying about Sweden interviewing people about political and ethical attitudes. She pickets and protests some of the political and social situations, seeks sexual freedom of a sort enjoyed by men, and in one sequence rebels violently against Borje, who conceals from her his love life with other women. In a dream fantasy she shoots him and then castrates him. All of this is put together in collage form. .

The Attorney General in his brief for the appellee lists the following instances of uncommon sex in the movie: (1) Lena’s singing “In Rio de Janeiro you can fuck for free”; (2) the display of erotic Indian sculpture depicting a man with his hand on a woman’s vagina; (3) the discussion between Lena and another girl about different methods of masturbation; (4) lena’s dialogue, “Are you that fucking stupid?”; (5) detailed love making scene in Lena’s room showing both parties completely naked, exposing the male genital area, showing attempted intercourse standing against a wall and also a scene of Borje caressing the girl’s breasts with his tongue; (6) scene depicting sexual intercourse between Borje and Lena on the palace balustrade in which, although the parties are clothed, the act of intercourse is vividly displayed; (8) scenes of nudity at the retreat and scene depicting Lena looking at a sex manual showing various unusual positions for sexual intercourse; (9) scene at the retreat showing Borje throwing Lena to the ground and committing an act of cunnilingus, followed by a scene depicting ³⁰⁴ the parties both completely nude with Lena kissing Borje’s penis as he caresses her vagina; (10) a discussion regarding sex which “makes them both horny”; (11) scene depicting intercourse in the water; (12) scene depicting sexual intercourse in a tree between Lena and Borje; (13) scene showing fully the naked bodies of the two lying on the floor engaged in either sodomy or sexual intercourse with the man behind the woman. This scene also dramatically emphasizes the erotic effects of the copulation; (14) followed by a scene fully showing Borje’s genitals, followed by a scene in which the nude Borje chases the nude Lena from one room to another, throws her to the floor and mounts her in a position of sexual intercourse. They then are ■ shown with loins entangled, copulating on the floor; (15) fantasy scene in which Lena shoots Borje and castrates him with a knife; (16) Lena’s dialogue: “He’s a_ big fucking shit and I’ll kill him when I get hold of him. I’ll cut off his cock”; (17) nudity at the clinic with again an emphasis on the genital area of the male and female.” .

On October 6, 1969, the United States District Court for the District of Kansas had before it the cases of Grove Press, Inc. vs. Kansas and Lakeside Drive In Theatre, Inc. vs. Menghini, et al. (Nos. KC-2992 and KC-2997), wherein the obscenity statutes of Kansas were challenged and injunctions were sought to enjoin proceedings pending in the District Courts of Johnson County and Wyandotte County, Kansas, and which proceedings concern the question of the application of the Kansas statutes to the film “I Am Curious (Yellow).” The Court found the statutes constitutional and did not reach the obscenity question. However, the Court stated that “All the Judges on the present Court agree with Judge Lumbard’s statement [dissent], but because we did not reach the question, we do not so hold.” Barnes, J., concurring: I entirely concur with the reasoning, statement of facts and application of the law in the opinion of the Court. I am of the opinion, however, that (a) additional emphasis should be given to the pandering aspect of the case when the third test of “utterly without redeeming social value” is considered and (b) there should be additional comment upon the scope or applicability of this third test when the Court has before it a motion picture which is obscene under the first two tests in regard to prurient interest in sex and an affront to contemporary community standards. (a) In the majority opinion, in considering the third test, the pandering aspect of the case is suggested by the observation that the film makers’ attempt to raise so-called “social questions” was “patently strained and contrived” and the result was so “artificially depicted” as failing to supply the “redeeming social quality required to sustain the film.” The majority opinion also cites with approval a portion of Chief.

Judge Lumbard’s dissenting opinion in United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 404 F. 2d 196, 202 , in which he states, “Needless to say these acts (of fellatio and cunnilingus) bear no conceivable relevance to any social value, except that of box office appeal.” (Emphasis supplied.) Id. at 203 . With these observations, I heartily concur, but I would additionally emphasize that the record discloses to me that there is substantial evidence which indicates the pandering of sex. This pandering, in my opinion, brings the present case within the ambit of the decision of the Supreme Court of the United States ³¹² in Ginzburg v. United States, 383 U. S. 463 , 86 S. Ct. 942 , 16 L.Ed.2d 31 (1966). In Ginzburg , there was a clear majority of five justices for the opinion of the Court, i.e., Mr. Justice Brennan, who wrote the majority opinion, with the concurrence of Warren, C.J., Clark, White and Fortas, JJ.

Justices Black, Douglas, Harlan and Stewart dissented and each wrote dissenting opinions. The opinion of the Supreme Court in Ginzburg stated: “This evidence (of advertising), in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient ; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material.

And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigatioh purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the. materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.” ( 383 U. S. at 470 , 86 S. Ct. at 947 , 16 L.Ed.2d at 38 ) ³¹³ We cited and followed Ginzburg in Sanza v. Maryland State Board of Censors, 245 Md. 319 , 226 A. 2d 317 (1967) and recently in Hewitt v. Maryland State Board of Censors, 254 M!d. 179, 193-95, 254 A. 2d 203, 210-211 (1969), involving the motion picture “Odd Tastes.” The pandering of sex in the present case is not of the same nature as that involved in Ginzburg and the evidence in regard to it is not as clear and definite as was the evidence in Hewitt, supra. In the instant case the pandering aspect is more subtle, but it is present none the less.

In the scenario, which apparently is prepared for sale in conjunction with the motion picture, there is an obvious emphasis on the sexual aspects of the motion picture revealing as its object the “material gain for the creator through an appeal to the sexual curiosity and appetite.” Ginzburg, supra, 383 U. S. at 471 , 86 S. Ct. at 947-948 , 16 L.Ed.2d at 38 . It is apparent from looking at the scenario that there is a larger proportion of photographs of the sexual scenes than in the motion picture and Dr. Macksey, an expert witness for the appellants, stated, in effect, that the use of the series of stop action frames depicting the sexual scenes served to emphasize the sexual theme in the motion picture. In my opinion, these facts bring the present case within the Ginzburg decision which indicated that the animation of sexual detail to give the publication in that case a salacious cast amounted to an appeal to the sexual curiosity and appetite and amounted to the pandering condemned in that case. The Attorney General aptly commented on this aspect of this case in the lower court: “You have a book on the cover says 250 illustrations.

If you count the illustrations in this book, you will find approximately 100 of the 250 have to do with sexual themes, out of the 250. That is 100 out of 250, which is forty percent of the total against six minutes of 120 ³¹⁴ minutes or 135 minutes of the film, and if you will look you will find that in a period of some —pages 89 to about 160, you have some 83 or 80 sexual pictures againt 60 others, which is about a hundred and twenty-five percent, which indicates there is a very significant emphasis on the pornography we say is in the film in this book,* * *” It thus appears that the pandering of sex in the motion picture is generated entirely by the profit motive. By the concentration on sex in the scenario, Grove Press sells the book and by selling the book, it sells the sex in the motion picture. The argument by the appellants (if relevant at all) that the motion picture will be shown only to those members of the community 18 years of age or older is rather impaired by the findings by the District Court of Johnson County, Kansas, in a recent case entitled “The State of Kansas v. A Motion Picture Film Entitled ‘I Am Curious-Yellow’ ”, No. 6122, Div.

No. I, in which the Order was filed on September 5, 1969, and modified in a detail of no importance for this case on September 15, 1969. A, copy of the opinion of District Judge Herbert W. Walton in this Kansas case was forwarded to this Court by the Attorney General on October 1, 1969, a copy being sent to counsel for the appellants. In the Kansas case, the motion picture involved in the case at Bar was shown at the Kimo South Theatre (an “art theatre”) in Overland Park, Johnson County, Kansas. Advertisements furnished by Grove Press for the motion picture published in the Kansas City Times and the Kansas City Star from June 17 to June 24, 1969, stated, “Admission restricted to adults.” The motion picture was advertised as “ ‘a landmark likely to permanently shatter many of our last remaining movie conventions,’ says William Wolfe of Cue Magazine.” In none of the advertisements, other than the one of June 21, 1969, was there mention of any other theme.

The District Court found ³¹⁵ that although the advertisement on June 21 mentioned such “alleged themes as politics, non-violence, Zen, commitment, socialism and other subjects, the whole import of the advertisement and the attention of the reader are centered on the obvious and purposeful deletion which implies the word ‘sex.’ ” In the newspaper advertising of June 18, 1969, no mention was made at all of age restrictions; on June 19, 20 and 21, there was a restriction to persons over 18 years of age with suitable identification; on June 22, there was a restriction to those 18 years and over; and, on June 23 and 24, the advertisements simply stated “adults only.” The enforcement officers took random samplings on the evenings of June 22, 23 and 24, 1969, among persons leaving the theatre (which seats approximately 825 persons) who appeared to be under 21 years of age. One officer on Sunday, June 22, stopped 10 persons, three of whom were under 21 years of age; of the persons stopped by the other officer on the same night, seven were under 21 years of age. On Tuesday evening, June 24, from those stopped six were under 21 years of age and of those, three were under 18 years of age. On June 22 also, the ticket seller at the theatre sold a ticket to view the motion picture to an identified lad, 17 years of age, without asking the youth his age or asking to see his identification.

The lad was thereafter admitted, the ticket taker neither asking his age nor for any identification. There were similar episodes on June 24,1969. The Contract of May 18, 1969, between Dickinson Operating Co., Inc. through Glen W. Dickinson, Jr. and Grove Press, Inc. through Barney Rosset, one of its chief officers, to exhibit the motion picture at the Kimo South Theatre provided that Grove Press, Inc. would receive 90% of the gross receipts in excess of $1,500 a week, but not less than the following fixed percentages: first week: '70 % ; second and third weeks: 60 % ; fourth and fifth weeks: 50 % ; sixth week: 45 %. The minimum run was to be for six weeks with additional time to be negotiated.

Grove Press, Inc. was to pay 90% of the advertís ³¹⁶ ing costs and all advertising materials content and costs were to be at the discretion of Grove Press, Inc. The contract further provided that Dickinson Operating Co., Inc. was to exhibit the film in its entirety and was not to cut or alter the print, other than to make necessary repairs or when required by a public official or authority, without the written consent of Grove Press, Inc. (b) As the majority points out, we applied the Roth test as restated and amplified in Memoirs to a motion picture in Hewitt v. Maryland State Board of Censors, 254 Md. 179, 182-83 , 254 A. 2d 203, 205 (1969), supra, and the restated “rule” has been applied in the present case. In my opinion, in view of the uncertainty in regard to the view of a majority of five justices of the Supreme Court on various aspects of the applicable test, it was wise for. us in Hewitt, supra, as well as in the instant case, to apply the most detailed and comprehensive test enunciated by the