*1 SPLAWN CALIFORNIA Argued No. 76-143. March June 1977 Decided *2 Wells, Arthur Jr., argued the cause and filed a brief petitioner. Stein, D.
William Deputy Attorney of California, General argued the cause for respondent. him With on the brief were Evelle J. Younger, Winkler, Attorney General, Jack R. Chief O’Brien, Edward Attorney Assistant P. General, Assistant Knudson, Alvin Attorney J. General, Attorney Deputy General.* Rehnquist Justice opinion delivered the of the Court.
Mr. Splawn Petitioner convicted 1971 of the sale of two film, reels obscene a misdemeanor violation of California (West Penal Code 1970). §311.2 After the conviction was affirmed on appeal by the California First District Court of Supreme and the State Court denied review, this Court granted certiorari, vacated the judgment, and remanded for consideration in light of our decision in Miller California, 15 (1973), U. which had forth S. set the standards Keating, Jr., Clancy H.
*Charles and James J. filed a brief for Citizens Decency Through Law, Inc., as amicus curiae urging affirmance. constitutionality of 311.2 § was to be determined. After Supreme the State Court ruled that the statute satisfied requirements Miller, articulated in Bloom see v. Municipal Court, 16 Cal. 3d 2d 229 P. of Appeal (1976), affirmed the again conviction Supreme and the California petitioner’s Court denied motion for a hearing. again granted
We certiorari, 429 U. to con- (1976), petitioner’s sider assorted contentions that his conviction must portions be reversed because given to the instructions jury during trial his render conviction violative of the First and Fourteenth Amendments. He claims that the instruction allowed convict though might him even it otherwise have found the material protected have been *3 under the Miller standards. He also contends that the same portions of the instructions render his conviction invalid prohibition reason of the against constitutional ex post facto requirement laws and the of fair in warning the construction of Columbia, a criminal statute in City enunciated Bouie v. (1964). 347 We consider in light these contentions the any fact that has abandoned claim the that material for the selling which was convicted could not be consistently found to be obscene with the First and Fourteenth Amendments, any claim that the California statute under satisfy which he was requirements convicted does the Miller, in supra. articulated
As it was understood the Appeal, California Court of is petitioner’s challenge portion leveled against following of the instructions: determining
“In allegedly of whether the utterly redeeming obscene matter is without social im- may consider you the circumstances portance, of sale and particularly whether distribution, such circumstances being exploited matter was commercially indicate that the for the sake of its prurient appeal. the defendants probative respect is to the nature of Such justify the conclusion that the matter the matter and can redeeming importance. social utterly without is is entitled is a matter weight, such evidence any, [to] you, to determine. Jury, production and dissemination “Circumstances of importance social determining relevant pretense circumstances claimed for material was sole reality. you purveyor’s or If conclude that aspect of emphasis sexually provocative is in the justify the publication, that fact can conclusion utterly redeeming importance.” matter is without App. 38-39. Amendment
There is no doubt that as a matter of First interests pandering prurient evidence of law, is rele of material creation, promotion, dissemination Ham vant determining whether the material obscene. States, Ginzburg ling v. United (1974); 418 U. S. States, United partly (1966). This so U. S. the fact that pointed before, as the Court out because, has bearing on the ultimate appeal the accused made has a such obscenity: constitutional tests publica- petitioners’ representation
“The deliberate stimulated the erotically example, -for arousing, tions as *4 titillation, prurient; them he looks for accept reader to as repre- such saving Similarly, for intellectual content. with public tend force confrontation sentation would to the aspects work; of brazen- potentially offensive of the appeal heightens the offensiveness of such an ness to those who are offended such material. publications presentation of and And the circumstances dissemination to equally determining relevant material for material in the courtroom claimed importance reality or pretense circumstances, in the was, —whether it upon was the basis which it was traded in the market- place spurious for claim litigation purposes.” Ibid. interpretation Petitioner’s of the challenged portions of instructions in his case they is that permitted jury to con- sider exploitation motives commercial on the part per- sons the chain of distribution of the material other than upheld himself. We similar instruction Hamling, supra, however, jury wherein the was told it could consider “whether the materials had been pandered, by to looking of distribution, circumstances of '[m]anner production, . sale, advertising . . . [, . . editorial . .’ and] intent . This . given respect instruction to both the Illustrated Report and the brochure which it, advertised both of which were at issue in the trial.” at 130.
Both Hamling prosecutions were under fed- eral statutes federal courts, authority where our to review good instructions is a broader deal than is our power upset state-court convictions reason of instructions given during Naughten, the course of a trial. Cupp See v. Kibbe, ante, 141 (1973); p. U. S. Henderson 145. We authority only exercise latter can instruction renders subsequent conviction Con- violative the United States Questions categories stitution. of what probative are admissible and the courts of the otherwise Hamling, supra, Ginzburg, to decide. think States We rather supra, clearly show that the instruction in abridges petitioner no First rights under the Amendment as applicable the States the Fourteenth Amendment. made though But that even so, contends this be complains portions instructions of particular given pursuant a statute enacted the conduct were after In prosecuted. view, his con therefore, which he was prohibition the constitutional ex against both viction violates Bull, Calder v. see Dall. post (1798), laws, *5 give and failed to him constitutionally warning fair of the prohibited conduct with which charged. he was Bouie v. Columbia, supra. We find these contentions be without merit, reject and we them.
The section of the defining California Penal Code the sub- stantive misdemeanor convicted, with which was 311.2, § was in full force and effect at all times relevant petitioner’s conduct. California (a) (West § Penal Code 311 1970), authorized above-quoted was instructions, part enacted after of the conduct for which he was convicted prior but to his trial. however, That section, does not create any new substantive but offense, declares what merely type evidence may be received and in deciding considered in question matter “utterly redeeming without importance.” ex post
Petitioner’s argument reading based on his of an earlier decision Supreme Court of California, People Noroff, 2d 791, 433 P. 2d (1967). Cal. His view is that under that case evidence such as was admitted here would not have been admissible at his trial on the sub- stantive offense but enactment of (a)(2). §311 He claims that such change procedural rules governing trial amounts to the enactment of an ex law in viola- post facto tion Art. I, 9, § 3. The cl. California Court Appeal’s opinion in rejected this case it and since is a contention, contention which must in the analysis last turn on proper reading the California decisions, such a determination the California Court of great entitled to weight in petitioner’s evaluating constitutional contentions.
The Court of Appeal, commenting on Noroff, said with respect to the Supreme Court’s decision in that case:
“The court did not, however, disapprove any use of pandering probative for its value on the issue of whether the material was obscene. It merely rejected
601 a concept of of nonobscene material as pandering separate existing crime under the laws of California.” App. Pet. for ix. to Cert. Appeal, accept
We this of the California Court of conclusion unnecessary and therefore find it to determine (a) permitted 311 had introduction of evidence which (2) § law, would previously have been excluded under California Ex Post under the would have had tenable claim Facto Clause of the United States Constitution. Columbia, of
Bouie that the elements City supra, holds v. statutory by judicial interpre- not be so changed offense deny warning tation as to defendants fair accused prohibited. change interpretation crime No in such Cal- prohibited elements of the substantive offense place petitioner may ifornia law and therefore here, took no from derive benefit Bouie. First petitioner’s
We thus find no merit in claims based on protection matter, and Fourteenth Amendment of nonobscene against ex prohibition post laws, the constitutional City petitioner’s Bouie v. Columbia. We have considered appear on the same claims, theme, other variations reject of the California judgment likewise them. The
Affirmed. Brennan, Justice with whom Mr. Justice Stewart Me. dissenting. Marshall join, and Mr. Justice courts, response to our remand for recon- light California, (1973), of Miller v. 413 15 sideration U. S. films selling 1971 conviction obscene petitioner’s reaffirmed (West I 311.2 1970). § of California Penal Code violation I my expressed reverse the conviction. adhere view would “unconstitutionally overbroad, this in Miller that statute on face.” 413 at 47 therefore invalid its U. (Brennan, California, Pendleton 423 dissenting). v. U. S. See J., 602 from (1976) (Brennan, dissenting ap
1068 dismissal J., Sandquist peal); California, (1975) 423 901 v. S.U. J., dissenting certiorari); from denial of Tobalina (Brennan, California, J., dissenting v. 419 926 (1974) U. (Brennan, from certiorari); Kaplan California, denial of v. U. S. (1974) (Brennan, J., certiorari); from denial of dissenting California, Blank (1974) dis J., U. S. (Brennan, senting from of certiorari). denial *7 whom Stewart, Justice Justice Brennan
Mr. Mr. dissenting. and Justice join, Mr. Marshall In my petitioner view the under which the statute was Accordingly, convicted is on its constitutionally invalid face. I joined have Mr. Justice Brennan’s dissent.
But if, believes, even as the is not the statute itself invalid, surely Mr. Justice has that demonstrated Stevens petitioner this On convicted under it. unconstitutionally I join that opinion the basis, dissenting Mr. Justice Stevens. Stevens, Brennan, Justice
Mr. with whom Justice Mr. Stewart, Justice join, Mr. Justice Marshall Mr. dissenting. jury may
Under
have
the trial court’s
the
instructions,
determined
some
that
films sold
had
significance
ob-
social
and therefore were not
themselves
they
scene, but
him
because
were
guilty
nevertheless found
1 A
“sexually provocative.”
conviction
advertised
sold as
to stand.
pursuant
to such an instruction should not
allowed
misleading
of-
Truthful
which are neither
nor
statements
though
protected by
the First Amendment even
fensive
Court, ante,
quoted
I
The relevant
instruction is
at 597-598.
you
purveyor’s
emphasize
“If
that
sole
this sentence:
conclude
would
publication,
emphasis
sexually provocative aspect
that fact
is in the
utterly
redeeming
justify
is
the conclusion that
the matter
without
can
importance.”
made for a
purpose.
commercial
Virginia Pharmacy
Bd.
Virginia
Council,
Consumer
2Ginzburg States, analy v. United 383 U. S. does not foreclose this sis because it was decided before the Amendment Court extended First coverage Ginzburg speech. Virginia to commercial cannot survive Phar macy. premise advertising based on the character salaciously disposed,” material “catch at *8 accept id., the reader prurient,” to them as at 470. But “stimulat[e] Virginia Pharmacy opinion in Court Justice Blackmun’s Mr. makes it clear: highly paternalistic approach.
“There is this ... alternative to That harmful, alternative is to that not in assume this information is itself that people perceive only they enough will best own interests well informed, open and that the best means that is to the channels of to end precisely communication rather than close them. It is this to ... kind choice, information, dangers suppressing dangers of of and the between the freely available, of its misuse if it is that the First Amendment makes for Willingboro, Associates, at Inc. v. us.” U. See also Linmark 770. p. ante, Indeed, protection in 85. the ease for First Amendment ad- Virginia Pharmacy. vertising stronger in this than in or case Linmark advertising suppress For ban of a or or film to book film to the book itself. join agrees not does this footnote. Because Mr. Justice Brennan Ginzburg adoption Legislature’s the California retroactive
that of violates 4, infra, Clause, Ex Facto we not in Post n. need his view decide Virginia Pharmacy. question survives to Signs identify see them. the “adult” character of picture a motion theater or a convey of bookstore the message sexually provocative that is to ; entertainment be found within today under the instructions which the ac- Court finds may deprive ceptable, signs these otherwise nonobscene matter of protection. its however, constitutional Such signs, find provide warning a those who to erotic materials offensive they shop books, should other kinds of elsewhere for any Under sensible magazines, regulatory or entertainment. subject scheme, description pleasing truthful of matter that is ought to to be encouraged, some and offensive to others punished.3
I Splawn telling to jail would not send Mr. the truth shabby business.4 about obscenity this upholding ironic that laws Court has stressed It is prohibiting or exhibition of “legitimate dissemination State’s interest sig dissemination with it a material when the mode of carries
obscene recipients of danger unwilling or offending the sensibilities of nificant of (foot exposure juveniles.” California, v. 18-19 Miller omitted). note peti my disposition from the Court’s
4 I record dissent must also post argument. tioner’s ex Noroff, Rptr. (1967), the People California In 58 Cal. before judge determined issue
Appeal a trial who had reversed Ginzburg, Relying on solely themselves. trial on the basis of the materials been allowed prosecution held that the should have the Court “although the ultimate constitutional present pandering; evidence court, it will be decided issue remains law to fact in to determine properly undertake . . when trial court a rare case . itself of the material prior a mere examination this issue to trial testimony relating conduct expert unaided Rptr., at 177. the material.” 58 Cal. defendant connection reversed, rejected argument “that Supreme Court *9 go to permitted prosecution court should have trial magazine ‘pandering’ bearing upon the defendant’s with evidence 793, 479, (1967). court 791, P. 2d 480 question.” 67 Cal. 2d had argument that earlier case rejected an expressly adopted 'pandering’ concept “a similar to that elaborated in in the context of the federal Id., statute.” at 793 n. 2d, P. at 480 n. 4. petitioner’s offense, After Legislature the California retroactively adopted Ginzburg by my view, petitioner In right statute. rely had the on the decision, and to believe truthfully that he was entitled to advertise Noroff otherwise nonobscene material. The Ex Post Facto Clause ''reflect[s] strong belief of the Framers of the Constitution that men should have peril, fearing always act at their might change the State its mind legal consequences past and alter the of their away acts so as to take their lives, liberty their property.” El Simmons, Paso v. 379 U. S. (Black, J., dissenting).