As discussed in Part 1 of this series on the law of sex, the Maryland Annotated Code prohibits many forms of exposure to minors of “adult sexual displays” defined to include portrayals of any sadomasochistic abuse, sexual conduct or sexual “excitement” in visual, oral or explicit narrative format. Several such statutes appear in Subtitle 1 of Title 11 of the Criminal Law Article of the Code (“Indecency and Obscenity”). As discussed before, many R-rated films contain these explicit depictions of sexual conduct and certainly sexual excitement (e.g. “I’ll have what she’s having”), and 17 year-olds can clearly see R-rated films, as can much younger teenagers or even children with a parent or guardian.
I suspect, but cannot tell, that the phrase “sadomasochistic abuse, sexual conduct or sexual excitement” used in several sections of that subtitle may have led some lawmakers to conclude that “sadomasochistic” modified “sexual conduct” or “sexual excitement” when in fact “sadomasochistic abuse”, “sexual conduct” and “sexual excitement” are each stand-alone noun phrases defined as terms of art in section 11-101 of the Criminal Law Article. Had the terms been ordered “sexual conduct, sexual excitement or sadomasochistic abuse” I suspect that the law would have had a harder time passing; had it passed in that format, I suspect that a few of the more puritanical State’s Attorneys might have tried to prosecute the local Blockbuster or Barnes & Noble for public morals or for the justification of their own budgets in hard times. But then I think the worst of prosecutors much of the time, so perhaps I am just jaded.
Similarly, in section 11-105 of the same subtitle, it is prohibited in Maryland to portray for advertising purposes an image of the human body that depicts “sadomasochistic abuse, sexual conduct or sexual excitement” OR “contains a verbal description or narrative account of sadomasochistic abuse, sexual conduct, or sexual excitement.” So basically, this means that you cannot show a picture of popcorn icon Orville Redenbacher, replete with bowtie, while playing Marvin Gaye’s “Let’s Get It On” in the background loop – IF you are doing it to advertise something (e.g. popcorn.) The penalty for this is up to 6 months in jail and a $1,000.00 fine – greater than the penalty for hitting someone’s unoccupied automobile and running without leaving insurance information.
I am not well-schooled on the constitutional limits on commercial speech regulation, but in general the Supreme Court has held that speech in commercial contexts, including but not limited to advertising, is less protected under First Amendment jurisprudence than is speech for mere personal, political or artistic expression. The state is considered to have a greater interest in controlling commercial speech to prevent fraud, to regulate a specific industry (including my industry, professional legal services), to define how prices and other information is communicated and to enact other regulations as to time, place and manner for such speech.