Grove Press, Inc. v. Maryland Bd. of Censors

PETITIONER: Grove Press, Inc.
RESPONDENT: Maryland Bd. of Censors
LOCATION: Arizona Dept of Public Welfare

DOCKET NO.: 63
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 480 (1971)
ARGUED: Nov 10, 1970
DECIDED: Mar 08, 1971

Facts of the case

Question

Media for Grove Press, Inc. v. Maryland Bd. of Censors

Audio Transcription for Oral Argument - November 10, 1970 in Grove Press, Inc. v. Maryland Bd. of Censors

Warren E. Burger:

We'll hear arguments in number 63, Grove Press against Maryland.

You may proceed whenever you're ready Mr. de Grazia.

Edward De Grazia:

Mr. Chief Justice and may it please the Court.

This case is here on appeal from the judgment of the Court of Appeals in Maryland which affirmed an order of the Circuit Court of Baltimore City, upholding a decision by the State Board of Censors disapproving the film “I Am Curious Yellow” for exhibition in the State of Maryland.

The Maryland Film Censorship scheme under which “I Am Curious Yellow” was banned throughout the state is an amended version of the law which this Court held without dissent to be an unconstitutional previous restraint in Freedman v. Maryland.

Maryland in fact is the only state today which still retains a law on its books, making criminal the failure of Motion picture exhibitors to obtain prior approval by a censorship board of a film intended to be shown to adults.

“I am curios Yellow” was imported from Sweden by it's American distributor Grove Press and it immediately became the subject of a custom's forfeiture proceeding, but 11 months later was finally held to be constitutionally protected and not obscene by the United States Court of Appeals for the Second Circuit.

Soon thereafter, appellant, Five West Amusement Company, Inc. contracted with Grove to exhibit “I Am Curios Yellow” in Baltimore.

In accordance with Grove's national distribution policy, the agreement provided that admission to the film would be limited to persons 18 years of age and older and the Grove would control all advertising copy.

On July 1, 1969 as required by the statute, appellants submitted “I Am Curious Yellow” to the Maryland Film Censorship Board consisting of three adult ladies, who following consultation with the State's Chief Law Enforcement Officer and the Honorable Attorney General of Maryland, found the film obscene.

No record was made of the Board's proceedings and although witnesses were heard, their identity and their testimony was kept secret.

No findings or supporting reasons were given by the Board in issuing its decision.

As required by the statute, following its disapproval, the Censorship Board petitioned the Circuit Court of Baltimore City asking it to approve its decision.

And after a hearing, an adversary hearing in which witnesses were heard on both sides, the Court affirmed the Board's decision.

Appellants here appealed that decision to the Court of Appeals of Maryland which considered the matter de novo and found the statute unconstitutional and the Motion picture obscene.

The Maryland Court of Appeals reached its decision by a four to three division, disagreeing sharply over the conclusions to be drawn from the application of this Court's Roth-Memoirs test for distinguishing protected expression from obscenity.

The majority saw fit also to disregard the decision reached with regard to the same film by the Second Circuit.

The Second Circuit also provided (Inaudible)

Edward De Grazia:

Two to one.

(Inaudible)

Edward De Grazia:

It was a majority of two to one, Judges Hayes and Friendly in the majority and Chief Judge Lumbard dissenting.

(Inaudible)

Edward De Grazia:

Well, I was going to -- in fact Your Honor, would have referred later to Chief Judge Lumbard's dissent in that case.

I think it is notorious that there are very rare cases in this field in which there is not a division of the justices at whatever level of court we may look at.

The issues presented by this appeal are two-fold.

Before I get to the issues, I would like to state that in terms of the Court of Appeals of Maryland's majority opinion, although the majority applied the Roth-Memoirs three-pronged test, the court gave special weight to “the visual impact of a Motion picture as contrasted with the printed word.”

The issues presented by this appeal are two.

First is the Maryland statute defective as applied to “I Am Curious Yellow,” and second is “I Am Curious Yellow” obscenity or is it protected expression.

It is our position that the Maryland Film Censorship scheme is fatally defective because it is over broad and because it fails to provide adequate procedural safeguards.

The statute requires the Board to disapprove any film that is obscene.