Katzev v. County of Los Angeles
Decision Date | 25 February 1959 |
Citation | 336 P.2d 6 |
Court | California Court of Appeals Court of Appeals |
Parties | J. KATZEV, Herbert H. Katzev, Sophia Katzev, and Arthur J. Kates, co-partners doing business under the firm name and style of Sunset News Company, Henry A. Epstein, doing business as Independent Magazine Company, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, a body politic and corporate, S. Ernest Roll, District Attorney of the County of Los Angeles, and Eugene W. Biscailuz, Sheriff of Los Angeles County, Defendants and Respondents. * Civ. 23174. |
Gang, Kopp & Tyre, Milton A. Rudin, Los Angeles, Payson Wolff, Hollywood, for appellants.
Harold W. Kennedy, County Counsel, David D. Mix, Deputy County Counsel, Los Angeles, for respondents.
This declaratory relief action attacks 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 its proscriptions to be a misdemeanor. From an adverse judgment plaintiffs appeal.
The sections of the ordinance involved in the ensuing discussion are set forth in the margin. 1
Plaintiffs are dealers in magazines, books and other printed materials, including crime comic books, and their distribution of the latter would be impaired through enforcement of the ordinance. Appellants' contentions may be summarized as follows.
1. The ordinance is an unjustifiable abridgement of freedom of the press because distribution of such crime comic books is protected by state and federal constitutions;
2. Only a clear and present danger of an evil subject to regulation by the legislative body will justify restrictions upon freedom of the press and no such danger is shown with respect to crime comic books because no causal relationship exists between their distribution and juvenile delinquency, the evil act at which the ordinance is aimed;
3. The ordinance is too broad in its sweep because it prohibits circulation to minors of all crime comic books, the good ones as well as the bad;
4. The ordinance denies equal protection of the laws because it makes arbitrary and unreasonable exemptions of accounts of crime appearing in newspapers, also those which delineate actual historical events or occurrences set forth in sacred scriptures of any religion;
5. The ordinance is too vague to establish a clearly defined standard of guilt.
First, as to whether crime comics described in the statute--those depicting commission or attempted commission of arson, burglary, kidnapping, mayhem, murder, rape, robbery, theft, train-wrecking, voluntary manslaughter, assault with caustic chemicals or with a deadly weapon,--are protected by the freedom of press sanction of the First Amendment to the Federal Constitution ( ). 2 Certain forms of speech, oral or written, do not fall within the aegis of the fundamental guaranty. Among them are obscenity, profanity, libelous or fighting words tending to cause a breach of the peace. Beauharnais v. People of State of Illinois, 343 U.S. 250, 256, 72 S.Ct. 725, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 544, 71 S.Ct. 857, 95 L.Ed. 1137 (Mr. Justice Frankfurter concurring); Kingsley Books v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States, 354 U.S. 476, 500, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (Mr. Justice Harlan concurring). This concept flows from the immediate and indisputably obnoxious effect of such conduct. The Beauharnais case, supra, dealing with a libel upon the colored race of people says, 343 U.S. at page 255, 72 S.Ct. at page 730:
There seems to be no case in the reported decisions that deals with the specific question whether crime comic books are within the constitutional protection or, like the last cited cases, are automatically exempt from its operation. The question of whether they are harmful to children and whether their distribution to juveniles should be prohibited on that ground is one which has caused much debate among laymen, sociologists, psychologists, psychiatrists, and other experts and pseudo-experts, with resulting disagreement as to causation and appropriate remedy. See, 7 Stanford Law Review, pp. 237, 249-251, 'Crime Comics and the Constitution'; Interim Report of the Subcommittee to Investigate Juvenile Delinquency to the Senate Committee on the Judiciary, 84th Cong., 1st Sess. 14 (1955), p. 12 (Kefauver Committee.) There being no general agreement upon the perniciousness of 'crime comics' it is our opinion that the time has not yet arrived to declare them per se beyond the protection of the First and Fourteenth Amendments.
Speaking of publications principally made up of criminal news, police reports or accounts of criminal deeds or pictures or stories of deeds of bloodshed, lust or crime (not limited to minors), the Supreme Court said, in Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840: 'Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.' That language appears to be applicable here.
The Board of Supervisors found and declared, in passing ordinance 6633, that there are within the county of Los Angeles a great volume and variety of crime comic books available to children under the age of 18 years; that they are sold or circulated (exhibited) to children, many of whom are thereby incited to commit or attempt to commit crime; that such books destroy the moral fiber of children and incite them to crime and juvenile delinquency. The county counsel--recognizing the established rule that the legislative finding incorporated in a statute or ordinance which restricts freedom of speech or the press is not conclusive, and that the courts have the duty of determining independently whether the new law has reasonable basis in fact and with respect to remedy,--introduced oral and documentary evidence in the trial court upon the subject. He called as an expert witness, Dr. Hilde L. Mosse, an experienced psychiatrist attached to the Bureau of Child Guidance in the city of New York, who has made careful and prolonged study of the subject of crime comics. Considerable documentary evidence was also introduced.
Dr. Mosse testified that crime comics are a new phenomenon, printed and circulated primarily for the juvenile trade and carrying advertisements of guns, hatchets, ropes and other instruments of crime which make special appeal to children. There are 60 million to 70 million comic books printed each month in this country, most of which are devoted to crime, its technique and its horror situations. The publishers have a proclivity for gore and gruesomeness. Various forms of cruelty are depicted in such publications. Children are attracted to books containing criminal acts such as described in § 4c of the ordinance. They make their own purchases from the newsstands, read daily one or two or more such books, having about 36 pages each, trade them with one another and repeat the process many times and for years. These books glamorize crime and depict its details. Coming to the child during his fantasy or daydream phase he identifies himself with the criminal or the victim, relives the episode and fails to distinguish between fact and fiction. Often he tries to re-enact the crime or horror of the story with disastrous consequences to himself or other people. All children like to read crime comics and a great majority are doing so. These books have a detrimental effect upon children who are basically healthy as well as those who are already mentally or emotionally disturbed. While there are some good comic books, the witness never saw a good crime comic book. Younger children do not actually read them but study the pictures and glean the story of horror from them. They become picture-gazers. The words often are in the balloons and the format makes it difficult for the children to learn to read, causing 'linear dyslexia,' difficulty in learning to read a straight line; inability to read is 'connected with' juvenile delinquency, though probably not a cause of it. The witness further said that parental supervision is not adequate protection against the harm of crime comics, which are purchased with the child's own money and passed so persistently from small owner to small owner; the mother does not have the capacity to read them in advance. ...
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