NOEL C. BLOOM, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE INGLEWOOD JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent.
L.A. No. 30258
In Bank
Feb. 6, 1976.
16 Cal. 3d 71
Fleishman, McDaniel, Brown & Weston, David M. Brown and John H. Weston for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Joseph P. Busch, District Attorney, Harry B. Sondheim and Dirk L. Hudson, Deputy District Attorneys, for Real Party in Interest and Respondent.
OPINION
CLARK, J.—Plaintiff Bloom appeals from a judgment of the Los Angeles Superior Court denying his petition for writ of prohibition to restrain the Inglewood Municipal Court from proceeding on a complaint charging him in the statutory language with violation of
We first consider a question of appellate jurisdiction raised by the Court of Appeal on its own motion.2
The Court of Appeal held that a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is not appealable, and that the only remedy is a petition in the Court of Appeal for an original writ of prohibition. Treating plaintiff‘s appeal as a petition for writ of prohibition on which an alternative writ had been issued, the Court of Appeal heard and determined the matter on the merits and denied the peremptory writ. We ordered a hearing and transferred the cause to this court on our own motion.
Prior to revision of the Constitution in 1966, appeals from rulings by the superior courts on petitions for writs of prohibition were expressly included within the appellate jurisdiction of the Courts of Appeal. “The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts . . . in proceedings of . . . prohibition. . . .” (Cal. Const., art. VI, § 4b.)3 When the judicial article was revised, “detailed references to instances of appellate jurisdiction,” except for this court‘s appellate jurisdiction in death penalty cases, were deleted as “unnecessary.” (Cal. Const. Rev. Com., Proposed Rev. of Cal. Const. (Feb. 1966) p. 91.)
Although no longer spelling it out in so many words, article VI still clearly provides that Courts of Appeal have jurisdiction over appeals from superior court judgments in prohibition proceedings. Section 11 provides in part that “courts of appeal have appellate jurisdiction when
Analogy to habeas corpus procedure is not persuasive. An order by a superior court denying a writ of habeas corpus can be challenged only by filing a new petition in a higher court, but that rule is statutory. (
In conclusion, a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is within the appellate jurisdiction of the Courts of Appeal.
II
We now consider the merits of plaintiff‘s appeal.
Plaintiff contends California‘s statutory definition of obscenity (
The element added by the Memoirs plurality was repudiated by the majority of the court in Miller v. California. “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U.S., at 419; that concept has never commanded the adherance of more than three Justices at one time.” (413 U.S. at pp. 24-25; citation and fn. omitted.) “While Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was ‘utterly without redeeming social value‘—a burden virtually impossible to discharge under our criminal standards of proof.” (413 U.S. at pp. 21-22.)
Plaintiff may not complain of the fact that California by statute continues to impose a greater burden on the People in an obscenity prosecution than is constitutionally required. In Hamling v. United States (1974) 418 U.S. 87, the court rejected the contention that revision of the Memoirs test in Miller meant a pre-Miller federal obscenity statute was unconstitutionally vague. “[O]ur opinion in Miller plainly indicates that we rejected the Memoirs ‘social value’ formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to ‘prove a negative,’ it imposed a [prosecutorial] burden virtually impossible to discharge’ and which was not constitutionally required. 413 U.S., at 22. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller.” (418 U.S. at pp. 116-117.)
However, plaintiff‘s vagueness argument is based primarily on part (b) of the Miller test—the requirement that material proscribed as obscene depict or describe, in a patently offensive manner, sexual conduct “specifically defined by the applicable state law, as written or authoritatively construed.” (Miller v. California, supra, 413 U.S. at p. 24.) The court in Miller gave “a few plain examples of what a state statute could define for regulation under part (b).” The examples were “[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “[p]atently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals.” (413 U.S. at p. 25.) Plaintiff contends
United States v. 12 200-ft. Reels of Film came to the court on appeal from the district court‘s dismissal of a forfeiture action under
In Hamling, the court similarly construed
Understanding the lesson of 12 200-ft. Reels prior to its reiteration in Hamling, the Court of Appeal in People v. Enskat (1973) 33 Cal.App.3d 900 (hg. den.; cert. den., 418 U.S. 937), held that
In Miller, the court vacated the judgment and remanded the case to the Appellate Department of the Orange County Superior Court for further proceedings “not inconsistent with the First Amendment standards established by this opinion.” (413 U.S. at p. 37.) Citing Enskat, the appellate department reaffirmed Miller‘s conviction for distributing obscene materials in violation of
The “fair notice” argument found persuasive in Miranda v. Hicks was rejected with regard to an equivalent federal obscenity statute in Hamling v. United States. “Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U.S. 347 (1964), require reversal of their convictions. . . . [T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of
Having failed to recognize the authority of Miller II, the three-judge court disregarded the plain significance of Hamling. (Miranda v. Hicks, supra, 388 F.Supp. at pp. 362-364.) Therefore, the United States Supreme Court was compelled to address itself to the constitutionality of
Having previously denied hearing in Enskat, we now expressly approve that decision.
Assuming arguendo that
Plaintiff‘s contention that the right to possess obscene material in the privacy of one‘s own home, announced in Stanley v. Georgia (1969) 394 U.S. 557, implies the right not only to receive, but also to sell and distribute such material, has been completely discredited. “The District Court ignored both Roth and the express limitations on the reach of the Stanley decision. Relying on the statement in Stanley that ‘the Constitution protects the right to receive information and ideas regardless of their social worth,’ 394 U.S., at 564, the trial judge reasoned that ‘if a person has the right to receive and possess this
Plaintiff next contends that
Finally, plaintiff makes the unorthodox argument that
The remainder of plaintiff‘s contentions do not merit extended discussion. Federal statutes do not preempt state prosecution of distribution of obscene matter through the mails. (Miller v. California, supra, 413 U.S. at pp. 17-18, fn. 1.) Distribution and exhibition of obscene matter may be charged in a single count under
The judgment is affirmed.
McComb, J., Sullivan, J., and Burke, J.,* concurred.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
Although I do not hesitate in appropriate cases to rely exclusively upon the provisions of our own state Constitution and have done so on many occasions, I am unwilling to follow the route taken by the dissenters in the case now before us. We are not, for example, confronted with the type of situation which occurred when a majority of the United States Supreme Court came down with their decisions in United States v. Robinson (1973) 414 U.S. 218 and Gustafson v. Florida (1973) 414 U.S. 260. We were obliged to make a decision forthwith whether every citizen subjected to a custodial arrest for a traffic offense, however minor, could be subjected to a complete body search at the scene of the stop. This was in direct opposition to the position taken by a majority of our court on numerous occasions. (See People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807; People v. Superior Court (Simon) (1972) 7 Cal.3d 186.) We were required either to rely upon our own Constitution or permit the citizens of our state to be subjected to searches which we had long held were violative of constitutional rights guaranteed to them. I had no hesitation as to which way our course lay and joined the majority in People v. Brisendine (1975) 13 Cal.3d 528 (see also People v. Norman (1975) 14 Cal.3d 929) relying upon our state Constitution to afford the people of our state the right to be free of searches such as those approved in Robinson and Gustafson. It was essential that we act at the first possible moment when we were presented with a case which embraced the essential issue of the two federal cases.
No similar demand for an immediate solution is present in the case now before us and I do not see that haste is indicated. The whole subject of what is and what is not pornographic is a slowly evolving, always eroding, ever changing concept, laced as it is with a continuing concern with First Amendment protections in conflict with the current moral, ethical, philosophical, religious, and sexual beliefs and practices of our
A few examples which have occurred during my not overly long life are indicative of the changes I mentioned. Throughout my academic and college days a woman‘s committee of three selected from a civic organization sat as a board of censors and determined by majority vote what motion pictures could be shown to the people of Pasadena, and the committee alone (there was no provision for an appeal from their decision) was free to ban or censor any film or delete therefrom all segments which might be offensive to a majority of the members of that committee and, in their judgment, to the residents of Pasadena.
As a law student it was necessary to travel to Quincy, Massachusetts, to view a stage production of Eugene O‘Neill‘s “Strange Interlude,” one of his more soporific plays, because a well meaning self-appointed group bearing the appropriate sobriquet, “The Watch and Ward Society,” determined that the Nobel and Pulitzer prize author‘s offering was offensive to the good people of the Boston area. We are all acquainted with the trials and tribulations of James Joyce‘s masterpiece, “Ulysses” (also soporific) before an individual was legally permitted to peruse it. There are a myriad of other examples I could mention.
But all of the “protections” I have described have fortunately disappeared and eventually, I believe so will the indefinite and vague “safety precautions” of Miller come to a similar fate. Perhaps what will evolve will be the adoption of the position advocated by Mr. Justice Brennan in his illuminating dissenting opinion in Paris Adult Theatre I. He wrote: “In short, while I cannot say that the interests of the State—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation‘s judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. [Citations.] I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” (Id., at pp. 112-113.) The adoption of such a standard might
The dissenters in the case at bench adopt the same approach in part but have extended to some degree the holding of Stanley v. Georgia (1969) 394 U.S. 557.
TOBRINER, J.—I dissent. The majority today attempt to save the California obscenity statute (
The somewhat tortured history of judicial attempts to define obscenity has been fully reviewed elsewhere,1 and requires no repetition here. Suffice it to say that the extraordinary difficulty of pronouncing intelligible standards capable of providing notice to the public and guidelines to the judiciary by which to distinguish between protected and unprotected speech has been recognized by courts and commentators alike.2
The most basic of these principles is embodied in the rule that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) Recognizing that a civilized society does not imprison a person for violating prohibitions on conduct that cannot even be defined, this court has repeatedly stated that “[t]he requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law.” (In re Newbern (1960) 53 Cal.2d 786, 792.) At a minimum, therefore, any proposed obscenity standard must meet the test that it is not so vague “that men of common intelligence must necessarily guess at its meaning and differ as to its application. . . .” (Connally v. General Construction Co. (1926) 269 U.S. 385, 391.)
The requirement of fair notice is rooted not only in the federal Constitution, but also in the due process clause of the California Constitution. (Art. I, § 7.) We have had several occasions to note that our state Constitution is a document of independent force and significance.4 Indeed, the California Constitution expressly so provides: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Art. I, § 24.) It is therefore the duty of this court to exercise independent judgment as to the validity of obscenity legislation in the light of constitutional principles.
The subjectivity that is unavoidable in formulating legal standards that define obscenity stems initially from the fact that the First Amendment protects any work which communicates significant ideas, including those which pertain to sex. A rule merely prohibiting the depiction of certain specifically defined acts is thereby foreclosed. “We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is . . . open to suppression by the States. . . . But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard.” (Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 94 (Brennan, J. dissenting).) Thus every court since Roth has adhered to the fundamental view that, in order to be held obscene, a work must lack a significant quantum of social value.5
Even if we assume the viability of the social value test, its application requires that the jury in each case pass upon the intellectual content and
The problem of vagueness is aggravated still further by the fact that the jury is called upon to determine and apply a “community” standard in some phases of its deliberations. This delegation of judgment contrasts sharply with virtually the entire corpus of the criminal law, in which the community‘s view of appropriate conduct is embodied in the rule itself.7 Here, however, the jury is expected both to determine the applicable standard and to judge whether the defendant‘s conduct conforms to it. “By its terms the statute leaves to the individual judge or jury the determination of the meaning of the law as well as what proven facts render the accused guilty or innocent. It is not difficult to visualize the divergence of decisions or verdicts that must ensue when the law leaves its definition and meaning to be determined by judges and juries who might differ widely in regard to it.” (In re Newbern, supra, 53 Cal.2d, at p. 796.)
Clearly the validity of conditioning criminal liability upon the accurate prediction of a “community” standard not specified by statute heavily relies upon the presence of a highly cohesive community view which is both predictable in application, and readily apparent to the average person. Yet findings contained in the Commission Report cast serious doubt upon the very concept of a “community standard,” let
These findings confirm the lesson of nearly two decades of experience with obscenity regulation—that there is no representative “community view,” but rather a spectrum of response to identical material within a community. To delegate to the jury the determination of a hypothetical community standard is thus necessarily to deprive the defendant of advance warning of what is prohibited. Although a state “community standard” is more realistic than a national standard, it falls far short of providing the level of certainty required of a criminal statute.
While failure to provide fair notice of what is prohibited would, of course, be independently sufficient to invalidate Penal Code section 311.2 on due process grounds, we tread here, of course, on territory at least closely bordered by the First Amendment. “While the basic standard against which statutes must be measured for vagueness is a constant, the vigor with which that standard is applied varies with the determination whether a constitutionally protected right is involved.” (People v. Barksdale (1972) 8 Cal.3d 320, at p. 327.) “. . . [S]tandards of permissible statutory vagueness are strict in the area of free expression” (N. A. A. C. P. v. Button (1963) 371 U.S. 415, at p. 432) for “[w]here regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.” (Thornhill v. Alabama (1940) 310 U.S. 88, at p. 98.)
Vague standards at the perimeter of the First Amendment give rise to twin dangers: ambiguity leads to applications of the statute directly
Although no definition of obscenity calculated to curtail the flow of material to consenting adults may be framed within the permissible scope of the vagueness doctrine, the state can nevertheless properly protect the unwilling adult from offensive assaults on his sensibilities and shield its children from sexually explicit material. In these areas, as will be shown below, the permissible scope of regulation under the First Amendment is wider and greater. Consequently, far more strict explicit statutory standards may be employed, alleviating the problems of notice and overbroad application.
The notion that the state pursues a legitimate interest in protecting the privacy of those who may be subjected to unwanted and offensive displays of sexually explicit material now finds endorsement by those on all sides of the obscenity debate.9 Having evolved gradually over the past 16 years, this concept has been articulated into a rule which recognizes the propriety of state regulation over the manner of public distribution of
A broader scope of permissible state regulation has similarly been recognized for the protection of children from obscenity. Thus, in Ginsberg the court upheld the constitutionality of a special statute directed at the sale of “obscene” material to minors. The court concluded that the state could constitutionally prohibit the dissemination of certain material to minors, even though a general prohibition on such dissemination would have violated the First Amendment. Quoting with approval from Bookcase, Inc. v. Broderick (1966) 18 N.Y.2d 71, the court noted that “[m]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined.” (390 U.S., at p. 636.)
In the interest of protecting minors as well as unconsenting adults, therefore, it is permissible to define for regulation material that in other contexts would be deemed insulated by the First Amendment. The definition of obscenity for these purposes need not incorporate the subjective “social value” and “community standard” tests, which are designed to distinguish between protected and unprotected speech. By focusing directly upon the characteristics of the material offensive to unwilling adults and inappropriate for children, the state could permissibly define obscenity for these groups in specific terms to prohibit the
By merely copying Miller, the court today only postpones the difficult though inevitable task of formulating new standards that are consistent with fundamental constitutional principles. It does so in the face of a rising tide of opinion that Miller is “probably transient” (Commonwealth v. Horton (Mass. 1974) 310 N.E.2d 316, 325 (Kaplan, J. concurring)), and must ultimately yield to the conclusion that, “. . . no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment” (Paris Adult Theatre I v. Slaton, supra, 413 U.S., at p. 85 (Brennan, J. dissenting)). This view now commands the support of four members of the United States Supreme Court (see Paris Adult Theatre I v. Slaton, supra, at p. 70 (Douglas, J. dissenting) and p. 73 (Brennan, J. dissenting)), an increasing number of state court judges,11 and even more widespread acceptance among commentators.12 In my opinion, we should now recognize that Penal Code section 311.2 is void for vagueness.
Even apart from vagueness, Penal Code section 311.2 must be invalidated on other constitutional grounds. By seeking to suppress the consenting adult‘s access to “obscene” material, the state intrudes upon the individual‘s fundamental right to receive information and ideas. This intrusion is not supported, in my view, by any compelling state interest.
The foremost articulation of the right to receive information and ideas appears in Stanley v. Georgia (1969) 394 U.S. 557, which held that the state could not permissibly prohibit the
Synthesizing a line of cases spanning the last half-century, the Stanley court unequivocally identified a fundamental interest in the individual as a recipient of ideas: “It is now well established that the Constitution protects the right to receive information and ideas. ‘This freedom [of speech and press] . . . necessarily protects the right to receive. . . .’ Martin v. City of Struthers, 319 U.S. 141 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965) (Brennan, J. concurring); cf. Pierce v. Society of Sisters 268 U.S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510 (1948), is fundamental to our free society.” (Stanley v. Georgia, supra, 394 U.S. 557, 564.)
Stanley makes clear that the “right to receive” is not subordinated simply by the fact that the material at issue is “obscene.” “. . . [M]ere categorization of these films as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments.” (Stanley v. Georgia, supra, 394 U.S., at p. 565.) Rather, under Stanley, the state‘s interest in regulating obscenity is to be balanced against the intrusion of such regulation upon the fundamental rights of the individual: ”Roth and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections.” (Id., at p. 563.) Balancing the competing interests before it, the court in Stanley found the state‘s interest in suppressing obscenity to be insufficiently compelling to outweigh the individual‘s right to private possession of obscene material.
Although Stanley recognized that Roth and the cases following it discerned a subordinating interest in the regulation of commercial
The fundamental right to receive information and ideas “regardless of their social worth” is predicated upon the notion that in a free society, the worth of an idea or form of expression is measured not by the willingness of the state to tolerate it, but rather by the willingness of the individual to receive it. “The constitutional right of free expression . . . is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. . . To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. . . . That is why ‘[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne‘s sermons,’ Winters v. New York 333 U.S. 507, 528 (1948) (Frankfurter, J. dissenting), and why ‘so long as the means are peaceful, the communication need not meet standards of acceptability.’ Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).” (Cohen v. California (1971) 403 U.S. 15, at pp. 24-25.)
Moreover, the “inherent dangers of undertaking to regulate any form of expression” (Miller v. California, supra, 413 U.S., at p. 23) cautions against the casual suppression of any material,
In the absence of a powerful governmental purpose, therefore, the First Amendment, in my view, prohibits the state from barring from those who consent to receive it any designated category of communication. To intrude upon the individual‘s fundamental right to obtain information the statute must be premised on more than a mere rational relation to a permissible state purpose; the proffered regulation must be necessary to the effectuation of a compelling state interest. (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268.) Only if it meets this test may Penal Code section 311.2 be sustained.
Three state interests are generally proffered to support governmental suppression of the acquisition of obscenity by consenting adults: (1) prevention of anti-social behavior assertedly caused by viewing such material; (2) protection of the individual‘s morality by restricting his access to it; and (3) preservation of the quality of life and community environment by eradicating public sanction of obscenity. Stanley explicitly rejected as incompatible with the First Amendment the first two of these purported state interests; I believe the third is equally inadequate to sustain an invasion of fundamental rights.
The notion that the state can proffer a compelling interest in obscenity regulation upon the theory that viewing obscenity leads to criminal behavior was dismissed by the Stanley court as both empirically baseless and constitutionally infirm. Noting that there is little scientific evidence to support the assertion that exposure to obscenity leads to deviant or criminal sexual behavior,17 the court observed that, “[g]iven the present state of knowledge, the state may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they
The Stanley court rejected as well the state‘s attempt to justify suppression in order to foster morality among its citizens: “. . . Georgia asserts the right to protect the individual‘s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the state has the right to control the moral content of a person‘s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.” (Fn. omitted.) (394 U.S., at pp. 565-566.)
Ultimately, the proponents of censorship must rely, almost exclusively, upon a vague if vigorously asserted state interest in the preservation of a “desirable” moral tone and climate in society.18 Yet this proffered governmental purpose is equally incompatible with the First Amendment, for it suggests that the right to receive information and ideas is limited to expression found acceptable by the majority.
The “right to receive,” however, has never been conditioned upon public tolerance for the form or content of the proffered communication. “Plainly a community cannot suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful.” (Murdock v. Pennsylvania (1943) 319 U.S. 105, 116.) Similarly, the freedom to disseminate information to receptive citizens may be protected even
Whatever the power of the state to regulate the public distribution of sexually explicit material for the purpose of protecting the privacy of nonconsenting adults, this power does not extend, in my view, to the suppression of communication between consenting parties, merely because others—not themselves exposed to the undesired communication—are nonetheless offended by the fact that the communication occurs. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” (Cohen v. California, supra, 403 U.S. 15, 21.)
Finally, a governmental effort to impose a societal standard of morality by restricting the ability of individuals to obtain entertainment or satisfaction out of any form of expression that appeals to them, absent a concrete showing of harm, runs contrary to the fundamental right of privacy that is lodged in the “penumbra” of the Bill of Rights (see Griswold v. Connecticut, supra, 381 U.S. 479; Eisenstadt v. Baird (1972) 405 U.S. 438; Roe v. Wade (1973) 410 U.S. 113; Stanley v. Georgia, supra, 394 U.S. 557; Olmstead v. United States (1928) 277 U.S. 438 (Brandeis, J. dissenting), and is now explicitly guaranteed by the California Constitution (art. I, § 1).
Underlying these decisions lies the common theme that, unless demonstrable harm can be shown, the state may not restrict an individual‘s behavior as to certain intimate matters merely on the basis of ancient taboos and commonly held views of morality. “Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the
The fundamental difficulty with legislation that would suppress obscenity is that it attempts to codify ever-changing and elusive social mores. Society itself is convulsed in a contradiction of approaches; it is torn between deeply felt moral exhortations that sexual fulfillment is sinful and the widely held Freudian teaching that the very lack of such fulfillment is, as to the individual‘s emotional wellbeing, sinful. In the wake of these attitudes the Legislature frames its enactments in broad generalities and loose terminology that can hopefully satisfy both contentions. The result of these efforts becomes legislation that is so distended that it is unenforceable.
In this undertaking the courts and legislators must deal with a public opinion that is as restless and changing as the waters of the ocean; the would-be legislative and judicial King Canutes must fail in ordering back the waves of a cultural revolution.
In fixing the constitutional limits of this legislation the court must therefore recognize the limited nature of the legal process. As I have explained, I would hold back the sweep of the prohibition here to the enforceable and reasonable goal of the protection of the viewing but nonconsenting public. I realize that to some persons pornographic depiction is repulsive; to others the prohibition of it threatens intrusion upon constitutionally protected free expression, and incurs the danger that the suppression may spill over to inhibit the political protest that surely should be protected. Perhaps ultimately the courts must recognize that each protagonist in this field makes a point—that the single citizen has as much constitutional right to view the erotic creations of a Blake, Picasso, or Bosch in privacy as the general citizenry has the right not to see such erotica depicted on public billboards.
Finally, I urge the acceptance of a limited range of inhibiting legislation in this field because the past attempt at a more ubiquitous prohibition has not only been wasteful but harmful. It has been wasteful in that it has consumed law enforcement resources that could have better been devoted to combat more serious crime. No better or more convincing statement of this misdirection of public energy and resources can be found than the late Professor Packer‘s classic exposition The Limits of the Criminal Sanction (1968), particularly pages 316 to 328. But
In view of these considerations, I believe that the Penal Code‘s intrusion upon the individual‘s fundamental right to receive information and ideas cannot stand. To yield to the fear that a “moral” society cannot be maintained unless the state chooses the books we may read and the movies we may watch is to reject the fundamental premise of the First Amendment, the premise that freedom of expression, in the absence of demonstrable harm, leads ultimately toward enhanced human dignity and social progress rather than vulgarity and decay. We may personally take displeasure in the type of expression which some individuals seek, but it is precisely the purpose of the First Amendment to forestall governmental enforcement of that displeasure by use of the criminal law.
I would reverse the judgment.
Mosk, J., concurred.