Woodruff v. State

Orth, J., dissenting: I am not able to join the opinion of the Court. The material which the majority find not to be obscene I feel is hard-core pornography. It is on facing pages 18 and 19 of the Washington Free Press, vol. 3, no. 5, June 1 ²³¹ through June 15, 1969. The text and cartoons there appearing have been described in the majority opinion but the printed word cannot give the full flavor of them.

They are crudely drawn but graphic in depicting what they intend to convey. The material is an exhortation to do the things illustrated, ending with the command, “Stew It, Shoe It, Even Chew it If Ya Want, But . . . DO IT! * * * The End . . . Now Go To It.” The things implored to be done, appropriately illustrated, include “Shit on it”, “Tit on it,” “Fuck it”, “Suck it”, “Yank it”, “Crank it”, “Flog it”, “Sog it”, “Clog it”, “Eat it”, “Heat it”, “Beat it”.

The drawing under “Tit on it” is a close-up of one enormous female breast with a finger tickling an erect nipple. “Yank it” is illustrated by depicting the lower part of a gross stomach, a penis, scrotum and pubic hair. The penis, outsize both in length and diameter and in full erection, is in the grasp of a hand of another person and is being squeezed. Under “Crank it” there appears what seems to be the same gross stomach, penis, scrotum and pubic hair with the same hand twisting or rotating the penis. “Flog it” shows a naked female secured by a chain running from a collar around her neck to a ring in the wall. Her hands are apparently bound behind her back.

She has massive upstanding breasts with large erect nipples. A hand holding a whip of a cat-o-nine-tails type protrudes in a corner of the frame in a position indicating it is being used to stimulate the woman's genitalia. “Sog it” is illustrated by a debilitated, emaciated, grotesque male fondling his large and thick but limp penis. “Clog it” shows in profile the middle torso, from the lower stomach to the upper thigh, of a man standing upright, clearly depicting his scrotum and pubic hair. His penis, extremely large in diameter, is thrust its entire length in the mouth of a woman. One of her large breasts can be seen.

It is bare and marked by an upstanding teat. Her face is distorted by the penis thrust down her throat. Her heavy lidded eyes are crossed, and there are droplets of what may be perspiration or semen flying in the air around her face. “Eat it” is illustrated by a drawing of ²³² the upper torso of a man. He is standing between a woman’s wide spread legs.

Her genitalia are fully exposed and his hands are stretching open her vulva. He is licking his lips and on his face is an expression of pleasurable anticipation. There is a discharge popping out of the woman’s genitalia. The subject “Heat it” is an obese woman, naked, distinguished like the others by massive upstanding breasts with large paps.

She is seated, her head thrown back, her eyes closed, her mouth open, her tongue lolling. What appears to be clouds of steam and drops of perspiration surround her head. A naked man is kneeling at her side. He is holding her left breast in his hand and its nipple is between his bared teeth. “Beat It” features another fat woman, naked except for shoes, bending over from the hips, her large buttocks full face to the viewer.

She is looking over her shoulder, a smile on her face. This then, its full scandalous effect somewhat lost in the describing of it, is actually the material which in the “constitutionally — mandated independent, reflective judgment” of the majority is not obscene. My independent constitutional appraisal of this material leads inevitably and inexorably to the conclusion that it is hard-core pornography. It enjoys all the characteristics of such obscene matter which we discussed in Levin v. State, 1 Md. App. 139, 144-146 , cert. denied, Court of Appeals of Maryland, 247 Md. 740 and Supreme Court of the United States, 389 U. S. 1048 .

We summarized the characteristics in Donnerberg v. State, 1 Md. App. 591, 600 . The material here focuses predominantly upon what is sexually morbid, grossly perverse, and bizarre without any artistic merit or scientific purpose of justification. There is no desire to portray the material in pseudo-scientific or “arty” terms. It goes substantially beyond customary limits of candor and deviates from society’s standards of decency in the representation of the matters in which it deals.

It is not designed to be a truthful description of the basic realities of life as the individual experiences them but its main purpose is to stimulate erotic response. It has a patent absence of any redeeming ²³³ social value. It can be recognized by the insult it offers, invariably, to sex and to the human spirit. It speaks for itself and screams for all to hear that it is obscene.

Not to hear its screams is to be deaf indeed. I hear them loud and clear. There has been only one test of obscenity applied by the Court of Appeals and this Court since the opinion in Roth v. United States, 354 U. S. 476 , in which was also decided Alberts v. California. We set it out in Donnenberg v. State, supra, at 598, as we found it established from the definition of obscenity in Roth — “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests” — as reiterated in Jacobellis v. Ohio, 378 U. S. 184 , elaborated in Ginzburg v. United States, 383 U. S. 463 , adjusted in Mishkin v. New York, 383 U. S. 502 and 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 . 1 The Supreme Court stated it in Redrup v. New York, 386 U. S. 767 , 770-771: ²³⁴ “(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; (c) the material is utterly without redeeming social value * * * [T]he three elements must coalesce.” It is patent that if material falls within what may be considered this Court’s definition of hard-core pornography as set out in Donnenberg, it meets the test of Roth .

And I think our definition of hard-core pornography, as it must, “stay[s] within the bounds set by the constitutional criteria of the Roth definition.” Mishkin v. New York, 383 U. S. 502, 507 . 2 For material to be obscene in the constitutional sense, the three elements of the Roth test must be present and ²³⁵ coalesce whether or not the material is hard-core pornography. The distinction is that if material is hard-core pornography, no proof other than the viewing of it is required to determine that it is obscene. Donnenberg v. State, supra, at 600. The majority conclude that the material here is not hard-core pornography.

They do so in a summary manner. Although recognizing that “in some instances” proof other than the viewing of the material may be dispensed with, they state that this “evidentiary shortcut” has been permitted “only in dealing with the most flagrant pornography.” I see a distinction with a real difference between their “most flagrant”, which appears to be of their own coinage, and Mr. Justice Stewart’s “easily identifiable” (concurring in Ginzburg v. United States, supra, at 499) or the “clearly identifiable” as used in the opinion of the Court in Redrup , at 770. And while, as the majority point out, such material may be “typically of the ‘black market’ variety- — that sold ‘under the counter’ in the ‘sleazy bookstore’ ”, it is obvious from Mr. Justice Stewart’s elaboration on his concept of this class of material, note 2 supra, that it is not so limited. In any event, I do not appreciate why a deck of “French playing cards” or “the venerable ‘two-by-four’ of schoolboy memory” is “most flagrant” obscenity and the material here is not.

The majority seem to be in accord that the matter in Donnenberg, supra and Levin, supra was hard-core pornography. But accepting, arguendo, the majority’s criterion of “most flagrant”, I am unable to understand why the material in those cases was “most flagrant” and the material here is not. In Levin it consisted of photographs of a nude male with his penis in erection; there was no depiction of sexual activity and no textual exhortations as here. In Donnenberg, the photographs suggested, but did not depict, as does the material here, unnatural sexual practices.

And while it is clearly evident that the stag movie in Lancaster v. State, 7 Md. App. 602 , was hardcore pornography, it does not necessarily follow that the material here is not. ²³⁶ Although I believe that the strips of drawings in comic book format, here before us, grossly depicting perverted and unnatural sexual activities in an exaggerated fashion, are unquestionably of that distinct and clearly identifiable class into which hard-core pornography falls, I nevertheless accent what is obvious in the circumstances by discussing how the three elements of Roth are to be found from a mere viewing of the material so that no other proof of its obscenity is required. The appeal to prurient interest requirement must be construed in the light of the test of obscenity as stated in Roth : “whether to the average person, applying contemporary community standards, the dominant theme of the material as a whole appeals to prurient interest.” 354 U. S. at 489 . This does not mean, as I see it, that the material must appeal to the prurient of the average person in the context of “being attractive” or “interesting”. It would seem that the average person would ordinarily find obscenity repulsive and revolting so that it would not appeal to him in that sense.

Rather, “appeal” in the constitutional obscenity context is used in the sense of “an urgent request, entreaty or supplication”, 3 as, for example, as used in an “appeal” for funds. The prurient interest requirement under the Roth test is met if the average person finds, applying contemporary community standards, that the dominant theme of the material taken as a whole seeks to excite lustful thoughts or lascivious longings and, thus appeals to prurient interest, of all it is likely to reach. And it also may be directed to a clearly defined deviant sexual group rather than the public at large. Mishkin v. New York, supra, at 508.

The material before us exhorts the commission of unnatural or perverted sexual practices. Its announced theme is an appeal to prurient interest. “Ya gotta tit on it”; “you ought to yank it and crank it”; “you can always flog it, sog it, clog it”; “hey, listen, you can eat it, heat it and beat it.” ²³⁷ And as pointed out the meaning of these terms is graphically illustrated. And then it commands, “Do it — now go to it”. It seeks to arouse an obsessive interest in improper matters of sexual nature.

It is material having a tendency to excite lascivious and lustful thoughts. “Prurient interest may be excited or appealed to” by it. See Roth, supra, note 20 , 354 U. S. at 487 . It graphically depicts perverted sexual acts involving several participants in scenes of orgy-like character. It is apparent from the mere viewing of it, that it is an appeal, in the sense of a call, an entreaty, a supplication, to prurient interest of all those it is likely to reach.

The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. I need no “expert” to lead me to a conclusion that the representation of sexual matters by the material here affronts any and all contemporary community standards. It is clearly beyond customary limits of candor and deviates from society’s standards of decency. A community cannot, where liberty of speech and press are concerned, condemn that which it generally tolerates.

But here the community condemns what the cartoons depict and advocate. The commission of unnatural or perverted sexual practices is unlawful. Code, Art. 27, § 554. Expert testimony is not required to prove that a community finds unacceptable sexual acts which it declares a crime and prosecutes for their commission.

The material screams that it is utterly without redeeming social value. There is no pretense of artistic value in its presentation. It is not offered as a work of art or a literary endeavor or an educational sex manual. It lacks even the purported criticism of a public official that the drawing, considered with the surrounding text, indicated in Dillingham v. State, supra.

The majority find that the publication before us “is packed with political comment and with vigorously urged political views.” They feel that because the views are unpopular and outrageous they are socially valuable. They quote Terminiello v. Chicago, 337 ²³⁸ U. S. 1 , 4 to the effect that a function of free speech under our system of government is to invite dispute. With this I have no quarrel. But it provides no excuse for the obscenity here.

I agree that with the exception of the material on pages 18 and 19, the publication here is not obscene. But to sanctify the cartoon material on the nebulous predicate that it is political criticism, or an expression of “dissent, rebellion, revolution, iconoclasm, hedonism, libertarianism, anti-authoritarianism and anti-establishment protest”, so that its dominant character is “polemic rather than prurient”, is to dignify it without reason and to read into it what is simply not there. The other parts of the publication, in the circumstances, do not purify the obscene material. I cannot find that this hard-core pornography is so integral a part of the publication as a whole as to preclude appellant’s conviction of distributing obscene matter.

I see no such reasonable connection between the obscene matter and the theme of the balance of the paper, whatever it may be, sufficient to purge the cartoon material of its obscene character. In other words, hard-core pornography may not be constitutionally distributed merely by making it part of a publication which may be otherwise constitutionally proper. The material here cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the 1st Amendment unless we come to the rule that a State is utterly without power to suppress, control or punish the distribution of any matter upon the ground of its “obscenity”. This Court has not indicated a disposition to adopt such a rule and only two members of the Supreme Court have consistently adhered to such a rule. 4 Appellant was convicted at a bench trial in the Circuit Court for Prince George’s County on a charge that he “did unlawfully and knowingly sell and have in his possession with intent to sell lewd, obscene and indecent ²³⁹ newspapers” on 23 June 1969. 5 It is not disputed that evidence which was entered by stipulation was sufficient to show that appellant sold and possessed with intent to sell the newpaper involved, the Washington Free Press, vol. 3, no. 5, June 1 through June 15, 1969.

The newspaper was admitted in evidence without objection. Having found the matter to be obscene, the next inquiry is whether it was established that appellant had knowledge of the character and content of the subject matter of the paper. If this knowledge was not proved, appellant did not “knowingly” sell or possess the paper, and scienter, as a necessary element of the offense, would be lacking. The majority reach this point only after determining that the paper was not obscene, and thus need not have reached it at all.

But after deciding that the conviction must be reversed because the publication was constitutionally protected by freedom of speech, they declare: “Even were the material before us obscene by any test, however, the conviction of appellant here would have to be reversed because of the utter failure of the State to show any evidence of scienter on his part as required by Smith v. California, [ 361 U. S. 147 ].” What Smith v. California held was that a law which eliminated all mental elements from the crime was unconstitutional, the ordinance in question there opening too far the door barring federal and state intrusion into the area of freedom of speech and press because it made a crime the mere possession in a bookstore of an obscene book with no element of scienter required. Pointing out that the holding in Roth , did not ²⁴⁰ recognize any state power to restrict the dissemination of books which are not obscene, the Court thought that such an “ordinance’s strict liability feature would tend seriously to have that effect by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold.” (Emphasis added). At 152. But it said, at 154: “We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be.” Thus, although Smith determined that a defendant criminally charged with purveying obscene material must be shown to have had some kind of knowledge of the character of such material, the quality of that knowledge was not defined.

The Supreme Court had the opportunity to define it in Redrup v. New York, 386 U. S. 767 , for the point was squarely before it in that case and in one of the other two cases therein considered, Austin v. Kentucky, but it did not do so, disposing of the cases on the ground that the materials could not constitutionally be adjudged obscene by the States — an issue two of the justices in dissent thought had been deliberately excluded from review. The majority complain that I take too narrow a view of Smith . Apparently they want Smith construed so as to say what they would like it to say, but the fact remains that it expressly did not define scienter. The majority then turn to Mishkin v. New York, supra, decided before Redrup .

But, as they recognize, the Court in Mishkin also stated that its ruling made “it unneces ²⁴¹ sary for us to define today ‘what sort of mental element is requisite to a constitutionally permissible prosecution.’ ” 383 U. S. at 511. However, the Mishkin opinion found that the argument that there was insufficient proof of scienter was without merit and listed the facts in that case which showed scienter. This by no means precludes other and different facts in other cases being sufficient to prove scienter. In short, proof of scienter is not required to be within the factual posture of Mishkin .

The statute here meets the test of Smith for it requires that the act proscribed be committed “knowingly”. Code, Art. 27, §§ 417 (a) and 418. I do not feel that it is necessary that a person know