Petition for Writ of Certiorari — Kaplan v. California

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Qrimmc- COURT, :

™ BN THE MAY 17 1974

Supreme Court of the Unite DAK, JR, CLERK

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October Term, 1973

™-~8- 1782

MuRRAy KAPLAN,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Appellate De-

partment of the Superior Court of the State of

California for the County of Los Angeles.

FLEISHMAN, MCDANIEL, BROWN &

WESTON,

By STANLEY FLEISHMAN,

6922 Hollywood Boulevard,

Suite 718,

Hollywood, Calif. 90028,

Attorney for Petitioner.

SAM ROSENWEIN,

DaviD M. Brown,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Opinions Below ........... sctinatinsdiesaleieahiatalinhdainbbdaabiiaiad 1

SIT scala daciuiasiesiboniesispsivaiinehnnenaphceniaendndiianianindes 2

RID ITUNES ssccssnsscscseccssnccancsessevsossacneansencsnes 2

Constitutional and Statutory Provisions Involved .... 4

EIEN: Sisdeutesanenshinincndibsnniuneiedinsnannneieninsennmnennnndans 5

How the Federal Questions Are Presented .............. 5

Reasons for Granting the Writ ..........000..000.... 9

ITI sah sasiatatusiidialsehaininseahnutinsetinpsininniniianiadentadonaineis 17

INDEX TO APPENDICES

Appendix A. Judgment of the Appellate Depart-

ment .... App. p. 1

Appendix B. Order Denying Rehearing ............ 2

Appendix C. Constitutional and Statutory Provi-

SE STII xi:sccinikcnnanseceebensaebeinenntnanntlionannasinnisix 3

ngage 8 tee TO ED

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TABLE OF AUTHORITIES CITED

Cases Page

Ashton v. Kentucky, 384 U.S. 195 ....................... 14

Cole v. Arkansas, 333 U.S.196 -2.00.00.2.....2:-20c000+ 15

DeJonge v. Oregon, 299 U.S.353 ................-0ccee00ee+ 15

Enskat v. California (October Term 1973), No.

FR - RRR elllicccttietantinnicenenacd 8, 15, 16

Giaccio v. Pennsylvania, 382 U.S.399 ................... 14

Gooding v. Wilson, 405 U.S.518 .......00.22.002200.2.2--- 14

Herndon v. Lowry, 301 U.S.242 o2o....ccesscseseeeeeeee 14

Interstate Circuit, Inc. v. Dallas, 390 U.S.676 ........ 14

Kaplan v. California, 408 U.S.921 -..00022... 5

Kaplan v. California, October Term 1971, No.

PIES | SechpinennciincsnMnsaakanapeatansiaideunbntseertabeiaan ins 5

Kaplan v. California, 413 U.S.115 -....000000..... Se ae

Memoirs v. Massachusetts, 383 U.S.413 ............ » 4

sgiasdatsasnbiemactoien aire mieaciaianmuntaia 9, 10, 11, 15

Miller v. California, 413 U.S.15 ...... a mm Oe See Be

Papochristou v. Jacksonville, 405 U.S.156 .............. 14

Paris Adult Theatre I v. Slaton, 413 U.S.49 ....3, 5, 10

People v. Enskat, 33 Cal.App.3d 900, 109 Cal.

RD snccnscnisiicilRigiitimmivemnnimamstiinintasied 6, 8, 15, 16

Plummer v. City of Columbus, Ohio, 94 S.Ct.17 .... 14

Rabe v. Washington, 405 U.S.313 0000.00... 15

Russell v. United States, 369 U.S.749 ....0000000000000... 15

Smith v. California, 361 U.S.147 .22000 ee 2

Thompson v. Louisville, 362 U.S.199 ...00020.... 16

United States v. Orito, 413 U.S.139 200022. 3

United States v. 12 200-Ft. Reels, 413 U.S.123 .... 3

Vachon v. New Hampshire, 94 S.Ct.664 .................. 16

Virginia Ry. Co. v. Mullins, 271 U.S.220 ............ 2

Winship, In re, 397 U.S.358 200.0022... eeeeeeee eee 15, 16

Winters v. New York, 333 U.S.507 ... 14

Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.2d 152,

ee Eh } enn 9

Rules

California Rules of Court, Rule 24(a) .....0000.000... 2

California Rules of Court, Rule 28(b) .............. 2

California Rules of Court, Rule 62 ........00.0000....... 2

Statutes

California Penal Code, Sec. 311 -...0........0... i

rossdeupenuuadde aoetamantemaiaiaiiiconsdetensiies 5, 7, 9, 10, 13, 16

California Penal Code, Sec. 311.2 -000.2.0..2.. i me 4

eecuatpeicesialsadsiiasceiemtaitinhasabiisiciisansensieconiil 5, 7, 8, 9, 13

California Penal Code, Sec. 1471 ...00000.02.e 2

United States Code, Title 28, Sec. 1257(3) .......... 2

United States Constitution, First Amendment ....2, 3

\iicllmaheaibaladedaesiiatnatinascbuasiuteabistel 4, 6, 7, 12, 13, 14, 15

United States Constitution, Fourteenth Amendment

I eS EA >a 46 7 t BS

Supreme Court of the United States

October Term, 1973

UR uislivnatnics

MuRRAyY KAPLAN,

Petitioner,

VS.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Appellate De-

partment of the Superior Court of the State of

California for the County of Los Angeles.

Petitioner Murray Kaplan prays that a writ of cer-

tiorari issue to review the judgment and ruling of the

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles,

entered in the above entitled action on January 29,

1974. |

Opinions Below.

No written opinion was rendered by the Appellate

Department of the Superior Court of the State of Cali-

fornia for the, County of Los Angeles affirming the

judgment of conviction on January 29, 1974.’

1The affirmance followed remand by this Court in Kaplan y.

California, 413 U.S.115.

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Jurisdiction.

The judgment of the Appellate Department of the

Superior Court of the State of California for the Coun-

ty of Los Angeles was entered on January 29, 1974.

A copy of the judgment appears in Appendix A here-

to. A due and timely petition for rehearing or, in the

alternative, for certification of the cause to the Court

of Appeal was denied by the said Appellate Depart-

ment on February 20, 1974. A copy of the said order

appears in Appendix B hereto.

By the aforesaid denial of the petition for rehearing

or, in the alternative, for transfer to the Court of Ap-

peal, the Appellate Department of the Superior Court

of the State of California for the County of Los An-

geles became the highest court of the State in which a

decision could be had. See, California Penal Code

§1471; California Rules of Court, Rule 62. See also,

California Rules of Court, Rules 24(a) and 28(b);

Smith v. California, 361 U.S.147, 148, fn.2; Virginia

Ry. Co. v. Mullins, 271 U.S.220, 222.

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

Questions Presented.

(1) Whether the provisions of California Penal

Code §§311 and 311.2, on their face and as construed

and applied to authorize the judgment of conviction

herein, violate the free speech and press and due proc-

ess provisions of the First and Fourteenth Amend-

ments and the interpretive decisions of the Supreme

a wa

Court rendered on June 21, 1973, in Miller v. Califor-

nia, 413 U.S.15; Kaplan v. California, 413 U.S.115;

Paris Adult Theatre I v. Slaton, 413 U.S.49; United

States v. Orito, 413 U.S.139; and United States v. 12

200-Ft. Reels, 413 U.S.123.

(2) Whether the provisions of California Penal

Code §§311 and 311.2, which embody solely the

Memoirs tripartite standards for judging obscenity, in-

cluding the “utterly without redeeming social impor-

tance” test, on their face and as construed and ap-

plied to authorize the judgment of conviction herein,

are vague, ambiguous, uncertain and overbroad, in

violation of the free speech and press and due process

provisions of the First and Fourteenth Amendments

and the aforesaid decisions of the Court rendered on

June 21, 1973.

(3) Whether the provisions of California Penal

Code §§311 and 311.2, which embody solely the

Memoirs tripartite standards for judging obscenity, on

their face and as construed and applied to authorize

the judgment of conviction herein, without the use of a

national community standard test which at the time of

the trial of the petitioner limited state obscenity pros-

ecutions, are vague, ambiguous, uncertain and over-

broad, in violation of the free speech and press and

due process provisions of the First and Fourteenth

Amendments and the aforesaid decisions of the Court

rendered on June 21, 1973.

(4) Whether the provisions of California Penal

Code §§311 and 311.2, which embody solely the

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Memoirs tripartite standards for judging obscenity,

and which do not specifically define sexual conduct

purportedly subject to regulation, on their face and as

construed and applied to authorize the judgment of

conviction herein, are vague, ambiguous, uncertain

and overbroad, in violation of the free speech and

press and due process provisions of the First and Four-

teenth Amendments and the aforesaid decisions of the

Court rendered on June 21, 1973.

(5) Whether the provisions of California Penal

Code §§311 and 311.2, on their face and as con-

strued and applied to authorize the judgment of con-

viction herein, without any instruction to the jury on

the applicable law of the case with respect to the

specifically defined sexual conduct which the state ob-

scenity statute purportedly proscribed, violate the free

speech and press and due process provisions of the

First and Fourteenth Amendments.

(6) Whether the provisions of California Penal

Code §§311 and 311.2, on their face and as construed

and applied to authorize the judgment of conviction,

without proof of the essential element of scienter, vio-

late the free speech and press and due process provi-

sions of the First and Fourteenth Amendments.

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First and Fourteenth

Amendments to the Constitution of the United States

and the pertinent provisions of California Penal Code

§§311 and 311.2 appear in Appendix C hereto.

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Statement.

A petition for a writ of certiorari was initially

granted in this case by this Court on June 26, 1972.

Kaplan v. California, 408 U.S.921. Following hearing

before the Court, the case was decided on June 21,

1973. Kaplan v. California, 413 U.S.115. The ultimate

ruling of the Court was that the judgment of the Ap-

pellate Department of the Superior Court of the State

of California for the County of Los Angeles, which

had initially affirmed the judgment of conviction, be

vacated and the case remanded to that court for fur-

ther proceedings not inconsistent with the opinions of

the Court in Miller v. California, 413 U.S.15, and

Paris Adult Theatre I v. Slaton, 413 U.S.49, decided

on the same day. The nature of the case and all prior

state court proceedings appear in the briefs of the par-

ties and the final opinion rendered by the Court. Kap-

lan v. California, October Term 1971, No. 71-1422.

How the Federal Questions Are Presented.

1. Following remand to the Appellate Department

of the Superior Court of California for the County of

Los Angeles, there was further briefing and argument

before the said court. Petitioner urged that the judg-

ment of conviction should be reversed upon the follow-

ing grounds, among others: (a) The standards for

judging obscenity embodied in the provisions of Cali-

fornia Penal Code §§311 and 311.2 have been re-

jected as constitutionally impermissible by the rulings

of the Court on June 21, 1973; (b) the aforesaid

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provisions under which tlie judgment of conviction was

rendered are vague, am:iguous, uncertain and over-

broad; (c) the siaidatds for judging obscenity con-

tained in the statute are unworkable and incapable of

objective measurement; (d) the statute fails to pro-

scribe specifically defined sexual conduct; (e) the pro-

ceedings against petitioner arbitrarily, capriciousiy and

discriminatorily deprived petitioner of his liberty and

property without due process of law, abridged the exer-

cise of freedoms of speech and press, denied the

equal protection of the laws, and inflicted cruel and

unusual punishment, in violation of the First and

Fourteenth Amendments to the United States Constitu-

tion; and (f) the state obscenity statute, on its face

and as construed and applied to authorize the jury to

return a verdict of guilt against petitioner, without any

instructions relative to the specifically defined sexual

conduct allegedly proscribed by the law, as judicially

construed, deprived petitioner of his liberty and proper-

ty without due process of law and abridged the exercise

of freedoms of speech and press, contrary to the provi-

sions of the First and Fourteenth Amendments to the

United States Constitution.

2. Pending the ruling by the aforesaid Appellate

Department of the Superior Court, an intervening rul-

ing by the Court of Appeal of the State of California

was rendered which affected the ultimate ruling by the

Appellate Department. The circumstances were as fol-

lows:

Following the decisions of this Court of June 21,

1973, the Court of Appeal of the State of California,

Second Appellate District, Division Five, rendered an

opinion in a case entitled People v. Enskat, 33 Cal.

App.3d 900, 109 Cal.Rptr.433. The court rejected

Aor mn Th SOREL IE ED

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the claim that California Penal Code §§311 and 311.2

were unconstitutional and unenforceable as a result of

the decisions of this Court on June 21, 1973, as

against claims that in the light of those decisions the

California state obscenity statute had been rendered

vague, ambiguous, uncertain and overbroad, in viola-

tion of the free speech and press and due process pro-

visions of the First and Fourteenth Amendments. The

Court of Appeal held that the state obscenity statute,

as written, could continue to be applied in state ob-

scenity prosecutions.

A petition for hearing to the California Supreme

Court was denied on October 24, 1973. Among the

questions presented to the California Supreme Court

were whether the standards for judging obscenity em-

bodied in the California state obscenity statute have

been rejected as constitutionally impermissible by the

rulings of this Court on June 21,. 1973, and whether

the provisions of California Penal Code §§311 and

311.2 are vague, ambiguous, uncertain and over-

broad, since the standards for judging obscenity are

unworkable and incapable of objective measurement

and the statute fails to proscribe specifically defined

sexual conduct, all in violation of the free speech and

press and due process provisions of the First and Four-

teenth Amendments to the United States Constitution.

The opinion and judgment of the Court of Appeal,

as aforestated, and the denial of hearing thereafter

by the California Supreme Court on October 24, 1973,

rejecting all constitutional objections to the state ob-

scenity statute, became binding upon the Appellate

Department of the Superior Court, County of Los

Angeles, State of California, in the then pending ap-

peals before it in obscenity prosecutions.

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A petition for a writ of certiorari to the aforesaid

Court of Appeal in Enskat v. California has been

filed with this Court, October Term 1973, No. 73-

1136.

3. As a result of the ruling by the Court of Appeal

in Enskat, holding that California Penal Code §311.2

meets the standards set forth in this Court’s decisions

of June 21, 1973, and is not vague or overbroad, the

judgment of conviction in the case herein was affirmed

by the Appellate Department of the Superior Court

of the State of California for the County of Los An-

geles, without opinion. On petition for rehearing or, in

the alternative, for certification of transfer, the same

aforestated constitutional and legal questions were

urged upon the court. The petition for rehearing or,

in the alternative, for certification was denied, as

aforesaid. Thereafter, a remittitur issued from the Ap-

pellate Department, but on March 6, 1974, the court

’ ordered recall of the remittitur and stayed the issuance

of the said remittitur to and including April 10, 1974,

to permit petitioner to file a petition for a writ of

certiorari in the Supreme Court of the United States,

the order also providing that any further stay there-

after was to come from this Court or a Justice thereof.

On April 8, 1974, an order was made by Mr. Justice

Douglas, continuing the order recalling the remittitur

and staying its issuance, pending reconsideration of the

application when the memorandum of the respondent

is received.

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REASONS FOR GRANTING THE WRIT.

1. The provisions of the California obscenity law

(Penal Code §§311, 311.2) solely embody the Mem-

oirs test. The statute defines “obscene matter”, taken

as a whole, the predominant appeal of which to the

average person, applying contemporary standards, is to

a prurient interest, i.e., a shameful or morbid interest

in sex, nudity or excretion: and is matter which, taken

as a whole, goes substantially beyond customary limits

of candor in the depiction or representation of sex or

nudity; and is matter which, taken as a whole, is utterly

without redeeming social importance. The state legisla-

ture “intentionally incorporated as part of the definition

itself the important provision that obscene matter ‘is

matter which is utterly without redeeming social im-

portance’, changing the function of these words from

a description of a matter of defense to an element of

the offense”. Zeitlin v. Arnebergh, 59 Cal.2d 901, 383

P.2d 152, 31 Cal.Rptr.800, 812 (1963). See, Memoirs

v. Massachusetts, 383 U.S.413.

The state obscenity law does not define for regula-

tion any specific sexual conduct. The petitioner herein

was tried for an offense allegedly committed in 1969,

and the standards for judging obscenity which were

used by the trial judge and jury in the case, resulting

in the judgment of conviction herein, were predicated

solely upon the tripartite test as appears in the state

obscenity law.

2. In Miller v. California, 413 U.S.15, this Court

noted that since the decision in Roth, no majority of

the Court had at any given time been able to agree on

a standard to determine what constitutes obscene,

pornographic material subject to regulation under the

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State’s police power. The Court stated that “. . . we

are called on to define the standards which must be

used to identify obscene material that a State may

regulate without infringing the First Amendment as

applicable to the States through the Fourteenth Amend-

ment” (413 U.S. at 19-20).

Before enunciating the standards for judging ob-

scenity, the Court unanimously rejected the Memoirs

test. “The case we now review was tried on the theory

that the California Penal Code §311 approximately in-

corporates the three-stage Memoirs test, supra. But

now the Memoirs test has been abandoned as unwork-

. able by its author and no member of the Court today

supports the Memoirs formulation.” (413 U.S. at 23).

The opinion of the Chief Justice noted the observation

by Justice Harlan that “utterly without redeeming so-

cial value” did not seem to have “any meaning at all”.

Moreover, stated the majority opinion: “We do not

adopt as a constitutional standard the ‘utterly without

redeeming social value’ test of Memoirs v. Massachu-

setts.” (413 U.S. at 24). Further, it was emphasized,

“We also reject, as a constitutional standard, the am-

biguous concept of ‘social importance’.” (413 U.S. at

25, n.7) (Emphasis added). Justice Brennan, dissent-

ing in Paris Adult Theatre I v. Slaton, 413 U.S. at 73,

to which the Chief Justice pointed in Miller, agreed

that the Court had “failed to formulate a standard that

sharply distinguishes protected from unprotected

speech”, (413 U.S. at 83), and that none of the dif-

fering. formulas enunciated by the individual Justices

in the past could “reduce the vagueness to a tolerable

level” (413 U.S. at 84). As a result of “our failure to

défine ‘standards with predictable application”, the

past had been marked by a “lack of fair notice” and a

APOE LAER EE OTR

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“chill on protected expression” (413 U.S. at 93).

And Mr. Justice Douglas added in his dissenting opin-

ion in Miller: “The Court kas worked hard to define

obscenity and concededly has failed.” (413 U.S. at

37).

Petitioner submits, with deference, that the only con-

clusion which can be drawn from the opinion of the

Court in the quintet of decisions rendered on June 21,

1973, is that a statute which purports to identify and

delimit “obscenity” by a test of “utterly without re-

deeming social importance” is constitutionally unac-

ceptable. In the view of this Court, the test is unwork-

able, inoperable, unachievable, vague and ambiguous.

It is, in the words of this Court, ambiguous and vague

and cannci be accepted “as a constitutional standard”.

3. Another prong of the tripartite test of Memoirs

which this Court found constitutionally infirm was the

“national community” standard. This Court described

such standard as “unrealistic” and “an exercise in fu-

tility”. A national standard was termed “hypothetical”

and “unascertainable”; a standard which was not “prov-

able” and “neither realistic nor constitutionally sound”

(413 U.S. at 31-32). Thus, the “national standard”

test was found to be clearly unconstitutional. Never-

theless, such standard was “correctly regarded at the

time of trial as limiting state prosecution under the

controlling case law” (413 U.S. at 30-31).

Unlike the record presented in the case of Miller v.

California, the petitioner here constantly objected to

the use of a state community standard instead of a na-

tional community standard, as then required under the

interpretive decisions of this Court. On appeal, peti-

tioner specifically urged that the state obscenity law,

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as construed and applied to authorize the judgment of

conviction, solely upon the basis of a state standard in-

- stead of a national standard, violated the free speech

and press and due process provisions of the First and

Fourteenth Amendments.

Thus, petitioner was not only tried under the consti-

tutionally vague and ambiguous standard of “utterly

without redeeming social importance”, but he was also

refused a trial under a “national standard of First

Amendment protection”, correctly regarded at the time

of trial “as limiting state prosecution under the control-

ling case law”.

4. As heretofore stated, the state statute under

which the judgment of conviction rests does not spe-

cifically define any physical sexual conduct allegedly

subject to regulation. The statute only proscribes ex-

pression. This, again, is a defect of constitutional di-

mension, as the Court in its decisions of june 21,

1973, made clear.

“We acknowledge, however, the inherent dangers

of undertaking to regulate any form of expres-

sion. State statutes designed to regulate obscene

materials must be carefully limited. . . . As a re-

sult, we now confine the permissible scope of such

regulation to works which depict or describe sex-

ual conduct. That conduct must be specifically

defined by the applicable state law, as written or

authoritatively construed . . . the basic guide-

lines for the trier of facts must be: . .. (b)

whether the work depicts or describes, in a pat-

ently offensive way, sexual conduct specifically de-

fined by the applicable state law . .. We emphasize

that it is not our function to propose regulatory

schemes for the States. That must await their

ODIO LAI ARETE ED

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concrete legislative efforts. It is possible, however,

to give a few plain examples of what a state

statute could define for regulation under the second

2g (b) of the standard announced in this opin-

ion . Under the holdings announced today,

no one , will be subject to prosecution for the sale

or exposure of obscene materials unless these ma-

terials depict or describe patently offensive ‘hard

core’ sexual conduct specifically defined by the

regulating state law, as written or construed.”

(413 U.S. at 23-27).

Since the requirement that a state statute specifically

define the sexual conduct the State proposes to regulate

was deemed by this Court in Miller to be a critical

due process requirement in order to satisfy that “pre-

cision of regulation” which the first Amendment de-

mands, the absence of such specificity in California

Penal Code §§311 and 311.2 is a third ground for in-

validating the judgment of conviction herein.

5. In the light of the foregoing, the provisions of the

state obscenity law are vague, ambiguous, uncertain

and overbroad. The statute, on its face and as con-

strued and applied to the petitioner herein, violates the

free speech and press and due process provisions of the

First and Fourteenth Amendments and the interpretive

decisions of this Court. A trial conducted under stat-

utes which are unascertainable, ambiguous, without

clear meaning. incapable of objective measurement,

and not limited to specified conduct, is a deprivation of

due process in the most primary sense. Standards which

are not specifically defined in the law, and which are

incapabie of objective measurement, fail to provide

adequate notice to persons who are engaged in ac-

a a

tivities which the statute purports to proscribe. In an

area where First Amendment rights are implicated,

the danger of such lack of meaningful standards is

that the statute may sweep within its ambit expression

ordinarily entitled to constitutional protection. Such stat-

utes lend themselves to arbitrary and capricious en-

forcement by law enforcement officers and prosecutors

and result in capricious and erratic judgments by courts

and juries. Plummer v. City of Columbus, Ohio, 94:

S.Ct.17; Gooding v. Wilson, 405 U.S.518; Interstate

Circuit, Inc. v. Dallas, 390 U.S.676; Papochristou v.

Jacksonville, 405 U.S.156; Ashton v. Kentucky, 384

U.S.195; Giaccio v. Pennsylvania, 382 U.S.399; Win-

ters v. New York, 333 U.S.507.

j The submission of the issues to the jury in this case,

in the light of the absence of constitutionally accepted

standards for judging obscenity, amounted to no more

than a request for the jurors to assert their own sub-

jective and unguided predilections with respect to the

suppression of a motion picture film. The petitioner

was deprived of a jury trial in the constitutional sense

because the jury was merely licensed to create its

own law of the case, its own personal standards. See,

Herndon v. Lowry, 301 U.S.242.

The trial in the case herein, conducted as it was

under the existing statutes, was a denial of due proc-

ess. The statute does not contain the specific sexual

conduct proscribed. The standards which are contained

in the statute have been held to be constituticnally

infirm. The law therefore did not give fair notice to

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this petitioner of what was forbidden. Neither the charge

nor the proof at the trial ever gave petitioner fair no-

tice that criminal liability was dependent upon viola-

tions of specifically defined conduct or standards con-

tained in the statute, Sce, Rabe v. Washington, 405

U.S.313; Russell v. United States, 369 U.S.749; De

Jonge v. Oregon, 299 U.S.353; Cole v. Arkansas,

333 U.S.196.

Even the rudimentary requirements in criminal prose-

cutions of proof of guilt beyond a reasonable doubt

(In re Winship, 397 U.S.358) were violated when pe-

titioner in this case was compelled to stand trial under

the state obscenity statute which, on its face and as

construed and applied, is vague, ambiguous, uncertain

and overbroad.

6. The Enskat ruling which became binding upon

the Appellate Department of the Superior Court below

appears contrary to the principles enunciated by this

Court on June 21, 1973. In essence, the Enskat court

held that a state statute which entirely omits the pre-

requisite of sexual conduct specifically defined by law,

and which retains the tripartite test of Memoirs as the

sole basis for the suppression of expression and for

criminal prosecution thereunder, may be deemed valid

despite the free speech and press and due process pro-

visions of the First and Fourteenth Amendments to the

Constitution and the interpretive decisions of this Court.

The Enskat court appears to have been of the view

that increased specificity in the state law was not re-

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quired if the “utterly without redeeming social value”

test was retained. However, this Court in its decisions

on June 21, 1973, gave no indication that the retention

of the “utterly without redeeming social value” test

would in any way justify omitting specifically defined

sexual conduct from a statute. This Court emphasized

that if the requirements of due process notice are to be

; met, a state statute must specifically define the sexual

+ cenduct. Without such specificity in the statute, an ob-

+ scenity law is rendered unconstitutionally vague, am-

| bigous, uncertain and overbroad. Contrary to the view

enunciated in Enskat, the California Supreme Court has

+ never authoritatively construed the state obscenity stat-

"ute to specifically include the sexual conduct which

j this Court held essential to the validity of a state ob-

1

j

scenity statute. See the discussion in the petition for a

writ of certiorari in Enskat v. California, October Term

1973, No. 73-1136, pages 19-24.

7. At the-time the alleged offense herein was com-

’ mitted, California Penal Code §311 defined “knowing-

. ly” as meaning “having knowledge that the material

+» is obscene”. The record does not contain any compe-

tent evidence, it is submitted, to establish beyond a rea-

sonable doubt that the petitioner here knew the alleged

obscene nature and character of the publication. See,

Thompson v. Louisville, 362 U.S.199; In re Winship,

397 U.S.358; Vachon v. New Hampshire, 94 S.Ct.

664.

Se. Pe el

ae Re Rt

Been

:

| i tai CRIT LL, PLO LAS EOD EOL ELIA LI EAE st iin tment

—_,

Conclusion.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and ruling of the Appellate

Department of the Superior Court of the State of Cali-

fornia for the County of Los Angeles.

Respectfully submitted,

FLEISHMAN, MCDANIEL, BROWN &

WESTON,

By STANLEY FLEISHMAN,

Attorney for Petitioner.

SAM ROSENWEIN,

Davip M. Brown,

Of Counsel.

ata ae |

Mil

tee {PAARL LES MOINS, EE

APPENDIX A.

Judgment of the Appellate Department.

In the Appellate Department of the Superior Court,

of the State of California for the County of Los

Angeles.

Filed January 29, 1974.

People of the State of California, Plaintiff and Re-

spondent, vs. Murray Kaplan, Defendant and Appel-

lant. Superior Court No. CR A 10391; Trial Court

No. 337520.

On Appeal from the Municipal Court of the Los

Angeles Judicial District, County of Los Angeles, State

of California, David J. Aisenson, Judge (311.2 PC).

This cause having been argued and submitted and

fully considered, judgment is ordered as follows:

It is ORDERED and ADJUDGED that the judg-

ment made and entered in the Municipal Court of the

Los Angeles Judicial District, County of Los Angeles,

State of California, in the above entitled cause be and

the same is hereby affirmed.

BY THE COURT

/s/ Zack

Acting Presiding Judge.

/s/ Holmes

Judge.

/s/ Marshall

Judge

PG Re RT

— oe

APPENDIX B.

Order Denying Rehearing.

Filed: February 20, 1974.

Appellate Department of the Superior Court, of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and Re-

spondent, vs. Murray Kaplan, Defendant and Appel-

lant. Superior Court No. CR A 10391; Municipal

Court of the Los Angeles Judicial District No. 337520.

ORDER DENYING REHEARING AND

DENYING CERTIFICATION

The petition of appellant for a rehearing after judg-

ment of this court on appeal, or, in the alternative,

5 petition for certification of cause to the Court of Ap-

2 peal in the above-entitled case, having been filed and

4 having been duly considered,

4 Said petition is hereby denied.

Dated Feb. 20, 1974.

BY THE COURT

/s/ Zack

Acting Presiding Judge

/s/ Holmes

Judge

/s/ Marshall

Judge

—

APPENDIX C.

Constitutionai and Statutory Provisions Involved.

1. The pertinent provisions of the First Amend-

ment to the United States Constitution are:

“Congress shall make no law . . . abridging

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

2. The pertinent provisions of the Fourteenth

Amendment to the United States Constitution are:

“No State shall . . . deprive any person of life,

liberty, or property, without due process of law;

3. California Penal Code $311, at the time of the

commission of the alleged offense, provided as follows:

“As used in this chapter:

“(a) ‘Obscene’ means that to the average per-

son, applying contemporary standards, the pre-

dominant appeal of the matter, taken as a whole,

is to prurient interest, i.e., a shameful or morbid

interest in nudity, sex, or excretion, which goes

substantially beyond customary limits of candor

in description or representation of such matters

and is matter which is utterly without redeeming

social importance.

“(b) “Matter? means any book, magazine,

newspaper, or other printed or written material

or any picture, drawing, photograph, motion pic-

ture, or other pictorial representation or any

statue or other figure, or any recording, transcrip-

tion or mechanical, chemical or electrical repro-

duction or any other articles, equipment, ma-

chines or materials.

Oe

a oa

“(c) ‘Person’ means any individual, partner-

ship, firm, association, corporation, or other legal

entity.

“(d) ‘Distribute’ means to transfer possession

of, whether with or without consideration.

“(e) ‘Knowingly’ means having knowledge

that the matter is obscene.”

4. California Penal Code §311.2, at the time of the

commission of the alleged offense, read in relevant

part:

“(a) Every person who knowingly sends or

causes to be sent, or brings or causes to be

brought, into this state for sale or distribution or

in this state prepares, publishes, prints, exhibits,

distributes, or offers to distribute, or has in his

} possession with intent to distribute or to exhibit

j or offer to distribute, any obscene matter, is guilty

of a misdemeanor .. .”

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