Appeal from the Criminal Court of Baltimore; Sodaro, J.
Henderson, Hammond, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court. Hammond, J., dissents.
The appellants, who engage in the retail sale of books and magazines in Baltimore City, were convicted by the Criminal Court of Baltimore of violating Code (1960 Cum. Supp.), Art. 27, § 418 (a), which makes it a misdemeanor for any person to "knowingly * * * sell * * * any lewd, obscene, or indecent book, magazine * * * drawing or photograph." The subject matter of the prosecutions was six magazines,*fn1 commonly known or described as "girlie" magazines, and a set of semi-nude photographs portraying a sequential "striptease."*fn2
The magazines and photographs were openly displayed and offered for sale without overcharge along with other types of magazines on newsstands or in the establishments of the several appellants. The magazines which are the subject of this appeal were purchased by members of the Baltimore City Police Department, who were specifically instructed to make purchases of named or similar magazines. The set of photographs was purchased by a member of the Criminal Justice Commission. The record shows that publications of a similar type had been on display and sold in the city for at least five years prior to the arrest of the appellants.
The trial court -- applying the obscenity test set forth in Roth v. United States (and Alberts v. California), 354 U.S. 476 (1957) -- concluded that the magazines and photographs were "neither literary in nature, artful in presentation, nor innocent in purpose" and that the dominant theme of the magazines and photographs dealt "with sex in a manner appealing to prurient interest" in that they had a "tendency to excite lustful thoughts," and found that such materials were "lewd, obscene and indecent" and therefore violated the obscenity statute of this State. All the defendants were found guilty and all were sentenced to pay fines.
The appellants claim (i) that the magazines and photographs are not obscene within the meaning of the statute because such materials do not "as a matter of law" exceed contemporary community standards; and (ii) that if such materials are obscene under the statute, then the statute violated the First and Fourteenth Amendments to the Constitution of the United States. But the real contention is -- inasmuch as it is claimed that the suspect material is not "hard-core pornography" -- that the appellants were immune from prosecution under the statute.
Since these cases were tried by the court sitting without a jury, we have the right to review them on both the law and evidence to determine whether in law the evidence was sufficient to sustain the conviction in each case, though we may not set the verdict aside on the evidence unless it is clearly erroneous. Maryland Rule 741 c.
In cases such as these, where prosecution is based primarily on the exhibits introduced as evidence, oral evidence, as was the case here, is usually not abundant. The exhibits speak for themselves, but must be perused and examined with care. This has been done as to each of the seven exhibits -- six magazines and one set of photographs.
An examination of the set of photographs shows various poses of a woman in progressive stages of undress (though never quite naked), which to the normal person might be offensive or repulsive, but they are not necessarily obscene under the statute. And since mere nudity in and of itself is not obscene, we think the trial court in convicting King for selling the photographs was clearly in error as to the evidence.
The same is true with respect to the magazine Black Garter. Most of the pictures in this magazine are of models who pose for "glamor" photography. They are portrayed scantily dressed either in black lingerie or white furs and other accessories in what might be described as coarsely offensive postures, but the pictures, even though obviously intended to arouse sex appeal, are not strictly obscene. And, which is more to the point with respect to the issue of obscenity, the textual matter accompanying the illustrations is in the main innocuous. Instead, it purports to discuss in detail the technique of using shadows and lights in photographing the nude. Therefore, since this magazine taken as a whole is not obscene, we think the trial court also erred in convicting Monfred, King and the Siegels for selling it.
But when each of the other five so-called "girlie" magazines -- Candid, Consort, Sextet, Cloud 9 and Torrid -- is taken as a whole, that is, when the pictures reproduced therein are examined in conjunction with a perusal of the textual material, it is apparent that all of these publications are obscene within the meaning of the statute as well as under the obscenity test approved by the majority in the Roth-Alberts case, supra. All of them, without exception, present numerous pictures or drawings of nude or semi-nude women showing what the State characterized as "come hither" expressions and poses interspersed with pointedly suggestive sex stories so placed that a reader if he needs visual aid in following the story has only to glance at the opposite page for additional stimulation. All of these five publications were obviously calculated to excite lustful thoughts in the mind of the reader.*fn3 Thus, having made a determination of our own that the findings of fact were correct, we are unable to say that the trial court was in error as to the evidence in convicting all of the defendants for selling one or more of these magazines; nor did the lower court reach the wrong conclusion as to the law.
In the Roth (and Alberts) case, Roth, who was a "rare book" dealer, was convicted of a violation of the Federal obscenity statute. Alberts, who was a distributor of photographs of nude and semi-nude women in various poses, was convicted under the California obscenity statute. In neither case was there any question as to whether or not the books sold by Roth and the photographs distributed by Alberts were obscene in fact. Thus, all that was decided was whether, on their faces, the federal and state statutes under consideration
were violative of the First and Fourteenth Amendments respectively.
In speaking for the majority, Justice Brennan held that both statutes were valid, and, in the process, stated (at p. 489) that the test of obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Material having such an interest was defined in a footnote as "material having a tendency to excite lustful thoughts." The Court also held that "obscenity is not within the area of constitutionally protected speech and press."
Chief Justice Warren concurred in the result reached in each case. His theory was -- because it was not the material but a person that was on trial -- that what is obscene should depend in the main on the reprehensible conduct of the seller in engaging in "the commercial exploitation of the morbid and
shameful craving for materials with prurient effect" and not on the obscenity of the materials sold. Justice Harlan concurred in the result in Alberts and dissented in Roth. He was of the opinion that federal obscenity censorship should be limited to hard-core pornography and that the states should be allowed broader censorship powers. Justices Black and Douglas dissented. They were against all obscenity censorship except where it is shown that "the particular publication has an impact on action that the government can control."
In the next term after the Roth-Alberts decision, the Supreme Court disposed of several other obscenity cases by short per curiams. In three of them, the Court, by reversing federal courts of appeal -- without any explanation for the reversals other than the citation of the Roth (and Alberts) case -- gave final protection to the materials in question. In one, Times Film Corp. v. City of Chicago, 355 U.S. 35 (1957), which involved prior censorship of a French cinema with English subtitles based on a novel by Colette, the appellant attacked the Chicago censorship ordinance on the ground that it imposed an unconstitutional prior restraint. The appendix to the appellant's brief indicated that the censors had not taken any of the artistic merits of the film into account, and in fact four of the censors testified that the picture had not aroused their sexual desires, pruriently or otherwise. The appendix further indicated that there was no nudity, other than one short scene showing a boy's buttocks, and that the real reason a permit was denied was to prevent children from seeing the movie. The decision of the appellate court in this case had been handed down before the Supreme Court had decided Roth. In the second reversal, One, Inc. v. Olesen, 355 U.S. 371 (1958), which involved the right to send the magazine One -- a publication dealing with homosexuality -- through the mails, officials of the Post Office Department had invoked the federal obscenity statute because the magazine was considered to be lewd and obscene. The petition for certiorari in this case had also been prepared before the decision in Roth. The government urged that the lower court had satisfied the Roth test, but the petitioner contended that the Supreme Court had not theretofore dealt with this specific question.
A copy of the magazine was not included in the printed record; nor was it reproduced in either of the briefs, but, since the sole question was whether the magazine was obscene -- a question of fact -- the Court, by citing Roth, apparently applied the Roth test in determining that the publication was either not obscene or that taken as a whole it was not obscene. In the third reversal, Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958), another case involving the mailing of a magazine -- Sunshine & Health -- a copy of the publication was also not included in the printed record, but it is a "nudist" type magazine -- a representative copy of which is included in the transcript in the instant case -- in which, although the nudist way of life is advocated and the pictures show the genital areas of the body, there is nothing obscene in the text of the magazine. Thus, it appears that the reversal was based on the concept that mere nudity is not obscenity or the decision may have been based on the fact that the text was not in fact obscene. But in Adams Newark Theatre Co. v. City of Newark, 354 U.S. 931 (1957), involving the Newark city ordinances prohibiting lewd, obscene or indecent shows and performances, in which the petitioner had raised issues of vagueness and freedom of expression in a proceeding for a declaratory judgment before the city had attempted to enforce the ordinances, the Supreme Court of the United States, in a brief per curiam, summarily affirmed the judgment of the New Jersey Supreme Court -- which had upheld the constitutionality of the ordinances -- by citing the Kingsley (354 U.S. 436), Roth and Alberts cases. And, in a fifth case, Mounce v. United States, 355 U.S. 180 (1957), the government having made a "confession of error" that the test used by the court of appeals was "materially different" from the Roth test, the judgment below was reversed and remanded to the district court for consideration in the light of Roth.
We think the Times Film case is fairly distinguishable from the instant case in that the censors not only made no effort to apply any sort of reasonable obscenity test, but principally because the main reliance of the appellant was on the "prior restraint" theory rather than the lack of an obscenity test. The Sunshine Book case is also easily distinguishable in that,
unlike the instant case, there were no obscene stories in the nudist magazine. And, although the One, Inc. case is not as easy to distinguish as the other two, it is a fact that it, like the Sunshine Book case, also involved federal postal censorship, not a state criminal prosecution; besides, since the constitutional issue was not formally raised, it is possible that the decision may not have been based on the unconstitutionality of the statute.
Other recent federal obscenity cases also have no direct bearing on the cases before us. In Butler v. Michigan, 352 U.S. 380 (1957), decided prior to Roth, the Supreme Court merely condemned the Michigan obscenity statute by holding that it was violative of the First and Fourteenth Amendments -- in that it prohibited the sale to an adult of a book unfit for a minor -- without suggesting a constitutionally sanctioned alternative. In Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957), also decided before Roth, where the defendant was convicted under the New York obscenity statute, there was no question but that the material was obscene, and there was no intimation of what was soon to be stated in Roth. In Kingsley Int'l Pictures Corp. v. Regents of the Univ. of N. Y., 360 U.S. 684 (1959), which involved the famous motion picture Lady Chatterley's Lover, the Supreme Court, without deciding whether or not the picture was obscene, declared that a part of the New York motion picture obscenity statute was unconstitutional in that it violated the basic "freedom to advocate ideas" guaranteed by the First Amendment. And in Smith v. California, 361 U.S. 147 (1959), in which the defendant was convicted of having obscene books in his possession, a Los Angeles city ordinance was declared unconstitutional in that it did not require proof of scienter on the part of the possessor, but again, the majority did not pass on the question of whether the books were actually obscene.
Thus, in the cases since Roth, the Supreme Court -- at least in its majority opinions in the Kingsley Pictures and Smith cases -- did not specifically apply the Roth test to the allegedly obscene materials before it in these cases. However, the test seems to have been applied in the per curiam reversals (Times Film, One, Inc., and Sunshine Book) and in the per curiam
affirmance (Adams Newark Theatre), but we do not know for sure -- other than that the Roth test of obscenity will be strictly construed -- what the reasoning of the Court was in any of these per curiams.
It may well be that the Supreme Court will in time (assuming it has not already done so) declare that only "hard-core pornography" is not protected by the constitution, as a majority of four of the Court of Appeals of New York (in two opinions -- the latter concurring in the result reached in the former -- each of which was concurred in by one other judge) did recently in construing the meaning of the obscenity statute of that State in People v. Richmond County News, Inc., 175 N. E. 2d 681 (N. Y. 1960), involving the sale and distribution of the magazine Gent, when, in discarding the Roth test, it adopted an obscenity test of its own.*fn4 Or the Supreme Court might eventually accept the concept of "variable obscenity"*fn5 expressed by Chief Justice Warren in his concurring opinion in the Roth-Alberts case to the effect that the question of obscenity must turn, not on the material itself, but on the motives of the seller. In passing -- since these sales were unquestionably commercial -- we note that a variable obscenity test could have been applied in this case. But, until the Supreme Court specifically speaks further in this uncertain area, we think we are bound by what we understand the Roth test requires.
Applying the Roth test to the censorship power of the State under the provisions of our obscenity statute, as was done in these cases (although incorrectly with respect to two of the exhibits), ...