Dillingham v. State

267 A.2d 777, 9 Md. App. 669, 1970 Md. App. LEXIS 357

• Court: Court of Special Appeals of Maryland
• Decided: July 15, 1970
• Docket: 314, September Term, 1969
• Status: Published

Opinions

Thompson, J.,

delivered the majority opinion of the

Court. Orth, J., concurs. Anderson, J., dissents. Concurring opinion by Orth, J., at page 700 infra.

Joseph Brinton Dillingham, the appellant, was convicted under Art. 27, § 418 of the Md. Code which prohibits the sale, exhibition, etc., of obscene pamphlets or drawings. He was originally convicted in the People’s Court for Montgomery County. On appeal to the Circuit Court for Montgomery County, he was again convicted by a jury in a de novo trial. We granted certiorari. Dillingham contends the evidence did not establish the required elements of obscenity; since we agree with this contention, it will be unnecessary for us to consider the other contentions.

On March 21, 1969, appellant was arrested in front of the Montgomery County Police Headquarters for selling a detective an issue of the Washington Free Press newspaper, Vol. 2, No. 52, March 15-31, 1969. On page three of the issue, at the top of the page in bold block letters approximately one inch high, there is the headline “Dear Judge Pugh” and in smaller print “pages 9-15”. On page nine of the issue, in white letters approximately one and one-eighth inch high, on a black background, there is the headline “A Pornobiography.” In the lower center portion of that page, there is a cartoon approximately four and one-quarter inches square which shows a nude human figure (purported to be Judge James H. Pugh of the Circuit Court for Montgomery County) masturbating. The cartoon shows the human figure sitting on a large chair with a swastika on it, in front of a podium or lectern on which are hanging various items such as a hypodermic needle and a whip. The entire cartoon, including the human figure, is a line-type drawing, being very simple artistically and out of natural proportions. The human figure is abstract in an artistic sense, bearing only moderate resemblance to actual human form. The limbs and general anatomy are out of proportion, there is no hair on the head, and the face is expressionless. Above the figure but within the four and one-quarter inch square of the cartoon is the caption “HE’ COMM D’JUDJE” [sic]. Surrounding the cartoon in a box ten inches by four and three-quarter inches is a biography of personal facts concerning Judge Pugh, e.g., club memberships, home address, and alleged conflicts of interests. Surrounding the cartoon and biographical material on the rest of the page is a critique in hostile terms of Judge Pugh in his professional capacity; the entire page measures seventeen inches by approximately eleven and one-half inches. Page nine is one of twenty-four pages in the total newspaper. Pages 10 to 15 are apparently intended as a continuation of the critique of the judicial system in general begun on page nine. A summary of the newspaper and the expert testimony is shown in the appendixes.

In applying § 418 of Art. 27, Md. Code, the proper criteria to determine obscenity is outlined in Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L.Ed.2d 1498. In reference to that test, this Court stated in Donnenberg v. State, 1 Md. App. 591 at 597-598, 232 A. 2d 264 at 268-269 :

“We understand the Roth-Alberts definition of obscenity — ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest’ — 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 establishes the following test for obscenity :

“Three elements must coalesce; it must be established that:

“1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex.

a) where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.

“2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.

“3) The material is utterly without redeeming social value.

Each of the above three federal constitutional criteria must be applied independently and neither be weighed against nor canceled by any of the others,

a) As an aid to determining the question of obscenity, the setting in which the material was presented may be considered. Thus evidence of pandering — ‘the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest— is relevant’ and ‘where a purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation on its face value.’ ”

It has been uniformly recognized by this Court, the Court of Appeals and the United States Supreme Court that the reviewing court has the obligation to make an independent, reflective constitutional judgment on the facts. Jacobellis v. Ohio, supra, Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 258 A. 2d 240, Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A. 2d 317, Levin v. State, 1 Md. App. 139, 228 A. 2d 487, Donnenberg v. State, supra, Lancaster v. State, 7 Md. App. 602, 256 A. 2d 716.

I “Taken As A Whole”

In making a constitutional judgment, this case demands special analysis of the requirement that the allegedly obscene material be “taken as a whole.” There may be some question as to what is the proper “whole”, but there is general agreement that consideration of the “whole” is not restricted to the first test set out above. The annotation in 5 A.L.R.3d 1158 “Modern Concept of Obscenity” at 1178-1179 summarizes the situation:

“§ 7. Judging material ‘as a whole’

“[a] Generally

“The earlier standard under which obscenity could be judged by the effect of an isolated excerpt taken from a book or other writing was rejected in the Roth Case, [supra] which requires that material challenged as obscene must be judged ‘as a whole.’

* * *

“ [b] Where text is accompanied by illustrations

“Whether illustrations challenged as obscene may be considered apart from the accompanying text seems a question which depends upon the circumstances of the individual case. In any event, at the present time there is not sufficient authority on the point to make it possible to state generalized rules.”

While the Supreme Court has never defined “whole” specifically, in Roth v. United States, supra, and Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L.Ed.2d 31, the Court cites with apparent approval the trial court’s approach that the allegedly obscene item must be considered in its entire context which is, at an apparent minimum, the physical item itself. In Roth, 354 U. S. at 490, 77 S. Ct. at 1312, the Court approves the trial court’s instructions:

“ ‘The books, pictures and circulars must be judged as a whole, in their entire context, and you [the trier of fact] are not to consider detached or separate portions in reaching a conclusion.’ ”

Thus, insofar as the Supreme Court has considered the issue, it seems they intend the trier of facts to consider at least the entire physical item that is allegedly obscene.

Cases from the Maryland Court of Appeals provide more guidance. In Monfred v. State, 226 Md. 312, 173 A. 2d 173 (1961) cert. den., 368 U. S. 953, 82 S. Ct. 395, 7 L.Ed.2d 386, the Court specifically considered the textual material in conjunction with the illustrations. With regard to one set of exhibits the Court said at 226 Md. at 317, 173 A. 2d at 174-175:

“. . . 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 [the defendants] for selling it.”

See also Yudkin v. State, 229 Md. 223, 182 A. 2d 798.

In obscenity cases this Court has in each considered at least the entire physical item before deciding the issue of obscenity. In Levin v. State, supra, the question involved three sets of three photographs. While the Court did not view every photograph, it did review a photograph introduced as representative of the set from which it came; there was no accompanying text. In Donnenberg v. State, supra, the Court specifically considered the five and one-half pages of “pseudo-intellectual” text accompanying the illustrations. In Lancaster v. State, supra, this Court viewed the entire film; the film contained no auditory or textual portion.

Thus, the rule appears to be established in Maryland that the trier of fact and the reviewing appellate court must consider at least the entire physical item that is allegedly obscene before deciding whether the entire physical item constitutes a proper “whole” and before deciding obscenity.

A similar approach is used by other state and federal decisions which recognize that the proper “whole” varies from case to case, but is usually no less than the entire physical item. Thus, in Zenith International Film Corporation v. Chicago, 291 F. 2d 785, (7th Cir. 1961), the Court while mainly concerned with fair procedures emphasized that in a licensing procedure for films, the publication could not be judged on the basis of scenes isolated from the rest of it. In Ackerman v. United States, 293 F. 2d 449, (9th Cir. 1961), it was held that the writings of serious authors on subjects of public concern may not be judged merely by selecting words or phrases but must be considered as a “whole.” Thus in Ackerman the Ninth Circuit considered the dominant theme of letters and enclosed pictures together in deciding whether defendant had mailed obscene material. The Court in United States v. 1,000 Copies of a Magazine Entitled “Solis”, 254 F. (U.S.D.C., Md., 1966) read the fifteen pages of text besides the title page and viewed the' eighteen full page pictures of nude women before concluding that the magazine in question “is dominantly and essentially a picture book of nude women and that it is designed for . . . men and boys who would be interested in such pictures.” The Court clearly required that text and illustrations be considered together, although indicating worthless pictures might not be salvaged by socially worthwhile text.

The Courts in Hadelman v. United States, 340 F. 2d 59 (10th Cir. 1965) (concerning the sale of sex manuals which had no illustrations), In Re Louisiana News Company, 187 F. Supp. 241 (U.S.D.C., La., 1960), and William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A. 2d 59 (1961) cert. den., 368 U. S. 897, 82 S. Ct. 174, 7 L.Ed.2d 93, (holding Pennsylvania’s movie censorship law of 1959 unconstitutional saying, inter alia, the law allowed censoring part of a movie isolated from the rest), all stated obscenity could not be decided on the basis of isolated excerpts. In Books, Inc. v. United States, 358 F. 2d 935, (1st Cir. 1966), the Court held it was relevant when considering the physical item to consider both front and back covers as part of the “whole”.

However, while in items involving both words and illustrations, the two must be considered together, several cases have indicated that the mere insertion of innocuous text will not salvage otherwise obscene illustrations. In Donnenberg v. State, supra, five and one-half pages of innocuous text did not prevent this Court from finding the material obscene. A similar result was reached in United States v. 1,000 Copies of a Magazine Entitled “Solis”, supra.

A reasonable position is that of Flying Eagle Publications, Inc. v. United States, 285 F. 2d 307 (1st Cir. 1961), wherein the Court said the jury must consider the “whole” including the text, but the jury is not controlled in its interpretation of the illustrations by the text... Flying Eagle points out the distinction between allowing the jury to ignore the accompanying text and allowing the jury after considering the text to decide that it is not part of the “whole” that should be considered in determining the dominant theme for obscenity.

However, other cases point out that in dealing with certain obscenity problems the consideration of merely the entire physical item is insufficient. In those cases the court must look beyond the physical item to surrounding circumstances which are relevant to the “whole.” In Ginzburg v. United States, supra, the circumstances of presentation of the item, including dissemination, advertising, publisher’s attitude of pandering, commercial setting, and open commercial exploitation of erotica were part of the relevant “whole.” In Donnenberg v. State, supra, this Court held the “purveyor’s sole emphasis” on the obscene was a relevant consideration within the “whole” of the Roth test. In Sanza v. Maryland State Board of Censors, supra, the Court of Appeals held that it was relevant to consider the neighborhood in which a movie was to be shown as part of the “whole”.

A consideration of the entire physical item that is allegedly obscene is a starting point in delineating the “whole”. Numerous factors beyond the physical item may be considered when relevant.

II “Taken As A Whole” In The Instant Case

Looking at the facts in this particular case, we start by deciding whether to consider the cartoon alone; the cartoon in conjunction with the box of biographical material of the judge; the cartoon and all of page nine of this issue; the cartoon and the entire 24 page newspaper ; or the cartoon, the entire 24 page newspaper, and certain relevant factors beyond the newspaper itself. We hold that the proper “whole” is the cartoon in conjunction with the entire newspaper and other relevant outside considerations. We think the cartoon is inextricably bound to the iconoclastic nature of the entire periodical. While we most emphatically disagree with the ideas expressed in this periodical, there is no suggestion they were not sincerely held, or more importantly, were inserted merely to provide a pseudo-intellectual background for the publication of the cartoon. While different topics are considered in the different articles of the newspaper, their attitudes and ideas are uniform throughout.

We must recall that we are not considering tastefulness, accuracy of criticism, or social worth beyond the minimum amount required by the Fanny Hill decision.¹ We must bear in mind that it is, in fact, a newspaper which tries in its own puerile style to communicate ideas to the public. This cartoon is part of a six page critique which the publishers have presented to the public. In view of the historical importance of criticism of public officials by the media, especially newspapers, this Court will not lightly hold obscene such a critique by considering it independent from the rest of the paper although, we repeat, we may not be of accord with its ideas.

A reading of the newspaper shows that there are no other pictures in any way relating to sex acts. Although there is frequent use of common four letter Anglo-Saxon profanities dealing with sex and excretion, these are not used in a way to direct attention to the sex act or excretory act itself, but are rather employed to describe ideas or as exclamations. Hence, the inartistic cartoon of a man masturbating is the only illustration or text directly related to sex or excretion. The paper generally tries to report items of current interest and make comments on the alleged inequities of society.

It also appears that this newspaper was not disseminated in such a way as to cater to members of society who would have an interest in buying a picture of a man masturbating. Instead it appears that the periodical intended to attract subscribers who shared its iconoclastic attitude towards society.

Ill Social Worth

The instant case is unusual if not unique since the allegedly pornographic cartoon purports to criticize a public official. This Court is unaware of any other case in which the object of the alleged obscenity is an elected public official. We find no direct guidance in either case law or statutory law for dealing with obscenity involving public figures.

Under the facts presented, this Court must note that the person depicted in the cartoon is an elected public official and that the surrounding text directs its caustic criticism at that officer’s performance of his official duties. While appellant was convicted of an obscenity violation, the involvement of a public official introduces the relevance of those Supreme Court cases which define the increased breadth of the constitutionally protected privilege to discuss public officials’ conduct. In New York Times Company v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L.Ed.2d 686, a civil case in which a city commissioner sued several defendants for libel based on a paid “editorial advertisement”, the Court said at 376 U. S. at 279, 84 S. Ct. at 726:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The Court considered the defamatory criticism:

“. . . against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. * * * The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’ N.A.A.C.P. v. Button, 371 U. S. 415, 445, 83 S. Ct. 328, 344, 9 L.Ed.2d 405.” 376 U. S at 270, 84 S. Ct. at 721.

Having started with a civil defamation action, the Supreme Court extended the special consideration of criticism of public officials in Garrison v. Louisiana, 379 U. S. 64, 85 S. Ct. 209, 13 L.Ed.2d 125, a criminal case involving criticism of judges, wherein the Court said in 379 U. S. at 67, 85 S. Ct. at 212:

“At the outset, we must decide whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials. We hold that it does.

“Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations.”

Also in Garrison, the Supreme Court, 379 U. S. at 73, 85 S. Ct. at 215, n. 9, noted the law of privacy recognizes severe limitations where public figures or newsworthy facts are concerned. In Rosenblatt v. Baer, 383 U. S. 75, 86 S. Ct. 669, 15 L.Ed.2d 597, the Court more specifically defined the term public official, saying:

“It is clear, therefore, that the ‘public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the

conduct of governmental affairs.” 383 U. S. 85, 86 S. Ct. 676.

In Curtis Publishing Company v. Butts, 388 U. S. 130, 87 S. Ct. 1975, 18 L.Ed.2d 1094, the Supreme Court again broadened New York Times v. Sullivan by including “public figures” in addition to public officials.

The Court’s dedication to wide-open, caustic debate has been repeatedly voiced in a variety of postures. See Watts v. United States, 394 U. S. 705, 89 S. Ct. 1399, 22 L.Ed.2d 664; St. Amant v. Thompson, 390 U. S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262; Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 20 L.Ed.2d 811; and also Brukiewa v. Police Commissioner, 257 Md. 36, 263 A. 2d 210 (1970).

Of particular relevance to wide-open debate in the instant case are the comments of the Supreme Court in Bridges v. State of California, 314 U. S. 252, 62 S. Ct. 190, 86 L. Ed. 192, a prosecution for contempt of court for allegedly attempting to interfere with pending litigation. In Bridges, the Court said, 314 U. S. at 270, 62 S. Ct. at 197 :

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”

See Pennekamp v. Florida, 328 U. S. 331, 66 S. Ct. 1029, 90 L. Ed. 1295, another contempt case involving an alleged attempt to influence judicial administration in which the Court followed Bridges; Pennekamp is noteworthy in that it involves a cartoon critical of judicial administration. In Pennekamp, as in Bridges, the convictions were reversed. In Craig v. Harney, 331 U. S. 367, 67 S. Ct. 1249, 91 L. Ed. 1546, another contempt of court case based on an editorial allegedly too harsh in its criticism of a local judge, the Court commented on the nature of judges, 331 U. S. at 376, 377, 67 S. Ct. at 1255.

“Judges are supposed to be men of fortitude, able to thrive in a hardy climate. * * * Judges who stand for reelection [as they do in Maryland] run on their records. That may be a rugged environment. Criticism is expected. Discussion of their conduct is appropriate, if not necessary."

Insofar as the articles in the Free Press criticize a judge, they seem to be well within the area of criticism allowed by the Supreme Court in Bridges, Craig, and Pennekamp. While it is true that in the instant case we are dealing with an obscenity charge and not a contempt of court conviction, this Court cannot overlook the important fact the Free Press was making criticisms which, at least on their face, are protected by the constitutional right of free speech. It is true, of course, the first amendment shield is removed as to criticism which is known to be false, or is made with reckless disregard of the truth thereof, as pointed out in New York Times Company v. Sullivan, supra; but we cite the libel and contempt cases only to show the social value of criticism, even though inaccurate, of public officials. Although Freudian concepts of sexual motivation for human conduct, as expressed by the cartoon, have come under fire recently, they are not so discredited that this Court could say those ideas are utterly without social worth. Through the centuries, those in authority have attempted to repress many ideas that have later been widely accepted, as for example the ideas of Eugene Debs, Copernicus, Galileo and Darwin. See Epperson v. Arkansas, 393 U. S. 97, 89 S. Ct. 266. One of the basic purposes of the first amendment is to protect ideas of the minority. While to us, the idea a judge can get any kind of sexual gratification from the performance of his judicial duties is farfetched, we think the idea is well within the first amendment protection.

The State produced only one direct expert as to redeeming social value, a parish priest, who based his opinion on the proposition that criticism of a judge could have social value only if supported by strong evidence. Assuming the priest to be a competent expert, this concept is obviously contrary to the rationale of the cases we have heretofore cited. All of the defense experts testified the cartoon, in context, did have redeeming social value.

The State cites as controlling precedent Levin v. State, supra, wherein this Court was called to rule upon the obscenity of photographs depicting nude males, each with a large penis in full erection. The State emphasizes that here, as there, there is an emphasis on the male genitalia. The Court’s decision that the photographs in Levin were obscene is clearly distinguishable from the present case. The photographs in Levin were presented without any accompanying text whereas here there is not only considerable text but also an attempt at a critique of a judicial system, however distasteful, vulgar, revolting, shallow or inaccurate that critique might be. Thus, the two cases have little in common.

On this record, in making our independent constitutional determination of the facts, Donnenberg v. State, supra, we must hold the trial judge should have granted the motion to acquit because the allegedly obscene material was not utterly without redeeming social value.

IV Community Standards

We have heretofore quoted the three tests set out in Donnenberg v. State, supra, but for clarity we repeat the community standards test which also must be met before obscenity can be found.

“The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.”

There is some controversy as to whether the standard to be applied is national or local, but we will not discuss this question because the record here shows the material does not affront either standard. Donnenberg v. State, supra, 1 Md. App. 591, 598-599, 232 A. 2d 264, 268.

Of the State’s three purported expert witnesses only two, Father Gatta and Mr. Paulin, testified on the community standards issue. The former’s conclusion that the cartoon violated contemporary standards was not based upon knowledge of other publications concerning sexual matters available either nationally or locally, but upon what he had been told, what he thought most people would dislike plus his own theological and moral ideas. This, testimony is obviously valueless in determining the question as to community standards. Mr. Paulin based his opinion as to community standards on the simple basis that the cartoon depicted a public exhibition of sex. This testimony also fails to be of any assistance on the question at issue, which is, what other material relating to sexual matters is openly available in the community.

Three of the four defense experts, whose qualifications were not objected to, testified as to community standards, citing Portnoy’s Complaint, Playboy and Esquire magazines, the movie “I am Curious-Yellow” (which is available in many parts of the country but not yet locally, see Wagonheim v. Maryland State Board of Censors, 255 Md. 297, 258 A. 2d 240, sub nom., Grove Press, Inc. v. Maryland State Board of Censors, 397 U. S. 984, 90 S. Ct. 1115, 25 L.Ed.2d 393, U. S. , 90 S. Ct. 1496, 25 L.Ed.2d 682; 399 U. S. 903, 90 S. Ct. 2191, 26 L.Ed.2d 558), and sexual art works on display in art galleries, including those of Rembrandt and Picasso. In addition the defense introduced copies of Portnoy’s Complaint and The Collected Drawings of Aubrey Beardsley, both of which had been openly purchased in Montgomery County, Maryland.

The books, magazines, the movie and the works of art cited deal as frankly with sexual matters as the cartoon and, in general, are openly available nationally as well as locally. It seems extremely doubtful the State could produce any contrary evidence on this question if the issue were to be retried. On this record, in making our independent constitutional determination of the facts, Donnenberg v. State, supra, we must hold the trial judge should have granted the motion to acquit because the allegedly obscene material does not affront contemporary community standards, either national or local, in that other material, readily available, deals with sexual matters in an equally frank manner.

V Appeal to Prurient Interest

The principal definition of prurient interest in sex for legal purposes comes from Roth, supra, 354 U. S. at 487, 77 S. Ct. at 1310, n. 20, wherein the Supreme Court defines it as “a tendency to excite lustful thoughts * * * itching; longing; uneasy with desire or longing; . . . morbid . . .” The basic definition of a prurient interest in sex remains the same although subsequent cases have broadened the scope of inquiry in determining whether an appeal is made to prurient interests. See Ginzburg v. United States, supra, and Mishkin v. New York, supra.

The prosecution here presents no evidence that would support the finding of an appeal to prurient interests. The witness Oropollo felt that the cartoon appealed to a morbid interest in sex, with morbidity being defined as a pathological state of an organism that interferes with its function. This approach is too broad to fit within the Roth definition, which describes a narrower type of reaction, i.e., “itching, longing.” Under Oropollo’s definition, any number of pathological conditions could justify a finding of morbidity (e.g., a pathological avoidance of all interest in sex) while Roth limits prurient interest to uneasy longings or itchings. Further, Oropollo considered the cartoon out of context. Insofar as the witness Father Gatta testified on appeal to prurient interest, he also approached the problem incorrectly. First, he considered the cartoon alone and out of context. Second, he felt the cartoon was obscene merely because it showed a sexual aberration. Third, he balanced the three elements of obscenity one against the other instead of considering whether all elements, judged independently, coalesced. Donnenberg, supra. The last State expert, Leo D. Paulin, felt the cartoon obscene since it depicted a public exhibition of sex. All public depictions of sex do not appeal to prurient interest, since obviously if they were, all public, scholarly inquiry into sex would be obscene. See Roth v. United States, supra, 354 U. S. at 487, 77 S. Ct. at 1310.

All four defense experts testified directly that there was not only an absence of appeal to prurient interest, but also no appeal to sexual interests at all. All defense experts felt the cartoon was directed at the reader’s political feelings and not sexual feelings. As Dr. Gurel, a psychologist, said, “Just because there is a penis there [in the cartoon] doesn’t mean that the primary impact of the cartoon is sexual.”

Thus, the State did not carry its burden of proving beyond a reasonable doubt that the allegedly obscene cartoon and surroundings appealed to a prurient interest in sex. Since this is a question on which expert opinion could, perhaps, differ, we would remand the case for a new trial if this were the only ground for reversal, but since it is not as set out in III and IV above, we will reverse without a new trial. We repeat, to be obscene, the material must fail all three tests, i.e., it must be utterly without redeeming social value, it must exceed contemporary community standards in depicting sexual matters and must appeal to the prurient interest in sex.

Judgment reversed without a new trial. Costs to be paid by Montgomery County Council.

APPENDIX

A. Summary of the Newspaper

Those parts of the Free Press most directly connected with the cartoon, after the headline “Dear Judge Pugh” on page three, begin on page nine (the same page as the cartoon) and continue to page 15, although interrupted with other articles and full page drawings.

On page nine the opening sentences declare the Free Press’ attitude toward Judge Pugh, i.e., he is not judicially impartial and operates as a prosecutor not a judge. In the following article of approximately 24 paragraphs (14 of which are presented in quotes as the words of Pugh himself) the paper tries to substantiate this accusation. As their first example they cite the 1961 rape trial of the Giles brothers. After reporting in quotes a colloquy between Pugh and John Giles, the Free Press lists the errors of Pugh and the prosecutor, indicating the case was reversed by the United States Supreme Court. Their next example is a 1967 burglary trial of a man named Barnes. They claim Pugh prejudiced the jury by referring to newspaper articles, and the severe sentence was because Barnes lived in the District of Columbia. Their final example in this section is the rape case of Gordon Leon Contee wherein, according to the Free Press, Pugh manifested racial bias. The article indicates the Court of Appeals granted a retrial.

The remainder of the article is divided into three subdivisions indicated by underlined headings. The subheadings are: (1) Pugh on paranoia, conspiracy and Walter Washington; (2) Pugh on censorship and freedom, 1961; and (3) Pugh on picketing, 1965.

In the first subdivision, the Free Press indicates, through a quote, Pugh’s feeling that criminals come into Montgomery County from the District of Columbia and that Pugh gives severe sentences intending to keep the criminals in Washington.

In the second subdivision on censorship, the Free Press quotes from Yudkin v. State involving Henry Miller’s book, Tropic of Cancér, to indicate Pugh as trial judge felt his prurient interest was aroused by the book in question. The article quotes Pugh as saying to Yudkin:“.... The only thing the court can conclude is that you were trifling with your liberty. . . .” to which the Free Press-responded, “Who is trifling with whom here? How does one trifle with one’s own liberty?”

In the subdivision on picketing, the article presents several quotes purportedly from Pugh, to the effect that while there is a right of petition, that right does not include trying to influence the behavior of public officials. The Free Press felt Pugh put a greater emphasis on the empty verbalization of democracy as opposed to the practice of it. The final quote in this section, again purportedly from Pugh but without a source being given, is that Pugh, while admitting a right to picket, did not personally condone it.

. In the center of page nine immediately surrounding-the cartoon and set off from the rest of the page by a. line is a biographical sketch of Judge Pugh indicating in its first sentence that Judge Pugh has charged the County-Grand Jury of Montgomery County to investigate the Free Press for subversion. In response to that charge to the Grand Jury, the Free Press presents a brief history of Pugh, deciding the most effective rebuttal was the extensive quoting of his own statements [appearing in the-larger article outlined above]. Among the facts presented in the biographical sketch are a brief genealogy of Pugh and his wife, his former directorship of a local bank, fraternal affiliations, association with the county draft board, and his home address and phone number with the encouragement to call or visit him bearing gifts.

Turning to pages 10 and 11, page 10 is joined with page 15 in one lengthy article criticizing grand juries. To read the entire article it is necessary to remove pages 1Ó- and 15 from the rest of the newspaper. According to the article the grand jury has three purposes, but fails, in each of them.

The first purpose, to serve as the conscience of the community protecting individuals from unfair prosecution, fails due to the artificial selectivity in the process of selecting jurors, with the alleged result being that young, poor or working people, as well as members of minority groups or those who would suffer from economic hardship-due to the low pay of grand jury service, are all effectively excluded, leaving the grand jury mainly a white, middle-class, elderly body of the propertied, managerial classes. The article feels that since these are the people who “run” the country, the grand jury does not serve as a conscience-for the majority of the community.

The second purpose of the grand jury, according to the-article, is to serve as a watchdog against official misconduct. However, the article feels the grand jury fails in this purpose since, as concluded in its discussion of the first purpose, the people on the grand jury are those who benefit from official misconduct and thus do not want to improve the status quo.

The third purpose of the grand jury, as presented by this article, is to provide an opportunity for citizen participation in government. The article holds this purpose fails since the grand jury has become the prosecutor’s-rubber stamp. This rubber stamp effect is heightened by the facts that grand juries consist of individuals who are mystified by the technicalities of the law, serve only for brief periods, have no staff except the prosecutor’s-staff, and are not allowed to hire independent experts.

Moving into a general discussion of the shortcomings-of the grand jury, the article states although the grand jury is useless to the defendant, it can be very helpful to the prosecutor in the following ways: (1) By using the body of “ordinary citizens” on the grand jury as a scapegoat — for not bringing controversial indictments which the prosecutor wishes to avoid; (2) That the State’s Attorney, by using his access to the grand jury report, may prosecute people in the mass media; (3) As a strategy to avoid allowing the defendant to have a judicial preliminary hearing; (4) That in preparing for trial the prosecutor can force adverse witnesses to talk to him without full constitutional or judicial protection; and (5) The greater access of the prosecutor to the grand jury transcript as opposed to the defendant.

The article decries the secrecy and “mystery” of grand jury proceedings, specifically the exclusion of the mass media and lawyers for prospective defendants. The article feels that this situation allows coercion of witnesses into making statements that they would not otherwise make.

The remainder of the article deals with strategies with which activists called before grand juries may avoid testifying, such as invoking their fifth amendment rights.

On page 11 the Free Press quotes several paragraphs from Pugh’s charge to the grand jury to investigate the Washington Free Press since, quoting Pugh, it “advocates the destruction of the state. . . In the next paragraph the Free Press quotes the Declaration of Independence that when a government ceases to perform its proper purposes it is the right of the people to alter or abolish it. These quotes, tied to the material on page nine, strengthen the impression that the Free Press believes Judge Pugh should be investigated as subversive and not the Free Press.

Pages 12 and 13, joined together, as the center of the paper, are a two page triangular montage in black, white and purple. Appearing in the montage are figures representing the President, a judge, military officers, infantry soldiers and a riot policeman. Intermingled with the figures are consumer goods such as a car, radio, television, washing machine, soda bottle and can, records, hot dogs, and small box-like houses in a pattern. Also appearing are a factory, office building and school with the school flag flying upside down. This part of the montage is capped by an atomic explosion with a dollar sign in the mushroom cloud. Surrounding the explosion is the phrase “out demons” repeated in large print.

A majority, of the articles in the remainder of the paper deal with law in society, particularly law as a source instead of a cure for injustice. For example, there are articles on: A community bail fund, dissemination of information on individual’s legal rights, the collection of information concerning alleged police brutality to support actions being brought against the police (this topic appears in several different articles throughout the paper), a biography of an alleged police informer, a column listing alleged violations of law in the arrest and detention of drug suspects, the refusal of witnesses to testify before a Senate investigating committee, the alleged shooting of an innocent person by a Prince George’s County police officer, the inappropriate appropriation of federal funds to private firms, a list of Washington war tax resistors i.e., people who are not paying taxes which they feel pay for the war in Vietnam, a lengthy article entitled “Youth verses Law and Order” containing several short paragraphs of alleged inequities in the application of the law, the secrecy and evasiveness of the Central Intelligence Agency, a list of contract awards by the Department of the Defense to four different universities for the development of weapons, and several articles concerning the shortcomings of military justice. The attitude of the articles is uniformly harsh, critical, and iconoclastic.

Appendix B. Summary of Expert Testimony

The State’s case in chief included the testimony of three expert witnesses: Ralph P. Oropollo, Father Ernest T. Gatta, and Leo D. Paulin.

Ralph P. Oropollo, a clinical psychologist, received his bachelor’s and master’s degree in education from Rutgers University. Oropollo spends the bulk of his time in private practice in Washington, D.C., although he had also worked for several police departments in Maryland and other states and for several state institutions in Maryland. Oropollo’s opinion of the dominant theme of the material on page nine of the Free Press, taken as a whole, was that it appealed to a morbid interest in sex. Morbidity was defined by Oropollo as a pathological state of an organism that interferes with its function. Oropollo felt the cartoon, taken by itself, would show a morbid interest'on the part of the artist drawing the cartoon, and that the artist wanted others to agree with his interests. On cross-examination, it was developed that while Oropollo had read all of page nine, he had not read any of the rest of the issue. When asked on cross-examination whether he had an opinion as to the dominant theme of page nine taken as a whole, Oropollo responded that it was his opinion that page nine was a criticism of an individual who is a judge, and that the cartoon was part of the criticism. Oropollo then said the article’s criticism was of the exercise of judicial power; however, the cartoon was not part of this criticism. Oropollo acknowledged that in a primitive way the article and the cartoon, taken together in context, conveyed the idea of the cartoon judge receiving sexual gratification through exercising his powers.

Father Ernest T. Gatta, testifying next for the State, received his undergraduate degree from St. Mary’s Seminary. Thereafter he studied sacred theology at that school, receiving an S.T.L. degree, which he described as a theology degree comparable to a master’s. Gatta had worked as a parish priest in the Montgomery County area since 1956. As a parish priest, he said he was qualified as an expert on community standards and redeeming social values based on his studies and his encounters with marital and family problems and sex problems from young people. His experience was based primarily on confidential confessions from parishioners and a smaller number of counseling sessions. Although unsure how many people he had actually counseled, Gatta was sure the number was large. Gatta’s only familiarity with publications dealing with sex is what he observed, but had not read, on public store racks or what parishioners brought him from tipie to time; he had done no writing or publishing in this field. Having read some but not all of page nine and the rest of the .paper, Gatta stated the cartoon,, taken alone and out. of context from the accompanying text, exceeded community standards, because it. showed a misuse of sexual activities. Further, Gatta felt the cartoon had no redeeming social value since its primary purpose was the depiction of this sexual misuse; if there were a socially redemptive purpose, when balanced against the sexual misuse, the purpose, was overshadowed. As to social worth, Father Gatta felt that a personal attack on a circuit judge would be worthless. On cross-examination it developed that while he felt aware of what the majority of local residents felt about materials dealing with sex, he was not aware of the limits of what would be allowed or available in the community, having never been exposed to Esquire magazine, Philip Roth’s book Portnoy’s Complwint dealing with masturbation, or the movie “I am Curious-Yellow.” Gatta acknowledged that what he considered to be an aberration would be affected by his theology and morality rather than by what was available to the local public. Criticisms of judges, Gatta acknowledged, would have social worth if supported by strong evidence. However, Gatta admitted he had not read enough of page nine to decide whether there was sufficient supporting evidence in this article since he was considering the cartoon alone without the surrounding text. Further, he said that any worth in the text, when balanced against the obscenity, was outweighed.

Leo D. Paulin, the State’s last expert witness, attended law school for one and a half years but did not finish. Currently, he was the publisher of three advertising locals in Montgomery County. Paulin described himself as an expert in the description of sexual matters in the publishing business, having acquired his expertise through his activities as a publisher, the fact that he glanced at, but did not read, competitive papers, and his public speaking with various community civic groups. Paulin’s opinion, after one reading of page nine and looking at some of the other pages of the Free Press, was that the cartoon on page nine affronted community standards since the cartoon depicted a public exhibition of sex. On cross-examination, Paulin said his newspapers were 80% advertising with only 20 % news, and that he subscribed to no wire service for the papers. When given a Playboy magazine of April, 1969, Paulin stated the magazine’s cover, the centerfold of “Miss April”, and some pictures of Brigitte Bardot in a semi-dressed state were all pornographic. He admitted that Playboy and other magazines more pornographic than Playboy were readily available in Montgomery County. Also, he acknowledged that he had not read Portnoy’s Complaint or seen “I am Curious-Yellow.” When questioned if there was a political message in page nine and the cartoon, Paulin testified the entire page attacked a judge through his decisions; however, although Paulin admitted it was an attack on the judge’s decisions, he concluded that it was a personal attack. He admitted that if there were a message connected with the cartoon in the text, it would be necessary to read the text to get the message. At the close of Mr. Paul-in’s testimony, the State rested.

The first two witnesses in defense’s case in chief introduced two books as defense exhibits: Portnoy’s Complaint by Philip Roth, specifically describing masturbation, and The Collected Drawings of Aubrey Beardsley, which contains drawings of men with penises several feet in length. Both books were purchased at a bookstore operated by the wife of the State’s Attorney. A later witness introduced the complete scenario of “I am Curious-Yellow” in book form with over 250 pictures.

The defense presented four expert witnesses: Ronald Gross, Frank Getlein, Dr. Lee Gurel and Rev. Earl Brill. All four defense experts testified on all elements of obscenity, except Dr. Gurel who was not qualified on community standards.

The first expert witness for the defense was Ronald Gross, Editor-in-Chief and Vice-President of the Academy for Educational Development, a non-profit research and consulting organization in the field of educational problems. Gross also teaches contemporary American literature at New York University in New York City, and has written or edited several books, the most recent being The Arts and The Poor. He has edited several anthologies of essays and papers on educational problems, published two volumes of poems including one of graphic poetry, which combines words with pictures. He also has contributed articles and critical essays in several major magazines including the New York Times Book Review, Harpers, and Saturday Review. He is chairman of the grants committee of the General Semantics Foundation for research in language behavior. Gross has served as a consultant to the U. S. Office of Education, UNESCO, the Association of College and Research Libraries, the Readers Digest, the Ford Foundation, and several publishing companies including Simon & Schuster and Dell Publishing Company. In the area of academic awards, Gross stated he was a member of Phi Beta Kappa, scholastic honorary, was a fellow at the Shakespeare Institute in England, and received an award for magazine literary criticism. He stated that in his work as a literary critic, one of his major functions was to ascertain and evaluate the dominant theme of different works. After a brief cross-examination, Gross qualified as an expert on each of the three elements of the obscenity tests.

As to the cartoon, in its context with the surrounding text, Gross felt the dominant theme was that the cartoon judge abused his powers, particularly in cases relating to sexual matters, due to the judge’s own sexual preoccupation and, therefore, he was unfit for office. The cartoon, in Gross’ opinion, directed attention to the connection between the judge’s unfair punishments and his own sexual gratification. Gross felt the theme did not appeal to a prurient interest in sex, nor arouse sexual lust in an average person. As to community standards, Gross testified there was a trend, especially in metropolitan areas, towards more explicit characterization of sexual matters, citing as an example Portnoy’s Complaint. Gross felt the cartoon on page nine did not exceed contemporary standards with regard to candor in the depiction of sexual activity. Gross stated that he had seen the movie “I am Curious-Yellow” but considered the cartoon more political in nature. As to redeeming social value, Gross felt the cartoon’s value was very great, since it exposed abuse of power by a public official, especially the exercise of political power by the official as an expression of sexual need. Gross cited several examples of other similar criticisms of political behavior starting with modern theatre .and going back to ancient Greece. Gross’ testimony was not altered by cross-examination.

The next expert witness for the defense was Frank Getlein, who is employed by the Washington Evening .Star newspaper as an art critic, political columnist and editorial writer. Getlein stated he had been an art critic .and columnist for approximately 22 years, the last eight with the Evening Star. His art column is syndicated to between 40 and 50 newspapers including the Boston ■Globe, New York Evening Journal, and the Detroit Free Press. Getlein has published between 12 and 20 books in the art field,' including many monographs on individual artists. One of his books entitled Bite of the Print is, by his own report, the leading book in the field of satire and irony in prints, being used as a text or reference book in many colleges and institutions including the Smithsonian. He is currently working on several other books to be published. He considered his specialty to be the relationship between art and politics, defining politics in a broad sense to include social ideas and values.

Getlein stated he had read the entire issue of the Free Press. In evaluating the cartoon’s dominant theme in context, Getlein, after his initial response of laughter, felt the theme of the cartoon is that the judge, identified in the text but not the cartoon, expressed himself sexually through the severity of his decisions, especially those involving sex. The cartoon, according to Getlein, contended the judge used his severe decisions as a means of sexual •expression. The cartoon did not, even remotely, appeal to prurient interest. To Getlein, the sexual element in the •cartoon was used to convey a political message, i.e., an attack on a political person. To Getlein, this cartoon and its approach of criticizing political officials through sexual or scatological references is at least 500 years old, going back to the beginning of printing. Before printing, Getlein felt this expression of criticism could be shown in stone and wood carvings as in ancient cathedrals. Getlein felt the cartoon did not go beyond the limits of candor allowed in generally available works of art dealing with sex, citing several art works on display in prominent art galleries. However, on cross-examination, Getlein indicated that his newspaper, and probably many other respected newspapers, would not print this cartoon. On redirect it was pointed out that the same newspapers; that would not print this cartoon would probably also not print many works of art depicting sexual matters by recognized masters, including Rembrandt and Picasso. Getlein acknowledged that art magazines and newspapers with more selective circulation than the Evening Star would probably publish the works of art masters depicting sexual activity. When given the definition of hardcore pornography from Donnenberg v. State, 1 Md. App. 591, 600, Getlein testified this cartoon was not even remotely connected to hardcore pornography.

Dr. Lee Gurel, the next defense expert, received a bachelor’s degree from Clark University, a master’s degree and doctor’s degree from Purdue University, with all degrees being in psychology. Currently he is employed by the Veterans Administration as a psychologist. His professional experience included working in the psychological service of a general medical hospital, being chief psychologist in a neuropsyehiatric hospital, and directing the evaluation of psychiatric programs and treatment. He taught at the University of Colorado and is a consultant for the Albert Einstein College of Medicine in New York City. Dr. Gurel has published between 40 and 45' learned articles in professional journals, and presented approximately thirty papers at professional meetings of psychologists. His articles have appeared in, among others, the journals of the American Psychological Association and the American Psychiatric Association, plus the Archives of Neurology and Psychiatry, the American Journal of Psychiatry, Journal of Counseling Psychology. He is a member of the American Psychological Association, the Eastern Psychological Association, Maryland Psychological Association and the District of Columbia Psychological Association. Gurel is certified to practice as a psychologist in Maryland.

As to the Washington Free Press, Dr. Gurel looked at the cartoon and read the entire issue of the newspaper. His opinion was that the dominant theme of the cartoon viewed in context was that a judge, identified as Judge Pugh, derives a sadistic sexual satisfaction from his activities as a judge. Dr. Gurel testified that the validity of this psychological concept has been long recognized and dates back to classical works in psychology. When asked if this cartoon in context would stimulate sexual lust or lascivious thoughts in an average person, Gurel responded :

“I can hardly conceive of the possibility that this cartoon would arouse lust and lascivious thoughts in the average person. ... I don’t think it [the cartoon] has very much to do with sex at all. Just because there is a penis there doesn’t mean that the primary impact of the cartoon is sexual. * * * I don’t think that the cartoon is sexually stimulating at all.”

When comparing the cartoon with the April, 1969, Playboy magazine, Dr. Gurel stated the magazine, its cover, centerfold, and pictorial essay on Brigitte Bardot were all more stimulating than the cartoon. When questioned about masturbation, Dr. Gurel stated that masturbation is practiced by practically 100% of the male population, citing Kinsey’s study that 96% of the males admitted masturbating. In direct response to the testimony for the State by Oropollo that he, by looking at the cartoon, was able to conclude that the artist was suffering from morbidity, Dr. Gurel testified that, excluding Oropollo, he knew of no reputable psychologist who would make such a simplistic evaluation based on a single piece of evidence. He further emphasized that evaluating a drawing done by a cartoonist intending to create something artistic is completely different from drawings done in a clinical interview. He cited journal articles supporting his statements. When asked his opinion as a psychologist whether the cartoon in its context had any social redeeming value, Gurel responded, “I think that the cartoon portrays very well the idea that there can be hidden motivation being expressed in some kind of common activity.”

On cross-examination, Gurel stated it would be difficult for him to imagine anyone being stimulated sexually by looking at the cartoon, and that considering the cartoon both in and out of content, he could not conceive of it being sexually stimulating even to a male homosexual.

The last expert for the defense was Rev. Earl Brill, whose education consisted of a B.A. degree from the University of Pennsylvania, a bachelor of theology from the Philadelphia Divinity School, a master of theology from Princeton Theological Seminary, and the recent completion of the requirements for a Ph.D. degree in American intellectual history at American University in Washington, D. C. Brill is the Episcopalian chaplain at the American University and a professorial lecturer in American civilization. During the ten years he has been chaplain, Brill has done considerable counseling with students, frequently on the topic of sex. Brill published several books including Sex is Dead and Other Post Mortems. One of his principal interests is the relationship of attitudes with values, and ethics with morals. He stated he was aware of the graphic arts and literature available in the greater Washington area as they related to his analysis of culture. He testified that he had seen “I am Curious-Yellow”, and read Portnoy’s Complaint.

As to the Washington Free Press, Rev. Brill read all of page nine, read the pages between nine and 15 in this issue, and skimmed the rest of the issue. In his opinion the dominant theme of the cartoon on page nine taken in context was a political attack on Judge Pugh for the reasons outlined in the accompanying text, i.e., that he derived sexual satisfaction from the misuse of his judicial powers. Further, Brill testified this theme would not possibly arouse prurient interest in sex. He did not feel the cartoon exceeded the limitations of candor in depicting sex. As to redeeming social value, Rev. Brill felt that the cartoon clearly had social value as a political criticism of the administration of justice in Montgomery County. He concluded his direct examination by saying:

“Now, whether you regard the administration of justice as adequate or inadequate, it’s very clear that the American political tradition calls for us to submit our political institutions to continual scrutiny and criticism, and for that reason such criticism [as within this cartoon] does indeed have redeeming social value.”

On cross-examination, Brill stated that although the attack focuses on Judge Pugh, it is not a personal attack but rather a political attack. When asked about the cartoon alone separate from the text, Brill responded that he considered pages nine through 15 a unit. After establishing that some depictions could be obscene, Rev. Brill stated that he did not consider this one to be obscene.

1 . A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U. S. 413, 419, 86 S. Ct. 975, 978, 16 L.Ed.2d 1. “The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene’. A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive.”