THE PEOPLE ex rel. JOSEPH P. BUSCH, as District Attorney, etc., et al., Plaintiffs and Appellants, v. PROJECTION ROOM THEATER et al., Defendants and Respondents.
L.A. Nos. 30432-30436
Supreme Court of California
June 1, 1976
*These cases were previously entitled Busch v. Projection Room Theater, etc.
Joseph P. Busch and John K. Van de Kamp, District Attorneys, Harry B. Sondheim, Donald J. Kaplan and Dirk L. Hudson, Deputy District Attorneys, Burt Pines, City Attorney, and Edward A. Schlotman, Deputy City Attorney, for Plaintiffs and Appellants.
Fleishman, McDaniel, Brown & Weston, Fleishman, Brown, Weston & Rohde, David M. Brown, Stephen F. Rohde, Harrison W. Hertzberg and Joshua Kaplan for Defendants and Respondents.
OPINION
RICHARDSON, J.—In these consolidated cases we consider whether or not a civil action brought by law enforcement officers to restrain the exhibition of obscene books and films states a cause of action for relief under the public nuisance laws of this state. Plaintiffs, who are law enforcement officers acting on behalf of both the City and the County of Los Angeles, seek injunctive and other relief against defendants who, according to the five separate complaints filed herein, operate book stores or motion picture theaters in Los Angeles which exhibit magazines or films that are obscene under the laws of this state. While the five complaints are directed at different defendants and vary somewhat in the specifics of their allegations, the causes of action alleged in each are sufficiently similar in the facts alleged and in the charging allegations to permit us to consider them together.
For convenience we examine the pleadings in the case involving Projection Room Theater finding that our conclusions in that action are dispositive of the issues raised in all of the actions. Plaintiffs assert that defendants’ operations constitute public nuisances which are subject to regulation and abatement either pursuant to the general public nuisance statutes (
According to the complaint, the maintenance of these premises constitutes a public nuisance which will continue unless restrained and enjoined. Plaintiffs attached to the complaint numerous exhibits consisting of police reports summarizing the obscene nature of the magazines and films exhibited by defendants. The complaint sought multiple relief including: (1) preliminary injunction restraining defendants from conducting and maintaining the premises for the purposes described above; (2) abatement of the premises as a public nuisance under sections
Defendants filed general demurrers to each complaint, asserting that plaintiffs failed to state a cause of action either under the public nuisance statutes or the Red Light Abatement Law. The trial court, considering itself bound by the decision in Harmer v. Tonylyn Productions, Inc. (1972) 23 Cal.App.3d 941 [100 Cal.Rptr. 576, 50 A.L.R.3d 959], sustained the demurrers without leave to amend and entered judgments of dismissal. Plaintiffs appeal.
The scope of our inquiry herein is considerably narrowed by application of the familiar rule, acknowledged by defendants, that “a general demurrer admits the truth of all material factual allegations in the complaint” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal.Rptr. 88, 468 P.2d 216]), and we may accordingly assume that all
1. Public Nuisance Statutes
We first consider whether or not the allegations of the complaint, summarized above, sufficiently describe the existence of a public nuisance and note preliminarily the substantial identity of definitions appearing in
Is the exhibition of obscene magazines and films a form of activity which may be characterized as “indecent” or “offensive to the senses” interfering with the comfortable enjoyment of life of a “considerable number of persons” within the contemplation of
In Weis v. Superior Court (1916) 30 Cal.App. 730 [159 P. 464], the Court of Appeal ruled that an attraction known as the “Sultan‘s Harem,” conducted at the Panama-California International Exposition, constituted a public nuisance subject to abatement. This exhibition assertedly involved the “indecent and offensive” exposure to members of the public of the “naked persons and private parts thereof” of various female employees. Although such conduct also constituted the crime of indecent exposure (
The foregoing Weis reasoning was approved by us more than 30 years ago in People v. Lim (1941) 18 Cal.2d 872, 879 [118 P.2d 472]. Lim involved the propriety of an injunction against gambling activities on the ground that they constituted a public nuisance. We upheld in Lim the use of the public nuisance injunctive remedy against gambling activity which, it was alleged, disturbed the public peace and corrupted public morals. In Lim we carefully traced the history of public nuisance actions and noted that “The courts have . . . refused to grant injunctions on behalf of the state except where the objectionable activity can be brought within the terms of the statutory definition of public nuisance.” (P. 879.) Although, as we noted, such activities as gambling or usury do not fit comfortably within the above quoted statutory definition of public nuisance, in Lim we acknowledged that an “indecent” exhibition such as was involved in Weis could be enjoined despite the concurrent application of the criminal statutes, since such exhibitions if determined to be indecent are expressly declared by
While carefully noting that Weis involved live dance performances, we discern no satisfactory distinction which would justify differential treatment of the pictorial representations in obscene magazines and films on the one hand, and “live” performances on the other. The presentation of either may fairly be described as “indecent” and equally injurious to public morals.
Defendants have insisted that only those activities may constitute public nuisances which are offensive to the five senses of hearing, sight, touch, smell, and taste. It is claimed that public nuisance and abuse of the five senses is coextensive. Defendants in so arguing focus only upon that category of nuisances described in
The trial court herein, in sustaining defendants’ demurrers without leave to amend, considered itself controlled by the holding in Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941 (hg. den.). Harmer is distinguishable, however, since it involved an action by private citizens to enjoin a particular film being shown at the premises in question. The Harmer court ruled that plaintiff had failed to allege the necessary special damages requisite to bringing a public nuisance action (see
More fundamentally, however, Harmer fails properly to analyze the nature of the state‘s interests in regulating the exhibition of obscene matter. Harmer suggests that since “only those members of the community were exposed to the film who voluntarily chose to see it,” therefore “[t]he nuisance was not one which is inflicted or imposed on the public.” (Harmer at p. 943.) Such reasoning frequently advanced and variously stated, misses the point. The fact that obscene or other indecent exhibitions take place behind closed doors and are viewed only by those who choose to view them does not defeat the community‘s interest in regulating such exhibitions.
Substantially identical arguments were advanced and rejected by us recently in People v. Luros (1971) 4 Cal.3d 84 [92 Cal.Rptr. 833, 480 P.2d 633], and by the United States Supreme Court in Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 [37 L.Ed.2d 446, 93 S.Ct. 2628]. In both Luros and Paris, the argument was made that the state had no legitimate interest in regulating the exhibition and distribution of obscene matter to consenting adults. Defendants in each case urged that Stanley v. Georgia
Similarly, Paris (decided after Harmer was filed) rejected the extension of Stanley to situations involving consenting adults. The high court specifically addressed the Harmer limitation on the scope of the public interest, and “categorically disapprove[d] the theory, . . . that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.” (413 U.S. at p. 57 [37 L.Ed.2d at p. 456]; see also pp. 57-69 [37 L.Ed.2d pp. 456-464].) The court noted that “[t]he States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. [Citations.]” (Id., at p. 57 [37 L.Ed.2d at p. 457].) These “legitimate interests” include “the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime.” (Fn. omitted; id., at p. 58 [37 L.Ed.2d at p. 457], italics added.) Further, “[a]lthough there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature . . . could quite reasonably determine that such a connection does or might exist.” (Id., at pp. 60-61 [37 L.Ed.2d at p. 459].)
Following its rejection of the argument that Stanley forbids state regulation of the exhibition or distribution of obscene matter, the Paris court very significantly observed: “Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State‘s broad power to
Even more recently the United States Supreme Court has noted that a state‘s public nuisance action seeking to close a theater exhibiting obscene films constituted an effort “to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws.” (Fn. omitted; Huffman v. Pursue, Ltd. (1975) 420 U.S. 592, 605 [43 L.Ed.2d 482, 492, 95 S.Ct. 1200].)
Thus, the Paris court has clearly held that states may constitutionally determine that public exhibition of obscene material has a tendency to injure the community or to jeopardize the maintenance of a decent society. In Luros we confirmed the validity of state regulation of the commercial distribution of obscene materials. The legislative definition of a public nuisance includes “[a]nything which is . . . indecent, or offensive to the senses, . . . so as to interfere with the comfortable enjoyment of life or property by a . . . community or neighborhood, or . . . any considerable number of persons . . . .” (
Given the legitimate state interests in controlling the exhibition of obscenity, carefully outlined in Paris, it is not surprising that a wide variety of cases, both before and after Paris, have confirmed that such exhibitions constitute nuisances which properly may be abated by the courts. (Grove Press, Inc. v. Flask (N.D.Ohio 1970) 326 F.Supp. 574, vacated and remanded on other grounds, 413 U.S. 902 [37 L.Ed.2d 1013,
Each of the above cases either expressly or implicitly recognizes that the exhibition of obscene magazines or films constitutes a public nuisance properly subject to abatement. For example, the Georgia Supreme Court in Evans upheld application of a general public nuisance statute to an allegedly obscene film, “I Am Curious (Yellow).” The court explained that “[i]f any semblance of civilization is retained in our country, the States must have standards of conduct permissible in public. There is little difference in the effect on the public between lewd conduct in public areas and lewd conduct explicitly performed on a motion picture screen for the viewing of the public. . . . The exhibition of an obscene motion picture is a crime involving the welfare of the public at large, since it is contrary to the standards of decency and propriety of the community as a whole. The welfare of the whole community is served by restraining the showing of such an obscene film.” (180 S.E.2d at pp. 715-716.)
Evans was cited and discussed with approval in Paris, supra, 413 U.S. 49, 54-55 [37 L.Ed.2d 446, 454-456], wherein the court expressly approved use of public nuisance actions to enjoin the exhibition of obscene materials. Since this portion of Paris is critical to our analysis, we quote it in its entirety:
“Georgia case law permits a civil injunction of the exhibition of obscene materials. [Citations, including Evans, supra.] While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material, the Georgia case law
permitting civil injunction does adopt the definition of ‘obscene materials’ used by the criminal statute. Today, in Miller v. California, supra, we have sought to clarify the constitutional definition of obscene material subject to regulations by the States, and we vacate and remand this case for reconsideration in light of Miller. “This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation. [Citation.] Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected. Thus the standards of [prior United States Supreme Court decisions] were met.” (Italics added; Paris at pp. 54-55 [37 L.Ed.2d at pp. 454-456].)
Similarly, as we explain hereinafter, the California public nuisance statutes must be enforced in such a way as to operate in a constitutional fashion. So applied, as the foregoing cases make clear, there is no overriding principle of law which precludes the states from regulating the exhibition of obscene matter by application of their public nuisance statutes. To this extent, Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941, is disapproved.
We do not suggest, of course, that law enforcement officers in each city and county in this state have a mandatory duty always and everywhere to abate the exhibition of obscene matter within their borders. The particular nature of the exhibition, and its effect upon the community, may vary considerably in time and place. Law enforcement officers accordingly are vested with wide discretion to decide whether or not to initiate the kind of formal abatement proceedings such as those instituted in the matters before us. (See
We consider and will reject several constitutional objections raised by defendants.
Defendants first suggest that the statutory language “indecent, or offensive to the senses” (
Furthermore, the United States Supreme Court recently emphasized within the foregoing context that courts have an obligation to construe statutes in such a way as to avoid serious constitutional doubts. “If and when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material [in federal statutes], we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California . . . .” (Italics added; United States v. 12 200-Ft. Reels of Film (1973) 413 U.S. 123, 130, fn. 7 [37 L.Ed.2d 500, 507, 93 S.Ct. 2665]; accord, Hamling v. United States (1974) 418 U.S. 87, 114 [41 L.Ed.2d 590, 618-619, 94 S.Ct. 2887].) Indeed, in Bloom v. Municipal Court (1976) 16 Cal.3d 71, 81 [127 Cal.Rptr. 317, 545 P.2d 229], we have construed our own obscenity statute (
In order properly to evaluate defendants’ prior restraint contention, we first review the possible forms of relief available to plaintiffs in an ordinary public nuisance action. The public nuisance statutes, unlike the Red Light Abatement Law, do not provide for such specific forms of relief as temporary and perpetual injunction (
Thus, in the matters before us if the trial court finds the subject matter obscene under prevailing law an injunctive order may be fashioned that is “proper and suitable” in each case. It is entirely permissible from a constitutional standpoint to enjoin further exhibition of specific magazines or films which have been finally adjudged to be obscene following a full adversary hearing. (Paris Adult Theatre I v. Slaton, supra, 413 U.S. 49, 54-55 [37 L.Ed.2d 446, 454-456] [approving Georgia abatement procedure]; Grove Press, Inc. v. Flask, supra, 326 F.Supp. 574, 579; New Rivieria Arts Theatre v. State, supra, 412 S.W.2d 890, 893-895; State ex rel. Ewing v. “Without A Stitch,” supra, 307 N.E.2d 911, 914; State ex rel. Little Beaver Theatre, Inc. v. Tobin, supra, 258 So.2d 30, 32; State ex rel. Keating v. Vixen, supra, 272 N.E.2d 137; see Commonwealth v. Guild
In the cases at bench, in addition to relief under the Red Light Abatement Act (
Thus, in Sanders, the Georgia Supreme Court pointed out that “One obscene book on the premises of a book store does not make an entire store obscene. The injunction closing this store and padlocking it as a public nuisance necessarily halted the future sale and distribution of other printed material which may not be obscene, thereby precluding the application of the above procedural safeguards [prior notice and a prompt judicial hearing] and creating an unconstitutional restraint upon appellant. This broad result cannot be reconciled with free expression under our Constitutions.” (P. 157.)
We are aware of no reported cases authorizing the closing of a bookstore or theater, even after it has been repeatedly determined judicially in a full adversary hearing that all or substantially all of the magazines or films exhibited or sold therein are obscene. Indeed plaintiffs have directed our attention to no such precedents, have presented nothing to countermand or distinguish the authorities referred to above, and at oral argument stated they could find no authority justifying the closing of bookstores in such circumstances. While we have concluded that a court of equity, having determined particular magazines or films to be obscene, after a full adversary hearing, may enjoin the exhibition or sale thereof by those responsible, we emphasize that the closing of such bookstores or theaters, either temporarily or permanently, or the enjoining of the exhibition or sale on said premises of magazines or films not specifically so determined to be obscene, constitutes an impermissible prior restraint in violation of the First and Fourteenth Amendments to the United States Constitution.
We therefore hold that abatement in the present action must be directed to particular books or films which have been adjudged obscene following a fair and full adversary hearing, rather than against the premises in which the material is sold, exhibited or displayed.
Defendants finally maintain that since the public nuisance statutes are silent with respect to prior adversary hearings, this court should not undertake to “rewrite” those statutes to require such hearings.
We emphasize that the proceedings now before us remain at the pleading stage. Having determined that plaintiffs’ complaint is sufficient to state a cause of action based upon a general nuisance theory, we consider it inappropriate to describe in detail the precise dimensions of the injunctive and other relief which might be suitable in this and the related cases. It is enough that the parties and the trial court recognize that substantial constitutional issues are presented in this litigation, and that care must be exercised to assure that defendants’ constitutional rights are not infringed. More than this is not required.
2. Red Light Abatement Law
As an alternative theory of relief, plaintiffs allege that defendants’ exhibition of obscene magazines and films constitutes a nuisance subject to abatement under the provisions of the Red Light Abatement Law (
The Red Light Abatement Law defines as a nuisance “[e]very building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution . . . .” (Italics added.) Defendants maintain that the term “lewdness” does not include the exhibition of obscene magazines or films in bookstores or theaters. We agree.
The consensus of more recent cases is that the term “lewdness” is broad enough to include live lewd entertainment, such as stage shows or other exhibitions featuring obscene performances. (People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46, 50 [103 Cal.Rptr. 414], subsequent opn., supra, 42 Cal.App.3d 556, 559; Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941, 944; Maita v. Whitmore (N.D.Cal. 1973) 365 F.Supp. 1331.) Yet no California case has yet held that the Red Light Abatement Law was intended to apply to the exhibition of obscene magazines or films. As stated in Harmer: “If the Legislature had desired or intended by
The courts of other states have generally agreed that “red light” laws do not apply to the exhibition of obscene books or films. (People v. Goldman (1972) 7 Ill.App.3d 253 [287 N.E.2d 177]; Gulf States Theatres of La., Inc. v. Richardson, supra, 287 So.2d 480; Southland Theatres, Inc. v. State ex rel. Tucker (1973) 254 Ark. 192 [492 S.W.2d 421]; State v. Morley, supra, 317 P.2d 317, 318-320; State ex rel. Cahalan v. Diversified Theat. (1975) 59 Mich.App. 223 [229 N.W.2d 389].)
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Wright, C. J., and Sullivan, J., concurred.
MOSK, J., Concurring and Dissenting. I concur in that part of the majority opinion which emphasizes that the closing of bookstores or theaters, either temporarily or permanently, constitutes an impermissible prior restraint in violation of the First and Fourteenth Amendments to the
Other than the foregoing, I dissent and join with Justice Tobriner in his views.
CLARK, J., Concurring and Dissenting. I concur in the judgment and the opinion of the court except insofar as the new opinion differs from the vacated opinion by substitution of the material at page 58, line 4 to page 59, line 34 in place of the following paragraph: “We express no opinion upon the further question whether the court may, in addition, either close the premises entirely or enjoin further ‘obscene’ exhibitions regarding materials not yet adjudged obscene. Several cases suggest that such further forms of relief would be appropriate and constitutionally permissible. (See People ex rel. Hicks v. Sarong Gals (1974) 42 Cal.App.3d 556, 562-563 [117 Cal.Rptr. 24]; Bloss v. Paris Township (1968) 380 Mich. 466 [157 N.W.2d 260]; Grove Press, Inc. v. Flask (N.D.Ohio 1970) 326 F.Supp. 574, 578-580; Oregon Bookmark Corporation v. Schrunk (D.Ore. 1970) 321 F.Supp. 639; State ex rel. Cahalan v. Diversified Theat. (1975) 59 Mich.App. 223 [229 N.W.2d 389, 396-397]; United Theaters of Fla., Inc. v. State ex rel. Gerstein (Fla.App. 1972) 259 So.2d 210, 212-213, vacated and remanded, 419 U.S. 1028 [42 L.Ed.2d 304, 95 S.Ct. 510].) Other cases have held that such relief would constitute an invalid prior restraint of presumptively protected materials (Gulf States Theatres of La., Inc. v. Richardson (La. 1973) 287 So.2d 480, 489; Mitchem v. State ex rel. Schaub (Fla. 1971) 250 So.2d 883, 886-887;
McComb, J., concurred.
TOBRINER, J., Dissenting. - The majority today empowers city attorneys to bring actions to abate the sale or display of purportedly obscene material as a public nuisance, even when such sale or display occurs wholly within the confines of an adult bookstore or theatre and thus in no way afflicts those members of the community who would find it offensive. By permitting a city attorney who objects to certain material to wield this remedy - a remedy designed for those rare cases where any delay would concretely imperil the public interest - the majority endangers freedom of expression to an extent never before contemplated in this state. Hereafter, the public‘s right to read books or magazines, to view plays or motion pictures, can be permanently curtailed if a city attorney can find a single judge who believes the material is obscene. In light of the vagueness of the prevailing constitutional obscenity standard, and the subjective nature of the judgment that the application of that standard inevitably entails, the majority‘s sanction of censorship by a single judicial officer robs our free speech guarantees of their constitutionally mandated protection.
As we shall point out, however, this case may be resolved on grounds other than that the Legislature exceeded constitutional bounds when it enacted the public nuisance laws; those laws simply do not confer upon the city attorney the power that the majority today bestows upon him. As drafted by the Legislature, the public nuisance laws provide an extraordinary remedy for situations that truly demand one; it is only as rewritten by the majority that these laws trench upon constitutional rights.
Courts of equity enjoy no roving commission to define public nuisances; they may abate only such nuisances as the Legislature declares. In People v. Lim (1941) 18 Cal.2d 872, 881 [118 P.2d 472], we acknowledged that “the responsibility for establishing those standards of
It has not. The public nuisance statutes do not embrace conduct whose tangible effects are limited to a small group of consenting adults. A careful reading of the statutes discloses that they govern only public nuisances - that is, only those nuisances that bear concretely upon the health or senses of a substantial number of people. The statutory language supports this conclusion in two ways.
First, only such indecent behavior as assaults the senses of the community constitutes a public nuisance. The majority bases its contrary conclusion on
The majority‘s error is fundamental: it construes the wrong statute. Although
Since
That the private sale or display of obscene material may not be abated as a public nuisance is thus manifest. Such materials do not impact “at the same time” on the senses of a “considerable number of people.” (
The public nuisance statutes do not comprehend the private sale or display of obscenity for yet a second reason. The requirement that a public nuisance “interfere with the comfortable enjoyment of life or property” (
It might be argued that although the obscene materials themselves do not affect the lives of those who do not view them, the knowledge that there are stores or theatres that sell or display such materials does interfere with the comfortable enjoyment of life of a considerable number of people. So attenuated a discomfort, however, is far too meager to command the protection of the public nuisance statutes. There is no hint in the statutes or the cases construing them that conduct can constitute a public nuisance simply because some people stand philosophically opposed to it; the courts have demanded that conduct impinge more concretely upon a substantial number of people before branding it a public nuisance.
In People v. Robin (1943) 56 Cal.App.2d 885, 889 [133 P.2d 436], the court held that “the unlawful sale of liquor, of itself, . . . does not constitute a nuisance within the terms of
In People v. Seccombe (1930) 103 Cal.App. 306 [284 P. 725], the court declined to abate the practice of usury as a public nuisance. It observed: “It is very evident that if following the despicable calling of usurer constitutes a public nuisance [as defined in
In Dean v. Powell Undertaking Co. (1921) 55 Cal.App. 545 [203 P. 1015], the court refused to abate the operation of a funeral parlor in a residential neighborhood as a public nuisance. The plaintiffs had complained that the operation of such an establishment precluded the comfortable enjoyment of life for many residents who were squeamish about the proximity of dead bodies. The court explained that the plaintiffs deserved relief only if they could establish that the funeral parlor emitted noxious odors or otherwise afflicted the senses of the aggrieved parties, and that merely offending the sensibilities of some people would not render it a public nuisance. The Dean court quoted with approval the language of the New Jersey Court of Chancery in Wescott v. Middleton (1887) 43 N.J. Eq. 478, 486 [11 A. 490]: “In this case, then, we have the broad, yet perfectly perceptible or tangible ground or principle announced that the injury must be physical as distinguished from one purely imaginative; it must be something that produces real discomfort or annoyance through the medium of the senses, not from delicacy of taste or refined fancy . . . .”
The Court of Appeal most recently addressed this issue in Harmer v. Tonylyn Productions Inc. (1972) 23 Cal.App.3d 941 [100 Cal.Rptr. 576, 50 A.L.R.3d 959], in which private citizens brought an action pursuant to
The Harmer court observed: “The film involved was shown only in a closed theatre. . . . Thus, only those members of the community were exposed to the film who voluntarily chose to see it. This is not a case where the community as a whole is forced to submit involuntarily to vile odors or air pollution or the unwelcome presence of animals. In the statute‘s terms, the alleged nuisance at bench did not ‘. . . affect[s] at the same time an entire community or neighborhood, . . .’ (
The majority contends that Harmer improperly analyzed the character of the state interest in regulating the exhibition of obscene matter; it observes that Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 [37 L.Ed.2d 446, 93 S.Ct. 2628] and People v. Luros (1971) 4 Cal.3d 84 [92 Cal.Rptr. 833, 480 P.2d 633], both recognize a legitimate state interest in regulating the distribution of obscene material to consenting adults. But those decisions merely testify to the outer limits of constitutional state regulation; they do not testify to the actual ambit of California‘s public nuisance laws. Harmer correctly construed the California statutes. The majority cannot rebut that construction by merely noting that, under prevailing constitutional doctrine, the Legislature stands empowered to draft more expansive statutes.
In support of its conclusion that the public nuisance statute comprehend private indecent behavior, the majority relies primarily upon Weis v. Superior Court (1916) 30 Cal.App. 730 [159 P. 464], which involved the indecent exposure of women in an exhibit at the 1915 Panama-California International Exposition. In a three-and-one-half-page opinion the court ruled that it could abate the exhibition as a public nuisance in order to subserve the public morals and protect “men, women, and children attending this public resort as spectators from being subjected to witnessing the offensive and indecent exhibition.” (30 Cal.App. at p. 733.)
The majority also attempts to cull support from People v. Lim, supra, 18 Cal.2d 872, which, it maintains, “approves the reasoning” of Weis. (Ante, at p. 50.) As noted above, however, it is not at all clear that the reasoning or the holding of Weis extends to truly private conduct. Lim itself did not involve indecency or obscenity, but a gambling establishment which, the complaint alleged, “‘draws together great numbers of disorderly persons, disturbs the public peace, brings together idle persons and cultivates dissolute habits among them, creates traffic and fire hazards, and is thereby injurious to health, indecent and offensive to the senses and impairs the free enjoyment of life and property.‘” We held simply that “[c]rowds of disorderly people who disturb the peace and obstruct the traffic may well impair the free enjoyment of life and property and give rise to the hazards designated in the statute.” (18 Cal.2d at p. 882.) Needless to say, the concrete interference with the public peace in Lim is quite distinct from the private behavior involved in the present case.
A careful study of the statutes and the cases thus impels the conclusion that the public nuisance statutes do not govern indecent conduct when such conduct is not thrust upon those who find it repugnant. The potent remedy of abatement is reserved for objects and behavior that concretely interfere with the enjoyment of life of a considerable number of people; to the extent that private indecent behavior offends the sensibilities of members of the community, they must rely on their public officials to enforce any apposite criminal laws.
Recent expressions of legislative and popular will reinforce my conclusion that the public nuisance statutes do not govern private conduct. As explained above, Harmer v. Tonylyn Productions, Inc., supra, 23 Cal.App.3d 941, ruled that California‘s public nuisance statutes did not embrace the sale or display of obscene material under circumstances in which such materials are exposed only to willing viewers. Following Harmer, several attempts were made legislatively to overrule the decision; the voters and legislators of this state rebuffed each attempt to establish public nuisance abatement procedures directed at obscenity.
In the 1972 general election, the electorate rejected by a vote of about two to one an initiative measure that would have endowed the district attorney of any county with the authority to maintain an action for an injunction in superior court to prevent the display or sale of obscene material.4 In June 1974, the Assembly Committee on Criminal Justice
In light of the Harmer decision, and the subsequent rejection of proposed legislation which would have specifically authorized a nuisance abatement procedure to be used against obscenity, traditional canons of statutory construction teach that the existing nuisance provisions should not be judicially extended to encompass the display of allegedly obscene material to willing viewers. “‘Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it. [Citations.]’ (People v. Hallner, 43 Cal.2d 715, 719 [277 P.2d 393]; People v. Courtney, 176 Cal.App.2d 731, 741 [1 Cal.Rptr. 789].) This rule is not rendered inapplicable by the fact that the determinative decision is rendered by a Court of Appeal.” (People v. Orser (1973) 31 Cal.App.3d 528, 533-534, fn. 4 [107 Cal.Rptr. 458].)
Properly construed, the public nuisance statutes do not embrace private indecency such as involved in the present case. Our inquiry would normally end here. Given the majority‘s conclusion that these statutes do encompass such private behavior, however, it becomes necessary to assay them by constitutional standards. As construed by the majority, the public nuisance statutes fail to pass constitutional muster for several reasons.
First, the statutes, as interpreted today, contravene the First Amendment because they chill protected expression. As I have explained in detail elsewhere, the concept of obscenity is an inherently vague one, and no legislative or judicial efforts that even arguably comport with the First Amendment could define the term with sufficient precision to enable businesspersons confidently to determine whether their products or exhibitions would be ruled obscene. (Bloom v. Municipal Court (1976) 16 Cal.3d 71 [127 Cal.Rptr. 317, 545 P.2d 229] (Tobriner, J., dissenting).) The problem of defining obscenity is intractable because we have no community view of that which appeals to the prurient interest and lacks social value, but rather a host of distinct views within each community. And even if these distinct views could be said metaphysically to coalesce to form some community standard, no trier of fact could confidently ascertain what that standard was.
The determination that an exhibition is obscene, consequently, amounts to nothing more than a testament to subjective preferences or a conjecture about the taste and fancy of one‘s neighbors. As the Court of Appeal acknowledged in In re Davis (1966) 242 Cal.App.2d 645, 661 [51 Cal.Rptr. 702], when it held a law proscribing “any act which openly outrages public decency” impermissibly vague, “[t]he constitution . . . could not tolerate a law which would make an act a crime, or not, according to the moral sentiment which might happen to prevail with the judge and jury . . . .”
Although we do not deal here with a criminal law, the vice of vagueness remains fatal. The United States Supreme Court explained: “Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech and of the press suffer.” (Ashton v. Kentucky (1966) 384 U.S. 195, 200 [16 L.Ed.2d 469, 473, 86 S.Ct. 1407].)
Moreover, the vagueness and subjectivity of present obscenity doctrine impose particularly severe burdens on freedom of expression if, as the majority holds, obscenity doctrine may be imported into public nuisance proceedings. In Bloom v. Municipal Court, supra, 16 Cal.3d 71, a majority of this court incorporated into the definition of obscenity in
In a public nuisance proceeding, however, no jury is impanelled to determine whether a particular work is obscene under contemporary community standards; that crucial determination - upon which the censorship of a book, a magazine, a play or a motion picture turns - is left instead to a single judicial officer. In a criminal obscenity proceeding, the requirement that a jury be drawn from a cross-section of the community will normally provide at least some promise that the varying tastes and sensibilities that exist in every community will play some role in the determination of whether a work is obscene or not. By authorizing a single judge - distant to the interplay of the diverse cultural, religious, intellectual and economic backgrounds commonly present in a jury room - to make the determination of obscenity on the basis of an undeniably subjective standard, the majority inevitably confines constitutional protection only to those works that, in the personal view of a single judge, are not offensive.6
Nearly 20 years ago, in Butler v. Michigan (1957) 352 U.S. 380 [1 L.Ed.2d 412, 77 S.Ct. 524], the United States Supreme Court overturned a state obscenity statute that prohibited the dissemination of any book that the state believed was unfit for children. Justice Frankfurter, writing for a unanimous court, declared: “The State insists that, by thus quarantining the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence, it is exercising its power to promote the general welfare. Surely this is to burn the house to roast the pig. . . . The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children.” (352 U.S. at p. 383 [1 L.Ed.2d at p. 414].)
In like manner, the “incidence” of the decision of the majority in this case is to reduce the adult population of California to reading only those books that do not offend the sensibilities of the most “sensitive” trial judge in their community. Surely such a procedure robs free speech of the stringent protection guaranteed by our most cherished constitutional precepts.7
In sum, California‘s public nuisance statutes simply were not drafted for the purpose to which the majority commits them. The sword of public nuisance is a blunt one, admirably designed to curb noxious odors or to quell riots, but ill suited to the delicate sphere of the First Amendment where legal overkill is fatal.
Because the public nuisance statutes do not govern the willful viewing of obscene material in private by adults - and because if they did they would be constitutionally defective - I conclude that the trial court properly sustained the defendant‘s demurrer. Accordingly, I would affirm the decision below.
Mosk, J., concurred.
Notes
“CHAPTER 7.9. INJUNCTIVE RELIEF
“313.50. The superior courts of the State of California have jurisdiction to enjoin the sale or distribution of any book, magazine, or any other publication or article, or the public showing of any motion picture film, slide, exhibit, or performance which is prohibited under Chapters 7.5, 7.6, 7.7 or 7.8 of this title.
“313.51. The district attorney of any county in this state in which a person, firm, or corporation sells or distributes, or is about to sell or distribute, or is about to acquire possession with intent to sell or distribute any book, magazine, pamphlet, newspaper, story paper, writing paper, picture, card, drawing, photograph, or other publication or matter which is prohibited by the above enumerated chapters may maintain an action for an injunction against such person, firm, or corporation in the superior court to prevent the sale or further sale or the distribution or further distribution of any such prohibited publication or articles.
“313.52. The district attorney of any county in this state in which a person, firm, or corporation shows publicly, or is about to show publicly, or is about to acquire possession with intent to show publicly any motion picture film, slide, exhibit, or performance which is prohibited under the above enumerated chapters may maintain an action for an injunction against such person, firm, or corporation in the superior court to prevent the public showing or further public showing of such prohibited matter or activity.
“313.53. The person, firm, or corporation sought to be enjoined is entitled to a trial of the issues within one day after joinder of issue and a decision shall be rendered by the court within two days after the conclusion of the trial.
“313.54. In the event that an order or judgment be entered in favor of the district attorney and against the person, firm, or corporation sought to be enjoined, such final order or judgment shall contain a provision directing the person, firm, or corporation to surrender to such peace officer as the court may direct or to the sheriff of the county in which the action was brought any of the matter described in Section 313.51 or 313.52, and such sheriff or officer shall be directed to seize and destroy the same, provided that destruction of such matter shall be stayed until after the time provided for filing a notice of appeal has expired, and provided further that where an appeal is timely filed, such destruction shall be stayed pending the decision on appeal.”
Proposition 19 was defeated by a vote of 5,503,888 (67.9 percent) No to 2,603,927 (32.1 percent) Yes. Secretary of State, Statement of Vote, General Election November 7, 1972, page 30.
“311.3(a) The superior court has jurisdiction to enjoin the sale, distribution or exhibition of obscene books, articles or films, as hereinafter specified:
“(1) The district attorney, county counsel, city attorney or city prosecutor of any county, city or town, in which a person, firm, or corporation sells, distributes or exhibits or is about to sell, distribute or exhibit or has in his possession with intent to sell, distribute or exhibit any book, magazine, pamphlet, comic book, story paper, writing paper, paper, picture, drawing, photograph, film, figure, image or any written or printed matter of an indecent character which is obscene as defined in Section 311, may maintain an action for an injunction against such person, firm, or corporation in the superior court to prevent the sale or further sale or further distribution or the exhibition or further exhibition of such matter.
“(2) The person, firm, or corporation sought to be enjoined shall be entitled to a trial of the issues within 14 days after joinder of issue and a decision shall be rendered by the court within two days of the conclusion of the trial.
“(b) In the event that a final order or judgment of injunction to be entered in favor of such officer of the county, city or town and against the person, firm, or corporation sought to be enjoined, such final order of judgment shall contain a provision directing the person, firm, or corporation to surrender to the sheriff or any other law enforcement agency of the county in which the action was brought any of the matter described in paragraph (1) hereof and such sheriff or law enforcement agency shall be directed to seize and destroy the same or to hold the same as evidence.”