Morris v. Municipal Court

NEWMAN, J.

I concur, though I would cite not the federal First Amendment but solely the California Constitution, article I, section 2, subdivision (a). Encroachments on “liberty of speech” protected by that section are authorized only when there has been an “abuse.” 1

The majority opinion might be read, I fear, to protect “nonobscene” entertainment only (see, e.g., ante, p. 563; cf. p. 564 [“obscene as to youths”]). The opinion reminds us (quoting Erznoznik v. City of Jacksonville (1975)] 422 U.S. [205] at p. 209 [ 45 L.Ed.2d 125, 130-131 , 95 S.Ct. 2268 ]) of the United States Supreme Court’s rejection of censorship that “undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others ...” (ante, p. 567). But what about censorship of possibly “obscene” kinds of expression? Are they, by mere definition, sufficiently offensive to justify restraint? I think not; and in the 1980’s it hardly seems fitting for our court in dicta to brand “obscene dancing” as an abuse of liberty of speech. (Cf. Manaban, Is Sex Obscene? 10 Human Rights No. 2 (1982) [inside cover page]: “The fact that many people find obscenity distasteful or even nauseating should not make the First Amendment inapplicable.”)

If the majority here do immunize nonobscene dancing only, I submit that the commands of In re Giannini (1968) 69 Cal.2d 563 [ 72 Cal.Rptr. 655 , 446 P.2d 535 ] (see maj. opn., ante, p. 564, fin. 11), regarding obscenity under California law, need re-emphasis. They are: (1) “expert testimony should be introduced to establish [contemporary] community standards” (p. 574); (2) “the relevant ‘community’ is the entire State of California” (p. 577); and (3) “the prosecution must [also] introduce evidence that, applying contemporary community standards, the questioned dance appealed to the prurient interest of the audience and affronted the standards of decency accepted in the community” (p. 567). Not only must those requirements be met but, in addition, the trial judge must be persuaded that the pertinent ordinance was “‘narrowly drawn’” and furthers “‘a sufficiently substantial governmental interest . . . ’” (Maj. opn., ante, at *570 p. 565, quoting Schad v. Mount Ephraim (1981)] [452 U.S. [61] at p. 68 ( 68 L.Ed.2d 671, 680 , 101 S.Ct. 2176 )].)

“[V]ague statutory language . . . creates the danger that police, prosecutors, judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law.” (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252 [ 158 Cal.Rptr. 330 , 599 P.2d 636 ]

“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech . . . .”