ROBERT C. BARROWS et al., Plaintiffs and Appellants, v. THE MUNICIPAL COURT OF THE LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent.
L. A. No. 29672
In Bank
Jan. 30, 1970
821
Stanley Fleishman and David M. Brown for Plaintiffs and Appellants.
No appearance for Defendant and Respondent.
Roger Arnebergh, City Attorney, Donald W. Mowat and Philip E. Grey, Assistant City Attorneys, and Michael T. Sauer, Deputy City Attorney, for Real Party in Interest and Respondent.
OPINION
MOSK, J.—Petitioners in this proceeding are Richard Bright and Alexandra Hay, who acted in a play entitled “The Beard,” Robert Barrows, who produced the play, and Robert Gist, the director. Bright and Miss Hay were charged with violating
The play was first performed on January 24, 1968, in Los Angeles. Petitioners were arrested before the performance on January 25 and they were rearrested after the first two performances the next day. Arrests or citations followed after numerous performances thereafter. Petitioners applied to the United States District Court for an injunction but that court, after issuing a temporary restraining order, ultimately refused permanent relief on the ground that no special circumstances justified its intervention.3 The trial court overruled demurrers to the complaints and denied a motion to dismiss, and petitioners then sought a writ of prohibition to restrain the court from proceeding to trial. They appeal from denial of the writ.
We begin with the premise that live plays performed in a theater before an audience are entitled to the same protection under the First Amendment as motion pictures (Burton v. Municipal Court (1968) 68 Cal.2d 684, 689 [68 Cal.Rptr. 721, 441 P.2d 281]), magazines (Winters v. New York (1948) 333 U.S. 507, 510 [92 L.Ed. 840, 847, 68 S.Ct. 665]), and newspapers (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 265-266 [11 L.Ed.2d 686, 697-698, 84 S.Ct. 710, 95 A.L.R.2d 1412]). Long before the advent of printing and motion pictures the theater constituted “a significant medium for the communication of ideas” which affected “public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.” (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501 [96 L.Ed. 1098, 1105, 72 S.Ct. 777]).4
In the same year section 647 was revised the Legislature amended
Among the persons who are required to register pursuant to section 290 are those who are convicted of rape, enticement of a female under 18 for purposes of prostitution (
Another event of significance in 1961 was the thorough revision of the statutes relating to obscenity. (Stats. 1961, ch. 2147, § 5.) These provisions are now embodied in
These two conclusions ineluctably emerge from the foregoing analysis: first, the basic purpose of section 647 is to punish the crime of vagrancy in its various overt aspects; second, nothing in the legislative history of the section indicates that it was intended to apply to activities, such as theatrical performances, which are prima facie within the ambit of First Amendment protection.
The requirement of section 290 that persons convicted under
Finally, a serious equal protection problem would evolve if we were to interpret
It seems evident from the foregoing that the vagrancy law, section 647,
Respondents rely upon the cases of In re Giannini, supra, 69 Cal.2d 563, and Dixon v. Municipal Court (1968) 267 Cal.App.2d 789 [73 Cal. Rptr. 587]. The petitioners in Giannini were convicted of violating
Dixon involved the application of
If
While it is true that in Giannini we did not consider the applica-
We come, then, to consideration of the question whether the prosecution of petitioners is justified under
In 1961 the section was amended in the course of overall revision of the obscenity laws. The provision added in 1931 immunizing an actor from prosecution under certain circumstances was deleted entirely, as was the proscription against speaking or singing obscene words “in any place where there are persons present to be annoyed thereby.” (Stats. 1961, ch. 2147, § 5.)
In determining the definition of the word “obscene” as used in section 311.6 we turn to
This conclusion is fortified by the fact that the Legislature deleted any reference to actors in 1961 when it amended section 311.6 during the course of revising the obscenity statutes. Although this omission might under other circumstances be deemed an equivocal act, perhaps indicating that the Legislature assumed that the specific mention of actors was not necessary because plays were otherwise covered by the prohibition against obscenity, such an explanation cannot be accepted here because in the same statute the Legislature defined the coverage of the obscenity laws with precision and did not include within such definition any word which could conceivably embrace plays.
Our holding here does not suggest that acts which are independently prohibited by law may be consummated without sanction on the stage merely because they occur during the course of a theatrical play. Dramatic license would not supply indulgence for the actual murder of the villain, the rape of the heroine, or the maiming of the hero. Neither do we intend to imply, however, that conduct or speech in a theatrical production is to be judged by the same standards as conduct or speech occurring on the street or other public place. Giannini makes it clear that “acts which are unlawful in a different context, circumstance, or place, may be depicted or incorporated in a stage or screen presentation and come within the protection of the First Amendment, losing that protection only if found to be obscene.” (69 Cal.2d at p. 572.) We particularly reaffirm this portion
We need not point out that the Legislature may prohibit the performance of an obscene play provided that constitutional standards are met in defining obscenity. (See In re Giannini, supra, 69 Cal.2d 563.) We hold here only that the consequences of applying
The omission appears to be commonplace; according to a recent study, only five states enjoin obscene plays and four additional jurisdictions prohibit obscene performances or presentations. (See Note (1966) 75 Yale L.J. 1364, appendix II.)
In view of the conclusions reached above, it is not necessary to discuss other contentions raised by petitioners.
The order is reversed and the court is directed to issue the writ of prohibition as prayed for.
Traynor, C. J., Peters, J., and Tobriner, J., concurred.
McCOMB, J.—I dissent. I would affirm the order denying a writ of prohibition, for the reasons expressed by Mr. Justice Cobey in the opinion prepared by him for the Court of Appeal, Second District, Division Three (Barrows v. Municipal Court, 2 Civ. 33328, filed May 2, 1969, certified for nonpublication).
BURKE, J.—I disagree with the majority that Penal Code section 647, subdivision (a), is inapplicable to live performances in a theater before an audience. The effect of that holding is to allow acts, however obscene, to be performed on the stage with complete immunity unless they are proscribed by other statutory provisions. It is inconceivable that the Legislature intended such a result. I also do not agree with the majority that
Petitioners Richard Bright and Alexandra Hay were charged with violating
It is implicit in In re Giannini (1968) 69 Cal.2d 563 [72 Cal.Rptr. 655, 446 P.2d 535], that the quoted subdivision may be applied to live theatrical performances, and Dixon v. Municipal Court (1968) 267 Cal.App.2d 789 [73 Cal.Rptr. 587] hear. den., held that the subdivision applied to a live performance in a theater of the very play at issue here. Dixon stated that the asserted lewd act was a simulation of oral copulation, which was done in the course of a performance of “The Beard.” The court in Dixon specifically considered the requirement in
Dixon further declared (at p. 792), “It cannot be reasonably believed that the Legislature intended to allow any and all acts which are patently obscene to be committed on stages, runways or other performing areas—but this would be the effect (except as to acts specifically made criminal under other statutes; for example, sodomy) of holding
In 1969 the Legislature amended section 647 but did not change the quoted language of subdivision (a). (Stats. 1969, ch. 204, § 1; ch. 1319, § 2.) Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed
The majority thus give no effect to section 311.6 and render it meaningless. This is contrary to the cardinal rule of statutory construction that a court must, where reasonably possible, harmonize statutes and construe them so as to give force and effect to all their provisions. (See, e.g., Burks v. Poppy Constr. Co., 57 Cal.2d 463, 470 [20 Cal.Rptr. 609, 370 P.2d 313]; Hough v. McCarthy, 54 Cal.2d 273, 279 [5 Cal.Rptr. 668, 353 P.2d 276]; cf. In re Bandmann, 51 Cal.2d 388, 393 [333 P.2d 339].)
In the light of that rule and a recent amendment to section 311, which the majority fail to consider, it is clear that the intent of the Legislature in enacting section 311 was to define the term “obscene matter”2 rather than the word “obscene” and that the word “obscene,” as used in section 311.6, when reasonably interpreted, has a meaning similar to that accorded to it by the United States Supreme Court in Roth v. United States, 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304], as elaborated in subsequent
That the Legislature intended section 311.6 to apply to theatrical performances is also indicated by the legislative history of the section. The section, which was added in 1961 as part of an overall revision of the obscenity laws, was derived from former section 311 of the Penal Code, which was repealed in 1961 (Stats. 1961, ch. 2147, § 1, p. 4427). Former section 311 was enacted in 1872, at which time the section prohibited the singing of a lewd or obscene song not only “in any public place” but also “in any place where there are persons present to be annoyed thereby.” The prohibition referring to the spoken word was added in 1931 and a provision was inserted immunizing actors from prosecution under some but not all circumstances. (Stats. 1931, ch. 759, § 1, p. 1597.)4 This provision remained in the section until the section was repealed in 1961. (See Stats. 1949, ch. 1003, § 1, p. 1848; Stats. 1952, First Ex. Sess., ch. 23, § 4,
I would affirm the order denying the writ of prohibition.
McComb, J., and Sullivan, J., concurred.
The petition of the real party in interest and respondent for a rehearing was denied February 25, 1970. McComb, J., and Burke, J., were of the opinion that the petition should be granted.
Notes
Section 311.6 provides, “Every person who knowingly sings or speaks any obscene song, ballad, or other words, in any public place is guilty of a misdemeanor.”
All references will be to the Penal Code unless otherwise noted. Section 311, as it read at the time in question, provided: “As used in this chapter:
“(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
“(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.”
The section was subsequently amended. (Stats. 1969, ch. 249, § 1.)
Fear of the political potential of the theater was manifest when James I published an ordinance forbidding representation of any living Christian king upon the stage. Since 1624 the lord chamberlain has had censorship control of the English theater. (See VII Ency. Soc. Sciences, 598 ff.) The provision read: “The provision of [the subdivision prohibiting the singing or speaking of obscene songs or words under specified circumstances] shall not apply to any person participating in violation thereof only as an actor, unless and until the proper court shall have passed upon the matter and found the actor to have violated the said subdivision . . . , except where after a complaint has been filed against the owner, manager, producer or director charging a violation of said subdivision . . . , and pending the determination thereof an actor or actress utters the particular word or words complained against or other word or words of the same or similar import, in connection with such performance, act, play, drama, exhibition or entertainment.” (Stats. 1931, ch. 759, § 1, p. 1597.)