Petition for Writ of Certiorari — Samuel Blank v. State of California

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IN THE

- *+ 42

MAY O 19?

Supreme Court of the United States.n sscixse,

October Term, 1973

No. -P-B-= 16 82

SAMUEL BLANK,

Petitioner,

VS.

\

PEOPLE OF THE STATE OF CALIFORNIA, ia

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,

Hollywood, Calif. 90028,

Attorney for Petitioner.

SAM ROSENWEIN,

DAvip M. Brown,

Of Counsel.

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

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PRL EERE

CREE TP RAS RG RIE 7 e .

SUBJECT INDEX

Page

I III crccicconctsesnnichiescichinniacensnndisincessittninennabens 1

IID Savesinashceddinsnisnppintn Rihaddenaueinadidabeannsianiedanicins 1

IN IIIT saditiecsctcnaiotidecepntaiuinatscgnesnsninnnnicbininnen 2

Constitutional and Statutory Provisions Involved .. 4

SIIIIINE "slic iesticsdedcuhasnbadeedentcucsnieiadinah Ueoiusenabeseanenieuaces 4

How the Federal Questions Are Presented .......... 7

Reasons for Granting the Writ -....................-.....--- 13

RINE > cacuiaseenaidnastaisnittitactikaimdiabesnarnseenieinoss 21

INDEX TO APPENDICES

Appendix A. Judgment of the Appellate Depart-

I, sre scenicorepeceacenmenconeinenssinsnneceineeecs App. p. 1

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

Appendix C. Constitutional and Statutory Provi-

sions Involved

PIT M PION HIS GPL ME NO TREN LEN MS TE chines

7

1 GIT ROME TE SOLID OT IIT AR IS EPR RLE ISRAEL RA OUGLE ROE, a ae

VARA PL ER TLE AIT AE OS ROE OO

TABLE OF AUTHORITIES CITED

Cases Page

Ashton v, Kentucky, 384 U.S.195 20.000... 18

Burgin v.| South Carolina, 404 U.S.806 .............. 21

Cole v. Arkamens, 333 U.S.196 ...........cccccccccecsocene 19

DeJonge v. Oregon, 299 U.S.353 ...0.....20.eeeeeeeee 19

Enskat v. California, October Term. 1973, No. 73-

BAe - shddecassssboulciosichackekeipsictin eceaecnenoeanaa cisions 6, 20

Giaccio v. Pennsylvania, 382 U.S.399 0000220000... 18

Gooding v. Wilson, 405 U.S.518 —.....0000000-00000....- 18

Herndon v. Lowry, 301 U.S.242 ........................... 18

Interstate Circuit, Inc. v. Dallas, 390 U.S.676 .... 18

Kaplan v. California, 413 U.S.115 _............ a me a

Memoirs v. Massachusetts, 383 U.S.413 _............... 3, 13

phclannbicepamaaniAabad dias anlehatidinigennaiiaiaditaahdatadaie 14, 15, 19

Miller v. California, 413 U.S.15 ..2, 5, 13, 14, 15, 17

Papachristou v. Jacksonville, 405 U.S.156 ............ 18

Paris Adult Theatre I v. Slaton, 413 U.S.49 ...... 2

sicsiioced dalla fibise sab haaigesaahidabbdvenahuilanibls-eugtanansaadeialmnein 5, 14

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

NITIUIET : lcshinaccspnatecebangheceastapiccchecoein > 1, BD

Plummer v. City of Columbus, Ohio, 94 S.Ct.17 .. 18

Rabe v. Washington, 405 U.S.313 ......000000000... 19

Russell v. United States, 369 U.S.749 —000000022.. 19

Screws v. United States, 325 U.S.91 ow. 20

Smith v. California, 361 U.S.147 _.00200 2

United States v. Orito, 413 U.S.139 000... ,

United States v. 12 200-Ft. Reels, 413 U.S.123 ..2, 5

Vachon v. New Hampshire, 94 S.Ct.664 ......0....... 21

Re ie it a a

Page

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

Wiener v. California, 404 U.S.988 ........................ 21

Winship, In re, 397 U.S.358 ....................--c-.-0cs- 19, 21

Winters v. New York, 333 U.S.507 ..........2.2.200-0-+- 18

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

Be Gy GI CTI iniccccccinccenssdesiscacenincnss 13 :

Rules

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

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

California Rules of Court, Rule 62 -....00200000000000... 2

Statutes

California Penal Code, Sec. 311 ...... ee ee ee

jacipdiasda lan antaaasmiaaebemsiambdesmicn cei 8, 10, 11, 13, 17

California Penal Code, Sec. 3) 1(e) 20.0002. 20

California Penal Code, Sec. 311.2 00.0.0... i ae

secalceti esata taideinaimsabedoacataniania 5, 6, 7, 8, 9, 10, 11, 13, 17

California Penal Code, Sec. 1471.00.00... 2

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

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

apd 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 21

United States Constitution, Fourth Amendment .... 10 t

United States Constitution, Ninth Amendment ...... 10 :

United States Constitution, Fourteenth Amendment :

‘anes 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 19, 21 §

LIME OBDIAL) POPE Or, . ~exbeag r }

PEPE Sty PARE SIO EE ILE. AEE:

TNE AOL EL GE SON DEL LI AM CGN

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IN THE

Supreme Court of the United States

October Term, 1973

RS eae

SAMUEL BLANK,

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 Samuel Blank 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 25,

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 25, 1974.

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 25, 1974.

LATIN ORLA LTO: POO a i

a

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 11, 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 here,

violate the free speech and press and due process provi-

sions of the First and Fourteenth Amendments and the

interpretive decisions of the Supreme Court rendered

on June 21, 1973, in Miller v. California, 413 US.

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 Mem-

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a

oirs tripartite standards for judging obscenity, includ-

ing the “utterly without redeeming social importance”

test, 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 Fourteenth Amendments and the afore-

said 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 Mem-

oirs 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 Fwuurteenth

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 MWez:-

oirs tripartite standards for judging obscenity, and

which do not specifically define sexual conduct pur-

portedly subject to regulation, on their face and as con-

strued and applied to authorize the judgment of con-

viction 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.

5. Whether the provisions of California Penal

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

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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.

j 6. Whether ite 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-

E late the free speech and press and due process provi-

, _ sions of the First and Fourteenth Amendments.

7. Whether the motion picture film here involved

** is not obscene and is entitled to constitutional protec-

: tion under the free speech and press and due process

/ provisions 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.

Statement.

: 1. Petitioner was charged with the violation of

California Penal Code §311.2, the state obscenity stat-

ute, by the exhibition of an alleged obscene motion

picture film. The case came on for trial before a Judge

of the Municipal Court of the Los Angeles Judicial

District in and for the County of Los Angeles, State of

California, and a jury. Following conviction, petitioner

was sentenced to fifteen days in the county jail, 180

—

days suspended, three years’ summary probation and a

fine of $800.00 plus penalty assessment.

Petitioner filed a due and timely appeal to the Ap-

pellate Department of the Superior Court of the State

of California for the County of Los Angeles. As ap-

pears hereafter, substantial constitutional and legal

questions were presented, including the validity of the

state obscenity statute, on its face and as construed

and applied.

The case was argued and submitted, but subse-

quently the Appellate Department vacated the submis-

sion of the case, postponing resubmission until the rul-

ings by the United States Supreme Court in a series of

cases then pending before this Court in Kaplan v. Cali-

fornia, 413 U.S.115, and other related cases.

2. Following the decisions of this Court on June

21, 1973, in Kaplan v. California, 413 U.S.115; Miller

v. California, 413 U.S.15; Paris Adult Theatre I v.

Slaton, 413 U.S.49; United States v. Orito, 413 US.

139; and United States v. 12 200-Ft. Reels, 413 U.S.

123, 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 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, am-

biguous, uncertain and overbroad, in violation of the

free speech and press and due process provisions of

the First and Fourteenth Amendments. The Court of

Appeal held that the state obsceniiy statute, as written,

on

could continue to be applied in state obscenity pros-

ecutions.

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 of June 21, 1973, and whether the

provisions of California Penal Code §§311 and 311.2

are vague, ambiguous, uicertain and overbroad, 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 proc-

ess provisions of the First and Fourteenth Amendments

to the United States Constitution.’

3. The opinion and judgment of the Court of Ap-

peal, as aforestated, and the denial of hearing there-

after by the California Supreme Court on October 24,

1973, rejecting all constitutional objections to the state

obscenity statute, became binding upon the Appellate

Department of the Superior Court, County of Los

Angeles, State of California in the then pending appeals

before it in obscenity prosecutions.

Following the rulings of this Court in Kaplan v.

California and the related cases, and the aforesaid rul-

ing in People v. Enskat, the case came on once again

for further briefing, argument and hearing before the

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles. On

1A petition for a writ of certiorari is pending in this Court.

Enskat v. California, October Term 1973, No. 73-1136.

On,

January 25, i974, the judgment of conviction was af-

firmed without opinion (Appendix A). As aforestated,

a due and timely petition for rehearing or, in the al-

ternative, for certification of the cause to the Court

of Appeal was denied by the said Appellate Depart-

ment on February 11, 1974 (Appendix B). There-

after, a remittitur issued from the Appellate Depart-

ment, but on April 16, 1974, the court ordered recall

of the said remittitur and stayed the issuance of the

remittitur to and including May 15, 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 thereafter was to come

from this Court or a Justice thereof. On April 27, 1974,

Mr. Justice Douglas made an order continuing the

order of the Appellate Department, pending reconsidera-

tion when Respondent’s Memorandum is received.

How the Federal Questions Are Presented.

1. Prior to trial, the petitioner demurred to the

complaint, alleging among other grounds that the state

obscenity statutes, on their face and as applied by the

complaint, were unconstitutional, null and void, violat-

ing the free speech and press, due process, and equal

protection provisions of the First and Fourteenth

Amendments to the United States Constitution. The de-

murrer was overruled. During the trial, motions for

judgments of acquittal, for new trial, and in arrest of

judgment based on the said constitutional objections to

the provisions of California Penal Code §§311 and

311.2, on their face and as construed and applied, were

all denied. There were also objections to the trial court’s

instructions and its refusals to instruct as requested by

petitioner on issues of redeeming social importance

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and “pandering”, which petitioner claimed rendered

the obscenity statutes violative of the provisions of the

First and Fourteenth Amendments. There were also

claims by petitioner that the instructions and refusals

to instruct with respect to the element of sicienter,

and the failure to prove scienter, raised similar fed-

eral questions. In addition, it was claimed that the

film involved was not obscene and was entitled to

constitutional protection under the free speech and

press and due process provisions of the First and

Fourteenth Amendments. Other constitutiona! and le-

gal claims with respect to the construction and appli-

cation of the state obscenity statutes were all rejected

by the trial court.

On appeal, in his initial briefing and argument

before the court, the petitioner raised the following

grounds, among others:

(a) The trial court’s instructions and its refusals to

instruct as requested by petitioner on the issues of re-

deeming social importance and “pandering” deprived

petitioner of due process of law and of the equal pro-

tection of the laws and abridged the exercise of free-

dom of expression, contrary to the First and Four-

teenth Amendments to the United States Constitution

and the parallel provisions of the California Constitu-

tion, and rendered Penal Code §§311 and 311.2 un-

constitutional as so construed and applied.

(b) Penal Code §§311 and 311.2, as construed

and applied to authorize the judgment of conviction

herein, without any evidence of scienter, and upon in-

structions and refusals to instruct which eliminated the

element of scienter from the jury’s consideration,

abridged the exercise of freedoms of speech and press

and deprived petitioner of due process of law and the

equal protection of the laws, contrary to the First and

Fourteenth Amendments to the United States Consti-

tution and the parallel provisions of the California

Constitution.

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{c) The trial court abused its discretion and there-

by deprived petitioner of a fair trial, in violation of

the free speech and due process provisions of the First

and Fourteenth Amendments and the parallel provi-

sions of the California Constitution by failing to quali-

fy a defense witness as an expert on the element of

“prurient interest”, a statutory element of the offense

charged under Penal Code §311.2.

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A CRS RORY TS AE IIS PPE ES ING ENB MME A IA A OY

(d) The ruling of the trial court admitting into evi-

dence certain irrelevant and _ prejudicial testimony

abridged the exercise of freedoms of speech and press,

deprived petitioner of due process of law and the

equal protection of the laws, and resulted in a mis-

carriage of justice, contrary to the First and Four-

teenth Amendments to the United States Constitution

and the parallel provisions of the California Constitu-

tion.

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(e) The film which was the subject of Count One :

in the trial below was not obscene, but rather was f

entitled to constitutional protection under the free

speech and press and due process provisions of the

First and Fourteenth Amendments to the United States

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Constitution and the parallel state constitutional guar-

antees.

(f) Penal Code §§311 and 311.2, as construed

and applied to authorize the judgment of conviction

on a record establishing that the film in question was

exhibited only to an adult who requested it, where the

public was notified of the nature of the material, and

where reasonable protection against exposure of the ma-

terial to minors existed, deprives adult citizens of the

constitutional right to view whatever materials such

adults choose, in violation of the guarantees of due

process of law and the equal protection of the laws,

the right to privacy and the freedoms of speech and

press, contrary to the First, Fourth, Ninth and Four-

teenth Amendments to the United States Constitution

and the parallel state constitutional guarantees.

(g) The trial court’s refusal to instruct the jury

as requested by petitioner that the elements of appeal

to prurient interest and customary limits of candor

must be judged with reference to the intended and

probable viewers of the film in question, rendered

Penal Code §$311 and 311.2 as thus construed and

applied unconstitutional, in violation of the free speech

and press and due process provisions of the federal

and state constitutions.

(h) Penal Code §§311 and 311.2, as construed

and applied to authorize the judgment of conviction

solely on the basis of a state standard instead of a

national standard, violate the free speech and press

and due process provisions of the First and Fourteenth

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Amendments to the United States Constitution and the

parallel state constitutional guarantees. E

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(i) The trial court’s exclusion of relevant, compa-

rable evidence proffered by petitioner deprived him of

due process of law and abridged the exercise of free-

dom of speech and press, contrary to the First and

Fourteenth Amendments to the United States Constitu-

tion and the parallel state constitutional guarantees.

2. As heretofore stated, after the case was argued

and submitted, the Appellate Department vacated the

submission and postponed resubmission until the rul-

ings by this Court in the cases then pending before

it in Kaplan v. California, et al. Following the rendi-

tion of the aforesaid decisions on June 21, 1973, and

the decision of the Court of Appeal of the State of

California in People v. Enskat, the case was again

briefed, argued and heard before the Appellate De-

partment. On this occasion, the further grounds urged

for reversal were as follows:

FIA FEE PES NEN, I RR WEIN

(a) The standards for judging obscenity embodied

in the provisions of California Penal Code §§311 and

311.2 have been rejected as constitutionally impermis-

sible by the rulings of the United States Supreme

Court on June 21, 1973.

(b) The aforesaid provisions under which the judg-

ment of conviction was rendered are vague, ambiguous,

uncertain and overbroad.

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(c) The standards for judging obscenity contained

in the statute are unworkable and incapable of ob-

jective measurement.

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(d) The statute fails to proscribe specifically de-

fined sexual conduct.

(e) The proceedings against petitioner arbitrarily,

capriciously and discriminatorily deprived petitioner of

his liberty and property without due process of law,

abridged the exercise 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 Con-

stitution.

(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 instruc-

tions relative to the specifically defined sexual conduct

allegedly proscribed by the law, as judicially construed,

deprived petitioner of his liberty and property without

due process of law and abridged the exercise of free-

doms of speech and press, contrary to the provisions of

the First and Fourteenth Amendments to the United

States Constitution.

(g) The motion picture film here involved is not

obscene and is entitled to constitutional protection un-

der the free speech and press and due process provi-

sions of the First and Fourteenth Amendments.

The judgment of conviction was affirmed by the

Appellate Department. 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.

PARGRRE NE 0 DE 0 OL a moemrtentiatadiad =

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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 aver-

age 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 utter-

ly without redeeming social isaportance. The state legis-

lature “intentionally incorporated as part of the defini-

tion 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 1971,

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 sole-

ly upon the tripartite test as appears in the state obscen-

ity law. ;

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

i 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, porno- |

graphic material subject to regulation under the State’s

:

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Le: 0 AOL ILO ELDON FE LLIB ELL DEL. LIAL IEC LEI PE i . eee

tion

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 Amendment” (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 unworkable

by its author and no member of the Court today sup-

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

opinion of the Chief Justice noted the observation by

Justice Harlan that “utterly without redeeming social

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. Massa-

chusetts.” (413 U.S. at 24). Further, it was empha-

sized, “We also reject, as a constitutional standard,

the ambiguous concept of ‘social importance’.” (413

U.S. at 25, n.7 (Emphasis added). Justice Brennan,

dissenting in Paris Adult Theatre I v. Slaton, 413 US.

at 73, to which the Chief Justice pointed in Méiller,

agreed that the Court had “failed to formulate a stand-

ard that sharply distinguishes protected from unpro-

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

differing formulas enunciated by the individual Jus-

tices in the past could “reduce the vagueness to a

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

failure to define standards with predictable applica-

tion”, the past had been marked by a “lack of fair

PIO OTOL II LO IESG! REN LOGE LLG LDL. LO! A PLB

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notice” and a “chill on protected expression” (413

U.S. at 93). And Mr. Justice Douglas added in his dis-

senting opinion in Miller: “The Court has worked hard

to define obscenity anu 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 redeem-

ing social importance” is constitutionally unacceptable.

In the view of this Court, the test is unworkable, in-

operable, unachievable, vague and ambiguous. It is, in

the words of this Court, ambiguous and vague and

cannot 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,

te ee Se ale ad re titre iow 8

a

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 dan-

gers 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

sexual conduct. That conduct must be specifically

defined by the applicable state law, as written or

authoritatively construed . . . The basic guidelines

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

work depicts or describes, in a patently offensive

way, sexual conduct specifically defined by the

applicable state law . . . We emphasize that it is

not our function to propose regulatory schemes for

PROPOR GE, FRE FLERE IE ER BAG {AL TR

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the States. That must await their concrete legisla~ ~

tive efforts. It is possible, however, to give a few

plain examples of what a state statute could define

for regulation under the second part (b) of the

standard announced in this opinion . . . Under the

holditigs announced today, no one will be subject

to prosecution for the sale or exposure of obscene

materials unless these materials 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 “precision

of regulation” which the First Amendment demands,

the absence of such specificity in California Penal Code

§§311 and 311.2 is a third ground for invalidating the

judgment of conviction herein.

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

the state obscenity law are vague, ambiguous, uncer-

tain 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 inter-

pretive decisions of this Court. A trial conducted

under statutes which are unascertainable, ambiguous,

_ without clear meaning, incapable of objective measure-

ment, and not limited to specified conduct, is a depri-

vation of due process in the most primary sense. Stand-

ards which are not specifically defined in the law, and

which are incapable of objective measurement, fail to

provide adequate notice to persons who are engaged in

A 3 ees SENET: RISEN POS WOM PORE. GORE LES NOO SOCIO LANE T MS

= on

activities 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 ordinar-

ily entitled to constitutional protection. Such statutes

lend themselves to arbitrary and capricious enforce-

ment 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; Papachristou 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.

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, Hern-

don 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 process.

The statute does not contain the specific sexual con-

duct proscribed. The standards which are contained in

the statute have been held to be constitutionally infirm.

The law therefore did not give fair notice to this peti-

tioner of what was forbidden. Neither the charge nor

the proof at the trial ever gave petitioner fair notice

that criminal liability was dependent upon violations

of specifically defined conduct or standards contained

PREF LOU EEO! ST nal Tied —

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in the statute. See, Rabe v. Washington, 405 U.S.313;

Russell v. United States, 369 U.S.749; DeJonge v. Ore-

gon, 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

petitioner 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, uncer-

tain 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

required if the “utterly without redeeming social value”

test was retained. However, this Court in its decisions

of 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 conduct. Without such specificity in the statute, k

>

. _

ee ee a ee er. |

an obscenity law is rendered unconstitutionally vague,

ambiguous, uncertain and overbroad. Contrary to the

view enunciated in Enskat, the California Supreme

Court has never authoritatively construed the state ob-

scenity statute to specifically include the sexual conduct

which this Court held essential to the validity of a state

obscenity 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. California Penal Code §311.2 makes it an of-

fense to “knowingly” exhibit any obscene matter. Penal

Code §311(e) defines knowingly as meaning “being

aware of the character of the matter”. The trial court

instructed the jury that “knowingly” meant nothing

more than that petitioner knew the “character of the

contents of the material in question”. The court refused

to instruct the jury that the mental element requisite

in a constitutional permissible prosecution was knowl-

edge of the obscene nature and character of the con-

tents. The petitioner contends that in failing to instruct

the jury with respect to the proper standard for judging

scienter, the court committed constitutional error. Fail-

ure to submit to a jury the essential ingredients of the

only offense on which a conviction can rest deprives

an accused of the right to a jury trial and to the

guarantees of due process. Screws v. United States, 325

U.S.91, 107. Petitioner contends that the proof in an

obscenity prosecution, in order to establish culpability,

must show that the accused knew the contents of the

material he was disseminating and was in some matmer

aware that the material exceeded contemporary stand-

ards in the depiction or representation of sex, appealed

to a prurient interest, and was utterly without any

social value or importance.

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In addition, petitioner urged below and urges here

that the record is barren of any competent evidence to

establish beyond a reasonable doubt that the petitioner

here either knew the contents of the film or the alleged

obscene nature and character of the film. See, Vachon

v. New Hampshire, 94 S.Ct.664; In re Winship, 397

U.S.358.

8. The state statute, as construed and applied to

the motion picture film here involved, violates the free

speech and press and due process provisions of the

First and Fourteenth Amendments. In the constitu-

tional sense, the film is not obscene. The alleged of-

fense of exhibiting this film occurred in 1971. Compa-

rable material was subsequently held to be constitution-

ally protected. Wiener v. California, 404 U.S.988;

Burgin v. South Carolina, 404 U.S.806.

Conclusion.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and ruling of the Appel-

late Department of the Superior Court of the State of

California 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.

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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.

People of the State of California, Plaintiff and Re-

spondent, vs. Samuel Blank, Defendant and Appellant.

Superior Court No. CR A 11693; Trial Court No.

402507.

On Appeal from the Municipal Court of the Los

Angeles Judicial District, County of Los Angeles, State

of California. Nathan Axel, Judge (311.2 PC).

Filed: Jan. 25, 1974.

This cause having been argued and resubmitted

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

Zack,

Acting Presiding Judge

Holmes,

Judge.

Marshall,

Judge.

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on

APPENDIX B.

Order Denying Rehearing.

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. Samuel Blank, Defendant and Appel-

lant. Superior Court No. CR A 11693; Municipal

Court of the Los Angeles Judicial District No. 402507.

Filed: Feb. 11, 1974.

ORDER DENYING REHEARING AND

DENYING CERTIFICATIGN

The petition of appellant for a rehearing after judg-

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

petition for certification of cause to the Court of Ap-

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

having been duly considered,

Said petition is hereby denied.

Dated Feb. 11, 1974.

BY THE COURT

Zack,

Acting Presiding Judge

Holmes,

Judge

Marshall,

Judge

EINE IE ELT LE PENN SS OMT TENE EET EOS I OE DATS

APPENDIX C.

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. The pertinent provisions of California Penal

Code §311 are as follows:

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 pru-

rient interest, i.e., shameful or morbid interest in nudi-

ty, sex or excretion; and is matter which taken as a

whole goes substantially beyond customary limits of

candor in description or representation of such mat-

ters; 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 ex-

hibition, 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 in-

tended recipient group.

(2) In prosecutions under this chapter, where cir-

cumstances of production, presentation, sale, dissemina-

ass Seay SOMES ONAN NPR AGN TTGEPEIE AL PIE ERR EAM NOL MEY TE ANE IL CEPTS RL Be OT RN I RATTLE MTA ON TEE RG KENTON ON EM —

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tion, 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 re-

deeming social importance.

(b) “Matter” means any book, magazine, newspa-

per or other printed or written material, or any picture,

drawing, photograph, motion picture, or other pictorial

representation or any statue 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 charac-

ter of the matter.

(f) “Exhibit” means to show.

(Added by Stats.1961, c.2147, p.4427, §5. Amended-

by Stats. 1969, c.248, p.598, §1).

4. The pertinent provisions of California Penal

Code §311.2 are as follows:

(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 possesses,

prepares, publishes, or prints, with intent to distribute

or to exhibit to others, or who offers to distribute, dis-

tributes, or exhibits to others, any obscene matter is

guilty of a misdemeanor.

* * *

(Added by Stats.1961, ¢.2147, p.4475, §5).

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