Appendix — Van de Kamp v. Projection Room Theater

——— -»

eye

FILED

AUG 30 1976

ee ee

IN THE

SUPREME COURT OF THE UNITED ir mtoans RODAK, JR. CLERK

October Term, 1976

no. 76-340

THE PEOPLE ex rel. JOHN K. VAN DE KAMP

as District Attorney, etc., et al.,

Petitioners,

V.

PROJECTION ROOM THEATER, et al.,

Respondents.

(and 4 other cases)

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

JOHN K. VAN DE KAMP

District Attorney of

Los Angeles County

Member of the Bar of

the Supreme Court of

the United States

Of Counsel: HARRY B. SONDHEIM

Head, Appellate Division

DIRK L. HUDSON

Deputy District Attorney

849 So. Broadway, llth Floor

Los Angeles, California 90014

Telephone: 974-5921

Attorney for Petitioner

’ APPENDICES

Appendix A - Constitutional and Statutory

Provisions Involved

B - Final (June 1, 1976) Opinion

of the Supreme Court of the

State of California

C -Vacated Original (March 4,

1976) Opinion of the Supreme

Court of the State of

California

D -Vacated (December 27, 1974) =

Opinion of the California APPENDIX A

Court of Appeal srs nrinenseeninieniadtiinniecibetnenienacumianentnentmmeetty <epieumneian> animaes

E - Minute Orders of Superior

Court for Los Angeles County

F - Order of June 1, 1976 Sub-

stituting New Opinion for

Old

G -Order denying petitioner's

petition for reconsideration

or modification of opinion

H -Orders denying petitioner's

motion to recall the remittitur

or stay proceedings in trial

court

APPENDIX A

CONSTITUTIONAL AND STATUSORY

PROVISIONS INVOLV

United States Constitution,

First Amendment

"Congress shall make no law... abridging te

freedom of speech, or of the press;..."

United States Constitution,

Fourteenth Amendment,

Section T

",..nor shall any State deprive any person of life,

liberty, or property, without due process of law;..."

California Penal Code

Section 370

"Anything which is injurious to health, or is

indecent, or offensive to the senses, or an obstruction to

the free use of property, so as to interfere with the

comfortable enjoyment of life or property by an entire

community or neighborhood, or by any considerable

number of persons, or unlawfully obstructs the free

passage or use, in the customary manner, of any navigable

lake, or river, bay, stream, canal, or basin, or any public

park, square, street, or highway, is a public nuisance."

California Civil Code

Section 3479

"Anything which is injurious to health, or is indecent

or offensive to the senses, or an obstruction to the free

use of property, so as to interfere with the comfortable

enjoyment of life or property, or unlawfully obstructs the

free passage or use, in the customary manner, of any

navigable lake, or river, bay, steam, canal, or basin, or

any public park, square, street, or highway is a nuisance."

California Civil Code

Section 3480

"A public nuisance is one which affects at the same

time an entire community or neighborhood, or any

considerable number of persons, although the extent of

the annoyance or damage inflicted upon individuals may

be unequal.”

California Civil Code

Section 3491

"The remedies against a public nuisance are:

"]. Indictment or information;

"2. A civil action; or,

"3. Abatement.”

California Penal Code

Section 311

As used in this chapter:

"(a) ‘Obscene matter’ means matter, taken as a

whole, the predominant appeal of which to the average

person, applying contemporary standards, is to prurient

interest, i.e., a shameful or morbid interest in nudity, sex,

or excretion; and is matter which taken as a whole goes

substantially beyond customary limits of candor in

description or representation of such matters; and is

matter which taken as a whole is utterly without

redeeming social importance.

"1) The predominant appeal to prurient interest of

the matter is judged with reference to average adults

unless it appears from the nature of the matter or the

circumstances of its dissemination, distribution or

exhibition, that it is designed for clearly defined deviant

sexual groups, in which case the predominant appeal of

the matter shall be judged with reference to its intended

recipient group.

"(2) In prosecutions under this chapter, where

circumstances of production, presentation, _ sale,

dissemination, distribution, or publicity indicate that

matter is being commercially exploited by the defendant

for the sake of its prurient appeal, such evidence is

probative with respect to the nature of the matter and

can justify the conclusion that the matter is utterly

without redeeming social importance.

A-3

"b) 'Matter’ means any book, magazine, newspaper or

other printed or written material or any picture, drawing,

photograph, motion picture, or other pictorial representa-

tion or any statute or other figure, or any recording,

transcription or mechanical, chemical or electrical

reproduction or any other articles, equipment, machines

or materials.

"(c) 'Person' means any individual, partnership, firm,

association, corporation or other legal entity.

"(d) ‘Distribute’ means to transfer possession of,

whether with or without consideration.

"(e) 'Knowingly' means being aware of the character

of the matter or live conduct.

"(f) "Exhibit' means to show."

_--- +. —

APPENDIX B

sO

(Facsimile)

[L.A. Nos. 30432 to 30436. In Bank. June 1, 1976.)

*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. (And 4 other cases.)**

OPINION

RICHARDSON, J.--In these consolidated cases we con-

sider whether or not a civil action brought by law

enforcement officers to restrain the exnibition of obscene

books and films states a cause of action for reliet 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

*These cases were prev‘ously entitled Busch v. Pro-

jection Room Theater, etc.

mr eaale ople ex rel. Busch v. Stan's Books (L.A. No. 30433);

People ex rel. Busch v. Book Bin (L.A. 30434); People ex

rel. Busch v. Jason's Books (L.A. No. 304350; People ex

rel. Busch v. G Galaxy Book Store tore (L.A. No. 30436).

B-1

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 anc abatement either pursuant to

the general public nuisance statutes (Civ. Code, § § 3479,

3480; Pen. Code, § § 370, 371), or under the Red Light

Abatement Law (Pen. Code, § 11225 et seq.). Defendants

dispute the contention. We will conclude that although

the Red Light Abatement Law was not intended tu apply

to the exhibition of obscene magazines or films,

nevertheless the complaint herein does state a cause of

action under the general public nuisance statutes.

B-2

The complaint herein alleges the following facts:

Defendants own or operate specified premises in Los

Angeles County in which acts of "lewdness" are taking

place, namely, the "past and continuing exhibition" of

magazines end films "all of which are lewd and obscene

under the laws of this State, and therefore did and do

constitute a nuisance under the laws of this State... ."

It is further alleged that the magazines and films so

exhibited by defendants have, as their dominant theme, an

"appeal to the prurient interest in sex," that they are

"patently offensive because they affront contemporary

community standards relating to the description or repre-

sentation of sexual matters," and that they are "utterly

without social vaiue... ."

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

B-3

multiple relief including: (1) preliminary injunction res-

training defendants from conducting and maintaining the

premises for the purposes described above; (2) abatement

of the premises as a public nuisance under sections 11230-

11231 of the Penal Code (Red Light Abatement Law); (3)

permanent injunction against defendants and their agents,

officers and employees from operating the premises as a

public nuisance; (4) closure of the premises for one year;

(5) removal and sale of the fixtures and movable property

thereon used in conducting the nuisance; (6) use of the

proceeds from the sale to pay fees and costs in connection

with the closure; and (7) other appropriate relief.

Defendants filed general demurrers to each com-

plaint, 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.

B-4

The scope of our inquiry herein is considerably

narrowed by application of the familiar rule, acknowl-

edged by defendants, that "a general demurrer admits the

truth of all material factual allegations in the complaint"

(Alcorn v. Anbro Engineering, Inc. (] 970) 2 Cal.3d 493, 496

[86 Cal.Rptr. 88, 468 P.2d 216]), and we may accordingly

assume that all materials in question, both magazines and

films, are obscene within the meaning of Penal Code

section 3ll, as alleged.

l. 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 Penal

Code sections 370 and 371, and Civil Code sections 3479

and 3480, taken in conjunction. Section 370 of the Penal

Code defines a public nuisance as "[a] nything which is

injurious to health, or is indecent, or offensive to the

senses, or an obstruction to the free use of property, so as

to interfere with the comfortable enjoyment of life or

property by an entire community or neighborhood, or by

B-5

any considerable number of persons, ..." (Italics added.)

When analyzed, section 370 reveals the ‘ollowing: the

proscribed act may be anything which alternatively is

injurious to health or is indecent or offensive to the

senses; the results of the act must interfere with the

comfortable enjoyment of life or property; and those

affected by the act may be an entire neighborhood or a

considerable number of persons, and as amplified by Penal

Code section 37] the extent of the annoyance or damage

on the affected individuals may be unequal.

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 comfort-

able enjoyment of life of a “considerable number of

persons" within the contemplation of Penal Code section

370? We conclude that such exhibitions may fairly be

deemed such conduct, and we find convincing support for

such conclusion from applicable cases in this and other

jurisdictions.

B-6

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 (Pen. Code, § 311), nevertheless the Weis court

held that "[w]) here, however, the threatened acts, if

committed, in addition to being an indictable offense, will

constitute a public nuisance, courts of equity are vested

with jurisdiction to interpose their injunctive process to

prevent injury which will result from the maintenance

thereof. [Citation.]" (Weis at p. 732.) Furthermore, the

court, quoting from Wood on Nuisances (§ 68), stated that

" tA public exhibition of any kind that tends to the

corruption of morals, to a disturbance of the peace, or of

the general good order and welfare of society, is a public

nuisance. Under this head are included... obscene

B-7

pictures, and any and all exhibitions, the natural tendency

of which is to pander to vicious... and disorderly

members of society.' " (Ibid., italies added.)

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 injunc-

tions on behalf of the state except where the objection-

able 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

B-8

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

section 370 to be public nuisances.

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 presenta-

tion 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 Penal Code

section 370 and Civil Code section 3479 as conduct which

is “offensive to the senses." The contention is erroneous

for such reasoning completely ignores the additional

language appearing in both sections which explicitly

B-9

includes as an alternative class of public nuisance conduct

“anything which is indecent." When the question is put,

which of the five senses is offended by conduct that is

"indecent," it becomes readily apparent both that the

thesis of the argument does not fit the legislative

language and that conduct offensive to a community's

moral sensibilities is likewise subject to regulation under

section 370. Thus, the court in Weis, supra, at page 733,

unequivocally states that"... any act which is an offense

against public decency, or any public exhibition which is

offensive to the senses, whether of sight, sound, or smell,

or which tends to corrupt public morals or disturb the

good order and welfare of society, is a public nuisance,"

(Italics added.)

The trial court herein, in sustaining defendants’

demurrers without leave to amend, considered itseif

controlled by the holding in Harmer v. Tonylyn

Productions, Inc., supra, 23 Cal.App.3d 94] (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

B-10

ruled that plaintiff had failed to allege the necessary

special damages requisite to bringing a public nuisance

action (see Civ. Code, § 3493) thus casting doubt upon his

status as a litigant. In contrast, the instant action is

brought by public officials acting on behalf of the public

generally and proceeding under provisions (see Code Civ.

Proc., § 731) which expressly confer standing upon them.

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

B-11

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

(1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], was

controlling on this point. Stanley, however, held only that

private possession of obscene matter cannoi constitution-

ally be made a crime. In Luros, we carefully noted the

important distinction, recognized by the federal Supreme

Court in Stanley, between commercial distribution of

obscenity and the private possession thereof. We con-

cluded that "... in the context of public distribution of

obscenity, the balance of interests upholds the constitu-

tionality of state regulation, even though thai regulation

imposes some burdens upon the exercise of constitutional

rights. [4%]... States retain broad power to regulate

obscenity and regulation of the public distribution of

obscenity falls well within the broad scope of that power."

B-12

(4 Cal.3d at pp. 92-93.) We reaffirm the foregoing

conclusion reached by us in Luros.

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 immu-

nity 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 accommodations, 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

B-13

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, de-

scriptions, or exhibitions of obscene conduct on commer-

cial premises open to the adult public falls within a State's

broad power to regulate commerce and protect the public

environment. The issue in this context goes beyond

whether someone, or even the majority, considers the

conduct depicted as 'wrong' or 'sinful.' The States have

the power to make a morally neutral judgment that public

exhibition of obscene material, or commerce in such

B-14

material, has a tendency to injure the community as a

whole, to endanger the public safety, or to jeopardize, in

Mr. Chief Justice Warren's words, the States ‘right. . . to

maintain a decent society.' [Citation.]" (Italics added;

Paris at pp. 68-69 [37 L.Ed.2d at pp. 463-464].) Both

Luros and Paris explain and confirm that the interests of

those who voluntarily view and purchase obscene mat-

erials are not necessarily coextensive with the interests of

the community at large.

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 ob-

scene material has a tendency to injure the community or

to jeopardize the maintenance of a decent society. In

B-15

Luros we confirmed the validity of state regulation of the

commercial distribution of obscene materials. The legis-

lative 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... ." (Pen. Code, § 370.)

California's public nuisance definition, including as it does

indecency, comports fully with the state's power to

regulate as recently declared both by the federal Supreme

Court and by ourselves and fortifies our conclusion that

public nuisance laws may properly be employed to

regulate the exhibition of obscene material to "consenting

adults."

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

B-16

U.S. 902 [37 L.Ed.2d 1013, 93 S.Ct. 3026]; Bloss v Paris

Township (1968) 380 Mich. 466 [157 N.W.2d 260, 261);

Cactus Corporation v. State ex rel. Murphy (1971) 14

Ariz.App. 38 [480 P.2d 375]; Evans Theatre Corporation

v. Slaton (1971) 227 Ga. 377 [180 S.E.2d 712], cert. den.,

404 U.S. 950 [30 L.Ed.2d 267, 92 S.Ct. 281]; New Rivieria

Arts Theatre v. State (1967) 219 Tenn. 652 [412 S.W.2d 890,

893-895]; Sanders v. State (1974) 231 Ga. 608 [203 S.E.2d

153, 156-157); State ex rel. Ewing v. "Without A Stitch”

(1974) 37 Ohio St.2d 95 [66 Ohio Ops.2d 223, 307 N.E.2d

911), app. dism., 421 U.S. 923 [44 L.Ed.2d 82, 95 S.Ct.

1649]; State ex rel. Keating v. Vixen (1971) 27 Ohio St.2d

278 [56 Ohio Ops.2d 165, 272 N.E.2d 137], vacated and

remanded on other grounds, 413 U.S. 905 [37 L.Ed.2d 1016,

93 S.Ct. 3033], opn. on remand, 35 Ohio St.2d 215 [64

Ohio Ops.2d 366, 301 N.E.2d 880]; State ex rel. Little

Beaver Theatre, Inc. v. Tobin (Fla. App. 1972) 258 So.2d

30, 31-32; State v. Morley (1957) 63 N.M. 767 [3]7 P.2d 317,

318-319] ; see, generally, note (1975), 10 U.S.F.L.Rev., 115).

Each of the above cases either expressly or implicitly

recognizes that the exhibition of obscene magazines or

B-17

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 piciure 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

B-18

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

prosecribing exhibition of obscene material, the Georgia

ease 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 regulation by the State, and we vacate

and remand this case for reconsideration in light of Miller.

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 indictment , as to whether the materials are

unprotected by the First Amendment and subject to state

regulation. ([Citation.] Here, Georgia imposed no

B-19

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 regulat-

ing 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

B-20

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 Code Civ. Proc.,

§ 731.) Once a community through its public officials has

determined that a particular display of obscene materials

amounts to a public nuisance which is injurious to the

safety and morals of that community, no valid reason

exists why, adequate constitutional procedural safeguards

being met, the remedy of civil abatement proceedings

must be denied such community. The availability of the

public nuisance procedure may prove useful for those local

entities which, determining that they are confronted with

commercial exploitation of obscene materials resulting in

the conditions contemplated in section 370, elect to use

it.

We consider and will reject several constitutional

objections raised by defendants.

Defendants first suggest that the statutory language

"indecent, or offensive to the senses" (Pen. Code, § 370) is

B-21

impermissibly vague, requiring them to guess as to its

meaning, and thus is violative of the First Amendment to

the federal Constitution. Several cases involving similar

language have avoided the constitutional problem by

construing such language as synonymous with the word

"obscene," as defined in the applicable statutes and case

law. (See In re Giannini (1968) 69 Cal.2d 563, 571, fn. 4 [72

Cal.Rptr. 655, 446 P.2d 535] ("lewd or dissolute

conduct"]; Silva v. Municipal Court (1974) 40 Cal.App.3d

733, 736-737 [115 Cal.Rptr. 479] [same] ; Grove Press, Inc.

v. Flask, supra, 326 F.Supp. 574, 578 ["lewd, indecent,

lascivious or obscene"); Janus Films, Inc. v. City of Fort

Worth (Tex.Civ.App. 1962) 354 S.W.2d 597, 600

("indecent"]; State ex rel. Ewing v. "Without A Stitch, "

supra, 307 N.E.2d 911, 914-915 ["obscene" constmed in light

of recent United States Supreme Court opinions] .)

Furthermore, the United States Supreme Court

recently emphasized within the foregoing eccntext 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

B-22

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. Califor-

nia...." (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 (Pen. Code, § 3il, subd. (a)

{("obscene matter"]) as referring to the patently offensive

matter set forth in Miller, supra, and have rejected the

contention that the statute is unconstitutionally vague.

(Accord, People v. Enskat (1973) 33 Cal.App.3d 900 [109

Cal.Rptr. 433].) We find no impediment to use of the

remedy on grounds of statutory vagueness.

Defendants next assert that use of the public nui-

sance statutes to enjoin or otherwise abate the exhibition

B-23

of films or magazines violates the constitutional principle

against prior restraint of presumptively protected mate-

rials. (See Southeastern Promotions, Ltd. v. Conrad (1975)

420 U.S. 546, 558 [43 L.Ed.2d 448, 459, 95 S.Ct. 1239];

United States v. Thirty-seven Photographs (1971) 402 U.S.

363, 367 [28 L.Ed.2d 822, 828, 91 S.Ct. 1400]; Freedman v.

Maryland (1965) 380 U.S. 51, 58 [13 L.Ed.2d 649, 654, 85

S.Ct. 734]; Kingsley Books, Inc. v. Brown (1957) 354 U.S.

436 [1 L.Ed.2d 1469, 77 S.Ct. 1325] .) We note preliminarily

that, as the foregoing cases make clear, prior restraints

are not unconstitutional per se; a prior restraint may

avoid constitutional infirmity if it occurs " ‘under proce-

dural safeguards designed to obviate the dangers of a

censorship system.'" (Southeastern Promotions, Ltd.,

supra, at p. 559 [43 L.Ed.2d at p. 460].) Among other

safeguards, "a prompt final judicial determination must be

assured." (Id., at p. 560 [43 L.Ed.2d at p. 460) .)

In order properly to evaluate defendants’ prior res-

traint 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

B-24

Light Abatement Law, do not provide for such specific

forms of relief as temporary and perpetual injunction

(Pen. Code, §§ 11226-11227), removal and sale of fixtures,

and closure of the premises for one year (Pen. Code, §

11230). Instead, the district attorney or city attorney is, in

general terms, empowered to bring a civil action to

"abate" the public nuisance. (Code Civ. Proc., § 731.)

Further, "'An abatement of a nuisance is accomplished in

a court of equity by means of an injunction proper and

suitable to the facts of each case....'" (Italics added;

Guttinger v. Calaveras Cement Co. (1951) 105 Cal.App.2d

382, 390 [233 P.2d 914]; see generally McQuillin, Munici-

pal Corporations, § 24.73.)

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

B-25

[37 L.Ed.2d 446, 454-456] [approving Georgia abatement

procedure] ; Grove Press, Inc. v. Flask, supra, 326 F.Supp.

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 Theatre, Inc. (1968) 432 Pa. 378

(248 A.2d 45]; Grove Press Inc. v. City of Philadelphia (3d

Cir. 1969) 418 F.2d 82, 90-91; Sanders v. State, supra, 203

S.E.2d 153, 156-157.)

In the cases at bench, in addition to relief under the

Red Light Abatement Act (Pen. Code, § 11225 et seq.),!

plaintiffs seek a preliminary injunction enjoining and

restraining defendants "from conducting and maintaining

said premises hereinabove described... for the purposes

of lewdness and from permitting such acts to take place

therein and thereon... [and further pray that they] be

perpetually enjoined from operating and conducting said

las we explain infra, this enactment is inapplicable to

any of the cases before us.

B-26

premises as a public nuisance." Both in their briefs and at

oral argument plaintiffs have made abundantly clear that,

as the prayers of their complaints state, the relief they

seek is the abatement and closing down of movie theaters

and bookstores exhibiting and selling films and magazines

determined to be obscene. Although we have concluded

upon well recognized principles of pleading that plaintiffs’

complaints state actionable causes for the enjoining of the

exhibition and sale of specific obscene materials, we are

satisfied that to grant the relief sought by plaintiffs (i.e.,

closing down the premises in question) would result in a

full and pervasive prior restraint upon the freedom of

speech and of the press in violation of the First and

Fourteenth Amendments to the United States Constitu-

tion. (See Near v. Minnesota (1931) 283 U.S. 697, 71I-715,

720 (75 L.Ed. 1357, 1365-1367, 1369, 51 S.Ct. 625]; Bantam

Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70-71 [9 L.Ed.

584, 593-594, 83 S.Ct. 631]; Freedman v. Maryland, supra,

380 U.S. 51, 57 [13 L.Ed.2d 649, 653-654]; Carroll v.

Princess Anne (1968) 393 U.S. 175, 180-181 [21 L.Ed.2d 325,

330-331, 89 S.Ct. 347]; see and compare Kingsley Books,

B-27

Inc. v. Brown, supra, 354 U.S. 436; see also Perrine v.

Municipal Court (1971) 5 Cal.3d 656, 664-665 [97 Cal.Rptr.

320, 488 P.2d 648); Flack v. Municipal Court (1967) 66

Cal.2d 981, 985-990, passim [59 Cal.Rptr. 872, 429 P.2d

192].) The courts of a number of our sister states have

similarly held that such prior restraints as here sought by

plaintiffs are constitutionally impermissible. (See General

Corporation v. State ex rel. Sweeton (Ala. 1975) 320 So.2d

668, 675 (plurality opn.); 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;

893-895; Sanders v. State, supra, 203 S.E.2d 153, 156-157;

State ex rel. Little Beaver Theatre, Inc. v. Tobin, supra,

258 So.2d 30, 32; State ex rel. Ewing v. "Without A

Stitch,” supra, 307 N.E.2d 911, 917-918; but see People ex

rel. Hicks v. Sarong Gals (1974) 42 Cal.App.3d 556, 562-

563 [117 Cal.Rptr. 24]; Bloss v. Paris Township, supra, 157

N.W.2d 260; Grove Press, Inc. v. Flask, supra, 326 F.Supp.

574, 578-580; United Theaters of Fla., Inc. v. State ex rel.

Gerstein (Fla.App. 1972) 259 So.2d 210, 212-213, vacated

B-28

and remanded 419 U.S. 1028 [42 L.Ed.2d 304, 95 S.Ct.

510) .)

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 distribu-

tion 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 expres-

sion 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 preced-

ents, have presented nothing to countermand or distin-

guish the authorities referred to above, and at oral

B-29

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 adver

sary hearings, this court should not undertake to "rewrite"

those statutes to require such hearings. Such a contention

B-30

lacks merit. We are obliged to construe and interpret

legislation in a manner which will uphold its validity.

(Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145 [109

Cal.Rptr. 897, 514 P.2d 697]; In re Kay (1970) 1 Cal.3d 930,

941-942 [83 Cal.Rptr. 686, 464 P.2d 142].) Thus, the

courts have held that provision for a prior adversary

hearing may be implied by law in otherwise silent

statutory provisions. (State ex rel. Little Beaver Theatre,

Inc. Vv. Tobin, supra, 258 £o.2d 30, 31-32; see United

States v. Thirty-seven Photographs, supra, 402 U.S. 363,

367-373 [28 L.Ed.2d 822, 828-832].) As hereinabove

expressed, abatement of a nuisance is accomplished by

means of a “proper and suitable" injunction. In the

context of assertedly obscene magazines and films, a

"roper" injunction ordinarily is one that is issued after the

requisite adversary hearing has taken place.

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

B-31

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 (Pen.

Code, § 11225 et seq.). We have previously noted that

these provisions prescribe certain specific forms of relief

not available under the general nuisance statutes, includ-

ing temporary injunctions, removal and sale of fixtures,

and closure of the premises for one year. (Pen. Code, § §

11227, 11230.)

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,

B-32

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 law was passed in 1913 and, as its name indicates,

its primary purpose was to regulate "... houses of ill

fame, ... and other like places, where acts of lewdness

and prostitution are habitually practiced and carried on as

a business." (People v. Barbiere (1917) 33 Cal.App. 770,

775 [166 P. 812].) It has been held that the terms

"lewdness, assignation, or prostitution" were "obviously"

intended to refer to "illicit sexual acts or conduct

amounting to or involving lewdness." (People v. Arcega

(1920) 49 Cal.App. 239, 242 [193 P. 264]).) The term

"lewdness" is not synonymous with "prostitution" and has a

broader significance, including "all other immoral or

degenerate conduct or conversation between persons of

opposite sexes,..." including the solicitation of sexual

acts to be performed elsewhere. (People v. Bayside Land

Co. (1920) 48 Cal.App. 257, 260 [191 P. 994] .)

The consensus of more recent cases is that the term

B-33

"lewdness" is broad enough to include live lewd entertain-

ment, 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 statedin Harmer: "If the

Legislature had desired or intended by section 11225 of the

Penal Code to regulate the showing of pornographic films,

pictures or drawings, such subject matter could have been

included in section 11225 when it was recently amended in

1969, as it did when it chose to enumerate ‘illegal

gambling as defined by state law or local ordinance’ in

that section of the Penal Code." (23 Cal.App.3d at p.

944.) On the other hand, it has been forcefully contended

that "it borders upon the absurd to apply the law to live

stage shows and exhibitions that are lewd and to deny its

application to motion pictures that are patently lewd and

B-34

obscene." (Id., at p. 952 [dis. opn.] ; see also People ex rel.

Hicks v. Sarong Gals, supra, 27 Cal.App.3d at p. 50.)

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 Theaters of La., Ine. 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] .)

Although the question is not free from doubt, in view

of the history of the Red Light Abatement Law and the

uniform interpretation given it by the courts of this state,

we conclude that the act's provisions were not intended to

apply, and do not apply, to the exhibition of obscene

magazines or films.

The judgment is reversed and the cause remanded for

further proceedings consistent with this opinion.

Wright, C. J., and Sullivan, J., concurred.

B-35

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 perma-

nently, constitutes an impermissible prior restraint in

violation of the First and Fourteenth Amendments to the

United States Constitution. I would add that such

proceedings also offend article I, section 2, of the

California Constitution which prohibits action that may

"restrain or abridge liberty of speech or press."

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

B-36

further forms of relief would be appropriate and constitu-

tionally 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.

Sehrunk (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 presump-

tively protected mater.als (Gulf States Theatres of La.,

Inc. v. Richardson (i.a. 1973) 287 So.2d 480, 489; Mitchem

v. State ex rel. Sch ub (Fla. 1971) 250 So.2d 883, 886-887;

New Riviera Arts Theatre v. State (1967) 219 Tenn. 652

[412 S.W.2d 890, 893-895]; Sanders v. State (1974) 231 Ga.

608 [203 S.E.2d 153, 156-157]; State ex rel. Little Beaver

Theatre, Inc. v. Tobin (Fla.App. 1972) 258 So.2d 30, 32;

State ex rel. Ewing v. "Without A Stitch" (1974) 37 Ohio

B-37

St.2d 95 [66 Ohio Ops.2d 223, 307 N.E.2d 911, 917-918] .)

Since the United States Supreme Court has not yet spoken

on this difficult question, and since in this posture of the

ease the issue is not before us, we leave tne question open

for further consideration."

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 afficts 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

B-38

ean 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 situa-

tions 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 public

B-39

morality, the violations of which are to constitute public

nuisances within the equity's jurisdiction, should be left

with the Legislature." Our charge, consequently, is a

limited one: We must ascertain whether the Legislature

has declared that the conduct complained of in the

present case constitutes a public nuisance.

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

lphe judicial reluctance to proclaim new species of

public nuisance is well founded. The remedy of abate-

ment, fashioned as it was to equip the courts to deal

expeditiously with serious perils to the public, denies the

defendant many of the procedural safeguards he would

enjoy if he were subjected to an ordinary civil or criminal

action. "(I]t is apparent that the equitable remedy has

the collateral effect of depriving a defendant of the jury

trial to which he would be entitled in a criminal

prosecution for violating exactly the same standards of

publie policy. The defendant also loses the protection of

the higher burden of proof required in criminal prosecu-

tions and, after imprisonment and fine for violation of the

equity injunction, may be subjected under the criminal law

to similar punishment for the same acts. For these

reasons equity is loath to interfere where the standards of

public policy can be enforced by resort to the criminal

law, and in the absence of a legislative declaration to that

effect, the courts should not broaden the field in which

injunctions against criminal activity will be granted."

(People v. Lim, ante, 18 Cal.2d 872, 880 (citations

omit ted).)

B-40

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 assults the

senses of the community constitutes a public nuisance.

The majority bases its contrary conclusion on section 370

of the Penal Code which defines a public nuisance to be

anything "which is injurious to health, or is indecent, or

offensive to the senses, or an obstruction to the free use

of property...." The majority argues that this language

recognizes four classes of conduct that may constitute a

public nuisance: conduct that is (a) injurious to health; (b)

indecent; (ec) offensive to the senses; or (d) an obstruction

io property. Since indecency is a ground for finding a

public nuisance quite apart from offense to the senses, the

argument goes, the statute subsumes even private inde-

cency which has no impact upon the senses of the

community as a whole.

The majority's error is fundamental: it construes the

wrong statute. Although sections 370-372 of the Penal

B-4]

Code govern the criminal dimension of public nuisances,

section 731 of the Code of Civil Procedure governs their

abatement. That section provides that "[a] civil action

may be brought... to abate a public nuisance, as the

of the Civil Code...." (Italics added.) Although the

majority alludes to the "substantial identity" of the Penal

Code and Civil Code definitions, I find them different in

one pivotal respect.

Since section 3480 of the Civil Code merely provides

that "a public nuisance is one which affects at the same

time... any considerable number of persons," we must

refer to the definition of nuisance set férth in the

preceding section. Section 3479 of the Civil Code defines

a nuisance to be anything "which is injurious to health, or

is indecent or offensive to the senses, or an obstruction of

the free use of property...." (Italics added.) The

difference between this definition and that contained in

the Penal Code is subtle, but crucial. The phrase "to the

senses" in section 370 of the Penal Code modifies only the

word "offensive"; here, it modifies both indecent and

B-42

offensive. According to the Civil Code, therefore,

indecent conduct is a public nuisance only when it is

"indecent... to the senses" of a substantial number of

people. Consequently, a court may not abate a public

nuisance unless it assaults the senses, not merely the

sensibilities or tastes, of the community.

2-rhis argument, admittedly, lets a great deal turn on

the absence of a comma in Civil Code section 3479, but

the majority lets an equal amount turn on the presence of

a comma in section 370 of the Penal Code. Since the

statute authorizing the abatement of nuisances explicitly

refers to the Civil Code definitions, there can be no doubt

that we are to construe the section that lacks the comma.

It is quite likely, of course, that this difference in

punctuation between the two sections is accidental, and

that their drafters intended their scope to be coextensive.

This court, consequently, might reasonably decide to

interpret the sections identically, notwithstanding their

different punctuation.

Which section, however, contains the error and which

section is correct? It is difficult to ascertain the intent

that motivated the Legislature when it enacted these

statutes in 1872 and amended them in 1874; any conclusion

that one rather than the other involved the error in

punctuation, therefore, is fraught with uncertainty.

Nonetheless, if we must choose which section is correct,

we should honor the definition embodied in the Civil Code.

The fact that section 731 of the Code of Civil Procedure

refers to the Civil Code definitions gives some indication

that those definitions comport with the Legislature's

wishes. Moreover, the preferences for narrowly con-

struing statutes that infringe first amendment values and

"footnote forwarded"

B-43

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." (Civ. Code,

§ 3480.) The result would be different if the purportedly

obscene materials were flaunted on a public billboard. In

that event, the indecent behavior or object would simul-

taneously affect the senses of a large group. But where

the purportedly indecent behavior occurs in private, the

mere fact that even a large portion of the public

disapproves of it fails to bring it within the purview of the

publie nuisance abatement statute.”

"footnote 2 continued"

for interpreting statutes in light of the consequences of

the alternative constructions, see infra, conjoin to urge

that we embrace the Civil Code definitions. These

considerations, I grant, do not conclusively establish that

the Civil Code definition accurately reflects the legisla-

tive intent; there are no reasons, however, to prefer the

definition contained in the Penal Code.

3The majority insists that conduct that is indecent

does not offend any of the five senses, and thus that the

use of the word "indecent" in the statute establishes that

the public nuisance laws encompass conduct that does not

bear upon the senses. (Ante, at p. 50.) The answer is

"footnote continued"

B-44

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" (Civ.

Code, § 3479; Pen. Code, § 370) effectively excludes

private behavior from the purview of the public nuisance

statutes. In the present case, for example, the pur-

portedly obscene exhibitions themselves in no way inter-

fere with the comfortable enjoyment of life of those who

do not enter the adult book stores or theatres; the

materials do not obtrude upon those who never see them.

Consequently, the necessity that the nuisance interfere

with the comfortable enjoyment of life infuses both the

Penal and Civil Codes with the requirement of public

behavior that the phrase "indecent... to the senses"

independently imports to the latter.

It might be argued that although the obscene

"footnote 3 continued"

simple: even though conduct that is indecent does its

damage to the sensibilities or tastes, rather that the

senses, of the public, it falls within the public nuisance

statute only when perceived by the senses of a substantial

number of people.

B-45

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 philo-

sophically 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 sections 3479, Civil Code...." Since violating

the laws regulating the sale of liquor is presumably as

indecent as violating the laws regulating the sale of

obscene material, the court implicitly ruled that the mere

fact that certain behavior runs afoul of society's prefer-

ences—even as articulated in its criminal laws--con-

B-46

stitutes an inadequate basis for holding it a public

nuisance.

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

publie nuisance [as defined in Civil Code section 3479] it

must be because such conduct constitutes 'an obstruction

the the free use of property'.... It could not by any

stretch of the imagination be considered as covered by

any other clause of the code definition." (103 Cal.App. at

p. 310.) (Italics added.) The court's language left scant

doubt that it thought that engaging in "the despicable

ealling of usurer' smacked of indecency. Nonetheless, it

expressly ruled that that practice could not qualify as a

nuisance on the grounds that it was indecent or offensive

to the senses of a large number of people.

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

B-47

operation of such an establishment precluded the comfort-

able 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 omitted [sic]

noxious odors or otherwise afflicted the senses of the

aggrieved parties, and that merely offending the sensi-

bilities 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 [ll A. 490]: "In

this case, then, we have the broad, yet perfectly percep-

tible 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 Ine. (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

B-48

section 3493 of the Civil Code to enjoin the showing of a

purportedly obscene film as a public nuisance. As the

majority notes, Harmer ruled that the plaintiffs had not

alleged the special damages that section 3493 requires of

private citizens who would bring an action to abate a

public nuisance. In so holding, however, the court

explicitly rejected the contention that the statutory

language embraced such a private exhibition.

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 to 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,...' (Civ. Code, § 3480)

(italies added)." (Citations omitted.) The court thus

squarely rejected the notion that the mere existence of an

establishment that deals in obscene materials constitutes

a public nuisance, for if private indecent behavior fell

B-49

within the publie nuisance statute, the entire community

would have been affected in Harmer.

The majority contends that Harmer improperly ana-

lyzed the character of the state interest in regulating the

exhibition of obscene matter; it observed 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 regula-

tion; 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 major-

ity relies primarily upon Weis v. Superior Court (1916) 30

Cal.App. 730 [159 P. 464], which involved the indecent

B-50

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 exhibi-

tion." (30 Cal.App. at p. 733.)

Weis constitutes meager support for the expansion of

the public nuisance statutes that the majority today

effects. It is not at all clear that spectators were

adequately forewarned of the character of the exhibition

involved in Weis. Although the exhibition's name might

have given some hint of its nature, spectators could

reasonably have assumed that the "Sultan's Harem"

involved something, less than actual nudity. Nor is there

any indication that the manager of the exhibit attempted

to convey its content to possible spectators by making it

an "adults only" attraction; the court explicitly referred

to the need to protect children from the exhibition. To

the extent that Weis involved subjecting an unadmonished

B-51

audience to indecent material, it has no bearing on the

present case in which the allegedly indecent material was

displayed exclusively within the confines of an "adults

only" establishment.

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 ob-

scenity, but a gambling establishment which, the com-

plaint 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 traffie may

well impair the free enjoyment of life and property and

give rise to the hazards designated in the statute." (18

B-52

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., ante, 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

B-53

made legislatively to overrule the decision; the voters and

legislators of this state rebuffed each attempt to establish

publie nuisance abatement procedures directed at obscen-

ity.

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. In June 1974, the Assembly Committee on

4 The relevant portions of the initiative (Proposition

19) read:

"CHAPTER 7.9. INJUNCTIVE RELIEF

"313.50. The superior courts of the State of Cali-

fornia 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 Chap-

ters 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

"footnote forwarded"

B-54

Criminal Justice defeated similar provisions in Assembly

"footnote 4 continued"

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.

"312.54. 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 313.5] 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. Secre-

tary of State, Statement of Vote, General Election

November 7, 1972, page 30.

B-55

Bill No. 4340."

In light of the Harmer decision, and the subsequent

rejection of proposed legislation which would have specifi-

cally authorized a nuisance abatement procedure to be

The relevant portions read:

"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, picture, drawing, photograph, film, figure,

image or any written or printed matter of an indecent

character which is obscene as defined in Section 31l, 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 exhibi-

tion 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 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."

B-56

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 approved 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

B-57

constitutional muster for several reasons.

First, the statutes, as interpreted today, contravene

the First Amendment because they chill protected expres-

sion. 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 deter-

mine 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., dis-

senting).) 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

B-58

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 maybe imported into public nuisance proceedings.

B-59

In Bloom v. Municipal Court (1$76) 16 Cal.3d 71 [127

Cal.Rptr. 317, 545 P.2d 229], a majority of this court

incorporated into the definition of obscenity in section 3ll

of the Penal Code the guidelines set forth in Miller v.

California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct.

2607]. Central to the Miller test is whether "the average

person, applying contemporary community standards"

would find that the involved expression appeals to the

prurient interest. If this constitutional "test" can be

consistently applied at all, and I have already expressed

my serious doubts that it can, it seems clear that a jury,

as a microcosm of the community, is the only "trier of

fact" fit to conduct the inquiry contemplated by Miller.

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

B-60

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.°

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

® although a trial court's determination of obscenity

is subject to appellate review, numerous commentators

have pointed out that in light of the subjective nature of

the Miller standards, "{d] irect appellate review of findings

of prurient appeal and patent offensiveness becomes

impossible." (Note, Community Standards, Class Actions

and Obscenity Under Miller v. California (1975) 88 Harv.

L-Rev. 1608, 1844; see, e.g., Hunsaker, The 1973 Obscen-

ity-Pornography Decisions: Analysis, Impact and Legisla-

ties Alternatives (1974) li San Bien) L.-Rev. 906, 93], fn.

124; The Supreme Court, 1972 Term (1973) 87 Harv.L.Rev.

1, 168-169.)

B-61

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.”

‘The majority circumvents another constitutional

"footnote forwarded"

B-62

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 constitu-

tionally defective--I conciude that the trial court properly

sustained the defendant's demurrer. Accordingly, I would

affirm the decision below.

Mosk. J., concurred.

"footnote 7 continued"

problem inherent in its approach by importing to the

public nuisance statutes a requriement of a prior adver-

sary hearing. The majority justifies this judicial rewriting

of the statute by referring to the principle that laws

should be construed so as to uphold their validity. There

is, however, an alternative way to construe the statutes

involved in this case so as to render them immune to

constitutional attack: they can be interpreted as inappli-

cable to private behavior. Given that the applicability of

the statute's language to private behavior is, at best,

highly dubious, this reading would seem the more judicious

way to construe the statute so as to uphold its validity.

B-63

APPENDIX C

[L.A. No. 30432. In Bank. Mar. 4, 1976.]

*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. (And 4 other cases.)**

OPINION

RICHARDSON, J.--In these consolidated cases we con-

sider 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

*These cases were previously entitled Busch v. Projec-

tion Room Theater, etc.

**People ex rel. Busch v. Stan's Books (L.A. No. 30433);

People ex rel. Busch v. Book Bin (L.A. 30434); People ex

rel. Busch v. Jason's Books (L.A. No. 304350- People ex

rel. Busch v. Galaxy Book Store (L.A. No. 30436).

C-l

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 (Civ. Code, § § 3479,

3480; Pen. Code, § § 370, 371), or under the Red Light

Abatement Law (Pen. Code, § 11225 et seq.). Defendants

dispute the contention. We will conclude that although

the Red Light Abatement Law was not intended to apply

to the exhibition of obscene magazines or films, neverthe-

less the complaint herein does state a cause of action

under the general public nuisance statutes.

The complaint herein alleges the following facts:

C-2

Defendants own or operate specified premises in Los

Angeles County in which acts of "lewdness" are taking

place, namely, the "past and continuing exhibition" of

magazines and films "all of which are lewd and obscene

under the laws of this State, and therefore did and do

constitute a nuisance under the laws of this State... ." It

is further alleged that the magazines and films so

exhibited by defendants have, as their dominant theme, an

"appeal to the prurient interest in sex," that they are

"patently offensive because they affront contemporary

community standards relating to the description or repre-

sentation of sexual matters," and that they are "utterly

without social value... ."

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 re-

straining defendants from conducting and maintaining the

C-3

premises for the purposes described above; (2) abatement

of the premises as a public nuisance under sections 1]1230-

11231 of the Penal Code (Red Ligh: Abatement Law); (3)

permanent injunction against defendants and their agents,

officers and employees from operating the premises as a

public nuisance; (4) closure of the premises for one year;

(5S) removal and sale of the fixtures and movable property

thereon used in conducting the nuisance; (6) use of the

proceeds from the sale to pay fees and costs in connection

with the closure; and (7) other appropriate relief.

Defendants filed general demurrers to each com-

plaint, 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,

C-4

acknowledged by defendants, that "a general demurrer

admits the truth of all material factual allegations in the

complaint" (Aleorn 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 materials in question,

both magazines and films, are obscene within the meaning

of Penal Code section 311, as alleged.

]. Publie 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 Penal

Code sections 370 and 371, and Civil Code sections 3479

and 3480, taken in conjunction. Section 370 of the Penal

Code defines a public nuisance as "[a] nything which is

injurious to health, or is indecent, or offensive to the

senses, or an obstruction to the free use of property, so as

to interfere with the comfortable enjoyment of life or

property by an entire community or neighborhood, or by

any considerable number of persons,..." (Italics added.)

When analyzed, section 370 reveals the following: the

C-5

proscribed act may be anything which alternatively is

injurious to health or is indecent or offensive to the

senses; the results of the act must interfere with the

comfortable enjoyment of life or property; and those

affected by the act may be an entire neighborhood or a

considerable number of persons, and as amplified by Penal

Code section 371 the extent of the annoyance or damage

on the affected individuals may be unequal.

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 comfort-

able enjoyment of life of a “considerable number of

persons" within the contemplation of Penal Code section

370? We conclude that such exhibitions may fairly be

deemed such conduct, and we find convincing support for

such conclusion from applicable cases in this and other

jurisdictions.

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-

C-6

California International Exposition, constituted a public

nuisance subject to abatement. This exhibition assertedly

involved the "indecent and offensive" exposure to mem-

bers 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

(Pen. Code, § 311), nevertheless the Weis court held that

"[w] here, however, the threatened acts, if committed, in

addition to being an indictable offense, will constitute a

publie nuisance, courts of equity are vested with jurisdic-

tion to interpose their injunctive process to prevent injury

which will resu.t from the maintenance thereof.

[Citation.]" (Weis at p. 732.) Furthermore, the court,

quoting from Wood on Nuisances (§ 68), stated that "'A

public exhibition of any kind that tends to the corruption

of morals, to a disturbance of the peace, or of the general

good order and welfare of society, is a public nuisance.

Under this head are included... obscene pictures, and

any and all exhibitions, the natural tendency of which is to

pander to vicious... and disorderly members of society.'

" (Ibid., italies added.)

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 injunc-

tions on behalf of the state except where the obdjection-

able 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

section 370 to be public nuisances.

C-8

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 presenta-

tion 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 Penal Code

section 370 and Civil Code section 3479 as conduct which

is “offensive to the senses." The contention is erroneous

for such reasoning completely ignores the additional

language appearing in both sections which explicitly

includes as an alternative class of public nuisance conduct

“anything which is indecent." When the question is put,

which of the five senses is offended by conduct that is

"indecent," it becomes readily apparent both that the

C-9

thesis of the argument does not fit the legislative

language and that conduct offensive to a community's

moral sensibilities is likewise subject to regulation under

section 370. Thus, the court in Weis, supra, at page 733,

unequivocally states that"... any act which is an offense

against public decency, or any public exhibition which is

offensive to the senses whether of sight, sound, or smell,

or which tends to corrupt public morals or disturb the

good order and welfare of society, is a public nuisance."

(Italics added.)

The trial court herein, in sustaining defendants’

demurrers without leave to amend, considered itself

controlled by the holding in Harmer v. Tonylyn Produc-

tions, 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

Civ. Code, § 3493) thus casting doubt upon his status as a

litigant. In contrast, the instant action is brought by

C-10

publie officials acting on behalf of the public generally

and proceeding under provisions (see Code Civ. Proc., §

731) which expressly confer standing upon them.

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

C-11

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

(1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], was

controlling on this point. Stanley, however, held only that

private possession of obscene matter cannot constitution-

ally be made a crime. In Luros, we carefully noted the

important distinction, recognized by the federal Supreme

Court in Stanley, between commercial distribution of

obscenity and the private possession thereof. We con-

cluded that "... in the context of public distribution of

obscenity, the balance of interests upholds the constitu-

tionality of state regulation, even though that regulation

imposes some burdens upon the exercise of constitutional

rights. [%]... States retain broad power to regulate

obscenity and regulation of the public distribution of

obscenity falls well within the broad scope of that power."

(4 Cal.3d at pp. 92-93.) We reaffirm the foregoing

conclusion reached by us in Luros.

Similarly, Paris (decided after Harmer was filed)

rejected the extension of Stanley to situations involving

C-12

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 immu-

nity 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 at

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 accommodations, 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,

C-13

"{a] though 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. 60-6] [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 ob-

served: "Commercial exploitation of depictions, descrip-

tions, or exhibitions of obscene conduct on commercial

premises open to the adult public falls within a State's

broad power to regulate commerce and protect the public

environment. The issue in this context goes beyond

whether someone, or even the majority, considers the

conduct depicted as ‘wrong’ or 'sinful.' The States have

the power to make a morally neutral judgment that public

exhibition of obscene material, or commerce in such

material, has a tendency to injure the community as a

whole, to endanger the public safety, or to jeopardize, in

Mr. Chief Justice Warren's words, the States' 'right... to

maintain a decent society.' [Citation.]" (Italics added;

C-14

Paris at pp. 68-69 [37 L.Ed.2d at pp. 463-464].) Both

Luros and Paris explain and confirm that the interests of

those who voluntarily view and purchase obscene mat-

erials are not necessarily coextensive with the interests of

the community at large.

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 ob-

scene 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 legis-

lative definition of a public nuisance includes "{a] nything

which is... indecent, or offensive to the senses, ... so as

C-15

to interfere with the comfortable enjoyment of life or

property by an... community or neighborhood, or. . . any

considerable number of persons... ." (Pen. Code, § 370.)

California's public nuisance definition, including as it does

indecency, comports fully with the state's power to

regulate as recently declared both by the federal Supreme

Court and by ourselves and fortifies our conclusion that

public nuisance laws may properly be employed to

regulate the exhibition of obscene material to "consenting

adults."

Given the legitimate state interesis 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, 93 S.Ct. 3026]; Bloss v. Paris

Township (1968) 380 Mich. 466 [157 N.W.2d 260, 261) ;

Cactus Corporation v. State ex rel. Murphy (1971) 14

Ariz.App. 38 [480 P.2d 375]: Evans Theatre Corporation

C-16

v. Slaton (1971) 227 Ga. 377 [180 S.E.2d 712], cert. den.,

404 U.S. 950 [30 L.Ed.2d 267, 92 S.Ct. 281]; New Rivieria

Arts Theatre v. State (1967) 2i9 Tenn. 652 [412 S.W.2d 890,

893-895]; Sanders v. State (1974) 231 Ga. 608 [203 S.E.2d

153, 156-157]: State ex rel. Ewing v. "Without A Stitch"

(1974) 37 Ohio St.2d 95 [66 Ohio Ops.2d 223, 307 N.E.2d

911], app. dism., 421 U.S. 923 [44 L.Ed.2d 82, 95 S.Ct.

1649]; State ex rel. Keating v. Vixen (1971) 27 Ohio St.2d

278 [56 Ohio Ops.2d 165, 272 N.E.2d 137], vacated and

remanded on other grounds, 413 U.S. 905 [37 L.Ed.2d 1016,

93 S.Ct. 3033], opn. on remand, 35 Ohio St.2d 215 [64

Ohio Ops.2d 366, 301 N.E.2d 880]; State ex rel. Little

Beaver Theatre, inc. v. Tobir (Fla.App. 1972) 258 So.2d

30, 31-32; State v. Morley (1957) 63 N.M. 267 [3]7 P.2d

317, 318-319] .)

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 applicatio: of a general public nuisance

Statute to an allegedly obscene film, "I Am Curious

C-17

(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 sereen 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.2q 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

C-18

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 regulation 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 accep.able 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

C-19

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. 455-456] .)

Similarly, as we explain hereinafter, the California

publie 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 regulat-

ing the exhibition of obscene metter 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.

Lew enforcement officers accordingly are vested with

wide discretion to decide whether or not to initiate the

C-20

kind of formal abatement proceedings such as those

instituted in the matters before us. (See Code Civ. Proc.,

§ 731.) Once a community through its public officials has

determined that a particular display of obscene materials

amounts to a public nuisance which is injurious to the

safety and morals of that community, no valid reason

exists why, adequate constitution.d procedural safeguards

being met, the remedy of civil abatement proceedings

must be denied such community. The availability of the

public nuisance procedure may prove useful for those local

entities which, determining that they are confronted with

commercial exploitation of obscene materials resulting in

the conditions contemplated in section 370, elect to use

it.

We consider and will reject several constitutional

objections raised by defendants.

Defendants first suggest that the statutory language

"indecent, or offensive to the senses" (Pen. Code, § 370) is

impermissibly vague, requiring them to guess as to its

meaning, and thus is violative of the First Amendment to

the federal Constitution. Several cases involving similar

C-21

language have avoided the constitutional problem by

construing such language as synonymous with the word

"obscene," as defined in the applicable statutes and case

law. (See In re Giannini (1968) 69 Cal.2d 563, 571, fn. 4 [72

Cal.Rptr. 655, 446 P.2d 535] ("lewd or dissolute

conduct"]; Silva v. Municipal Court (1974) 40 Cal.App.3d

733, 736-737 [115 Cal.Rptr. 479] [same] ; Grove Press, Inc.

v. Flask, supra, 326 F.Supp. 574, 578 ["lewd, indecent,

lascivious or obscene"}; Janus Films, Ine. v. City of Fort

Worth (Tex.Civ.App. 1962) 354 S.W.2d 597, 600

("indecent"]; State ex rel. Ewing v. "Without A Stitch,”

supra, 307 N.E.2d 911, 914-915 ["obscene” construed in light

of recent United States Supreme Court opinions; State ex

rel Cahalan v. Diversified Theat. (1975) 59 Mich.App. 223

[229 N.W.2d 389 393-394] ["Lewdness"].

Furthermore, the United States Supreme Court re-

cently 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,’

C-22

or '‘immoral' as used to describe regulated material [in

federal statutes] , we are prepared to construe such terins

as limiting regulated material to patently offensive

representations or descriptions of that specific ‘hard core!

sexual conduct given as examples in Miller v. Cali-

fornia...." (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)

13 Cal.3d 71, __ {__Cal.Rptr. _, _ P.2d___], we

have construed our own obscenity statute (Pen. Code, §

31l, subd. (a) ["obscene matter"]) as referring to the

patently offensive matter set forth in Miller, supra, and

have rejected the contention that the statute is unconsti-

tutionally vague. (Accord, People v. Enskat (1973) 33

Cal.App.3d 900 [109 Cal.Rptr. 433].) We find no

impediment to use of the remedy on grounds of statutory

vagueness.

Defendants next assert that use of the publie nui-

sance statutes to enjoin or otherwise abate the exhibition

C-23

of films or magazines violates the constitutional principle

against prior restraint of presumptively protected mate- *

rials. (See Southeastern Promotions, Ltd. v. Conrad (1975)

420 U.S. 546, 558 [43 L.Ed.2d 448, 459, 95 S.Ct. 1239];

United States v. Thirty-seven Photographs (1971) 402 U.S.

363, 367 [28 L.Ed.2d 822, 828, 91 S.Ct. 1400]; Freedman v.

Maryland (1965) 380 U.S. 51, 58 [13 L.Ed.2d 649, 654, 85

S.Ct. 734]; Kingsley Books, Inc. v. Brown (1957) 354 U.S.

436 [1 L.Ed.2d 1469, 77 S.Ct. 1325] .) We note preliminarily

that, as the foregoing cases make clear, prior restraints

are not unconstitutional per se; a prior restraint may

avoid constitutional infirmity if it occurs " 'under proce-

dural safeguards designed to obviate the dangers of a

censorship system.'" (Southeastern Promotions, Ltd.,

supra, at p. 559 [43 L.Ed.2d at p. 460].) Among other

safeguards, "a prompt final judicial determination must be

assured." (Id., at p. 560 [43 L.Ed.2d at p. 460) .)

In order properly to evaluate defendants’ prior re-

straint 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

C-24

Light Abatement Law, do not provide for such specific

forms of relief as temporary and perpetual injunction

(Pen. Code, §§ 11226-11227), removal and sale of fixtures,

and closure of the premises for one year (Pen. Code, §

11230). Instead, the district attorney or city attorney is, in

general terms, empowered to bring a civil action to

"abate" the public nuisance. (Code Civ. Proc., § 731.)

Further, "'An abatement of a nuisance is accomplished in

a court of equity by means of an injunction proper and

suitable to the facts of each case....'" (Italics added;

Guttinger v. Calaveras Cement Co. (1951) 105 Cal.App.2d

382, 390 (233 P.2d 914]; see generally MeQuillin, Munici-

pal Corporations, § 24.73.)

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

C-25

[37 L.Ed.2d 446, 454-455] [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, Ine. v. Tobin, supra, 258 So.2d 30, 32;

State ex rel. Keating v. Vixen, supra, 272 N.E.2d 137; see

Commonwealth v. Guild Theatre, Inc. (1968) 432 Pa. 378

[248 A.2d 45]; Grove Press Ine. v. City of Philadelphia (3d

Cir. 1969) 418 F.2d 82, 90-91; Sanders v. State, supra, 203

S.E.2d 153, 156-157.) The relevant principle derived from

the foregoing cases is that, except in extremely limitec

situetions (see United States v. Thirty-seven Photographs,

supra, 402 U.S. 363), no injunctive relief, whether tempo-

rary or permanent in nature, may be afforded until

defendant has been given a full and fair judicial hearing on

the issue of obscenity, and an opportunity to obtain

prompt judicial review of that issue by the state appellate

courts.

We express no opinion upon the further question

whether the court may, in addition, either close the

C-26

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, supra, 157

N.W.2d 260; Grove Press, Inc. v. Flask, supra, 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., supra, 229 N.W.2d 389, 396-397;

United Theaters of Fla., Ine. 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; New Rivieria

Arts Theatre v. State, supra, 412 S.W.2d 890, 893-895;

Sanders v. State, supra, 203 S.E.2d 153, 156-157; State ex

C-27

rel. Little Beaver Theatre, Inc. v. Tobin, supra, 258 So.2d

30, 32; State ex rel. Ewing v. "Without A Stitch," supra,

307 N.E.2d 911, 917-918.) Since the United States Supreme

Court has not yet spoken on this difficult question, and

since in this posture of the case the issue is not before us,

we leave the question open for further consideration.

Defendants finally maintain that since the public

nuisance statutes are silent with respect ot prior adver-

sary hearings, this court should not undertake to "rewrite"

those statutes to require such hearings. Such a contention

lacks merit. We are obliged to construe and interpret

legislation in a manner which will uphold its validity.

(Braxton v. Municipal Court (1973) 10 Cal.3d 138, 145 [109

Cal.Rptr. 897, 514 P.2d 697]; In re Kay (1970) 1 Cal.3d 930,

941-942 [83 Cal.Rptr. 686, 464 P.2d 142].) Thus, the

courts have held that provision for a prior adversary

hearing may be implied by law in otherwise silent

statutory provisions. (State ex rel. Little Beaver Theatre,

Inc. v. Tobin, supra, 258 So.2d 30, 31-32; see United

States v. Thirty-seven Photographs, supra, 402 U.S. 363,

C-28

367-373 [28 L.Ed.2d 822, 828-832].) As hereinabove

expressed, abatement of a nuisance is accomplished by

means of a "proper and suitable" injunction. In the

context of assertedly obscene magazines and films, a

"roper" injunction ordinarily is one that is issued after the

requisite adversary hearing has taken place.

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 dimen-

sions 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

C-29

films constitutes a nuisance subject to abatement under

the provisions of the Red Light Abatement Law (Pen.

Code, § 11225 et seq.). We have previously noted that

these provisions prescribe certain specific forms of relief

not available under the general nuisance statutes, includ-

ing temporary injunctions, removal and sale of fixtures,

and closure of the premises for one year. (Pen. Code, § §

11227, 11230.)

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 law was passed in 1913 and, as its name indicates,

its primary purpose was to regulate "... houses of ill

fame, ... and other like places, where acts of lewdness

and prostitution are habitually practiced and carried on as

a business." (People v. Barbiere (1917) 33 Cal.App. 770,

775 [166 P. 812].) It has been held that the terms

C-30

"lewdness, assignation, or prostitution" were "obviously"

intended to refer to "illicit sexual acts or conduct

amounting to or involving lewdness." (People v. Arcega

(1920) 49 Cal.App. 239, 242 [193 P. 264].) The term

"lewdness" is not synonymous with "prostitution" and has a

broader significance, including “all other immoral or

degenerate conduct or conversation between persons of

opposite sexes,..." including the solicitation of sexual

acts to be performed elsewhere. (People v. Bayside Land

Co. (1920) 48 Cal.App. 257, 260 [191 P. 994] .)

The consensus of more recent cases is that the term

"lewdness" is broad enough to include live lewd entertain-

ment, 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 statedin Harmer: "If the

C-31

Legislature had desired or intended by section 11225 of the

Penal Code to regulate the showing of pornographic films,

pictures or drawings, such subject matter could have been

included in section 11225 when it was recently amended in

1969, as it did when it chose to enumerate (‘illegal

gambling as defined by state law or local ordinance’ in

that section of the Penal Code." (23 Cal.App.3d at p.

944.) On the other hand, it has been forcefully contended

that "it borders upon the absurd to apply the law to live

stage shows and exhibitions that are lewd and to deny its

application to motion pictures that are patently lewd and

obscene." (Id., at p. 952 [dis. opn.]; see also People ex rel.

Hicks v. Sarong Gals, supra, 27 Cal.App.3d at p. 50.)

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 Theaters of Ia. tne. 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. On the

other hand, the most recent case on the point holds that

C-32

the term "lewdness" in Michigan's "red light" act is broad

enough to include the exhibition of films which are

obscene under the standards set forth in Miller v.

California, supra, 413 U.S. 15, 25 [37 L.Ed.2d 419, 431, 93

S.Ct. 2607]. (State ex rel. Cahalan v. Diversified Theat.,

supra, 229 N.W.2d 389, 393.)

Although the question is not free from doubt, in view

of the history of the Red Light Abatement Law and the

uniform interpretation given it by the courts of this state,

we conclude that the act's provisions were not intended to

apply, and do not apply, to the exhibition of obscene

magazines or films.

The judgment is reversed and the cause remanded for

further proceedings consistent with this opinion.

McComb, J., Sullivan, J., and Clark, J., concurred.

TOBRINER, J.--The majority today empowers city attor

neys 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

C-33

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 drastic 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. The owner of every

bookstore, market, drugstore, airport, or other business

place which sells "Playboy," "Playgirl," or similar publica-

tions must henceforth labor beneath the Damocles sword

of public nuisance: if a city attorney decides that a single

picture in one of those magazines is obscene, and so

convinces a single judge, the owner may be compelled to

close his place of business or to discontinue the sale of

materials that have never been judged obscene.

This court could not, without abdicating its responsi-

bility to secure the rights provided by the federal and

state Constitutions, sanction a legislative decision to

endow a city attorney with so onerous and clumsy a

weapon in his attempt to purge the private viewing of

exhibitions he deemed "indecent." The vagueness of the

C-34

prescribed conduct and the prior restraint on First

Amendment activity would render such a law doubly

vulnerable to constitutional challenge.

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 situa-

tions 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 public

morality, the violations of which are to constitute public

nuisanees within the equity's jurisdiction, should be left

with the Legislature.” Our charge, consequently, is a

the judicial reluctance to proclaim new species of

public nuisance is well founded. The remedy of abate-

ment, fashioned as it was to equip the courts to deal

expeditiously with serious perils to the public, denies the

defendant many of the procedural safeguards he would

enjoy if he were subjected to an ordinary civil or criminal

action. "{I]t is apparent that the equitable remedy has

the collateral effect of depriving a defendant of the jury

trial to which he would be entitled in a criminal

prosecution for violating exactly the same standards of

publie policy. The defendant also loses the protection of

the higher burden of proof required in criminal prosecu-

tions and, after imprisonment and fine for violation of the

equity injunction, may be subjected under the criminal law

to similar punishment for the same acts. For these

reasons equity is loath to interfere where the standards of

public policy can be enforced by resort to the criminal

law, and in the absence of a legislative declaration to that

effect, the courts should not broaden the field in which

injunctions against criminal activity will be granted.”

(People v. Lim, ante, 18 Cal.2d 872, 880 (citations

omitted).)

That the majority opinion denudes the defendants of

their rights to have a jury determine whether the

exhibitions are actually obscene proves particularly dis-

tressing. In Bloom v. Municipal Court (1976) 13 Cal.3d 71

[_ Cal. Rptr. : » & majority of this

court incorporated into the definition of obscenity in

section 3ll of the Penal Code the guidelines set forth in

Miller v. California (1972) 413 U.S. 15 [37 L.Ed 2d 419, 93

S.Ct. 26077. Central to the Miller test is whether "the

average person, applying contemporary community stand

ards" would find that the work appeals to the prurient

interest. The jury, as a microcosm of the community, is

the only vehicle fit to conduct that inquiry.

C-36

limited one: We must ascertain whether the Legislature

has declared that the conduct complained of in the

present case constitutes a public nuisance.

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 section 370

of the Penal Code which defines a public nuisance to be

anything "which is injurious to health, or is indecent, or

offensive to the senses, or an obstruction to the free use

of property...." The majority argues that this language

recognizes four classes of conduct that may constitute a

public nuisance: conduct that is (a) injurious to health; (b)

indecent; (ce) offensive to the senses; or (d) an obstruction

to property. Since indecency is a ground for finding a

C-37

public nuisance quite apart from offense to the senses, the

argument goes, the statute subsumes even private in-

decency which has no impact upon the senses of the

community as a whole.

The majority's error is fundamental: it construes the

wrong statute. Although sections 370-372 of the Penal

Code govern the criminal dimension of pub'ie nuisances,

section 731 of the Code of Civil Procedure governs their

abatement. That section provides that "[a] civil action

may be brought... to abate a public nuisance, as the

same is defined in section thirty-four hundred and eighty

of the Civil Code...." (Italics added.) Although the

majority alludes to the "substantial identity" of the Penal

Code and Civil Code definitions, I find them different in

one pivotal respect.

Since section 3480 of the Civil Code merely provides

that "a public nuisance is one which affects at the same

time... any considerable number of persons," we must

refer to the definition of nuisance set forth in the

preceding section. Section 3479 of the Civil Code defines

a nuisance to be anything "which is injurious to health, or

C-38

is indecent or offensive to the senses, or an obstruction of

the free use of property...." (Italics added.) The

difference between this definition and that contained in

the Penal Code is subtle, but crucial. The phrase "to the

senses" in section 370 of the Penal Code modifies only the

word "offensive"; here, it modifies both indecent and

offensive. According to the Civil Code, therefore,

indecent conduct is a public nuisance only when it is

"indecent... to the senses" of a substantial number of

people. Consequently, a court may not abate a public

nuisance unless it assaults the senses, not merely the

sensibilities or tastes, of the community.

“This argument, admittedly, lets a great deal turn on

the absence of a comma in Civil Code section 3479, but

the majority lets an equal amount turn on the presence of

a comma in section 370 of the Penal Code. Since the

statute authorizing the abatement of nuisances explicitly

refers to the Civil Code definitions, there can be no doubt

that we are to construe the section that lacks the comma.

It is quite likely, of course, that this difference in

punctuation between the two sections is accidental, and

that their drafters intended their scope to be coextensive.

This court, consequently, might reasonably decide to

interpret the sections identically, notwithstanding their

different punctuation.

"footnote forwarded"

C-39

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." (Civ. Code,

§ 3480.) The result would be different if the purportedly

obscene materials were flaunted on a public billboard. In

that event, the indecent behavior or object would simul-

taneously affect the senses of a large group. But where

the purportedly indecent behavior occurs in private, the

"footnote 2 continued"

Which section, however, contains the error and wiici

section is correct? It is difficult to ascertain the intent

that motivated the Legislature when it enacted these

Statutes in 1872 and amended them in 1874; any conclusion

that one rather than the other involved the error in

punctuation, therefore, is fraught with uncertainty.

Nonetheless, if we must choose which section is correct,

we should honor the definition embodied in the Civil Code.

The fact that section 731 of the Code of Civil Procedure

refers to the Civil Code definitions gives some indication

that those definitions comport with the Legislature's

wishes. Moreover, the preferences for narrowly con-

struing statutes that infringe first amendment values and

for interpreting statutes in light of the consequences of

the alternative constructions, see infra, conjoin to urge

that we embrace the Civil Code definitions. These

considerations, I grant, do not conclusively establish that

the Civil Code definition accurately reflects the legisla-

tive intent; there are no reasons, however, to prefer the

definition contained in the Penal Code.

C-40

mere fact that even a large portion of the public

disapproves of it fails to bring it within the purview of the

public nuisance abatement statute.

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" (Civ.

Code, § 3479; Pen. Code, § 370) effectively excludes

private behavior from the purview of the public nuisance

statutes. In the present case, for example, the pur-

portedly obscene exhibitions themselves in no way inter-

fere with the comfortable enjoyment of life of those who

do not enter the adult book stores or theatres; the

materials do not obtrude upon those who never see them.

Consequently, the necessity that the nuisance interfere

3The majority insists that conduct that is indecent

does not offend any of the five senses, and thus that the

use of the word "indecent" in the statute establishes that

the public nuisance laws encompass conduct that does not

bear upon the senses. (Ante, at p. 368.) The answer is

simple: even though conduct that is indecent does its

damage to the sensibilities or tastes, rather that the

senses, of the public, it falls within the public nuisance

statute only when perceived by the senses of a substantial

number of people.

C-4l

with the comfortable enjoyment of life infuses both the

Penal and Civil Codes with the requirement of public

behavior that the phrase "indecent... to the senses"

independently imports to the latter.

It might be argued that although the obscene mate-

rials 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

eases construing them that conduct can constitute a

public nuisance simply because some people stand philo-

sophically 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 sections 3479, Civil Code...." Since violating

C-42

the laws regulating the sale of liquor is presumably as

indecent as violating the laws regulating the sale of

obscene material, the court implicitly ruled that the mere

fact that certain behavior runs afoul of society's prefer-

ences—even as articulated in its criminal laws--consti-

tutes an inadequate basis for holding it a publie nuisance.

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 Civil Code section 3479] it

must be because such conduct constitutes ‘an obstruction

to the free use of property'.... It could not by any

stretch of the imagination be considered as covered by

any other clause of the code definition." (103 Cal.App. at

p. 310.) (Italics added.) The court's language left scant

doubt that it thought that engaging in "the despicable

calling of usurer" smacked of indecency. Nonetheless, it

expressly ruled that that practice could not qualify as a

nuisance on the grounds that it was indecent or offensive

to the senses of a large number of people.

C-43

a

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 comfort-

able 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 omitted [sic]

noxious odors or otherwise afflicted the senses of the

aggrieved parties, and that merely offending the sensibili-

ties 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... ."

C-44

The Court of Appeal most recently addressed this

issue in Harmer v. Tonyiyn 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

section 3493 of the Civil Code to enjoin the showing of a

purportedly obscene film as a public nuisance. As the

majority notes, Harmer ruled that the plaintiffs had not

alleged the special damages that section 3493 requires of

private citizens who would bring an action to abate a

public nuisance. In so holding, however, the court

explicitly rejected the contention that the statutory

language embraced such a private exhibition.

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 to 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,...' (Civ. Code, § 3480)

C-45

(italics added." (Citations omitted.) The court thus

squarely rejected the notion that the mere existence of an

establishment that deals in obscene materials constitutes

a public nuisance, for if private indecent behavior fell

within the public nuisance statute, the entire community

would have been affected in Harmer.

The majority contends that Harmer improperly ana-

lyzed the character of the state interest in regulating the

exhibition of obscene matter; it observed 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 regula-

tion; 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.

— C-46

In support of its conclusion that the public nuisance

statute comprehend private indecent behavior, the major-

ity 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 exhibi-

tion." (30 Cal.App. at p. 733.)

Weis constitutes meager support for the expansion of

the public nuisance statutes that the majority today

effects. It is not at all clear that spectators were

adequately forewarned of the character of the exhibition

involved in Weis. Although the exhibition's name might

have given some hint of its nature, spectators could

reasonably have assumed that the "Sultan's Harem"

involved something less than actual nudity. Nor is there

any indication that the manager of the exhibit attempted

C-47

to convey its content to possible spectators by making it

an “adults only" attraction; the court explicitly referred

to the need to protect children from the exhibition. To

the extent that Weis involved subjecting an unadmonished

audience to indecent material, it has no bearing on the

present case in which the allegedly indecent material was

displayed exclusively within the confines of an "adults

only" establishment.

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. 367.) 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 obscen-

ity, 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

C-48

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., ante, 23 Cal.App.3d

C-49

94], 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 obscen-

ity.

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. * In June 1974, the Assembly Committee on

‘The relevant portions of the initiative (Proposition

19) read:

"CHAPTER 7.9. INJUNCTIVE RELIEF

"313.50. The superior courts of the State of Cali-

fornia 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 Chap-

ters 7.5, 7.6, 7.7 or 7.8 of this title.

"footnote forwarded"

C50

Criminal Justice defeated similar provisions in Assembly

"footnote 4 continued"

"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

"footnote forwarded"

C-51

Bill No. 4340.”

"footnote 4 continued"

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. Secre-

tary of State, Statement of Vote, General Election

November 7, 1972, page 30.

>The relevant portions read:

"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 attor

ney 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, picture, drawing, photograph, film, figure,

image or any written or printed matter of an indecent

character which is obscene as defined in Section 31ll, 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 exhibi-

tion 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.

"footnote forwarded"

C-52

In light of the Harmer decision, and the subsequent

rejection of proposed legislation which would have specifi-

cally 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 approved 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

"footnote 5 continued"

"b) In the event that a final order or judgment of

injunction 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 s eriff or law enforcement

agency shall be directed to seize and destroy the same or

to hold the same as evidence."

C-53

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 expres-

sion. 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 deter-

mine whether their products or exhibitions would be ruled

obscene. (Bloom v. Municipal Court (1976) 13 Cal.3d 71

{__ Cal. Rptr. , P.2d __] (Tobriner, J., dis-

C-54

senting).) 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 to metaphysically

coalesce to form some community standard, no trier of

fact could confidently ascertain what that standard was.

The determination by a judge or juror that an

exhibition is obscene, consequently, amounts to nothing

more than a testament to his subjective preferences or a

conjecture about the taste and fancy of his neighbors. As

the Court of Appeal acknowledged in In re Davis (1966)

242 Cal.App.2d 645, 66] [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

C-55

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 or of the press suffer."

Vague criminal laws chill protected expression

because some people, reluctant to risk criminal penalties,

refuse to deal with any materials or engage in any

expression that might be deemed unprotected by the First

Amendment. The use of the public nuisance laws to

regulate obscenity will also entail the suppression of

protected materials because of the awesome risks associ-

ated with being branded a public nuisance. The majority

empowers the trial court to decide whether it should

"close the premises entirely or enjoin further ‘obscene’

exhibitions regarding materials not yet adjudged obscene."

A prudent business person is not likely to exhibit material

that he thought was protected by the First Amendment

when, if a particular judge disagreed with him,° he might

Sthe fact that the public nuisance statutes relegate

the decision to a judge, rather than to a jury, exacerbates

"footnote forwarded"

c-56

have to endure not merely the suppression of that

particular material, but the closing of his place of

business.

The spectre of the application of these severe

remedies, when combined with the inherent uncertainty as

to that which constitutes obscenity, will thus entail a

genre of private censorship as repugnant to the values

underlying the First Amendment as censorship by the

state itself. It will "tend to restrict the public's access to

forms of the printed word which the State could not

constitutionally suppress directly. The bookseller's self-

censorship, compelled by the State, would be a censorship

affecting the whole public, hardly less virulent for being

privately administered. Through it, the distribution of all

books, both obscene and not obscene, would be impeded."

(Smith v. California (1959) 36] U.S. 147, 153-154 [4 L.Ed.2d

"footnote 6 continued”

the chilling effect. A dealer in protected material who

might have been confident that no group of 12 jurors would

unanimously conclude that his material offended the

community standards might find himself inhibited by the

greater uncertainty of how a single member of the

community-—-the judge—would react to it.

C-57

205, 211, 80 S.Ct. 215].) Any law that attempts to

regulate the exhibition or sale of obscene material to

consenting adults will necessarily beget this noxious

private censorship to some degree.

The public nuisance laws, as enlarged by the majority,

suffer from a second constitutional infirmity: they

constitute an illegal prior restraint of expression. In the

present case, the plaintiffs entreat the trial court not only

to enjoin the sale or exhibition of materials actually

adjudged obscene, but to forbid tire sale or exhibition of

other materials prior to any determination that they are

obscene. Moreover, they urge the trial court to close

down a business—and thereby suppress all materials that

the business would have sold or exhibited--if the court

finds that the business has in the past sold or exhibited

some obscene material. The majority, by refusing to

foreclose these remedies, sanctions the subversion of a

cardinal tenent of First Amendment doctrine: materials

are presumptively protected by the First Amendment and

their sale or exhibition will not ordinarily be suppressed

prior to a final determination that, in fact, they are

C-58

unprotected.

Although the United States Supreme Court has never

declared prior restraints unconstitutional per se, it has

acknowledged that a system of prior restraint "comes to

this Court bearing a heavy presumption against its

constitutional validity." (Bantam Books, Inc. v. Sullivan

(1963) 372 U.S. 58, 70 [9 L.Ed.2d 584, 593, 83 S.Ct. 631) .)

As that high court has explained: "The presumption

against prior restraints is heavier--and the degree of

protection broader—than that against limits on expression

imposed by criminal penalties. Behind the distinction is a

theory deeply etched in our law: a free society prefers to

punish the few who abuse rights of speech after they

break the law than to throttle them and all others

beforehand. It is always difficult to know in advance what

an individual will say, and the line between legitimate and

illegitimate speech is often so finely drawn that the risks

of freewheeling censorship are formidable." (Southeastern

Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558-559

[43 L.Ed.2d 448, 459, 95 S.Ct. 1239] .)

That prior restraints are antithetical to the values

c-59

embodied in the First Amendment is rendered clear by the

facts of one of the cases decided today, People ex rel.

Busch v. Jason's Books. The bookstore involved sells

thousands of books and magazines, and the plaintiffs only

allege that 30 percent of the books and 26 percent of the

magazines are "hardcore." Presumably, 70 percent of the

books and 80 percent of the magazines are not obscene

and, therefore, are protected by the First Amendment.

Yet the majority would permit a trial court to close down

the entire bookstore and thereby suppress the bulk of the

publications sold there, notwithstanding the fact that no

one alleges that they are obscene. And even if the trial

court judiciously refrains from closing the bookstore

entirely, the majority permits it to enjoin the sale of

particular books or magazines prior to any pronouncement

upon their obscenity or social worth.

Because prior restraints critically endanger free

expression, they will survive constitutional scrutiny only

when they occur "'‘under procedural safeguards designed

, to obviate the dangers of a censorship system.'" (South-

eastern Promotions, Ltd., supra, at p. 559 [43 L.Ed.2d at

C40

pp. 459-460].) In Southeastern Promotions, the court

reaffirmed its ruling in Freedman v. Maryland (1965) 380

U.S. 51, 58 [13 L.Ed.2d 649, 654, 85 S.Ct. 734], that a prior

restraint on expression is constitutionally defective unless

it is "imposed only for a specified brief period and only for

the purpose of preserving the status quo" pending a final

judicial pronouncement on the materials' obscenity. (420

U.S. at p. 560 [43 L.Ed.2d at p. 460].) The public nuisance

laws provide no such guarantees.

In the present cases the complaints urged the court to

close the premises for one year. While the time period is

specified, it cannot reasonably be deemed brief. More-

over, the request for such relief is not based upon the

need to preserve the status quo pending adjudication of

the obscenity of the other materials. Indeed, as |

observed above, there is absolutely no allegation that

certain of the materials that would be suppressed are

obscene. And even if the trial court enjoined the sale of

only those materials that were allegedly obscene, there is

no guarantee of the prompt final judicial determination of

obscenity that the federal cases require. In sum, prior

C-61

restraints such as the plaintiffs seek and the majority

permits are blatantly unconstitutional because they are

unaccompanied by those specific procedural safeguards

that the United States Supreme Court has held necessary

to overcome the presumed illegality of prior restraints.”

That the public nuisance statutes do not provide such

procedural safeguards should not be suprising. As I have

argued above, they 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 majority circumvents another procedural

problem by importing to the statutes a requirement of a

prior adversary hearing. The majority justifies this

judicial rewriting of the statute by referring to the

principle that laws should be construed so as to uphold

their validity. There is, however, an alternative way to

construe the statutes involved in this case so as to render

them immune to constitutional attack: they can be

interpreted as inapplicable to private behavior. Given

that the applicability of the statute's language to private

behavior is, at best, highly dubious, this reading would

seem the more judicious way to construe the statute so as

to uphold its validity.

C-62

the willful viewing of obscene material in private by

adults—and because if they did they would be constitu-

tionally defective--I conclude that the trial court properly

sustained the defendant's demurrer. Accordingly, I would

affirm the decision below.

Wright, C. J. and Mosk, J., concurred.

C-63

iC ne

(Facsimile)

[Civ. No. 44184, Second Dist., Div. Three. Dec. 27, 1974.]

JOSEPH P. BUSCH, as District Attorney, etc, et al.,

Plaintiffs and Appellants, v.

PROJECTION ROOM THEATRE et al.,

Defendants and Respondents.

[And 4 other cases.] *

OPINION

POTTER, J.—In these consolidated appeals plaintiffs, the

APPENDIX D District Attorney of Los Angeles County and the City

Attorney of the City of Los Angeles, attack judgments of

dismissal in five separate civil actions brought by them

seeking injunctive and other relief designed to stop the

continued operation of five so-called "adult" book stores

and “adult" theatre establishments. Since the judgments

of dismissal were in each case based upon orders sustain-

ing, without leave to amend, general demurrers on the

ground that the complaints failed to state facts sufficient

to constitute a cause of action, the allegations in each of

the complaints must be accepted as true.

* Busch v. Stan's Books (Civ. No. 44185); Busch v. Book

Bin (Civ. No. 44186); Busch v. Galaxy Book Store (Civ. No.

43610); Busch v. Jason's Books (Civ. to 4418 ,).

D-1

According to the complaints, the five places of

business described therein were being

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