Constitutional Law: The Meaning of Obscenity In California

California seems to be a place where the nation’s most progressive state court is forced to cool down the nation’s most combustible voters. In 1964, Californi ans overwhelmingly approved amendments to their state constitution that prohibited pay-TV and rejected the fair-housing law that forbade discrimination in the sale or rental of private homes. The California Supreme Court subsequently voided both amendments as unconstitutional. This election day, the voters face another explosive issue: Proposition 16, which is aimed at sharply amending the state’s anti-obscenity statute in order to “control the flood of filth which is engulfing California.”

Proposition 16 is the product of CLEAN Inc. (California League Enlisting Action Now), a Los Angeles-based lobby founded by San Diego’s conservative Republican State Assemblyman E. Richard Barnes, a retired Navy chaplain who argues that smut has brought about a U.S. “moral crisis.” The organization’s campaign director is William K. Shearer, a top tactician in putting across the now-voided housing initiative (Proposition 14). Says Shearer: “I always liked to think of myself as the most conservative man in San Diego County.”

Blatant Display. Shearer & Co. not only claim that U.S. smut peddlers now gross $2 billion a year, but they calculate that “about 60% of the lewd paperbacks and magazines circulating today in the U.S. are published by California firms,” three-quarters of whose products “fall into the hands of teenagers under 18.” In January, for example, Los Angeles Publisher Milton J. Luros (estimated annual sales: $6 million) and eight associates were convicted on 147 counts of violating anti-obscenity laws by deluging Iowa with six smutty paperbacks and 14 nudist magazines. Although 250 obscenity cases are now pending in California, even the state’s best bookstores still blatantly display “nudie” magazines, while others peddle prurient paperbacks, ranging from Carnal Code to Passion Puppet.

As CLEAN tells it, the villain is Section 311 of the California Penal Code, a 1961 response to the U.S. Supreme Court’s famous decision in Roth v. U.S. (1957), which held for the first time that the First Amendment does not protect obscenity because such expression is “utterly without redeeming social importance.” Did this mean that “social importance” might save challenged material? The court did not say. Although Roth established other criteria for judging whether alleged obscenity should be protected, social importance was not included. In writing Section 311, however, the California legislature did include that test, thus going beyond Roth and the law in other states. To prove obscenity in California, says Section 311, the prosecution must show that challenged material is “utterly without redeeming social importance.”

Endorsing a Test. In an effort to avoid censorship of legitimate literature, the California Supreme Court has endorsed the social-importance test as a necessary element in the prosecution of obscenity. In several recent cases, the U.S. Supreme Court has seemed to agree. CLEAN’s Proposition 16 would retain other Roth criteria but delete so cial importance entirely from Section 311’s obscenity test.

That move alone, says the “appalled” Northern California-Nevada Council of Churches, would permit the law to be used for banning even the Bible, not to mention much of the classics and 95% of current fiction. But Proposition 16 does not stop there. To “strengthen” Section 311, it would also:

> Order every law-enforcement officer to seize any material he deems obscene, without a search warrant or prior judicial determination of obscenity.

— Allow citizens to file civil suits requiring prosecutors to act “within a reasonable time”—on pain of dismissal—”whenever there is reason to believe” that Section 311 is being violated.

> Provide that “the jury is the exclusive judge of what the common conscience of the community is,” that all obscenity cases shall be tried by jury “unless both parties waive a jury,” and that “the court shall have no power to dismiss an obscenity proceeding if reasonable men could differ as to whether the material is obscene.” All of which seems to contradict the Supreme Court’s current doctrine that obscenity cases involve not only questions of fact for a jury but also constitutional issues that can be decided only by trial judges, appellate courts and the nation’s highest tribunal itself.

Cleans v. Dirties. Proposition 16 is flatly opposed by California’s Democratic Governor Edmund Brown, the California District Attorneys’ Association, the California Library Association and the California Republican League. Even G.O.P. Gubernatorial Candidate Ronald Reagan, who is for it, acknowledges “constitutional problems.” The state attorney general’s Committee on Obscenity calls Proposition 16 unconstitutional, argues that passage is sure to “freeze” California’s anti-obscenity law —and the legislature’s power to change it—”pending a determination by the courts as to the constitutionality of the initiative.” In a sharp editorial, the Los Angeles Times recently declared that Proposition 16 “must be defeated.”

For all that, the voters seem unconvinced. Armed with the same mailing lists that proved so effective in the Proposition 14 campaign, CLEAN collected almost 600,000 signatures to put Proposition 16 on the November ballot—nearly one-third more than were needed. No one is surprised that the proposition is being supported by many a candidate for the state legislature, men who tend to hear their constituents loud and clear. As one high elective official in Southern California puts it: “If you say you’re against CLEAN, you automatically become a ‘dirty.’ ” According to a statewide poll taken for the Long Beach Independent-Press-Telegram, Proposition 16 is favored by 63.7% of Californians. Whether they fully understand the potential extent of the proposition, the poll cannot say.