THE PEOPLE, Plaintiff and Appellant, v. MILTON LUROS et al., Defendants and Respondents.
Crim. No. 13153
In Bank
Feb. 18, 1971
4 Cal.3d 84 | 92 Cal. Rptr. 833 | 480 P.2d 633
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood, Robert J. Lord and William E. McGinley, Deputy District Attorneys, for Plaintiff and Appellant.
Stanley Fleishman and Gerald J. Levie for Defendants and Respondents.
Paul N. Halvonik, Charles C. Marson, Jerome B. Falk, Jr., Coleman A. Blease, A. L. Wirin, Fred Okrand and Lawrence R. Sperber as Amici Curiae on behalf of Defendants and Respondents.
OPINION
SULLIVAN, J.—Defendants, Milton Luros, Reuben Sturman, World Wide News and London Press, Inc., were indicted in June 1966 by the Grand Jury of Los Angeles County for conspiring to violate
At the grand jury proceedings in June 1966 the prosecutor introduced copies of the four allegedly obscene books, “Seed of the Beast,” “Queer Daddy,” “The Experimenters,” and “Just for Kicks.” He also introduced a fifth book, “Sex Life of a Cop,” concerning which there had been established in other proceedings probable cause for the belief that it was obscene.3 The grand jury read and presumably compared the four allegedly obscene books with “Sex Life of a Cop” to determine whether or not there was probable cause to believe the four books obscene. In introducing
No evidence of contemporary community standards other than “Sex Life of a Cop” was introduced before the grand jury. After reading all five books, and considering evidence of defendants’ involvement in the publication and distribution of the four books charged as obscene, the grand jury returned the instant indictment. In setting the indictment aside, the trial court recognized that its ruling was in conflict with the holdings in Aday v. Superior Court, supra, 55 Cal.2d 789, 798 and People v. Aday (1964) 226 Cal.App.2d 520, 531-532 [38 Cal.Rptr. 199], but was of the view that those cases had been overruled by more recent decisions. We conclude that those cases were correctly decided and have continued and undiminished vitality.
In Aday v. Superior Court, supra, 55 Cal.2d 789, we reviewed the validity of a search warrant which authorized seizure of two named books alleged to be obscene, as well as a wide variety of other books, records and objects. Although we there determined that the warrant was in certain respects unconstitutionally broad, we concluded that it was not invalid as a whole and we upheld that part of it which authorized the seizure of the named books constituting the principal basis of the charge of obscenity. (Id. at pp. 796-798.) The magistrate had read portions of the two named books before issuing the warrant, but had not received evidence as to contemporary community standards. We examined the books and held that there was probable cause to believe them obscene. After referring to the rule for determining obscene material announced in the Roth case (Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304]), we said: “It should be emphasized that in applying these principles here we are concerned only with probable cause, not with the final determination as to the character of the named books or the guilt of petitioners. An examination of the two books convinces us there was probable cause for believing that they are obscene. Their text is such that an average person, applying contemporary community standards, could reasonably believe that their dominant theme appeals to a lascivious, shameful, and morbid interest in sex and that they are totally lacking in redeeming value, literary or otherwise. In view of their contents it was not necessary for [the magistrate] to . . .
We went on to say: “Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code. In the event the owner is unsuccessful in that proceeding, a final determination as to obscenity will be had in the criminal action which will ordinarily follow within a reasonable time, or other remedies such as mandamus will be available to secure return of the property.” (Aday v. Superior Court, supra, 55 Cal.2d at p. 799.)
Our holding in Aday v. Superior Court, supra, was followed three years later by the Court of Appeal in People v. Aday, supra, 226 Cal.App.2d 520. In that case, as in the case at bench, the defendant challenged an indictment because no evidence of contemporary community standards had been submitted to the grand jury.4 The court there carefully set out both the standards and the procedures governing grand jury determination on the issue of whether there exists probable cause to believe material obscene: “‘The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.’ (In re Harris, 56 Cal.2d 879, 880 [16 Cal.Rptr. 889, 366 P.2d 305]; Roth v. United States, supra, 354 U.S. 476, at p. 489 [1 L.Ed.2d 1498, 1509, 77 S.Ct. 1304]; Aday v. Superior Court, supra, at p. 798.) Accordingly, it is a denial of due process for a trial court not to allow a defendant to prove contemporary community standards at his trial. (In re Harris, supra, at p. 880.) It is not necessary, however, that evidence of contemporary community standards be received on the issue of probable cause. (See Aday v. Superior Court, supra, at pp. 798-799.) A determination of obscenity may therefore be made by a grand jury, insofar as the issue of probable cause is concerned, without the
In the nine and a half years since our decision in Aday v. Superior Court and the six and a half years since our denial of a hearing in People v. Aday, we have not overruled, disapproved or in any way qualified the rules as to the determination of probable cause in obscenity cases.5 The Aday cases retain their full vitality as precedents on this question and we conclude, to use our former language, that it is “not necessary . . . to receive evidence as to contemporary community standards in order to determine the issue of probable cause.” (55 Cal.2d at p. 798.) The failure to introduce evidence of contemporary community standards before the grand jury did not render the instant indictment defective.
Defendants contend, however, that even if an indictment is proper where no evidence of contemporary community standards is presented to the grand jury, the present indictment is invalid because “Sex Life of a Cop” was introduced as an example of obscenity under contemporary community standards. They argue that since the United States Supreme Court later held that “Sex Life of a Cop” was not obscene (Aday v. United States, supra, 388 U.S. 447), the grand jury in this case was permitted and advised to use an erroneous example of contemporary community standards in determining the obscenity of the challenged book. However, the grand jury did not determine that the challenged books were in fact obscene, but only that there was probable cause to believe them obscene. While the United States Supreme Court subsequently held that “Sex Life of a Cop” is not, in fact, obscene, there is still, as we held in Aday v. Superior Court, supra, 55 Cal.2d 789, 798, probable cause to believe the book obscene. “Sex Life of a Cop” might have been an erroneous example of contemporary community standards if the grand jury had heard testimony that the book was obscene by those standards. But in this case the grand jury was not misled because the testimony6 was only that the two Aday cases had held that there was probable cause to believe “Sex Life of a Cop” to be
Finally, we reach defendants’ contention that the decision of the United States Supreme Court in Stanley v. Georgia (1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243] requires a dismissal of the instant indictment. We summarize defendants’ long and ingeniously concatenated argument: That Stanley held that the private possession of obscene matter cannot constitutionally be made a crime; that by its decision, the high court, “making significant changes in its concept of ‘obscenity‘,” declared obscenity to be speech within the protection of the First Amendment; that no governmental regulation of speech within the First Amendment is valid unless there “is a clear showing that the burden placed upon exercise of freedom of speech is justified by a compelling state interest” which cannot be protected by means less burdensome to the exercise of First Amendment rights; that in Stanley, the court found only two compelling state interests which require regulation of obscenity—the state concern for minors and the state interest in preventing intrusions upon the sensibilities or privacy of an unwilling audience; that since under the holding in Stanley a person has a constitutional right to possess obscene material, it follows that any governmental limitation upon the sale or distribution of such material also contravenes First Amendment rights; and that accordingly, individuals “have the right to publish, prepare, print and sell such material without governmental intervention, except in cases where the material is intended for minors or is distributed in such a manner as to intrude upon the sensibilities or privacy of the general public unwilling to be exposed to such material.”
Applying this interpretation to the case at bench, defendants urge that (a) since the indictment does not charge defendants with, and (b) the grand jury transcript is barren of any evidence establishing probable cause to believe that defendants participated in, distributing obscene material to minors or to unwilling persons in such a manner as to intrude upon their privacy or sensibilities,8 the indictment must be set aside.
At each step in its reasoning, however, the high court in Stanley was careful to distinguish the problem of commercial distribution of obscenity, involved in Roth v. United States, supra, 354 U.S. 476, and in the instant case, from the problem of private possession of obscene material, involved in Stanley. The court recognized that Roth and the cases which followed it had found state interests in dealing with the problem of obscenity sufficient to justify regulation of commercial distribution of obscene matter. The court concluded that no such state interest justified the state regulation of private possession of obscenity, but it distinguished Roth because “that case dealt with public distribution of obscene materials and such distribution is subject to different objections.” (394 U. S. at p. 567 [22 L.Ed.2d at p. 550].)
As Stanley recognized, a court, in deciding the constitutionality of a state regulation of obscenity must balance the state interests advanced by
Finally, as if to leave no doubt as to the extent of its holding, the high court concluded: “We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. [Fn. omitted.] Roth and the cases following that decision are not impaired by today‘s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.” (394 U.S. at p. 568 [22 L.Ed.2d at p. 551].)
We also find meritless defendants’ argument that the holding in Stanley necessitates the conclusion that a state may not constitutionally regulate commercial distribution of obscene material because such regulation makes more difficult the full exercise of the right to possess obscenity privately. The rights protected by the First and Fourteenth Amendments are not “absolutes” in the sense that where the constitutional protection exists it must prevail. (Konigsberg v. State Bar (1960) 366 U.S. 36, 49 [6 L.Ed.2d 105, 115, 81 S.Ct. 997]; Breard v. City of Alexandria (1951) 341 U.S. 622, 642 [95 L.Ed. 1233, 1248, 71 S.Ct. 920].) As was said in Breard: “Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life.” (Id.) As we have discussed above, in the context of public distribution of obscenity, the balance of interests upholds the constitutionality of state regulation, even though that regulation imposes some burdens upon the exercise of constitutional rights.
The order setting aside the indictment is reversed.
Wright, C. J., McComb, J., and Burke, J., concurred.
TOBRINER, J.—I dissent. In my opinion the broad constitutional rationale underlying the United States Supreme Court‘s recent obscenity decision of Stanley v. Georgia (1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], significantly alters prior obscenity doctrine and dictates that the dismissal of the present indictment be affirmed. I therefore find it unnecessary to reach the issue of whether affirmative evidence of contemporary community standards must be presented at grand jury proceedings.
It is no novel revelation that the passage of years since the United States Supreme Court first attempted a constitutional definition of obscenity in Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304], has not produced a coalescence of judicial opinion but instead a multiplicity of standards.1 Throughout this period, courts have struggled to find an accommodation between the constitutionally protected interest in free speech and the legitimate public interest in controlling activities which fall under the broad category of obscenity. In this process the judiciary, acknowledging that constitutional doctrine is still in the formative stage in this area,2 has viewed the problem from different angles, seeking to find the position that best illuminates the proper reconciliation of the opposing forces at work here.
In Stanley, the Supreme Court addressed for the first time a case of an adult defendant convicted of a crime because he possessed obscene films in his home. Led by these facts to examine the permissibility of governmental action in regulating the content of an adult‘s private library of books or films, the court concluded that the First Amendment demanded that the individual be free to choose what books he would read or what films he would view in the privacy of his home without fear of governmental sanction. The court reasoned: “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, 143 (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. . . . If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men‘s minds.” (394 U.S. at pp. 564-565 [22 L.Ed.2d at pp. 549-550].)
Our emphasis in Klor, however, was not on the individual‘s right to receive all written ideas in the privacy of his home, but rather on an individual‘s right to express ideas. Thus we concluded in Klor: “In summary, we do not believe that the Legislature intended to inhibit the mere preparation of allegedly obscene material not intended for distribution. We cannot believe that the Legislature meant to freeze the creative process and cast the maker‘s unfinished product into forbidden form during its genesis. Thus to stifle individual expression would be to shackle creativity itself.” (64 Cal.2d at p. 822.) (See also People v. Noroff (1967) 67 Cal.2d 791, 793 fn. 4 [63 Cal.Rptr. 575, 433 P.2d 479].)
Stanley, in examining the right of an adult to possess all material, whether or not obscene, focuses on the individual as recipient of ideas, not creator. Nowhere in Stanley is there the slightest indication that the court saw its decision limited to material created by the possessor; indeed, the thrust of the whole opinion precludes such a construction. As the Stanley court viewed the interests before it, the defendant was “asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional need in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library.” (Italics added.) (394 U.S. at p. 565 [22 L.Ed.2d at p. 549].) It is these rights which Stanley determines are guaranteed to the individual by the Constitution; our decision in Klor was not so directed.
As the Stanley court emphasized, the question of the government‘s effective control of a man‘s own library involves the added dimension of an intrusion into the individual‘s private domain. In our highly complex and increasingly interdependent society the need to preserve the individual‘s freedom of thought has become crucial. The individual has been confronted with the rise of tremendous power in government and in the
Stanley demonstrates that our constitutional protections secure to all persons this right of individual choice. So long as he does not invade the rights of others, the adult should be free not only to say whatever he wants and to advocate whatever he believes, but also to choose what books he will read or what films he will watch in his home. (See Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 901, 902 [31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707].) Stanley thus insures the preservation of a private domain where the individual is the complete master of what he reads and what he thinks. (See Olmstead v. United States (1928) 277 U.S. 438, 478 [72 L.Ed. 944, 48 S.Ct. 564] (Brandeis, J., dissenting); cf. Rowan v. Post Office Dept. (1970) 397 U.S. 728, 736-738 [25 L.Ed.2d 736, 742-744, 90 S.Ct. 1484]; Griswold v. Connecticut, supra, 381 U.S. 479 [14 L.Ed. 2d 510, 85 S.Ct. 1678]; People v. Belous (1969) 71 Cal.2d 954, 963-964 [80 Cal.Rptr. 354, 458 P.2d 194]; City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313]; In re Lifschutz (1970) 2 Cal.3d 415, 431-432 [85 Cal.Rptr. 829, 467 P.2d 557].)
Although the Stanley court purported to work no fundamental changes in the constitutional rationale that underlay the general treatment of obscenity in Roth and the post-Roth obscenity cases, the basis of the Stanley opinion, as I understand it, necessarily modifies Roth‘s broad declaration that obscenity is not protected by the First Amendment.5
In Stanley, however, the court stated unequivocally that individuals enjoy a constitutional “right to receive information and ideas, regardless of their social worth.” (Italics added.) (394 U.S. at p. 564 [22 L.Ed.2d at p. 549].) The Stanley court further elaborated its rejection of the limitation of First Amendment rights to matters having some “redeeming social importance“: “Nor is it relevant that obscenity in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much
considerations are once again of paramount importance, Roth notwithstanding, even where the publications in issue are concededly ‘obscene.’ “); United States v. Reidel (C.D.Cal. 1970) (unreported decision) probable jurisdiction noted (1970) 400 U.S. 817 [27 L.Ed.2d 44, 91 S.Ct. 67] (docket No. 534); United States v. Lethe (E.D.Cal. 1970) 312 F.Supp. 421, 423-426; United States v. Thirty-Seven Photographs (C.D. Cal. 1970) 309 F.Supp. 36 (three-judge court); probable jurisdiction noted (1970) 400 U.S. 817 [27 L.Ed.2d 44, 91 S.Ct. 34] (docket No. 133); Karalexis v. Byrne (D.Mass. 1969) 306 F.Supp. 1363, 1366 (three-judge court, Aldrich, J.), probable jurisdiction noted, Byrne v. Karalexis (1970) 397 U.S. 985 [25 L.Ed.2d 394, 90 S.Ct. 1123], calendared for reargument (1970) 399 U.S. 922 [27 L.Ed.2d 184, 90 S.Ct. 2235] (docket No. 83) (“Roth cannot remain intact, for the Court there had announced that ‘obscenity is not within the area of constitutionally protected speech or press’ whereas [the Stanley court] held that Stanley‘s interest was protected by the First Amendment, and that the fact that the film was ‘devoid of any ideological content’ was irrelevant“); Stein v. Batchelor (N.D.Tex. 1969) 300 F.Supp. 602, 606, probable jurisdiction noted, Dyson v. Stein (1969) 396 U.S. 954 [24 L.Ed.2d 419, 90 S.Ct. 428], calendared for reargument (1970) 399 U.S. 922 [26 L.Ed.2d 789, 90 S.Ct. 2230] (docket No. 41) (“It is impossible . . . for this Court to ignore the broader implications of the opinion which appears [sic] to reject or significantly modify the proposition stated in Roth . . . that ‘obscenity is not within the area of constitutionally protected speech or press.’ “).)
In addition, although legal writers are notorious for their general inability to agree, the host of legal commentators on the Stanley decision almost unanimously concur in this interpretation. (See Katz, Privacy and Pornography, 1969 Sup.Ct. Rev. 203; Engdahl, Requiem for Roth: Obscenity Doctrine is Changing (1969) 68 Mich.L.Rev. 185, 198-201; Note, The Supreme Court, 1968 Term (1969) 83 Harv.L.Rev. 7, 147-154; Note, The New Metaphysics of the Law of Obscenity (1969) 57 Cal.L.Rev. 1257; Note, Stanley v. Georgia—A Private Look at Obscenity (1969) 21 Baylor L.Rev. 503; 22 U.Fla.L.Rev. 138, 144; 7 San Diego L. Rev. 111, 118-119; cf. Gegan, Twilight of Nonspeech (1969) 15 Cath. Law. 210, 219.)
Although Stanley thus dictates that the government “has no business” in regulating the content of an adult‘s reading matter, the opinion expressly declares that the states retain the power to regulate the public dissemination of obscene material. (394 U.S. at pp. 563, 568 [22 L.Ed.2d at pp. 548, 551].) The People contend that this declaration demonstrates that
The “power to regulate,” however, does not encompass the authority to prohibit all means of distribution of material that is intended for the private use of adults. The rights of adults to possess, study, and enjoy all ideas in the privacy of their homes would mean little if the state could effectively foreclose all legal means of access to a designated category of material by penalizing anyone who distributed it. We should not be so disingenuous as to recognize, as we must, that our state and federal Constitutions protect an adult‘s right to possess all written material regardless of content, and simultaneously to acknowledge authority in the government to prohibit the dissemination of such material intended for private adult use solely because of that material‘s content.
The courts have long held that the right to disseminate material protected by the First Amendment is an integral and necessary part of that constitutional right. (Martin v. City of Struthers (1943) 319 U.S. 141, 143 [87 L.Ed. 1313, 1316-1317, 63 S.Ct. 862] (“This freedom [of speech and press] embraces the right to distribute literature, Lovell v. Griffin, 303 U.S. 444, 452, and necessarily protects the right to receive it.“); Griswold v. Connecticut (1965) 381 U.S. 479, 482 [14 L.Ed.2d 510, 513, 85 S.Ct. 1678] (“the right of freedom of speech and press includes not only the right
The constitutional interests involved in this criminal proceeding are thus broader than that of the defendant printer, publisher, or distributor (cf. Interstate Circuit v. Dallas (1968) 390 U.S. 676, 684 [20 L.Ed.2d 225, 232, 88 S.Ct. 1298]); they are the interests of every adult in realistically being able to exercise his constitutional right to decide which books he will read in the privacy of his home. Stanley commands that the individual, not the government, be the one who ultimately decides whether the individual will read a book or not; the state as effectively withdraws that individual choice by the criminal prosecution of all who print, publish or disseminate an “obscene” work as by the criminal prosecution of the reader himself. In either case the state eliminates from normal circulation those publications which are the subject of its censure. The alternative interpretation of Stanley, giving the state full authority to proscribe any dissemination of obscene matter, would effectively mean that the First Amendment protections apply only to an author‘s possession of his own works. I can find no indication in the Supreme Court decision that the First Amendment rights are to be so eviscerated.
Indeed, Stanley explicitly rejected as incompatible with the First Amendment the two main governmental purposes that have been proffered to support a general governmental prohibition of all distribution of such materials; (1) the governmental interest in protecting the morality of adults by controlling what reading materials they may legally obtain and (2) the governmental interest in curtailing potential criminal activity allegedly fostered by the reading of obscene matter.
The court similarly rejected the argument that would justify complete prohibition of dissemination on the grounds that exposure to such material might lead the adult recipients to antisocial conduct. While the court in Roth had not felt constrained to embrace this issue directly (see 354 U.S. at pp. 486-487 [1 L.Ed.2d at pp. 1507-1508]), the Stanley court did:
Although the constitutional right of adults to possess material, whatever its worth, thus necessarily means that government may not completely prohibit the dissemination of material intended for an adult‘s private use, Stanley makes it perfectly clear that the state retains authority to regulate the manner of public dissemination12 in furtherance of two legitimate governmental objectives. The Supreme Court, drawing from its experience garnered in previous obscenity cases, isolated two state objectives that are permissible bases for the regulation of public distribution of obscene material: (1) the protection of an unwilling individual from blatant and offensive assaults on his sensibilities and (2) the protection of children. (394 U.S. at p. 567 [22 L.Ed.2d at p. 550].)13
The initial articulation of the legitimate state interest in protecting the sensibilities of the public from offensive assaults also appeared in Roth. Justice Harlan, in his concurring and dissenting opinion, proposed that: “the State has a legitimate interest in protecting the privacy of the home against invasions of unsolicited obscenity.” (Italics added.) (354 U.S. at p. 502 [1 L.Ed.2d at pp. 1516-1517].) This concern with interferences with the privacy of the public is apparent throughout the entire opinion of Justice Brennan, joined by Chief Justice Warren and Justices Clark, White, and Fortas, in Ginzburg v. United States (1966) 383 U.S. 463, 469-470 [16 L.Ed.2d 31, 37-38, 86 S.Ct. 942]. In concluding that the defendant‘s “pandering” could properly be taken into account in an obscenity case, the court expressed concern with the “brazen” public dissemination of offensive material (383 U.S. at p. 470 [16 L.Ed.2d at p. 38]), the “indiscriminate . . . solicitation” (id. at p. 469 [16 L.Ed.2d
at p. 37]), and the “flooded mails” (id. at p. 473 [16 L.Ed. 2d at p. 39]). As the court explicitly noted, “[P]ublic confrontation with the potentially offensive aspects of the work . . . heightens the offensiveness of the publications to those who are offended by such material.” (Id. at p. 470 [16 L.Ed.2d at p. 38].) (See Note, More Ado About Dirty Books (1966) 75 Yale L.J. 1364, 1404 fn. 156.)
Justice Stewart explained the legal rationale for such concern more fully two years later, in his concurring opinion in Ginsberg v. New York (1968) 390 U.S. 629, 649 [20 L.Ed.2d 195, 209, 88 S.Ct. 1274]: “When expression occurs in a setting where the capacity to make a choice is absent, government regulation of that expression may co-exist with and even implement First Amendment guarantees. So it was that this Court sustained a city ordinance prohibiting people from imposing their opinions on others ‘by way of sound trucks with loud and raucous noises on city streets.’ [Kovacs v. Cooper, 336 U.S. 77, 86.] And so it was that my Brothers Black and Douglas thought that the First Amendment itself protects a person from foisting his uninvited views upon the members of a captive audience. [Public Utilities Comm. v. Pollak, 343 U.S. 451, 466 (Black, J., dissenting), 467 (Douglas, J., dissenting)].”
The court‘s very recent unanimous decision in Rowan v. Post Office Dept. (1970) 397 U.S. 728 [25 L.Ed.2d 736, 90 S.Ct. 1484], upholding a federal statute permitting a householder to insulate himself from mailed advertisements he finds “erotically arousing or sexually provocative,” represents the full crystallization of this concern for protection from unsolicited and undesired “psychic” affronts.
The state interest in protecting its children from obscenity has similarly emerged in a number of obscenity decisions. In Jacobellis v. Ohio (1964) 378 U.S. 184 [12 L.Ed.2d 793, 84 S.Ct. 1676], Justice Brennan, joined in concurrence by Justice Goldberg, stated forthrightly: “We recognize the legitimate and indeed exigent interest of states and localities throughout the nation in preventing the dissemination of material deemed harmful to children. . . . State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination.” (Fn. omitted.) In a separate opinion in Jacobellis Chief Justice Warren suggested: “A technical or legal treatise on pornography may well be inoffensive under most circumstances but, at the same time, ‘obscene’ in the extreme when sold or displayed to children.” (Fn. omitted.) (378 U.S. at p. 201 [12 L.Ed.2d at p. 806].)
In Ginsberg v. New York (1968) 390 U.S. 629 [20 L.Ed.2d 195, 88 S.Ct. 1274], Justice Brennan, writing for six members of the court, upheld the constitutionality of a special statute directed at the sale of ‘obscene’ material to minors. The court concluded that it was constitutionally permissible for a state to prohibit the dissemination of certain material to minors, even though a general prohibition on such dissemination would have violated the First Amendment. Justice Stewart, in his concurrence quoted in part above, found state regulation of obscenity for the protection of children analogous to the permissible regulation to prevent offensive “psychic” assaults on a captive public. Viewing the still maturing minor as not fully capable of exercising a non-coerced, informed, individual choice, Justice Stewart reasoned that in both situations the government was acting to preserve the promise of free choice implicit in the
Although California‘s criminal statute differs from the Michigan law in that its obscenity standard is ostensibly geared to adults, not children, Stanley holds that, as far as government regulation is concerned, no book is “too rugged for grown men and women” to read in the privacy of their
First Amendment. (390 U.S. at p. 649 [20 L.Ed.2d at p. 209].)
In Redrup v. New York (1967) 386 U.S. 767, 769 [18 L.Ed.2d 515, 517, 87 S.Ct. 1414], before listing the various standards of obscenity espoused by the individual justices, the court expressly noted: “In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U.S. 158; cf. Butler v. State of Michigan, 352 U.S. 380. In none was there any suggestion of an assault upon individual privacy in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U.S. 622 . . . . And in none was there evidence of the sort of pandering which the court found significant in Ginzburg v. United States, 383 U.S. 463.”
Prior to Stanley, two federal cases interpreted this paragraph in Redrup as limiting the obscenity inquiry to interference with the various interests expressly designated. The courts dismissed the cases before them because there was no evidence that any of the “special circumstances” designated in Redrup were present. (United States v. 127,295 Copies of Magazine (D.Md. 1968) 295 F.Supp. 1186 (two-judge court); United States v. 4,400 Copies of Magazine (D.Md. 1967) 276 F.Supp. 902 (en banc).) See also Grant v. United States (9th Cir. 1967) 380 F.2d 748, 749 fn.*)
As I understand it, the state interest in preventing “pandering” is substantially equivalent to its interest in prohibiting other offensive public displays or exhibitions which are foisted on unwilling individuals. Insofar as the “pandering” concept represents an independent element relevant to a decision of whether material is obscene or not, the approach in Stanley obviates the importance of the concept in cases involving material intended for the private use of adults. Thus, the Stanley court significantly noted only two general state interests and did not mention “pandering” at all.
Thus, as I read Stanley, the governmental authority to regulate the public distribution of reading material intended for the private use of adults extends only to measures reasonably related to the protection of juveniles or to the protection of the privacy of individuals from unsolicited assaults on their sensibilities.14 These limits do not leave the state without means to combat the very real evils that may arise as to these matters, but instead require the state to focus upon them and to provide criminal sanctions directed to such evils. The prohibition of intolerably obnoxious advertising campaigns that reach individuals unsolicited certainly falls within such permissible goals of state laws. (See Rowan v. Post Office Dept. (1970) 397 U.S. 728, 736-738 [25 L.Ed.2d 736, 742-744, 90 S.Ct. 1484]; cf. Ginzburg v. United States (1966) 383 U.S. 463 [16 L.Ed.2d 31, 86 S.Ct. 942]; United States v. Klaw (2d Cir. 1965) 350 F.2d 155, 163-164.) Further, the state may proscribe the display of patently offensive posters, billboards, and book covers15 in public areas where indi-
Given the above constitutional considerations, I believe that the indictments in the instant case, charging defendants with conspiring to violate
This approach to the regulation of obscenity, necessitated by the rationale of Stanley, concededly would work a substantial change in the relevant legal aspects of this area. From the standpoint of the administration of the judicial task, however, such a change would surely be welcome. The past efforts of the courts, and especially the United States Supreme Court, have largely centered on attempts to define constitutionally unprotected obscenity; the task has proven to be Herculean and almost unachievable. Judicial fear of the potential erosion of the definition has necessitated that each level of appellate courts independently review the challenged material17 in terms of this elusive,18 nonuniform, concededly subjective definition, an undertaking not only personally distasteful for most judges and enormously time-consuming for all, but one which is essentially non-legal, for the determination of “social worth” cannot be reached by resort to precedent or rational principles.
To be sure, this reevaluation of legitimate state purposes would not obviate all problems in the field of obscenity. Courts would be obligated to continue to scrutinize regulations directed at fulfilling the above stated goals since they border on constitutionally protected areas. (See, e.g., Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 66 [9 L.Ed.2d 584, 590, 83 S.Ct. 631].) The regulation of material not covered by the rationale of Stanley would still necessarily be judged by present constitutional standards of obscenity. Nonetheless, the judicial task would undoubtedly be lightened by the refocusing of a substantial proportion of obscenity litigation.
My conclusion, however, does not emanate merely from a desire to relieve the judiciary of an unpleasant task. It is instead the recognition of one principle of our governmental system, a principle articulated by Justice Brandeis over 40 years ago: “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man‘s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.” (Olmstead v. United States (1928) 277 U.S. 438, 478 [72 L.Ed. 944, 956,
The exercise of governmental authority effectively to prevent an adult from obtaining written material to be read in his home is incompatible with the protection of free speech guaranteed by our state and federal Constitutions.
I would affirm the dismissal of the indictment.
Peters, J., and Mosk, J., concurred.