Opinion
[No. 259, September Term, 1965.]
Decided April 5, 1966.
CENSORSHIP — Motion Pictures — Where Maryland State Board Of Censors Did No More To Meet Its Burden To Prove Obscenity In Film Which It Had Disapproved Than To Offer Picture In Trial Court, Viewing Of Picture, Without More, Did Not Qualify Trial Judge Or This Court To Determine That Picture Was Obscene Under Constitutional Tests — Testimony From Film's Producer That Picture Was Not Obscene — Order Affirming Action Of Board Reversed. pp. 706-707 Decided April 5, 1966.
Appeal from the Circuit Court of Baltimore City (PRENDERGAST, J.).
Petition by the Maryland State Board of Censors for an order affirming its disapproval of a film for licensing offered by Ava Leighton, trading as Audubon Films. From an order affirming the action of the Board, Ava Leighton, Etc., appeals.
Reversed, with costs.
The cause was argued before HAMMOND, HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ., and CARTER, J., Chief Judge of the Second Judicial Circuit, specially assigned.
Richard C. Whiteford, with whom was Edmund C. Grainger, Jr., on the brief, for the appellant.
Fred Oken, Assistant Attorney General, with whom was Thomas B. Finan, Attorney General, on the brief, for the appellee.
HORNEY, J., concurs in the result.
The order of the Circuit Court of Baltimore City which affirmed the action of the Maryland State Board of Censors in disapproving the moving picture "Dirty Girls" as obscene is reversed on the authority of Dunn v. Md. Bd. of Censors, 240 Md. 249, and Trans-Lux v. Md. Censor Board, 240 Md. 98. As in Dunn, the Board did no more to meet the burden of proof of obscenity imposed on it by Code (1965 Supp.), Art. 66A, § 19, than to offer the picture to the City Court; it did not attempt to show by appropriate probative testimony (a) that the average person, applying community standards, would find the dominant theme of the picture, taken as a whole, appeals to the prurient interest; (b) that the picture goes substantially beyond customary limits of candor in description or representation of sex or other matters; and (c) that it is "subject to proscription because it is utterly without redeeming social importance considered in light of the fact that `* * * sex and obscenity are not synonymous,' Roth, 354 U.S. 476, 487 * * *" (240 Md. at p. 255). As was true in Dunn, we cannot say that a viewing of the picture, without more, qualified the trial judge or the members of this Court to determine that the picture is obscene under these tests.
As in Trans-Lux, there was testimony from the producer of the foreign picture that it was not obscene. Here the evidence was that it had been passed by the board of censors of New York and of Detroit and that it had been exhibited routinely in some fifty cities and towns in the United States, including Boston, New York, Philadelphia, Richmond, Winston-Salem, Miami, Cleveland, Detroit, Little Rock, Nashville, Los Angeles, San Francisco, Portland and Seattle.
Order reversed, with costs.
HORNEY, J., concurs in the result.