Kaplan v. California 8212 1422, No. 71

CourtUnited States Supreme Court
Writing for the CourtBURGER
Citation413 U.S. 115,93 S.Ct. 2680,37 L.Ed.2d 492
Docket NumberNo. 71
Decision Date21 June 1973
PartiesMurray KAPLAN, Petitioner, v. State of CALIFORNIA. —1422

413 U.S. 115
93 S.Ct. 2680
37 L.Ed.2d 492
Murray KAPLAN, Petitioner,

v.

State of CALIFORNIA.

No. 71—1422.
Argued Oct. 19, 1972.
Decided June 21, 1973.

Syllabus

Petitioner, a proprietor of an 'adult' bookstore, was convicted of violating a California obscenity statute by selling a plain-covered unillustrated book containing repetitively descriptive material of an explicitly sexual nature. Both sides offered testimony as to the nature and content of the book, but there was no 'expert' testimony that the book was 'utterly without redeeming social importance.' The trial court used a state community standard in applying and construing the statute. The appellate court, affirming, held that the book was not protected by the First Amendment. Held:

1. Obscene material in book form is not entitled to First Amendment protection merely because it has no pictorial content. A State may control commerce in such a book, even distribution to consenting adults, to avoid the deleterious consequences it can reasonably conclude (conclusive proof is not required) result from the continuing circulation of obscene literature. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. Pp. 118—120.

2. Appraisal of the nature of the book by 'the contemporary community standards of the State of California' was an adequate basis for establishing whether the book here involved was obscene. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. P. 121.

3. When, as in this case, material it itself placed in evidence, 'expert' state testimony as to its allegedly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Paris Adult Theatre I v. Slaton, supra, P. 121.

4. The case is vacated and remanded so that the state appellate court can determine whether the state obscenity statute satisfies the constitutional standards newly enunciated in Miller supra. P. 122.

23 Cal.App.3d Supp. 9, 100 Cal.Rptr. 372, vacated and remanded.

Page 116

Stanley Fleishman, Hollywood, Cal., for petitioner.

Ward Glen McConnell, Los Angeles, Cal., for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to the Appellate Department of the Superior Court of California for the County of Los Angeles to review the petitioner's conviction for violation of California statutes regarding obscenity.

Petitioner was the proprietor of the Peek-A-Boo Bookstore, one of the approximately 250 'adult' bookstores in the city of Los Angeles, California. 1 On May 14, 1969, in responde to citizen complaints, an undercover police officer entered the store and began to peruse several books and magazines. Petitioner advised the officer that the store 'was not a library.' The officer then asked petitioner if he had 'any good sexy books.' Petitioner replied that 'all of our books are sexy' and exhibited a lewd photograph. At petitioner's recommendation, and after petitioner had read aloud a sample paragraph, the officer purchased the book Suite 69. On the basis of this sale, petitioner was convicted by a jury of violating California Penal Code § 311.2, 2 a misdemeanor.

The book, Suite 69, has a plain cover and contains no pictures. It is made up entirely of repetitive descriptions of physical, sexual conduct, 'clinically' explicit

Page 117

and offensive to the point of being nauseous; there is only the most tenuous 'plot.' Almost every conceivable variety of sexual contact, homosexual and heterosexual, is described. Whether one samples every 5th, 10th, or 20th page, beginning at any point or page at random, the content is unvarying.

At trial both sides presented testimony, by persons accepted to be 'experts,' as to the content and nature of the book. The book itself was received in evidence, and read, in its entirety, to the jury. Each juror inspected the book. But the State offered no 'expert' evidence that the book was 'utterly without socially redeeming value,' or any evidence of 'national standards.'

Page 118

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed petitioner's conviction. Relying on the dissenting opinions in Jacobellis v. Ohio, 378 U.S. 184, 199, 203, 84 S.Ct. 1676, 1686, 12 L.Ed.2d 793 (1964), and Mr. Justice White's dissent in Memoirs v. Massachusetts, 383 U.S. 413, 462, 86 S.Ct. 975, 999, 16 L.Ed.2d 1 (1966), it concluded that evidence of a 'national' standard of obscenity was not required. It also decided that the State did not always have to present 'expert' evidence that the book lacked 'socially redeeming value,' and that, '(i)n light . . . of the circumstances surrounding the sale' and the nature of the book itself, there was sufficient evidence to sustain petitioner's conviction. Finally, the state court considered petitioner's argument that the book was not 'obscene' as a matter of constitutional law. Pointing out that petitioner was arguing, in part, that all books were constitutionally protected in an absolute sense, it rejected that thesis. On 'independent review,' it concluded 'Suite 69 appeals to a prurient interest in sex and is beyond the customary limits of dandor within the State of California.' It held that the book was not protected by the First Amendment. We agree.

This case squarely presents the issue of whether expression by words alone can be legally 'obscene' in the sense of being unprotected by the First Amendment. 3 When

Page 119

the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression. See Roth v. United States, 354 U.S. 476, 481—485, 77 S.Ct. 1304, 1306—1309, 1 L.Ed.2d 1498 (1957). Obscenity can, of course, manifest itself in conduct, in the pictoral representation of conduct, or in the written and oral description of conduct. The Court has applied similarly conceived First Amendment standards to moving pictures, to photographs, and to words in books. See Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 738, 13 L.Ed.2d 649 (1965); Jacobellis v. Ohio, supra, 378 U.S., at 187—188, 84 S.Ct., at 1677—1678; Times Film Corp. v. Chicago, 365 U.S. 43, 46, 81 S.Ct. 391, 393, 5 L.Ed.2d 403 (1961); id., at 51, 81 S.Ct., at 395. (Warren, C.J., dissenting); Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 689—690, 79 S.Ct. 1362, 1365—1366, 3 L.Ed.2d 1512 (1959); Superior Films, Inc. v. Dept. of Education, 346 U.S. 587, 589, 74 S.Ct. 286, 98 L.Ed. 329 (1954) (Douglas, J., concurring); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952).

Because of a profound commitment to protecting communication of ideas, any restraint on expression by way of the printed word or in speech stimulates a traditional and emotional response, unlike the response to obscene pictures of flagrant human conduct. A book seems to have a different and preferred place in our hierarchy of values, and so it should be. But this generalization, like so many, is qualified by the book's content. As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amend-

Page 120

ment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution. Miller v. California, supra, 413 U.S., at 23—25, 93 S.Ct. 2614 2615; Roth v. United States, supra, 354 U.S., at 483—485, 77 S.Ct., at 1308—1309.

For good or ill, a book has a continuing life. It is passed hand to hand, and we can take note of the...

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292 practice notes
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...419 (1973); Paris Adult Theatre I v. Slaton, --- U.S. ---, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and Kaplan v. California, --- U.S. ---, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). Although the foregoing opinions of the United States Supreme Court have caused no change in the result reached herein......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." And in Kaplan v. California, 413 U.S. 115, 119, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), which was decided the same day as Miller, the Court made clear that "works" include both pictorial......
  • Burns v. Town of Palm Beach, No. 18-14515
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2021
    ...1366 (9th Cir. 1976) ("Communication by signs and posters is virtually pure speech."). So are books and films. See Kaplan v. California, 413 U.S. 115, 119–20, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) (explaining that "films" and "the printed word" have First Amendment protection); Metzger v. Pe......
  • U.S. v. New Buffalo Amusement Corp., No. 444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1979
    ...Supreme Court that same day were Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d ......
  • Request a trial to view additional results
291 cases
  • State v. J-R Distributors, Inc., J-R
    • United States
    • United States State Supreme Court of Washington
    • July 27, 1973
    ...419 (1973); Paris Adult Theatre I v. Slaton, --- U.S. ---, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and Kaplan v. California, --- U.S. ---, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). Although the foregoing opinions of the United States Supreme Court have caused no change in the result reached herein......
  • U.S. v. Whorley, No. 06-4288.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 18, 2008
    ...way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." And in Kaplan v. California, 413 U.S. 115, 119, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), which was decided the same day as Miller, the Court made clear that "works" include both pictorial......
  • Burns v. Town of Palm Beach, No. 18-14515
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 8, 2021
    ...1366 (9th Cir. 1976) ("Communication by signs and posters is virtually pure speech."). So are books and films. See Kaplan v. California, 413 U.S. 115, 119–20, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) (explaining that "films" and "the printed word" have First Amendment protection); Metzger v. Pe......
  • U.S. v. New Buffalo Amusement Corp., No. 444
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1979
    ...Supreme Court that same day were Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973), and United States v. 12 200-Foot Reels of Super 8 mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d ......
  • Request a trial to view additional results
2 books & journal articles
  • Defining Morality
    • United States
    • Criminal Justice and Behavior Nbr. 2-3, September 1975
    • September 1, 1975
    ...of evidence, and theright to confront and cross-examine witnesses.15. Miller v. California, 413 U.S. 15 (1973); Kaplan v. California, 413 U.S. 115(1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); United States v. 12200-Ft Reels of Film, 413 U.S. 123 (1973).16. Cavan (1966), for e......
  • The Supreme Court of the United States, 1972-1973
    • United States
    • Political Research Quarterly Nbr. 27-1, March 1974
    • March 1, 1974
    ...under the standards of Miller. In Kaplan v. Cali-fornia a book was declared obscene on the basis of the Miller standards. (413 U.S.115; 93 S. Ct. 2680. )Under the California Constitution the Department of Alcoholic Beverage Con-trol has the authority to license the sale of alcoholic beverag......

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