Brief for Respondent — Kaplan v. California

Sepem Court, ©. $.

FILED

SEP 29 187?

IN THE

MICHAEL RODAK, JR_CLER

SUPREME COURT OF THE UNITED!

No. 71-1422

MURRAY KAPLAN,

Zz Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

| Respondent.

BRIEF FOR RESPONDENT

2?

ROGER ARNEBERGH

City Attorney

DAVID M. SCHACTER

Chief of the

Appellate Department

WARD GLEN McCONNELL

Deputy City Attorney

Room 500

205 South Broadway

* Los Angeles, Ca. 90012

(213) 485-5483

Attorneys for Respondent

IN THE*

SUPREME COURT OF THE UNITED STATES

October Term, 1971

+?

No. 71-1422

MURRAY KAPLAN,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

BRIEF FOR RESPONDENT

ROGER ARNEBERGH

City Attorney

DAVID M. SCHACTER

Chief of the

Appellate Department

WARD GLEN McCONNELL

Deputy City Attorney

Room 500

205 South Broadway

Los Angeles, Ca. 90012

(213) 485-5483

Attorneys for Respondent

I

II

III

TOPICAL INDEX

Table of Authorities

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT

SUMMARY OF ARGUMENT

CALIFORNIA PENAL CODE §§ 31l

AND 311.2, AS CONSTRUED AND

APPLIED TO AUTHORIZE THE JUDG-

MENT OF CONVICTION OF PETITIONER

HEREIN, FOR SELLING AN ADMITTEDLY

OBSCENE BOOK TO AN ADULT, DOES

NOT DEPRIVE PETITIONER OF..HIS

LIBERTY AND PROPERTY WITHOUT

DUE PROCESS OF LAW AND DOES NOT

ABRIDGE PETITIONER'S EXERCISE

OF FREEDOMS OF SPEECH AND PRESS

OBSCENE MATTER IS NO LESS

OBSCENE MERELY BECAUSE IT IS

SOLD TO AN ADULT INSTEAD OF A

CHILD, OR FORCED ON AN UNWILLING

ADULT, AND STATE REGULATION IS

PROPER AND NECESSARY

THE BOOK SUITE 69 IS OBSCENE

AND IS NOT PROTECTED BY THE

FREE SPEECH AND PRESS AND DUE

PROCESS PROVISIONS OF THE FIRST

AND FOURTEENTH AMENDMENTS

i

ll

20

25

28

38

EV CALIFORNIA PENAL CODE §§ 311

vI

AND 311.2, CONSTRUED AND

APPLIED TO ALLOW THE PROSE-

CUTION TO PROVE THAT MATTER IS

UTTERLY WITHOUT REDEEMING SOCIAL

IMPORTANCE BY PROVING THAT IT

WAS COMMERCIALLY EXPLOITED FOR

THE SAKE OF ITS PRURIENT APPEAL,

TO THE EXCLUSION OF ALL OTHER

VALUES, DOES NOT DEPRIVE PETI-

TIONER OF HIS LIABILITY AND

PROPERTY WITHOUT DUE PROCESS OF

LAW, AND DOES NOT ABRIDGE HIS

FREEDOM OF SPEECH AND PRESS 40

PETITIONER WAS NOT CONVICTED

OF "PANDERING", NO STATE

STATUTE WAS RETROACTIVELY

APPLIED TO INVOKE SUCH A CONCEPT,

AND NO SUCH CONCEPT WAS "INVOKED"

BY THE COURT BELOW. THE COURT

BELOW DID NOT NEGLECT OR REFUSE

TO FOLLOW BINDING PRECEDENT 44

CALIFORNIA PENAL CODE §§ 31l

AND 311.2, AS CONSTRUED AND

APPLIED, TO ALLOW THE OBSCENITY

OF A BOOK TO BE JUDGED ACCORDING

TO STATEWIDE CONTEMPORARY COM-

MUNITY STANDARDS, DO NOT DEPRIVE

PETITIONER OF HIS LIBERTY AND

PROPERTY WITHOUT DUE PROCESS OF

LAW, AND DO NOT ABRIDGE PETITIONER'S

EXERCISE OF FREEDOM'S. OF SPEECH

AND PRESS UNDER THE FIRST AND

FOURTEENTH AMENDMENTS 47

CONCLUSION “ : 50

ii |

: 2 TABLE OF AUTHORITIES

16 L.Ed.2d l,

86 S. Ct. 975

; Beazell Ve Ohio,

269 U.S. 167

71-1572

Byrne v. Karalexis,

401 U.S. 216

Childs v. Oregon,

401 U.S. 1006

Donald v. Jones,

— 445 F.2d 601

In re Giannini,

69 Cal.2d 563

390 U.S. 629

- Hoyt v. Minnesota,

399 U.S. 524

Jacobellis v. Ohio,

378 U.S. 184

Cases

ah Book v. Attorney General

(1966) 383 U.S. 413,

Bowling, et al. v. California,

petition for writ of

certiorari pending, United

States Supreme Court,

October term 1971, No.

Ginsberg v. New York,

iii

Page

18, 20, 24

41, 43-46

46

34

34, 42, 48

28

39

40, 47

‘Cases Page

Karalexis v. Byrne,

~ 306 F. Supp. noes: 33

Manual Enterprises Vv. Day,

370 ‘U. Ss. 478 eS 4)

“People \ v. Holden,

No. CR A 10754,

unrep. 1972 ‘ ry)

People v. Luros,

@-Cal.3d.84..-.:. 34

People v.- Newton, as -

9 Cal.App.3d SUPP: 24 42

‘People 'v. Noroff, ve

67 Cal.2d 791 45, 46

*People v. Rosakos, as

268 Cal.App.2d 497 45, 46

-Redrup v. New York, ‘

386 U.S. 767 45

» Roth v. United States, |

354 U.S. 476 22, 25, 29, 41

_ Stanley v. Georgia, es

394 U.S. 557 16, 21, 26-29,

31, 34

Thompson v. Missouri,

171 U.S. 380 ps, 46

United States v. Dellapia,

433 F.2d 1252 ; 32

iv

sort Cases Page

United States v. Pink,

Superintendent, etc.,

Foe 3250.8. 203 3 41

United States v. Reidel,

402 U.S. 351 265-27, 32, 33

United States v. Thirty-

Seven (37) Photographs,

402 U.S. 363 26; 215 2

United States v. Thirty-

Seven Photographs, etc.,

156 F. Supp. 350

ac... BF. 1957) 34

Codes

California Penal Code:

§311 4-7, 25, 28,

40, 47

§311 (a) (2) 10, 18, 20, 46

§311.2 4, 5, £9) 24,

25, 28, 40, 47

§1127 (b) 43

$1471 3

28 U.S.C. §1257(3) 3

o

Constitution : Page

United States Constitution:

First Amendment 4, 5, 6, 7, 25,

35, 38, 47

Fourteenth Amendment i 4, 5, 6, 7, 26,

35, 38, 47

Article I, Section 10 7

Rules ;

California Rules of ‘Court:

Rule 24 (a) ; 3

Rule 28(b) 3

Rule 62 . 3

Rule 63(a) and (3) 2, 19

Texts

Abelson, et al.,

Technical Reports of the

Commission on Obscenity

and Pornography, Volume 6 32

Miscellaneous

The Report of the Commission

on Obscenity and Pornography,

United States Government

Printing Office, September,

1970 .

29, 30

vi

Miscellaneous

Report of the Effects Panel,

Section B, "Public

Opinion About Sexual

Materials"

vii

30

ae IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

No. 71-1422

MURRAY KAPLAN,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

BRIEF FOR RESPONDENT

OPINIONS BELOW

The opinion of the Appellate Department

of the Superior Court of the State of Cali-

fornia for the County of Los Angeles is

reported in 23 Cal.App.3d Supp. 9, 100 Cal.

Rptr. 372, and is printed in Appendix "A"

to the Petition for Certiorari. Petitioner

has included in his Petition for Certiorari,

“at Appendix "B", the original opinion of

. os

said Appellate Department rendered on Octo-

ber 27, 1971, which was supérseded and

replaced by the above opinion published in

23 Cal.App.3d Supp. 9; said original opinion,

is, of course, unreported.

JURISDICTION

The judgment of the Appellate Depart-

ment of the Superior Court of the State of

California for the County of Los Angeles

(23 Cal.App.3d Supp. 9) was entered on

February 7, 1972.

The first opinion of said Appellate

Department was rendered on October 27, 1971,

and an order correcting it was made on

November 3, 1971. On November 10, 1971,

said Appellate Department ordered a rehear-

ing (Appendix "D", Petition for Certiorari)

on. Poettienss’ 8 motion.

“After rehearing, the Appellate Depart-

ment, on February 7, 1972, rendered its

opinion affirming the judgment of conviction,

_ at. the same time certifying the cause to

the California Court. of Appeal pursuant to

Rule 63 (a) and (3) of the California Rules

2.

of Court. The Court of Appeal denied said

certification on February 17, 1972.

“The effect of said denial was that the

Appellate Department of the Superior Court

of the State of California became the high-

est State court to which an appeal could be

taken. (California Penal Code §1471; Cali-

fornia Rules of Court, Rules 62, 24(a) and

28(b)).

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

Whether the law of obscenity has

changed, or should be changed, to

the extent that the states should

‘be denied the power to regulate

admittedly obscene matter unless it

is sold to a minor or thrust on an

unwilling public.

Whether the law of obscenity has

changed, or should be changed, to

the extent that nothing may be

considered to be obscene, or to

“exceed contemporary standards, or

—

Bs

outweigh evidence, no matter how

to appeal to prurient interest,

or to be utterly without redeeming

_ Social importance, unless it is

first sold to a juvenile or thrust

on an unwilling public.

Whether the book sold by Petitioner

‘is obscene.

“Whether California Penal Code §3]]

and §311.2, as construed and applied,

. deprive Petitioner of his liberty

and property without due process

of law and abridge his exercise of

freedoms of speech and press,

contrary to the provisions of the

--Pirst and Fourteenth Amendments,

inasmuch as they allow the prosecu-

tion to prove that Petitioner con-

mercially exploited the book for

the sake of its prurient appeal

to the exclusion-of all other

values, to prove that the book

was utterly without redeeming social

value; and whether such evidence is

sufficient, as a matter of law, to

slight, that the book has some

social value.

- §. Whether California Penal Code

~§§ 311 and 311.2, as construed and

applied, deprive Petitioner of his

-liberty and property without due

process of law and the equal pro-

tection of the laws and abridge his

exercise of freedoms of speech and

press, contrary to the provisions

of the First and Fourteenth Amend-

ments:

(a) Where the prosecution was

allowed, without announcing it

would do so in the accusatory

pleading, to prove that the

book sold by Petitioner was

utterly without redeeming social

importance by proving that

Petitioner commercially exploit-

ed the book for the sake of its

prurient appeal, to the exclu-

sion of all other values, and

where a state statute codifying

such method of proof became

effective prior to Petitioner's

trial, albeit after he sold the

book; and

(b) Where the California Supreme

5.

_ Court had ruled that a seller's

. Statement that matter was

obscene was insufficient to

establish the elements that it

went beyond) contemporary com-

munity standards and appealed

to prurient interest.

‘Whether California Penal Code §§ 31)

and 311.2, as construed and applied,

deprive Petitioner of his liberty

and property without due process of

law and abridge his exercise of

- freedoms of speech and press, con-

‘trary to the provisions of the First

and Fourteenth Amendments, because

the standard for judging the alleged

obscenity of the book Petitioner

Sold was based upon the community

’ gtandards of the State of California

and not the standards of the Nation

as a whole. |

6.

-—s. 6GONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

e 1. The pertinent provisions of the

First Amendment 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

ST Ser

The pertinent provisions of Article

I, Section 10, of the United States

Constitution are:

"No State shall... pass

any .. . ex post facto laws, ...

California Penal Code §31l, at the

time of the commission of the

alleged offense, provided as

follows:

o o"As used in this chapter:

“egy

“Obscene’ means that to the

_ average person, applying

contemporary Standards, the

predominant 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 sub-

stantially beyond customary

limits of candor in descrip-

tion or representation of

such matters and is matter

which is utterly without

(b)

redeeming social importance.

-‘‘Matter' means any book,

magazine, newspaper, or

other printed or written

material or any picture,

drawing, photograph » Motion

picture, or other pictorial

representation or any

statute or other figure, or

- any recording, transcription

or mechanical, chemical or

electrical reproduction or

any other articles, equip-

ment, machines or materials.

(c) 'Person' means any indivi-

dual, partnership, firm,

association, corporation,

or other legal entity.

(ad) ‘Distribute’ means to trans-

fer possession of, whether

with or without considera-

tion.

(e) 'Knowingly' means having

knowledge that the matter

is obscene. (Added Stats.

1961, c.2147, p. 4427

§5)."

The pertinent provisions of Califor~-

nia Penal Code §311.2, at the time

of the commission of the alleged

. offense, provided as follows:

"(a) Every person who knowingly:

sends or causes to be sent,

oer brings or causes to be

9.

* brought into this state fo,

sale or distribution, or

in this state prepares, pub-

lishes, prints, exhibits,

distributes, or offers to

distribute, or has in his

possession with intent to

2 distribute or to exhibit

or offer to distribute,

any obscene matter is

guilty of a misdemeanor."

California Penal Code §311(a) (2),

which became effective after the

commission of the alleged offense,

but prior to Petitioner's trial,

provides as follows:

"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

. Fespect to the nature of the

10.

she matter and can justify the

pee conclusion that the matter is

utterly without redeeming social

importance."

STATEMENT

On May 14, 1969, Sergeant Shaidell of

the Los Angeles Police Department went to

the Peek-A-Boo Bookstore in the City of

Los Angeles to investigate citizen com-

plaints that obscene matter was being sold

there (A. 38, 43-44). He had been a vice

investigator for approximately eight years,

six of them exclusively devoted to porno-

graphy investigations (A. 37).

Before entering the store, Shaidell

ascertained that Petitioner was the owner

(A. 45) although he did not know that the

person working in the store when he entered

Was Petitioner (A. 49). Upon entering,

Shaidell observed that only sex-oriented

merchandise was displayed (artificial sex

devices such as dildos, paperback books,

Magazines and motion picture films); news

and general interest type magazines were

hot for sale (A. 38).

ll.

Shaidell perused several of the books

and magazines, whereupon Petitioner adviseg

Shaidell that the Peek-A-Boo was not a

library (A. 39). The two then conversed,

Shaidell asking if Petitioner had any

"good sexy books" (A. 54). Petitioner

replied, "All of our books are sexy. Look

at this [opening a magazine]. You can see

right inside her cunt. Some of these only

have the female alone and some of them have

ones with the - with a guy and a gal, and

they're screwing around (A.54)." After

more such conversation, Shaidell asked

Petitioner if he had any "real good" paper-

back books. Petitioner said, "Hey, I'm

reading one right now, and its called

Suite 69." (A. 55) Petitioner then read

a passage to shasaeli ; as follows:

"*"Suck it, darling, oh, fuck my

pussy with your tongue, sweetie,'

Gloria grunted, beginning to squirm

her naked buttocks on the sheet as

Maria' s fiery tongue inside her

fervid cunt almost drove the young

_ Negress into hysterics." (A. 57)

Shaidell and Petitioner then proceeded to

the cash register, Petitioner explained to

‘$haidell the degree of explicitness and

prices of his films, and the purchase of

the book Suite 69 and a magazine was con-~

summated (A. 55).

~ On May 15, 1969, Sergeant Piazza pur-

chased a sex-oriented motion picture from

Petitioner. Thereafter the book and maga-

zine purchased by Shaidell, and the film

purchased by Piazza were submitted to the

City Attorney for the City of Los Angeles,

who filed a three-count complaint, on

June 3, 1969 (A. 7), alleging violations of

Penal Code §311.2.

Petitioner's trial commenced in the Los

Angeles Municipal Court on January 12, 1971.

Sergeants Shaidell and Piazza testified as

stated above. Hubert Blackwell then testi-

fied on behalf of the prosecution. Black-

well had been a police office for the City

of Los Angeles for nearly eight years, and

&@ vice investigator for 16 months. Based

On his elicited experience, his formal and

practical training and education, and his

research, the court allowed Blackwell to

testify as an expert on the question of

‘prurient appeal and contemporary standards

(A. 121-125) of the book Suite 69 (A. 126).

A BE

Part of Blackwell's research consisteg

of a-survey taken by him and two other

officers of the Los Angeles Police Depart-

ment, wherein 20 cities and 19 counties

were polled to determine, as objectively

as possible, what were the contemporary

community standards for the State of Cali-

fornia (A. 87-89, 92-98), Blackwell's

testimony established that the book Suite

69 met the test for obscenity, i.e.,

prurient appeal and contemporary community

standards (A. 128, 131). The prosecution

then rested, having presented no direct

evidence that Suite 69 was utterly without

redeeming social importance. The jurors,

in addition to hearing the book read to

them, also inspected the book, and their

attention was directed to the advertise-

ments in the back of the book (A. 82).

The only witness called by Petitioner

was Frank Laven, an attorney in Los Angeles

* who specializes in defending persons

charged with violating obscenity laws (A.

258, 305-307). He opined that the book

Suite 69 does not go beyond customary

limits of candor in the State of California

(A. 293) and does not appeal to a prurient

14.

_ interest (A. 302). He also testified that

in his opinion all of the charged matter

had social importance in that some people

could learn about sex from them or be enter-

tained by them (A. 304).

On the question of customary limits of

candor and community standards, Laven felt

that, pictorially, with the exception of

some sex acts without text or description

and sometimes excretion, nothing would go

‘beyond contemporary standards (A. 308).

Editorially, nothing would exceed contem-

porary community standards (A. 309). In

Laven's opinion, there was probably nothing

that would appeal to the prurient interest

of the average person (A. 310, 314), and

he had never seen any matter which in his

opinion would appeal to the prurient inter-

est of the average person (A. 311-314).

According to Laven, bestiality graphically

depicted would neither appeal to the pru-

tient interest of the average person in the

. State of California, nor would it go beyond

contemporary community standards (A. 315).

The same is true of sadism (A. 316), incest

(A. 317), and sodomy (A. 319).

=

Petitioner also introduced into evidence,

and had; read to the jury, a book entitled

Adam and Eve (A. 340), which had been held

to be constitutionally protected by the

Supreme Court. Said book was presented as

"comparable" matter for the jury to consider

in deciding the obscenity of Suite 69 (A,

340). : | |

Prior to the trial, Petitioner moved to

dismiss the complaint on the basis that

sale of matter to am adult, whether obscene

or not, is protected by virtue of Stanley

v. Georgia, 394 US. 557. In connection

with said motion, the prosecution stated

that the case involved sales to adult

police officers (A. 14). Respondent would

dispute Petitioner's contention that the

record supports his many statements in his

brief, that any stipulation was entered

into, or that Petitioner never sold to

minors or thrust his wares on an unwilling

public. Petitioner: also moved to dismiss

Count 3, involving the sale of Suite 69,

on the grounds that it was constitutionally

protected as a matter of law. Both motions

were denied..

16.

ae és

Following deliberation, the jury

acquitted Petitioner as to the sale of the

film and the magazine, but found him ee

as to the sale of Suite 69.

Petitioner prosecuted an appeal to the

Appellate Department of the Superior Court

of the State of California for the County

of Los Angeles, presenting, inter alia, the

following contentions:

(1) Suite 69 is not obscene;

(2) The prosecution should have been

(3)

(4)

required to prove, by direct

evidence, as an element of the

crime, that Suite 69 is utterly

without redeeming social importance;

Community standards of the nation,

rather than the state, should have

been applied; and,

The prosecution should have been

required to prove that Suite 69

appealed to the prurient interest

of its actual or intended audience,

or went substantially beyond con-

temporary limits of candor measured

by community standards in the

nation as a whole.

On October 27, 1971, the Appellate

Department of the Superior Court of the

State of California for the County of Los

Angeles filed a memorandum opinion and judy-

ment affirming the conviction (Appendix B,

Petition for Certiorari). In answering

Petitioner's second contention regarding

testimony as to social value, the court

relied on A Book v. Attorney General (1966)

383 U.S. 413, and also pointed out that

that case was the basis for recent Califor-

nia legislation (California Penal Code

§311(a) (2)).

Petitioner then filed a Petition for

Rehearing and/or Certification to the

California Court of Appeal, pointing out

that Penal Code §311(a) (2) did not become

effective until November 10, 1969, while

the complaint alleged that the violation

occurred on May 14, 1969 (Petitioner's

trial commenced on January 12, 1971).

The Petition for Rehearing was granted

on November 10, 1971. On February 7, 1972,

the Appellate Department filed its second

opinion and judgment, again affirming the

conviction; at the same time it certified

the cause to the California Court of Appeal

18. -

(1)

(2)

(3)

(4)

pursuant to Rule 63(a) and (3) of the Cali-

fornia Rules of Court. In so doing, the

Appellate Department certified the following

questions:

Is the proper community standard

in an obscenity prosecution for

sale of a book that of the State

of California or a national stand-

ard?;

Is it proper to place the burden

of going forward with evidence as

to the redeeming social value of |

matter which meets the tests of

appeal to prurient interest and

exceeding customary standards on

the defendant? ;

If the answer to the previous ques-

tion is in the affirmative, what

is the burden of the People in

meeting defendant's evidence of

redeeming social value?;

In California may evidence of the

‘circumstances of production, pre-

sentation, sale, dissemination,

distribution or publicly constitute

sufficient evidence of lack of

19.

. redeeming social value either under

the case of A Book v. Attorney

General (Memoirs) (1966) 383 U.s,

413, 420, 16 L.Ed.2d 1, 6, 86 S. ¢t,

975 or under Penal Code §311(a) (2)?;

and,

(5) May Penal Code §311(a) (2) be applied

in a prosecution for sale or dis-

tribution of obscene matter where

the sale or distribution occurred

before the effective date of such

- provision?

On February 17, 1972, the Court of

Appeal of the State of California, Second

Appellate District, Division Three, made

its order denying transfer of the cause

without comment.

SUMMARY OF ARGUMENT

1. Petitioner was convicted of violat-

ing a valid statute which was properly

applied. He sold an admittedly obscene

book to a police officer who did not state

why he wanted to buy it. The officer went

to the store because of complaints from the

20.

:

public, and the record is otherwise barren

of any evidence (including any prosecution

stipulation) that Petitioner neither thrust

his wares on an unwilling public nor sold

them to minors. Stanley v. Georgia, 394

U.S. 557, expressly held that the dissemin-

ation of obscene matter was still beyond

constitutional protection. Adoption of

Petitioner's contention would require that

the court overrule practically every prior

obscenity decision. Any system allowing

“appropriately controlled" bookstores

raises even more grave constitutional ques-

tions than now exist; it is eminently

unworkable and has been so proven.

2. The record in the case strongly

supports the jury's finding that Suite 69

is "patently offensive".

Petitioner's contentions regarding

public opinion of the regulation of obscen-

ity are neither supported by his cited

authority nor the record. If this Court

were to adopt his theory it would mean that

regulation of pornography would be abandoned

to its purveyors, a system which even the

record in this case shows cannot be accom-

plished. If public attitudes towards

21.

pornography were as Petitioner describes,

' there would be no convictions. While it

-is true that public attitudes have changed

since the Roth decision, this Court has

consistently held that dissemination of

hard-core. pornography is beyond the protec-

tion of the constitution. A system such as

proposed by Petitioner, wherein matter is

“not classified as obscene until after the

effect it has had on the public is weighed,

is unworkable and raises grave constitu-

tional questions. The great. majority of

-Americans are still opposed to the dissen-

ination of pornography, and merely because

it has some value to some individuals does

not mean that it has redeeming social

importance. 3

A mere promise or statement of intent

by purveyor of pornography, that he will

not sell to minors, is not a "reasonable

protection against exposure to juveniles".

People in Petitioner's position have also

demonstrated that they cannot and will not

prevent such matter from being thrust on

an unwilling public.

3. Suite 69 is obscene, ‘measured by

any realistic standard, including those set

forth in the past by this Court. The ques-

tion of its obscenity has now been reviewed

and unanimously affirmed by two municipal

court judges, three judges of the Superior

Court Appellate Department, and a jury of

twelve of Petitioner's peers. In so doing,

they compared Suite 69 to a book (Adam and

Eve) which Petitioner claimed and stipulated

was most comparable to Suite 69, which book

was held not obscene by this Court. The

jury implicitly found that Suite 69 was not

comparable, and was, in fact, obscene. Peti-

tioner has shown nothing to indicate other-

wise.

4. The term "utterly without redeeming

social importance" practically defies defin-

ition, and should be rewarded or defined so

_ as to provide a workable standard. The

Court should declare that it should be con-

sidered an affirmative defense, and the

defense should be required to prove it at

least sufficient to raise a reasonable

doubt. The California courts place only

the most minimal burden on a defendant,

that he merely identify in what area he

feels the matter has social value. To do

otherwise would require the prosecution to

‘prove a negative out of a void, while all

~ 23.

the time a’ defendant, who would maintain

the matter is a protected form of expression,

need not identify in what area of human

endeavor it lies. In this case, a proper

and valid standard of evidence, as expounded

in A_Book v. Attorney General, 383 U.S. 413,

Was applied to support the jury's finding

that Suite 69 was utterly without redeeming

social importance. The test stated inA

Book is a good test in that it protects all

legitimate and sincere attempts at creati-

vity, no matter how poorly executed.

5. Petitioner was not convicted of

"pandering". His statements were such that

they legally amounted to admissions, and

could be used against him in following the

test set forth by this Court in A Book v.

Attorney General, enacted into law prior to

Petitioner's trial, merely stated a rule of

evidence which had existed in the entire

nation since 1966. It created no new crime

such as "pandering", and the state of the

law has remained the same from long before

Petitioner committed the violation until

the present.

6. Use of a statewide, rather than

nationwide, standard of ‘contemporary com-

munity standards was proper. California .

24.

standards would favor a defendant in a por-

nography case. California now requires

expert testimony, based on objective meth-

‘edology, to prove what are the standards;

‘to require proof of national standards

would result either in impossibility of

proof or relaxation of such a strict burden,

‘to Petitioner's detriment.

I

_. CALIFORNIA PENAL:CODE §§ 311 and

311.2, AS CONSTRUED AND APPLIED TO

- AUTHORIZE THE JUDGMENT OF CONVIC-

TION OF PETITIONER HEREIN, FOR

SELLING AN ADMITTEDLY OBSCENE BOOK

TO AN ADULT, DOES NOT DEPRIVE

PETITIONER OF HIS LIBERTY AND

PROPERTY WITHOUT DUE PROCESS OF

LAW AND DOES NOT ABRIDGE PETITION-

ER'S EXERCISE OF FREEDOMS OF SPEECH

AND PRESS

Petitioner contends, while admitting

that the book Suite 69 is obscene, that

the court should overrule Roth v. United

States, 354 U.S. 476, and hold that the

sale of admitted hard-core pornography to

@ “consenting adult" should be protected

under the free speech and press and due

process provisions of the First and

i rh

Fourteenth Amendments to the United States

Constitution.

The basis of Petitioner's argument is

founded in Stanley Vv. Georgia, - ‘394 U.s, 557,

and has been answered by this Court not

only in Stanley (at 394 U.s. 567), but in

United States v. Reidel, 402 U.S. 351: ang

United States v. Thirty-Seven (37) Photo-

graphs, 402 U.S. 363.

Perhaps Petitioner seeks to change the

court's collective mind, or Sway individual

opinions, by asserting that a different set

of facts exists, by asserting that the

respondent | "stipulated" that Petitioner

"neither sold the material in his bookstore

to minors nor thrust it upon the general

public". Such allegation is totally unsup-

ported by the record. Petitioner has

referred to the Appendix, page 14, in sup-

port of this alleged "stipulation". The

record clearly shows that the prosecutor,

in an in-chambers discussion of Petitoner's

pretrial motion to dismiss, stated that his

case involved sales to a police officer.

Neither the record nor respondent has in-

formation as to whether or not Petitioner

sold also to ‘minors, or thrust his

_ merchandise on an unwilling public, other

than citizen complaints (A. 38, 41-44).

The substantial factual difference

between this case and those in United

States v. Thirty-Seven Photographs is that

‘here there is an even greater danger of

the very risks Petitioner conceded, that

the matter may come within the possession

of children or be thrust on an unwilling

public.

The right of any citizen to be free

from Government thought control may be

absolute, but it does not protect others

who stimulate his thoughts with conduct.

As the court stated in United States v.

Thirty-Seven Photographs, 402 U.S. 363, 376,

rejecting the same argument, "Whatever

the scope of the right to receive obscenity

adumbrated in Stanley, that right, as we

said in Reidel [United States v. Reidel,

402 U.S. 351], does not extend to one who

is seeking, as was Luros here, to distri-

bute obscene materials to the public ...."

Petitioner misses the point of Reidel

and Thirty-Seven Photographs in saying that

the single incident of a sale to a police

27.

officer comes within the purview of Stanley,

The purchase by the: police officer is

nothing more than an investigatory method

designed to demonstrate conditions which

this Court has again and again stated may

be regulated. ‘No one knows but what Peti-

tioner' s next ‘customer was a child, or if

he sometimes. .peddles his pornography door-

to-door.

California Penal Code §§ 311 and 311.2

are not so broad that they unreasonably

restrict a person' s rights to think and

read what he pleases, and they in no way

invade any recognized rights of privacy,

it

‘OBSCENE MATTER IS NO LESS OBSCENE

- MERELY BECAUSE IT IS SOLD TO AN

ADULT INSTEAD OF A CHILD, OR FORCED

ON AN UNWILLING ADULT, AND STATE

REGULATION IS PROPER AND NECESSARY

Merely because a state may bar distribu-

tion to children of books deemed suitable

for adults (Ginsberg v. New York, 390 U.S.

629) does not mean, as Petitioner contends,

that the state may not reasonably restrict

28.

the sale of obscene matter by virtue of the

fact that the sales are not to children.

- his Court has made clear, in its deci-

sions since Stanley v. Georgia, that there

“was no "new chapter" in the sage of obscen-

ity. Under our Constitution no case can

ever be the final chapter, but the clear

public interest in and desire for a decent

society mandate that a chapter be written

which will recognize pornography for the

pollution that it is.

While arguing that Roth v. United

States, 354 U.S. 476, is still good law

containing a good test of obscenity, Peti-

tioner also argues that Roth must now die

of some sort of attrition because contem-

porary community standards have changed

to the extent that absolutely any kind of

matter is acceptable to the American public.

In making such a fantastic claim for

the degeneration of American morals, Peti-

tioner relies on oversimplifying the

findings and results of a poll taken by the

Commission on Obscenity and Pornography,

published in The Report of the Commission

On Obscenity and Pornography, United States

29.

.- Gevernment: Printing Office, September 1979,

He ‘draws a debatable conclusion from said

poll while ignoring other evidence in the

Report. to the contrary, as well as other

: existing polls ‘and evidence. For instance,

a poll of community standards taken in

California indicated that 99% of that com-

munity felt that film depiction of simulated

sex acts went beyond community standards

and appealed to a prurient interest (A.

134).

~ He fails to acknowledge many other

public opinion surveys on the question of

obscenity, such as the Gallup and Harris

polls, , Which contradict the Commission poll

(Report of the Effects Panel, Section B,

"Public Opinion About Sexual Materials").

Petitioner looks to the Commission's

conclusions about its poll to support his

conclusions about public opinion, yet the

‘Commission's poll is inconclusive and does

not say what Petitioner says it says.

While "almost 60%" (actually 59%)

believed that adults should be allowed to

read or see any explicit materials they

want to, this indicates nothing more than

30.

a concurrence with the philosophy of Stanley

yw. Georgia. It is not an indication of

public opinion as to customary limits of

candor according to contemporary community

standards. Nearly half of the "almost 60%”

favored Governmental regulation of dissem-

ination of pornography because of a concern

for children and young people. Only 52%

had no objection ("it would be ‘all right'")

to make such material available to adults

on some private basis. Only 53% felt it

was “all right" for adults to have access

to textual material which merely contains

a description of male and female sex organs,

and only 29% felt it was "all right" to

admit adults to movies which might or might

not be hard-core pornography. The statis-

tics of the Commission hardly indicate an

“anything goes" consensus of American

Public opinion, nor are they any indication

of contemporary community standards. In

fact, according to research done for the

Commission by its poli-takers, by far the

most prevalent reaction to sexual materials

was that of disgust; reaction to sexual

Materials would seem a more accurate

indicator of contemporary community

31.

standards regarding such matter (Abelson,

et al., Technical Reports of the Commission

on Obscenity and Pornography, Volume 6).

Respondent submits that Petitioner's

theory based on the empirical evidence

gathered by the Commission, is incorrect.

Petitioner also seems to feel that the

trend of judicial thought in this country

is to a theory that the obscenity of a

particular item must be judged according

to the prurient appeal it would have for

its intended recipient. In so arguing, he

indulges in some misrepresentation. When

Justice Harlan spoke of explicit sexual

material as "memorabilia of a man's

thoughts and dreams", he did so in an

opinion flatly rejecting petitioner's argu-

ment (United States v. Reidel, 402 U.S.

351). The court in United States v. Della-

pia, 433 F.2d 1252, goes on to say, in the

paragraph following the one quoted by

Petitioner:

"It may be that one who would

Claim first amendment protection

of his privacy could, as under the

fourth amendment, 'break the seal

32.

. ef sanctity and waive his right to

privacy.' Lewis v. United States,

' 385 U.S. 206, 213, 87 S.Ct. 424,

428, 17 L.Ed. 2a 312 (1966) (Brennan,

J., concurring), by for example

engaging in a commercial enterprise.

Public display of obscenity even

to consenting adults, or private

possession with an intent to distri-

bute publicly, present cases which

are not before us. Booksellers will

not as a result of our decision

today be free to maintain ‘emporium([s]

for smut'."

ae Karalexis v. Byrne, 306 F. Supp. 1363,

in addition to the fact that it was vacated

by this Court (Byrne v. Karalexis, 401 U.S.

216), somewhat preceeded United States v.

Reidel, 402 U.S. 351, and United States v.

Thirty-Seven Photographs, 402 U.S. 363.

This Court did not even see fit to discuss

the "consenting adult" theory, perhaps

because it did so a few months later.

Moreover, Karalexis v. Byrne was a divided

opinion. |

33.

. United States-v. Thirty-Seven Photo-

graphs, etc., 156 F. Supp. 350 (D.c. N.y,

1957), was. an opinion of a single trial

judge in a truly unique factual situation,

and, since it is fifteen years old, can

hardly be said to represent a trend.

Contrary to Petitioner's contention,

the California decisions most definitely

not been moving towards Petitioner's

theory. It was rejected by the California

“Supreme Court in People v. Luros, 4 Cal.3d

84, 90. The court called the argument

"ingeniously concatenated" and stated such

an analysis of Stanley v. Georgia to be

incorrect and without merit. In re Gian-

nini, 69 Cal.2d 563, merely stands for the

proposition that a topless dance is a

theatrical performance that must be prose-

cuted on an obscenity theory even though

the charged violation is lewd conduct or

indecent exposure. The trend in California

is seemingly slightly reversed at the

present time (see Bowling, et al. v. Cali-

fornia, petition for writ of certiorari

pending, United States Supreme Court, Octo-

ber term, 1971, No. 71-1572).

34.

. If one turns to Glancy v. County of

sacramento as cited, in the official Cali-

fornia Appellate Reports, one will find only

a blank page. The only supposition that can

reasonably be made from the granting of a

hearing by the California Supreme Court,

over a year ago, is that it apparently

disagrees with the theory.

Petitioner's theory - that the sellér

of hard-core pornography ought to be pro-

tected by the First and Fourteenth Amend-

ments to the Constutiton, when matter is

sold from an "appropriately controlled"

bookstore to a "consenting adult", with

-"reasonable protections" against exposure

to juveniles and being thrust on an unwill-

ing public - is unrealistic, unworkable,

and fraught with its own constitutional

dangers.

Any Governmental attempt to control

Petitioner's activities through a licensing

system, such as exists with alcoholic bever-

ages, would raise serious questions about

prior restraints.

Petitioner's concept of an “appropri-

ately controlled" bookstore with "reasonable

35.

safeguards” is simply his hollow and plati-

tudinous way of saying he should be left

free and unfettered in his pursuit of the

peddling of: pornography, and he will "pro-

mise" not to sell to persons he knows to be

juveniles, or mail his material to persons

who have not requested it. If either of

these things should unfortunately occur,

Petitioner would presumably apologize

gracefully. | ;

‘Petitioner's plan would not work. The

Report of the President's Commission shows

that under present laws juveniles still

come into possession of pornography. Legal-

izing distribution to adults would certain-

‘ly cause an increase in juvenile possession

through redistribution. Respondent does

not.say that Petitioner should then be

prosecuted, but only that allowing free

and easy distribution to adults would of .

necessity result in less protection from

exposure to juveniles. os

-It is also a fallacy to say that Peti-

-tioner would not "thrust pornography on an

unwilling public". The police investigated

Petitioner because they had received com-

plaints from citizens (A. 38, 43-44).

There were approximately 250 "adult book-

stores" in the City of Los Angeles in

September 1970 (A. 58); by legalizing them

a public display (probably due to increased

competition) would be certain to occur, as

it did in Denmark. The public, willing or

not, would have to add it to the list of

the other pollutants with which it is

forced to live. If an unwilling citizen

now receives unsolicited pornography in

the mail, he must take affirmative action

to prevent a future occurrence.

The average citizen wonders why this

is so; he wonders why it is so that sexually

explicit matter, displayed in a manner

calculated to appeal to prurient interest,

is presently sold from newspaper vending

Machines up and down the sidewalks of his

city; he wonders if this is what the Con-

stitution means by freedom of speech.

Respondent questions Petitioner's

Sincerity in claiming he should be trusted

not to sell to minors and not to intrude

on the public. His brief is not exactly a

paragon of forthrightness; he has indulged

in flights of fancy with a practically non-

existent "stipulation"; he has cited cases

37.

for propositions opposite their holdings;

he has cited cases where more recent con-

trolling cases refuting his proposition go

uncited; he has cited reversed and vacated

cases, by omission of a word or a paragraph

in a quoted opinion he has made misleading

statements of holdings. These things may

well be accidental, but Petitioner is

playing with a loaded gun; carelessness by

him in self-regulation would be just as bad

as deliberateness.

Iit

THE BOOK SUITE 69 IS OBSCENE AND IS

‘NOT PROTECTED BY THE FREE SPEECH

AND PRESS AND DUE PROCESS PROVI-

SIONS OF THE FIRST AND FOURTEENTH

- AMENDMENTS

Whether or not Suite 69 is obscene is

something this Court must determine by

independent review. Respondent respectfully

submits that an independent review will

result in a finding of obscenity. Suite

69 is a compilation of sexual adventures

and perversions luridly dealt with in a

shocking, morbid and shameful manner. It

38.

a

gonsists of some 180 pages of unrelated

erotic scenes. There is no theme, plot or

character development, only graphically

- @epicted and emphatically described sex acts,

which include repeated acts of masturbation,

oral copulation, voyeurism, lesbianism,

homosexuality, sadism and sodomy. Sex

omitted, the book would consist of 180

blank pages.

The essence of Petitioner's argument is

that no book can ever be obscene, and the

only authority for the argument is a list

of other books held not obscene by this

Court. Petitioner presented one of said

books (Adam and Eve, Hoyt v. Minnesota,

399 U.S. 524) to the jury, and the jury

was instructed to compare said book with

Suite 69. The jury was instructed that

said book was not obscene, ‘and that such

fact must be considered by them in deter-

mining obscenity (A. 445-446).

Two other counts involved a pictorial

Magazine and a motion picture, and other

"comparables" were introduced by Petitioner

for the same purpose. After considering

Petitioner's comparable exhibits and com-

paring them with the charged film,magazine

39.

and Suite 69, the jury acquitted Petitioner

as to the film and magazine. No jury could

have: had the benefit of more information

and analysis. While this Court's power to

review is an independent one, how far can

one in good conscience go; how lightly can

the jury's verdict be regarded, in keeping

faith with the jury system? (See dissent

of Warren, C.J., Jacobellis v. Ohio, 378

U.S. 184, at 202-203.)

IV

CALIFORNIA PENAL CODE §§ 311 AND

311.2, CONSTRUED AND APPLIED TO

ALLOW THE PROSECUTION TO PROVE

THAT MATTER IS UTTERLY WITHOUT

REDEEMING SOCIAL IMPORTANCE BY

PROVING THAT IT WAS COMMERCIALLY

EXPLOITED FOR THE SAKE OF ITS PRU-

RIENT APPEAL, TO THE EXCLUSION OF

\ALL OTHER VALUES, DOES NOT DEPRIVE

PETITIONER OF HIS LIABILITY AND

PROPERTY WITHOUT DUE PROCESS OF LAW,

AND DOES NOT ABRIDGE HIS FREEDOM

OF SPEECH AND PRESS

2 ‘The first hurdle for Petitioner is to

show thst the test of "utterly without

redeeming social importance" is an element

-

40.

of obscenity which must be proven by the

prosecution to establish a prima facie

case. Social importance was not clearly

articulated as a test for obscenity until

A Book v. Attorney General, 383 U.S. 413;

three justices used the words: "three

elements must coalesce: ‘It must be estab-

lished . . . (c) the material must be

utterly without redeeming social value.'"

(383 U.S. at 418, emphasis added.) :

Since only three justices concurred in

this statement, no authoritative precedent

was established (United States v. Pink,

Superintendent, etc., 315 U.S. 203). The

statement is generally accepted in some

form and with some effect because of its

underdying philosophy. But does a majority

of the court feel it is elemental, or

definitional, as in Roth v. United States,

354 U.S. 476 and Manual Enterprises v. Day,

370 U.S. 478?

Respondent believes that the test should

be considered an affirmative defense,

requiring proof by a Petitioner sufficient

to raise a reasonable doubt that the matter

contains something of social value suffi-

cient to redeem it. The Appellate

41.

Department of .the Superior Court .of the

State of California for the County of Los

Angeles has decided that a defendant has

the burden only of going forward with some

evidence of social value, upon which the

prosecution is required to prove the matter

is utterly without redeeming social impor-

tance. The court said: "The reason for

this rule is that when prurient interest

is predominant and the customary limits of

candor are exceeded it is difficult to

‘conceive wherein social value might be.

Rather than require the People to start in

this void the defendant must make the start

by producing some evidence of social value.

Only then do the People know in what area

they have to proceed" (People v. Holden,

Appellate Department, Superior Court of

Los Angeles County, State of California,

No. CR A 10754, unrep. 1972). In 1970, the

same court stated that the prosecution

should not be required to “start in a void

and prove a negative" (People v. Newton, 9

Cal.App.3d Supp. 24). It also noted that

the California Supreme Court apparently

agreed, in In re Giannini (1968) 69 Cal.2d

563, (9 Cal.App.3d Supp. at 28).

42.

_ The second question is whether Peti-

tioner's evidence contained any proof of

redeeming social importance. Petitioner

walled a defense attorney, specializing in

defending obscenity cases, who opined that

the film, magazine, and Suite 69 all had

social importance in that, to some people

they in some instances "educate persons

as to sex"; also, some persons might be

entertained (A. 304).

This testimony, Petitioner claims,

establishes that all of the material had

redeeming social importance. Nothing could

more clearly and patently violate what

this Court has intended in its statements

regarding social value. California juries

have the right to disregard expert opinion

if they find it to be unreasonable (Cali-

fornia Penal Code §1127[b]), and the jurors.

in this case were amply justified in

rejecting it.

The jury's determination that Suite 69

is utterly without redeeming social impor-

tance also finds support in this Court's

Own statement in A Book v. Attorney General,

383 U.S. 413, 420, wherein it was said that

a book which is patently offensive, which

43.

has the requisite prurient appeal, and

which contains a minimum of social value,

may still be utterly without redeeming

‘Social importance where. the evidence shows

it was commercially exploited for the sake

of its prurient appeal. This is exactly

what Petitioner did, and he should not be

heard to complain because his evaluation

was accepted by the jury.

Vv

PETITIONER WAS NOT CONVICTED OF

"PANDERING", NO STATE STATUTE WAS

RETROACTIVELY APPLIED TO INVOKE

- SUCH A CONCEPT, AND NO SUCH CON-

CEPT WAS "INVOKED" BY THE COURT

BELOW. THE COURT BELOW DID NOT

NEGLECT OR REFUSE TO FOLLOW BIND-

ING PRECEDENT

The opinion of the Appellate Department

makes clear that Petitioner was not con-

victed of "pandering". Neither was a

"concept" of pandering "devised". Rather,

the court below carefully followed the law

as set forth by the United States Supreme

Court in A Book v. Attorney General, 383

U.S. 413, 420, in determining the

44,

sufficiency of the evidence. The court

‘did not say that Petitioner's discussion

of Suite 69 constituted pandering, it

merely held that the jury was justified in

accepting Petitioner's statements at face

value on the issue of social value.

Childs v. Oregon, 401 U.S. 1006, is not

applicable here, condi because it is per

curiam citing Redrup v. New York, 386 U.S.

167, but also because the evidence is not

“virtually identical". In Childs, the

Petitioner merely referred the officer to

“a group of books containing the "worst

ones"; here, Petitioner recommended a

specific book and read aloud to the officer

from it. Under such circumstances, the law

of A Book v. Attorney General was properly

applied to support the jury's finding that

Suite 69 was utterly without redeeming

social importance.

- In People v. Noroff, 67 Cal.2d 791, and

People v. Rosakos, 268 Cal.App.2d 497, it

was held that the matter, upon independent

‘Teview, did not meet the Roth test for

Obscenity, and that the missing element of

prurient interest could not be supplied by

Pandering. The Appellate Department in

45.

this. case properly held Noroff and Rosakos

not applicable, in that the question pre-

sented here went to the manner of proof

rather than the lack of it.

Since the California legislation codi-

fying the rule of A Book v. Attorney Gen-

eral became effective November 10, 1969,

and Petitioner was charged with violating

the statute some six months earlier, he

“Glaims he is the victim of an ex post facto

law. Section 31ll(a) (2) does not create a

new crime, but merely codifies a rule of

evidence followed since A Book v. Attorney

General came down. Petitioner's argument

is without merit since no contrary Cali-

fornia law was changed by the enactment of

§311(a) (2).

Further, §311(a) (2) is merely a rule

of evidence which became effective fourteen

months before Petitioner's trial and thus

was not ex post. facto (Thompson v. Missouri,

171 U.S. 380; Beazell v. Ohio, 269 U.S. 167,

171; and Donald v. Jones, 445 F.2d 601,

604-605).

vr

CALIFORNIA PENAL CODE §§ 311 AND

311.2, AS CONSTRUED AND APPLIED,

TO ALLOW THE OBSCENITY OF A BOOK

TO BE JUDGED ACCORDING TO STATE-

WIDE CONTEMPORARY COMMUNITY STAND-

ARDS, DO NOT DEPRIVE PETITIONER OF

HIS LIBERTY AND PROPERTY WITHOUT

DUE PROCESS GF LAW, AND DO NOT

ABRIDGE PETITIONER'S EXERCISE OF

FREEDOM'S OF SPEECH AND PRESS UNDER

THE FIRST AND FOURTEENTH AMENDMENTS

Jacobellis v. Ohio, 378 U.S. 184, sup-

plied no guidance for state courts on the |

issue of a national versus state standard,

inasmuch as two justices felt a national

standard should apply, two favored a state

standard, four expressed no opinion, and

one seemingly leaned toward a state stand-

ard. Today only one justice expressing an

opinion remains on the court. Petitioner

would solve the problem by blind adherence

to narrow rules rather than approach the

question from a standpoint of developing a

test which would afford protection to

First Amendment rights and still be rational.

_ For instance, a rule could develop that

national standards should apply, but the

jury could determine what that standard

47.

is on the basis of their own information.

Such a rule would afford little protection

to. Petitioner.

+

Respondent views the question as one

of quantity versus quality. Thus, the

California Supreme Court. held, in In re

Giannini, 69 Cal.2d 563, that a statewide

standard was appropriate, but that it must

be established by expert testimony. This

has resulted in the contemporary community

standards of the State of California being

objectively determined by the taking of a

scientifically conducted statewide opinion

poll approximately every six months. Thus,

the quality of the evidence on this point

is high.

Imposition of a requirement that a

national standard be proved would make

such survey virtually impossible. Further-

more, it is more than likely that such

hypothetical national standard, if it could

be determined, would tend to be more strin-

gent and restrictive than California's

Standards.

Thus, while a national standard might

be better for Petitioner because it would

be more difficult to prove, the quality of

"evidence needed to prove such would of

necessity suffer. A national standard

might be determined by reference to mass

media, which undoubtedly is a strong factor

in both determining and reflecting contem-

porary community standards. Television,

major studio motion pictures, mass circula-

tion magazines and bestselling books could

be held to reflect national standards. In

this situation, anything more explicit than

the Playboy centerfold or The Sensuous

Woman would run the risk of being held

obscene. |

Clearly, the California method of proof,

involving such exacting quality, must be

held sufficient under the Constitution.

49.

CONCLUSION

For the foregoing reasons, the Judgment

herein should be affirmed. ‘

Respectfully submitted,

ROGER ARNEBERGH

City Attorney

DAVID M. SCHACTER

Chief of the

Appellate Department

WARD GLEN McCONNELL

Deputy City Attorney

Attorneys for Respondent

50.