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. Olesen, U. 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. Summerfield, U. 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. City of Newark, U. And, in a fifth case, Mounce v. United States, U. 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. Other recent federal obscenity cases also have no direct bearing on the cases before us. In Butler v. Michigan, U. In Kingsley Books, Inc.
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Brown, U. In Kingsley Int'l Pictures Corp.
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Regents of the Univ. And in Smith v. California, U.
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. 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. 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 , it is, as we see it, evident that the conviction of King for selling the set of semi-nude photographs should be reversed; that the convictions of Monfred, King and both Siegels for selling the magazine Black Garter should also be reversed; and that the convictions of all of the appellants for selling one or more of the obscene magazines called Candid, Consort, Sextet, Cloud 9 and Torrid, should be affirmed, and we so hold.
Siegel and Benjamin M. The opinion of the Court in this troublesome case is essentially syllogistic: the Maryland statute proscribing the sale of obscene books and magazines is to be construed as broadly as the Supreme Court will permit; the case of Roth v. I find the premises and the deductive process unsound, and the conclusion therefore necessarily wrong and am constrained to dissent and express my reasons for disagreement. The only testimony against each defendant was that he had sold the magazine or pictures introduced against him.
There was no testimony as to contemporary community standards except that the magazines had been sold openly in Baltimore for five years , or as to what comprises a community, or as to what effect the pictures and magazines would have on the average person. The Court held the separate group of pictures and those in the magazines not to be in themselves obscene and with these holdings I agree , but decided that most of the texts, considered with the related pictures, justified Judge Sodaro in finding the magazines obscene under the Roth standards, as the Court understands them.
Despite the Court's statement that its determinations were independent, this is no more in actuality than holding that "Judge Sodaro thought that most people would think the magazines obscene, we cannot say he was wrong and therefore, under the Maryland statute and the Constitutional tests, they are obscene.
In deciding the case on this basis the Court, I. The People, etc.
Maryland, U. New York, U. Illinois, U. Indiana, U. Since Roth, cases that have recognized this obligation include United States v. Keller, F. City of Chicago, F.
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Moniz Mass. That the publications here involved are a form of vulgar and tawdry entertainment for some part of the populace , lacking in all social value or artistic or scientific justification, does not deprive them of the constitutional protection of free speech and press. In Winters v. The line between the informing and the entertaining is too elusive for the protection of that basic right.
Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. Esquire, U. The concept of obscenity in law is a complex and difficult one. I take it the Maryland Legislature intended by its use of "obscene" in the statute Code Cum. In The People, etc. The Supreme Court of Oregon in a careful opinion in State v.
Jackson, P. The Roth case unquestionably established two constitutional tests of obscenity: 1 the material must be judged as a whole and 2 it must be judged under contemporary community standards by its impact upon average or normal persons, not the young, the weak, or the susceptible.
There can be little doubt, I believe, that "community standards" means not state or local communities but rather the standards of society as a whole. Kennerley, F. Lockhart and McClure so interpret the Roth opinion. They say in their article Censorship of Obscenity at p. The error into which the trial judge and majority of this Court fell, in my view, was to confuse and equate sex and vulgarity, crudeness and cheap, poor taste with obscenity. They are not synonymous and society as a whole and the courts recognize this.
The subject matter, the descriptions and references found in the magazines held obscene in this case can be found in much the same form in literally hundreds of novels and stories which have either been accepted as not obscene or have been found not to be. The Supreme Court in Roth emphasized the necessity of differentiating between sex and lewdness:. I do not believe the trial judge permissibly could have been convinced beyond a reasonable doubt that the contents of the magazines, judged by the contemporary standards of our society as a whole, both appealed to "a shameful or morbid interest" in nudity or sex and at the same time went " substantially beyond customary limits of candor in description or representation of such matters.
Christenberry, F. I agree with the conclusion of the Court of Appeals of New York in its holding that the "realistic accounts of normal sexuality" in the magazine "Gent" in which, as Judge Froessil makes plain in his dissenting opinion by extensive quotations and description, the language and pictures were as direct and crude and vulgar as any in the magazines before us was not obscene. Judge Fuld said for the Court at p.
Whether the Court's reading of the Maryland statute, or mine, is correct as a matter of interpretation may well be immaterial. I am convinced that the Supreme Court has left no constitutional leeway to make the interpretation the majority makes and that its result violates the constitutional rights of the defendants and the publishers of free speech and free press.
In seeking to go to the Supreme Court, Roth raised four issues of substance — whether a the federal statute violated first amendment guarantees; b was too vague; c invaded the reserved powers of the States and the people; and, finally, d whether the publications were obscene. Roth seriously pressed only the first three; his argument on the fourth was so perfunctory the government did not reply.
The Court limited the certiorari granted to the first three issues. The Alberts case, decided with Roth, ended in the Supreme Court in the same posture as Roth — at a level of abstraction so rarefied that the facts had become immaterial. The Solicitor General brought the case to a more earthy level. In his brief he pointed out that the violations of the Federal obscenity statute fell into three categories. The first, some two per cent, comprised "novels of apparently serious literary intent" challenged because "they concentrate on explicit discussion of sex conduct in a vocabulary based on four letter words.
The final group, ninety per cent of the whole, comprised what the Solicitor General described as "black market" or "hard-core" pornography. To make sure the Court knew what he meant by "hard-core pornography" he sent to the Court a carton containing numerous samples concededly in that category. The authors later revert to the subject and conclude p. This view is strongly confirmed by the per curiam decisions which followed Roth on distinctly mundane levels. In each on the citation of Roth the Court reversed United States Court of Appeals decisions that had upheld obscenity censorship, and demonstrated that in Roth it had placed really very tight restraints on what can constitutionally be censored as obscene.
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Chief Judge Desmond, concurring in the Richmond case, said so in so many words, and, concurring in Kingsley Inter. Regents of Univ. Other cases which would seem to have shared the same views include those in the footnote below.
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