Katzev v. Los Angeles County

• Decision Date: 24 June 1959
• Citation: 341 P.2d 310,52 Cal.2d 360
• Court: California Supreme Court
• Parties: J. KATZEV et al., Appellants, v. COUNTY OF LOS ANGELES et al., Respondents. L.A. 25012.

Page 310

341 P.2d 310

52 Cal.2d 360

J. KATZEV et al., Appellants, v. COUNTY OF LOS ANGELES et al., Respondents.

L.A. 25012.

Supreme Court of California, In Bank.

June 24, 1959.

Rehearing Denied July 22, 1959.

Gang, Kopp & Tyre, Martin Gang, Milton A. Rudin and Payson Wolff, Los Angeles, for appellants.

A. L. Wirin, fred Okrand, Los Angeles, and Richard J. Kamins, Beverly Hills, as amici curiae on behalf of appellants.

Harold W. Kennedy, County Counsel, and David D. Mix, Deputy County Counsel, Los Angeles, for respondents.

McCOMB, Justice.

Plaintiffs appeal from an adverse judgment in a declaratory relief action attacking as unconstitutional a county ordinance prohibiting the sale or circulation of any 'crime comic book' to any child under the age of 18 years and declaring a violation of the ordinance to be a misdemeanor.

Plaintiffs are dealers in magazines, books and other printed material, including crime comic books, and the distribution of the latter would be impaired through enforcement of the ordinance.

The ordinance, No. 6633, reads:

'An Ordinance prohibiting the sale and circulation of crime 'comic' books to children under the age of eighteen (18) years.

'The Board of Supervisors of the County of Los Angeles do ordain as follows:

'Section 1. The Board of Supervisors finds that in the unincorporated area of Los Angeles County:

'a. There is a great volume in the number and variety of crime 'comic' books available to children under the age of eighteen (18) years.

'b. These crime 'comic' books resemble closely other publications devoted in substance to homor.

'c. These crime 'comic' books are placed for sale side by side with humorous publications.

'd. These crime 'comic' books have been sold or circulated to children under eighteen (18) years of age.

'e. Many children have been incited to commit crimes as a consequence of looking at crime 'comic' books.

'f. Many children have been incited to attempt the commitment of a crime as a consequence of looking at crime 'comic' books.

'g. There is a clear and present danger which the Board of Supervisors finds is great and imminent that the continued sale and circulation in the unincorporated area of Los Angeles County of crime 'comic' books to children will incite said children to commit crimes or attempt to commit crimes and inculcate a preference in the minds of many of the children to participate in crime.

'h. The Board of Supervisors specifically finds that the prohibition against the sale to or circulation of crime 'comic' books to children is a reasonable measure to meet the clear and present danger hereinabove found.

'Section 2. Every person is guilty of a misdemeanor who sells or circulates any crime 'comic' book to any child under the age of eighteen (18) years.

'Section 3. This ordinance shall not apply:

'a. To those accounts of crime which are part of the general dissemination of news.

'b. To those accounts of crime which appear in a newspaper of general circulation.

'c. To those accounts of crime which delineate actual historical events.

'd. To those accounts which delineate occurrences actually set forth in the sacred scriptures of any religion.

'Section 4. As used in this ordinance, the following terms shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.

'a. Crime 'comic' book: Any book, magazine, or pamphlet in which an account of crime is set forth by means of a series of five (5) or more drawings or photographs, in sequence, which are accompanied by either narrative writing or words represented as being spoken by a pictured character, whether such narrative or words appear in 'balloons,' captions or on or immediately adjacent to the photograph or drawing.

'b. In sequence: In direct order, excluding intervening breaks which continue the account, where such intervening breaks

'(1) contain narrative material, or

'(2) contain a drawing or photograph without words or narrative material.

'c. Crime: The commission or attempted commission of an act of arson, burglary, kidnapping, mayhem, murder, rape, robbery, theft, trainwrecking, or voluntary manslaughter; or the commission of an act of assault with caustic chemicals or assault with a deadly weapon. As the term 'crime' is used in paragraph 'a.' of this section, it includes but is not limited to, acts by human beings, and further includes acts by animals or any non-human, part human, or imaginary beings, which if performed by a human would constitute any of the crimes named.

'd. Balloon: The outline enclosing words represented as coming from the mouth of a pictured character.

'e. Person: Any person, firm, association, organization, partnership, business trust, corporation, or company.

'f. Sells or circulates: To sell, offer for sale, attempt to sell, exhibit, give away, keep in possession with intent to sell or give away, or in any way furnish or attempt to furnish.

'g. Sacred scriptures: The Bible, including any version thereof, or any writing of similar statute in any established religion.

'Section 5. Every violation of this ordinance shall be punishable by imprisonment in the county jail for not more than six (6) months or by a fine or (sic) not more than $500, or by both such fine and imprisonment.

'Section 6. If any provision of this ordinance, or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, and the application of such provision to other persons or circumstances shall not be affected thereby.

'Section 7. Crime 'comic' books are now being sold and circulated to children under the age of eighteen (18) years in the unincorporated territory of Los Angeles County, destroying their moral fiber and inciting them to crime and juvenile delinquency. Such damage, once accomplished, is irreparable. By reason of the foregoing, this ordinance is immediately needed for the preservation of the public health, safety, and welfare and shall take effect upon the passage hereof.

'Section 8. This ordinance shall be published in Journal of Commerce and Independent Review, a newspaper printed and published in the County of Los Angeles.'

Question: Is the ordinance unconstitutional under the First Amendment to the United States Constitution (made applicable to the states by the Fourteenth Amendment), which prohibits the enactment of any laws 'abridging the freedom of speech, or of the press,' and under article I, section 9, of the California Constitution, which forbids the passage of any law 'to restrain or abridge the liberty of speech or of the press'?

Yes, for these reasons:

First. The ordinance is an unjustifiable abridgment of freedom of the press, because distribution of such crime comic books is protected the state and federal Constitutions, and no showing has been made of a clear and present danger of a substantive evil justifying suppression of the constitutional guarantee.

These principles are here applicable:

i. Publications containing criminal news, accounts of criminal deeds, or pictures and stories of bloodshed, lust, or crime are as much entitled to the protection of free speech as other literature (Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840);

ii. In reviewing the findings of the trial court as to whether an ordinance infringes the First Amendment to the United States Constitution or article I, section 9, of the California Constitution, the court will make an independent examination of the evidence to ascertain whether there has been a violation of either of the provisions (Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 95 L.Ed. 267); and

iii. However reprehensible a legislative body may regard certain publications, it cannot forbid them if they present no 'clear and present danger' that they will bring about a substantive evil that the legislative authority has a right to prevent (Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 542(1), 171 P.2d 885; Bridges v. State of California, 314 U.S. 252, 261, 62 S.Ct. 190, 86 L.Ed. 192; People v. Garcia, 37 Cal.App.2d Supp. 753, 761(7), 98 P.2d 265).

Applying the foregoing rules to the ordinance in the instant case, we must reevaluate the evidence to determine whether there is a 'clear and present danger' of a substantive evil warranting the suppression of freedom of speech as guaranteed by the constitutional provisions.

This court must then determine whether the gravity of any such 'evil,' discounted by its improbability, 'justifies' invasion of freedom of speech in order to avoid the 'danger.' (Dennis v. United States, 341 U.S. 494, 510, 71 S.Ct. 857, 95 L.Ed. 1137.)

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, the court said: 'In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may...