concurring:
I entirely concur with the reasoning, statement of facts and application of the law in the opinion of the Court. I am of the opinion, however, that (a) additional emphasis should be given to the pandering aspect of the case when the third test of “utterly without redeeming social value” is considered and (b) there should be additional comment upon the scope or applicability of this third test when the Court has before it a motion picture which is obscene under the first two tests in regard to prurient interest in sex and an affront to contemporary community standards.
(a)
In the majority opinion, in considering the third test, the pandering aspect of the case is suggested by the observation that the film makers’ attempt to raise so-called “social questions” was “patently strained and contrived” and the result was so “artificially depicted” as failing to supply the “redeeming social quality required to sustain the film.” The majority opinion also cites with approval a portion of Chief. Judge Lumbard’s dissenting opinion in United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 404 F. 2d 196, 202, in which he states, “Needless to say these acts (of fellatio and cunnilingus) bear no conceivable relevance to any social value, except that of box office appeal.” (Emphasis supplied.) Id. at 203. With these observations, I heartily concur, but I would additionally emphasize that the record discloses to me that there is substantial evidence which indicates the pandering of sex. This pandering, in my opinion, brings the present case within the ambit of the decision of the Supreme Court of the United States *312in Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L.Ed.2d 31 (1966).
In Ginzburg, there was a clear majority of five justices for the opinion of the Court, i.e., Mr. Justice Brennan, who wrote the majority opinion, with the concurrence of Warren, C.J., Clark, White and Fortas, JJ. Justices Black, Douglas, Harlan and Stewart dissented and each wrote dissenting opinions.
The opinion of the Supreme Court in Ginzburg stated:
“This evidence (of advertising), in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient ; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigatioh purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the. materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.” (383 U. S. at 470, 86 S. Ct. at 947, 16 L.Ed.2d at 38)
*313We cited and followed Ginzburg in Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A. 2d 317 (1967) and recently in Hewitt v. Maryland State Board of Censors, 254 M!d. 179, 193-95, 254 A. 2d 203, 210-211 (1969), involving the motion picture “Odd Tastes.”
The pandering of sex in the present case is not of the same nature as that involved in Ginzburg and the evidence in regard to it is not as clear and definite as was the evidence in Hewitt, supra. In the instant case the pandering aspect is more subtle, but it is present none the less.
In the scenario, which apparently is prepared for sale in conjunction with the motion picture, there is an obvious emphasis on the sexual aspects of the motion picture revealing as its object the “material gain for the creator through an appeal to the sexual curiosity and appetite.” Ginzburg, supra, 383 U. S. at 471, 86 S. Ct. at 947-948, 16 L.Ed.2d at 38. It is apparent from looking at the scenario that there is a larger proportion of photographs of the sexual scenes than in the motion picture and Dr. Macksey, an expert witness for the appellants, stated, in effect, that the use of the series of stop action frames depicting the sexual scenes served to emphasize the sexual theme in the motion picture. In my opinion, these facts bring the present case within the Ginzburg decision which indicated that the animation of sexual detail to give the publication in that case a salacious cast amounted to an appeal to the sexual curiosity and appetite and amounted to the pandering condemned in that case.
The Attorney General aptly commented on this aspect of this case in the lower court:
“You have a book on the cover says 250 illustrations. If you count the illustrations in this book, you will find approximately 100 of the 250 have to do with sexual themes, out of the 250. That is 100 out of 250, which is forty percent of the total against six minutes of 120 *314minutes or 135 minutes of the film, and if you will look you will find that in a period of some —pages 89 to about 160, you have some 83 or 80 sexual pictures againt 60 others, which is about a hundred and twenty-five percent, which indicates there is a very significant emphasis on the pornography we say is in the film in this book,* * *”
It thus appears that the pandering of sex in the motion picture is generated entirely by the profit motive. By the concentration on sex in the scenario, Grove Press sells the book and by selling the book, it sells the sex in the motion picture.
The argument by the appellants (if relevant at all) that the motion picture will be shown only to those members of the community 18 years of age or older is rather impaired by the findings by the District Court of Johnson County, Kansas, in a recent case entitled “The State of Kansas v. A Motion Picture Film Entitled ‘I Am Curious-Yellow’ ”, No. 6122, Div. No. I, in which the Order was filed on September 5, 1969, and modified in a detail of no importance for this case on September 15, 1969. A, copy of the opinion of District Judge Herbert W. Walton in this Kansas case was forwarded to this Court by the Attorney General on October 1, 1969, a copy being sent to counsel for the appellants. In the Kansas case, the motion picture involved in the case at Bar was shown at the Kimo South Theatre (an “art theatre”) in Overland Park, Johnson County, Kansas. Advertisements furnished by Grove Press for the motion picture published in the Kansas City Times and the Kansas City Star from June 17 to June 24, 1969, stated, “Admission restricted to adults.” The motion picture was advertised as “ ‘a landmark likely to permanently shatter many of our last remaining movie conventions,’ says William Wolfe of Cue Magazine.” In none of the advertisements, other than the one of June 21, 1969, was there mention of any other theme. The District Court found *315that although the advertisement on June 21 mentioned such “alleged themes as politics, non-violence, Zen, commitment, socialism and other subjects, the whole import of the advertisement and the attention of the reader are centered on the obvious and purposeful deletion which implies the word ‘sex.’ ”
In the newspaper advertising of June 18, 1969, no mention was made at all of age restrictions; on June 19, 20 and 21, there was a restriction to persons over 18 years of age with suitable identification; on June 22, there was a restriction to those 18 years and over; and, on June 23 and 24, the advertisements simply stated “adults only.”
The enforcement officers took random samplings on the evenings of June 22, 23 and 24, 1969, among persons leaving the theatre (which seats approximately 825 persons) who appeared to be under 21 years of age. One officer on Sunday, June 22, stopped 10 persons, three of whom were under 21 years of age; of the persons stopped by the other officer on the same night, seven were under 21 years of age. On Tuesday evening, June 24, from those stopped six were under 21 years of age and of those, three were under 18 years of age. On June 22 also, the ticket seller at the theatre sold a ticket to view the motion picture to an identified lad, 17 years of age, without asking the youth his age or asking to see his identification. The lad was thereafter admitted, the ticket taker neither asking his age nor for any identification. There were similar episodes on June 24,1969.
The Contract of May 18, 1969, between Dickinson Operating Co., Inc. through Glen W. Dickinson, Jr. and Grove Press, Inc. through Barney Rosset, one of its chief officers, to exhibit the motion picture at the Kimo South Theatre provided that Grove Press, Inc. would receive 90% of the gross receipts in excess of $1,500 a week, but not less than the following fixed percentages: first week: '70 % ; second and third weeks: 60 % ; fourth and fifth weeks: 50 % ; sixth week: 45 %. The minimum run was to be for six weeks with additional time to be negotiated. Grove Press, Inc. was to pay 90% of the advertís*316ing costs and all advertising materials content and costs were to be at the discretion of Grove Press, Inc. The contract further provided that Dickinson Operating Co., Inc. was to exhibit the film in its entirety and was not to cut or alter the print, other than to make necessary repairs or when required by a public official or authority, without the written consent of Grove Press, Inc.
(b)
As the majority points out, we applied the Roth test as restated and amplified in Memoirs to a motion picture in Hewitt v. Maryland State Board of Censors, 254 Md. 179, 182-83, 254 A. 2d 203, 205 (1969), supra, and the restated “rule” has been applied in the present case. In my opinion, in view of the uncertainty in regard to the view of a majority of five justices of the Supreme Court on various aspects of the applicable test, it was wise for. us in Hewitt, supra, as well as in the instant case, to apply the most detailed and comprehensive test enunciated by the justices writing for a majority or a plurality of the Supreme Court in the obscenity cases in that Court. As I have indicated, it. is my opinion that the film in the case at Bar is well within the three tests mentioned and is obscene under those tests.
The able argument of the Attorney General and of the Assistant Attorney General, both in the appellee’s brief and orally before us, has made me doubt, however, that the third test i.e., that the material is “utterly without redeeming social value” — at least in its full vigor— is properly applied to a motion picture because of the difference between motion pictures, on the one hand, and. novels, pamphlets and other writings, on the other.
As early as 1952 when the Supreme Court first applied the provisions of the First Amendment in regard to freedom of speech and of the press to motion pictures (“The Miracle”), in Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 777, 96 L. Ed. 1098, Mr. Justice Clark, speaking for the Supreme Court (Reed and Frankfurter, JJ. concurring; there were no dissents) observed *317the difference between the two methods of expression, as follows:
“To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does net follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and at all places. That much is evident from the series of decisions of this Court with respect to other media of communication of ideas. Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems.”
(343 U. S. at 502-503, 72 S. Ct. at 781, 96 L. Ed. at 1106)
Mr. Justice Clark in his concurring opinion in Kingsley Pictures Corp. v. Regents (“Lady Chatterley’s Lover”), 360 U. S. 684, 702, 79 S. Ct. 1362, 1372, 3 L.Ed.2d 1512, 1524 (1959) stated:
“I see no grounds for confusion, however, were a statute to ban ‘pornographic’ films, or those that ‘portray acts of sexual immorality, perversion or lewdness’ ” (Emphasis in original.)
Mr. Justice Brennan, for a unanimous Supreme Court, stated in Freedman v. Maryland, 380 U. S. 51, 60-61, 85 S. Ct. 734, 740, 13 L.Ed.2d 649, 656 (1965) that:
“The requirement of prior submission to a censor sustained in Times Film is consistent with our recognition that films differ from other forms of expression.”
This difference is also recognized in the opinion of Circuit Judge Hays, in the Second Circuit case involving the film in this case in which it is stated:
“No doubt the standards by which motion pictures are to be judged differ in some parcicu*318lars from those to be applied to books.” (404 F. 2d at 198)
In the State Courts the distinction between the two methods of expression has been carefully and fully pointed out. In Landau v. Fording, 245 Cal. App. 2d 820, 54 Cal. Reptr. 177 (1966) the appellate court for California stated:
“Furthermore, we think that the constitutional protection afforded does not mean that the visual impact of a motion picture as distinguished from other media can be disregarded. Films are obviously different from other forms of expression (Freedman v. Maryland, 380 U. S. 51, at p. 61 [13 L.Ed.2d 649, 85 S. Ct. 734]). The significance of the motion picture medium is due to the technological features of the particular medium. The unique combination of sight and sound that characterizes a motion picture makes the ideas presented by movies comprehensible to a larger audience than is the case in any other medium except television (see materials cited in 60 Yale L.J., 696, fns. 27 and 28, at pp. 707-708, and 42 Cal.L.Rev., 122, fn. 53, at p. 128). Even in the absence of sound, movies assure a high degree of attention and retention. The focusing of an intense light on a screen and the semi-darkness of the room where distracting ideas and suggestions are eliminated contribute to the forcefulness of movies and their unique effect on the audience (60 Yale L.J., supra, at p. 708).
“Because of the nature of the medium, we think a motion picture of sexual scenes may transcend the bounds of the constitutional guarantee long before a frank description of the same scenes in the written word.” Id. at 181.
See also the interesting discussion of this matter by the Court of Appeals of New York in Trans-Lux Dist. *319Corp. v. Board of Regents, 14 N.Y.2d 88, 248 N.Y.S.2d 857 (1964), rev’d per curiam, 380 U. S. 259, 85 S. Ct. 952, 13 L.Ed.2d 959 (1965) citing only Freedman v. Maryland, supra, from which it can be inferred that the reversal by the Supreme Court was on the basis of the procedural inadequacy of the New York statute and that the Supreme Court did not consider the issue of obscenity. Cf. Teitle Film Corp. v. Cusack, 380 U. S. 139 (Note 1), 88 S. Ct. 754, 19 L.Ed.2d 966 (1968) in which the Supreme Court held a Chicago statute invalid under Freedman, but noted that it had not considered the issue of obscenity.
The Roth test was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,” apd it is the only test in which a majority of five justices of the Supreme Court has ever agreed.
In the Roth case, 354 U. S. 476, 483-485, 77 S. Ct. 1304, 1308-1309, 1 L.Ed.2d 1498, 1506-1507 (1957), the Supreme Court stated:
. . the unconditional phrasing of the First Amendment was not intended to protect every utterance . . . All ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties ... But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire . . . ‘There are certain well-defined and narrowly limited classes *320of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene ... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality (Emphasis ours.)
The Supreme Court continued:
“We hold that obscenity is not within the area of constitutionally protected speech or press.”
The Court then set out the Roth test above set forth.
When then, did the other two tests, i.e., (a) the.material must be “patently offensive” and (b) it must be “utterly without redeeming social value” purportedly come into the law?
Apparently, the “patently offensive test” came from the opinion of Mr. Justice Harlan in his opinion in Manual Enterprises, Inc. v. Day, 370 U. S. 478, 482, 82 S. Ct. 1432, 1434, 8 L.Ed.2d 639 (1962). This “test,” however, only received the concurrence of Mr. Justice Stewart in this case. Mr. Justice Brennan wrote an opinion concurring in the judgment for different reasons and Mr. Chief Justice Warren and Mr. Justice Douglas concurred in the opinion of Mr. Justice Brennan. Mr. Justice Black concurred in the result without opinion; Mr. Justice Clark dissented and filed a dissenting opinion. Frankfurter and White, JJ., took no part in the decision. A review of subsequent cases does not indicate to me that a majority of the Supreme Court has committed itself in any one case to the “patently offensive test.” Hence, the doctrine of stare decisis does not commit the Supreme Court to the “patently offensive test.”
The “utterly without redeeming social value test” (emphasis supplied) as applied to media pictures apparently *321came from the opinion of Mr. Justice Brennan in Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L.Ed.2d 793 (1964) involving the French motion picture “Les Amants” (“The Lovers”). Here again, only Mr. Justice Goldberg concurred in the opinion by Mr. Justice Brennan, Messrs. Black, Douglas and Stewart, JJ., concurring in the judgment only. Mr. Justice Harlan dissented as did Mr. Chief Justice Warren and Mr. Justice Clark, so that this “test” did not receive the approval cf a majority of the Supreme Court.
Some have thought that the third “test” was finally brought into the law by the decision in Memoirs, supra, in 1966. But, alas, again the “test” did not receive the approval of a majority of the Supreme Court, the opinion of Mr. Justice Brennan receiving the approval of only Mr. Chief Justice Warren and Mr. Justice Fortas. Mr. Justice Clark, indeed, in his dissenting opinion in Memoirs observed that the social value test was “novel” and that only three members of the Supreme Court held to it. He further pointed out that, in his opinion, such a test rejects the Roth test to which, as above indicated, a majority of the Supreme Court did agree.
Even in the case of Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L.Ed.2d 515 (1967) — discussed at some length by us in the recent Hewitt case, supra— the per curiam opinion of the Supreme Court was careful to state that the necessity of meeting the three point test was one held only by certain justices in Memoirs, and did not cite the three point test as the test of the Supreme Court.
Where does this extraordinary situation leave the lower Federal Courts and State Courts in their required effort to apply the decisions of the Supreme Court of the United States in obscenity cases? Like the policeman in Gilbert and Sullivan’s “The Pirates of Penzance,” their “lot is not a happy one.” I have concluded that this Court is not required to follow the “three point test” in motion picture cases so far as any authoritative and binding holding of the Supreme Court of the United States is *322concerned, but that we are required to apply and follow the original Roth test. This conclusion is indirectly of some importance in the present case because of the statement in the concurring opinion of Circuit Judge Friendly in the Second Circuit case:
“If the governing rule were still what Mr. Justice Brennan stated in Roth v. United States, 354 U. S. 476, 489, 77 S. Ct. 1304, 1 L.Ed.2d 1498 (1957), namely ‘whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest,’ I might well join Chief Judge Lumbard for affirmance.”
(404 F. 2d at 200)
As I have concluded that the governing rule is indeed the Roth test, this would mean that the very excellent opinion of Chief Judge Lumbard really should be the opinion of the Second Circuit in that case. I might add parenthetically that, in my opinion, it should have been the majority opinion even on the other theory.1
I reiterate, however, that I think this Court was wise in both the recent Hewitt case, supra, and in the majority opinion to apply the “three point test” in view of the unsettled state of the decisions of the Supreme Court in the obscenity field. If a majority of the Supreme Court finally adheres to the three point test (unfortunately from my viewpoint), we will have applied the correct rule; if a majority finally adheres to the Roth test, the appellants cannot complain if we have applied a stricter test than the law, as ultimately determined, required us to do.
I might add that, as we observed in the Hewitt case, *323supra (254 Md. at 195, 254 A. 2d at 211), Mr. Justice Marshall in the recent case of Stanley v. Georgia, 394 U. S. 557, 568, 89 S. Ct. 1243, 1249-50, 22 L.Ed.2d 542, 551 (decided April 7, 1969), seems to equate the cases subsequent to the decision in Roth as continuing the Roth test as he stated, for the Supreme Court:
“Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.”
I add finally that although the “national” community standard may well be thought to apply reasonably to decisions of the Federal Courts involving the nation as a whole, and the expert testimony in the present case is sufficient to support the conclusion that the film does offend a national community standard, I have grave doubts that a majority of the Supreme Court will ultimately decide that in the exercise by the States of their “broad power to regulate obscenity,” the States will be required to apply a “national” rather than a “State” standard as the “contemporary community standard.” When a State seeks to clean the Augean stables of obscenity or to prevent the offending material from accumulating, it should be able to consider and apply the community standard of its own community, and not be required to attempt to evaluate the standards of other communities not under its jurisdiction. I hope indeed that a majority of the Supreme Court of the United States will ultimately reach this conclusion.
. I note in support of my position that the three judge court for the United States District Court for the District of Kansas, consisting of Hickey, Circuit Judge, and Stanley and Theis, District Judges, in the recent case of Grove Press, Inc. vs. State of Kansas, et al and Lakeside Drive In Theatre, Inc. vs. Menghini, et al, Nos. KC-2992 and KC-2997 (consolidated cases) in a per curiam opinion filed October 6, 1969, unanimously agreed with. Chief Judge Lumbard’s opinion.