The Maryland Court of Appeals declared the bulk of the state's antiobscenity law unconsitutional today because the statute "arbitrarily" exempts employees of pornographic movie houses from prosecution.
The decision by the state's highest court, which prompted a strongly worded dissent from Chief Judge Robert C. Murphy, leaves Maryland virtually without any laws to control distribution of obscene books, magazines and films to adults. The portion of the law prohibiting distribution of obscene materials to juveniles is not affected by the ruling, however.
The court's decision today came in the case of John W. Williams, an employee of the Swinger Life, Inc., bookstore in Baltimore. Williams had been convicted of selling an obscene magazine - "Linda Lovelace, Star of Deep Throat" - to a Baltimore City police detective.
Wheeler, who was fined $500 for the offense, appealed, contending he had been denied equal protection under the law as guaranteed by the Constitution. If movie theater employees who have no financial interest in the theater are exempt from prosecution. Wheeler said, why shouldn't bookstore employees also be exempt?
The Court fo Special Appeals. Maryland's second highest court, had rejected his contention, saying "there is a rational basis for the legislative distinction between employees of bookstores and employees of motion picture theaters," because a theater can keep juveniles out while "no controls are present when obscene material . . . is once removed from (a bookstore)".
The state's highest court, however, rejected this reasoning. In a decision written by Judge Charles E. Orth Jr., the court held that an usher in a movie theater who passed out an obscene program would be exempt from prosecution, while a bookstore employee who sold the same program could be punished.
"Thus, the law operates upon some persons and not upon others (in similar circustances)," the court's opinion said. "To the extend (the law) prohibits some employees of legal entities from selling, distributing and publishing obscene material, while allowing other employees to do so, it violates the equal protection clause of the Fourteenth Amendment."
The exemption of movie theater employees was added to the state's obscenity statute in 1967, at a time when projectionists and others employed in pornographic movie houses around the country were frequently being subject to arrests.
Stephen Schwarts, legislative counsel for the Motion Picture Association, said today that many states now have laws similar to Maryland's, exempting employees of pornographic movie houses from prosecution under antiobscenity laws.
"If they is any trend, it is to exempt employees without managerial responsibility, since they are really innocent victims," Schwartz said. Because of this, he added, today's decision by the Maryland court "poses interesting questions for other states," even though the decisions has no legal force outside Maryland.
Chief Judge Murphy strongly dissented from the court's ruling today, pointing out that "Maryland is left without any law inhibiting the distribution of obscene material, other than to juveniles.
". . . The result reached by the court is plainly at odds with what I perceive to be the governing law," added Murphy, who was joined in his dissent by Judge Irving A. Levine.
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"Once printed matter is removed from a bookseller's premises, it and tributed and redistributed without its corrupting influence may be dislimit to anyone, including juveniles," the dissenters' opinion added.
". . . The problems of government are practical ones and may justify, if they do not require, rough accommodations, . . . illogical and unscientific as they may be," the dissent continued. "That we may think a legal classification is unwise . . . does not justify our striking it down, so long as it is constitutional."
Why the legislature decided in 1967 to exempt pornographic movie house employees exclusively could not be determined today. According to State Sen. J. Joseph Curran Jr. (D-Baltimore City), chairman of the Judicial Proceedings Committee, the intention of the legislature had been to protect "the little lady selling tickets at the movie theather at a salary of $50 a week."
"Maybe there weren't any dirty book stores around," he said. "The emphasis seemed to be on moives, or at least that's my recollection."
The four-member majority of the Court of Appeals also rejected a so-called "severability clause" which the legislature had inserted into the obscenity statue. The purpose of the clause had been to ensure that, even if part of the law were declared unconstitutional by a court, the part not affected by the ruling would remain in force.
In dismissing the severability clause, the court held that the state legislature clearly intended for the obscenity laws not to apply to theater employees. To strike down only that portion of the statute, the court said, would mean leaving theater employees liable to prosecution - a situation the legislature had specifically tried to avoid.
The state's attorneys of both Montgomery and Price George's counties said their jurisdictions had no ordinances specifically designed to control obscenity. It could not be determined today whether any other of the state's 24 separate jurisdictions have antiobscenity ordinances of their own.