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The Advisory Committee is aware that both the Senate Human Resources Committee and the House Education and Labor committee have considered and favorably reported legislation to reauthorize the Child Abuse Prevention and Treatment Act, H.R. 6693 and S. 961. However, we understand that further action may be dependent upon action taken on H.R. 7093, the Child Exploitation and Prevention Act pending in the House Subcommittee on Select Education and S. 1585, Protection of Children Against Sexual Exploitation Act of 1977, which is being considered by the Senate Judiciary Committee.

Both bills propose to prohibit and penalize the sexual exploitation of children. Such exploitation is itself a form of abuse and the Advisory Committee supports the goal of these two bills. We believe that any approach to attack sexual exploitation of children should be included in Federal criminal statutes such as those presently contained in Title XVIII, the criminal title of the U.S. Code.

At the state level, the Advisory Committee recommends that: (1) state legislatures increase their appropriations for investigating reports and providing services; (2) additional funds be used for training those individuals required to report suspected cases; (3) each governor hold a state level conference to coordinate human services within the state and emphasize the need for coordination in the prevention and treatment of child abuse and neglect; (4) each state adopt the concept of an individual treatment plan in judicial proceedings for abused children and, particularly, their families, and (5) that a single state agency be identified in each state or community with responsibility for providing technical assistance on parenting education programs.

The next section of recommendations is addressed to agencies responsible for public and private school systems including state boards and departments and local school boards. In summary, these recommendations are that: (1) such agencies comply with their responsibilities under the reporting law; (2) school personnel expected to identify and report suspected cases are provided with inservice training; and (3) parenting education be included in the curriculum. If you or your staff require or desire any further information concerning the reporting of the activities of the Committee, please feel free to contact me. ROBERT F. BENNETT, Governor of Kansas, Chairman, Education Commission of the States National Advisory Committee.

Re: Child Pornography Legislation
Hon. JOHN CONYERS, Jr.,

OFFICES OF THE ATTORNEY GENERAL,
Baltimore, Md., August 16, 1977.

Chairman, Subcommittee on Crime, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR REPRESENTATIVE CONYERS: I have your letter of July 7, 1977, in which you requested additional information concerning the function and powers of the Maryland State Board of Censors. For reference to the Board's power and jurisdiction see Article 66A, the Annotated Code of Maryland (1970 Repl. Vol. and 1976 Cum. Supp.), a copy of which is attached to this letter.

As to your first question, only films which are to be shown commercially must be submitted to the Censor Board for preexhibition review. Those films which are sold to private individuals and which are intended for private showing do not have to be submitted to the Board. There is also an exemption for any film which is to be shown by an educational, charitable or like organization to its membership.

The statute does not have any requirement regarding labeling or identification of producers, actors and actresses; however, the Board for purposes of its records does record the names listed in the credits shown with the picture. There is also a requirement that the exhibitor furnish the Board a description of the film to be exhibited.

There have been films exhibited in the State of Marylaned which have not been submitted to the Censor Board for approval. This is the exception, however, and not the rule.

The Board employs inspectors who attend all commercial theaters on a random basis and view what is being shown as well as check the film for the Board's seal of approval. When they discover a film which has not been so submitted. the Board, through the Attorney General's Office, files a complaint in the Maryland District Court for violation of its licensing laws.

If the federal law which your Committee is now considering included a provision requiring the identification of the principals involved in the production of the film, it would become very easy to identify those involved in the area of child pornography. I think this requirement, however, might be easily evaded by the use of aliases, or as you point out in your letter, it would be ignored leaving you with the burden of proving who was responsible for the production and distribution of the film.

I hope these answers will be helpful to you and the Committee in your consideration of child pornography legislation. As I stated in my previous letter of June 22, 1977, I feel this is an area of primary concern to citizens everywhere across the country, and it is the policy of this office to diligently police the dissemination of such works through the Maryland State Board of Censors.

Sincerely yours,

Enclosure.

FRANCIS B. BURCH, Attorney General of Maryland.

ARTICLE 66A. MOVING PICTURES

Section 12. Offices, expenses and compensation of Board.

Section 17. Film submitted for approval; false statements.

Section 19. Review and approval or disapproval of film by Board; judicial determination; appeal; sale, exhibition, etc., of film without approval and license. Section 20. Penalties in general.

Section 21. Particular penalties.

Section 22. Failure to display approved seal.

§ 1. DEFINITIONS

"Film" and "view" are restricted, etc.

The term "film" includes only those films shown commercially for profit and conforms constitutionally with the rationale of a Supreme Court decision regarding unnecessary intrusions by the State into an individual's privacy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Films used for "peep shows" are within the purview of this article. Marques v. State, 267 Md. 542, 298 A.2d 408 (1973).

Standing to contest this section, etc., of article. The proprietor of a store which contains private film-viewing machines has standing to contest those sections of this article which lead up to and result in a license being initially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller. 352 F. Supp. 530 (D. Md. 1972).

This article did not unduly circumscribe plaintiff's privacy, where plaintiff engaged in the commercial distribution of films to the public for his own profit by means of exhibiting the films in individual coin-operated machines. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

$2. UNLAWFUL TO SHOW ANY BUT APPROVED AND LICENSED FILM

But present plan is constitutional on its face.

State statutes which require the submission of films for examination or censorship prior to their public exhibition are not void on their face in violation of the First and Fourteenth Amendments. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

This article on its face, or as applied to a case where moving pictures were seized because they had not been submitted to the Board of Censors for approval and did not bear the required seal, does not constitute an "end run" around the preseizure adversary hearing requirement established by the Supreme Court, because the films were seized, not for their alleged obscenity but because they violated this section, since they had not been submitted to the Board for approval. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Term "use" not unconstitutionally vague or broad.-Where the term "use" or "used" found in this section and §§ 6(a) and 17 is confined solely to films or views shown commercially to the public for profit, then it is not unconstitutionally vague or broad. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Films used for "peep shows" are within the purview of this article. Marques v. State, 267 Md. 542, 298 A. 2d 408 (1973).

Standing to contest this section, etc., of article. The proprietor of a store which contains private film-viewing machines has standing to contest those sections of the Maryland moving pictures statute which lead up to and result in a license being intially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Injunctive relief barred.-Since at the time of incorporation, filing suit, and beginning operations by plaintiff, decrees of a court of competent jurisdiction upholding the constitutional validity of the Maryland statutes on obscenity and movie censorship were outstanding and unreversed, the cumulative effect of the factors is to establish that plaintiffs do not come into a court of equity with clean hands, so that they are barred from injunctive relief even if their legal contentions are otherwise meritorious. Age of Majority Educ. Corp. v. Preller, 512 F.2d 1241 (4th Cir. 1975).

Warrant procedure held constitutionally permissible.-Where the seizure of films was authorized by warrants issued by the Supreme Bench of Baltimore City and the warrants were issued on the grounds that there was probable cause to believe that films which had not been submitted to the Board of Censors for licensing, were being exhibited, it was unnecessary for a neutral magistrate to view the films before issuing a warrant because there was no need to determine whether or not the films were obscene, and the warrant procedure utilized was constitutionally permissible. Star v. Preller, 375 F. Supp. 1093 (D. Md. 1974). Stated in Ebert v. Maryland State Bd. of Censors, 19 Md. App. 300, 313 A. 2d 536 (1973).

§ 3. CREATION OF BOARD OF CENSORS

It is not unconstitutional for Maryland to create a Board of Censors for films but not for other means of expression. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

This article on its face, or as applied to a case where moving pictures were seized because they had not been submitted to the Board of Censors for approval and did not bear the required seal, does not constitute an "end run" around the preseizure adversary hearing requirement established by the Supreme Court, because the films were seized, not for their alleged obscenity but because they violated the Moving Pictures statute, since they had not been submitted to the Board for approval. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

The language of this section is sufficiently definite to furnish adequate standards for the selection of Board members. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Standing to contest this section, etc., of article.-The proprietor of a store which contains private film-viewing machines has standing to contest those sections of the Maryland moving pictures statute which lead up to and result in a license being initially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Stated in Ebert v. Maryland State Bd. of Censors, 19 Md. App. 300, 313 A. 2d 536 (1973).

§ 6. BOARD TO EXAMINE, APPROVE OR DISAPPROVE FILMS; WHAT FILMS TO BE

Legislative intent

DISAPPROVED

In accord with original. See Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).

The legislature intended to ban only those films which are "obscene" under the definition of that term set forth by the Supreme Court as a constitutional standard. Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974). Films Board is commanded to disapprove.-This section commands the Board to disapprove any film or view which: (1) portrays sexual conduct in a patently offensive way in that it contains patently offensive: (a) representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated; or (b) representations or descriptions of masturbation, excretory functions, and lewd exhibitions of genitals; and (2) taken as a whole: (a) would be found by the 93-185-77-30

average person, applying contemporary community standards of the State, to
appeal to the prurient interest in sex; and (b) does not have serious literary,
artistic, political, or scientific value. Ebert v. Maryland State. Bd. of Censors, 19
Md. App. 300, 313 A.2d 536 (1973).

The exemption for newsreels is valid since newsreels are, by their nature, ex-
hibited primarily for their informative value rather than to entertain and would
undoubtedly have redeeming social importance under the Roth test for obscenity.
Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

The exemptions from the provisions of this article as stated in subsection (a)
of this section and § 23 are not unconstitutionally vague and do not deny equal
protection of the laws. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Term "used" is not unconstitutionally vague or broad.-Where the term "use"
or "used" found in subsection (a) of this section and §§ 2 and 17 of this article is
confined solely to films or views shown commercially to the public for profit, then
it is not unconstitutionally vague or broad. Star v. Preller, 352 F. Supp. 530 (D.
Md. 1972).

The only valid standard, etc.

The only basis for censorship of motion pictures under this article is "obscenity."
Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.28 283 (1974).

And the term "obscene," etc.

The Maryland movie censorship law has never expressly contained a definition
of the term "obscene" which has reflected any of the definitions used by the
Supreme Court from the Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L.
Ed. 2d 1498 (1957) case onward. Mangum v. Maryland State. Bd. of Censors, 273
Md. 176, 328 A.2d 283 (1974).

Severability of "obscene" standard

In accord with 1st paragraph in original See Mangum v. Maryland State Bd. of
Censors, 273 Md. 176, 328 A.2d 283 (1974).

In accord with 2nd paragraph in original. See Mangum v. Maryland State Bd.
of Censors, 273 Md. 176, 328 A.2d 283 (1974).

The test of obscenity must be the constitutionally mandated one, regardless of
the current formulation of the standard. Star v. Preller, 375 F. Supp. 1093 (D. Md.
1974).

Definition of "obscenity" from most recent U.S. Supreme Court cases applied.—
The Court of Appeals has consistently applied the definition of "obscenity" set
forth in the most recent United States Supreme Court cases. Mangum v. Maryland
State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).

Maryland courts may, consistent with article 8 of the Maryland Declaration of
Rights, construe the word "obscene" in this article to be the same as the current
Supreme Court definition of "obscene" for First Amendment purposes. Mangum v.
Maryland State. Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).

Test of obscenity

Under the definition of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37
L. Ed 419 (1973), a film depicting sexual matters would be obscene or hard-core
pornography, and thus beyond the protection of the First Amendment, if it
meets the following test: (a) the average person, applying contemporary com-
munity standards, would find that the work, taken as a whole, appeals to the
prurient interest; and (b) the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined as, (1) patently offensive representa-
tions or descriptions of ultimate sexual acts, normal or perverted, actual or
simulated, or (2) patently offensive representations or descriptions of masturba-
tion, excretory functions, and lewd exhibition of the genitals; and (c) the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value.
Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).
Since the Supreme Court's decision in Miller v. California, 413 U.S. 15, 93
S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Maryland Court of Special Appeals has
incorporated the Miller test for obscenity into subsection (b). Star v. Preller,
375 F. Supp. 1093 (D. Md. 1974).

Miller definition reached only hard-core pornography.-The Miller v. Cali-
fornia, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) definition reached
only "hard-core" pornography. Mangum v. Maryland State Bd. of Censors, 273
Md. 176, 328 A.2d 283 (1974).

Brief review of Supreme Court obscenity cases.-See Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).

Film "Deep Throat" held obscene under the Miller test.-See Mangum v. Maryland State Bd. of Censors, 273 Md. 176, 328 A.2d 283 (1974).

Standing to contest this section, etc., of article.-The proprietor of a store which contains private film-viewing machines has standing to contest those sections of the Maryland moving pictures statute which lead up to and result in a license being initially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

Quoted in Village Books, Inc. v. State, 22 Md. App. 274, 323 A.2d 698 (1974).

§ 7. CERTIFICATE OF APPROVAL OR LICENSE

Standing to contest this section, etc., of article.-The proprietor of a store which contains private film-viewing machines has standing to contest those sections of the Maryland moving pictures statute which lead up to and result in a license being initially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

§ 11. FEES

Fees imposed by section are not unreasonable.-Though the power to impose a license fee on the exercise of free speech is highly potent, we do not find that the fees imposed by this section are unreasonable, but rather are necessary to meet the expenses incident to administering this article, and the flexibility of the fees charged according to the length of the film or view is a fair recognition of the fact that a longer film or view will take up a greater amount of the Board's examination time than a shorter one and constitutes no ground for striking down that portion of the Act. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972). Standing to contest this section, etc., of article.-The proprietor of a store which contains private film-viewing machines has standing to contest those sections of the Maryland moving pictures statute which lead up to and result in a license being initially granted or denied and which set forth the Board of Censor's enforcement power, but such proprietor does not have standing to challenge those provisions which are in no way involved in controversy. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

$12. OFFICES, EXPENSES AND COMPENSATION OF BOARD

The Board shall provide adequate offices and rooms in which properly to conduct the work and affairs of the Board in the City of Baltimore and the State of Maryland, and the expenses thereof, as well as any other expenses incurred by said Board in the necessary discharge of its duties, and also the salaries of the members of the Board, each of whom shall receive such compensation as shall be provided in the State budget, and each member of the Board shall be reimbursed for actual and necessary expenses incurred in furtherance of the Board's business within the State of Maryland, in accordance with standard travel regulations, such reimbursement not to exceed three thousand ($3,000.00) dollars per annum for any member of the Board. (An. Code, 1951, § 12; 1939, § 12; 1924, § 12; 1922, ch. 390, § 12; 1941, ch. 727; 1947, ch. 257; 1960, ch. 47; 1961, ch. 96; 1975, ch. 712, § 4.)

Effect of amendment. The 1975 amendment, effective July 1, 1975, substituted "in accordance with standard travel regulations" for "such as mileage, at the rate established by the Board of Public Works, hotel bills, the costs of meals and any other incidental expenses incurred in attending meetings or carrying out the other provisions of this article" near the end of the section.

14. RIGHT OF ENTRY

This section and §§ 16 and 18 of this article are set forth with sufficient precision to protect those who are subject to the provisions of this article, particularly in light of authoritative judicial construction by the Court of Appeals of Maryland, which restricts enforcement of this article to films shown commercially for profit. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972).

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