Landau v. Fording

• Decision Date: 24 October 1966
• Citation: 245 Cal.App.2d 820,54 Cal.Rptr. 177
• Court: California Court of Appeals Court of Appeals
• Parties: Saul LANDAU, Plaintiff and Appellant, v. Addison FORDING, Chief of Police, Berkeley, California, Earl Bergfeld,Director, Special Investigations Bureau of the Police Department of Berkeley,California, the Police Department of the City of Berkeley, California, and theCity of Berkeley,California, Defendants and Respondents. Civ. 22920. Division 2, California

Page 177

54 Cal.Rptr. 177

245 Cal.App.2d 820

Saul LANDAU, Plaintiff and Appellant, v. Addison FORDING, Chief of Police, Berkeley, California, Earl Bergfeld,Director, Special Investigations Bureau of the Police Department of Berkeley,California, the Police Department of the City of Berkeley, California, and theCity of Berkeley,California, Defendants and Respondents.

Civ. 22920.

District Court of Appeal, First District,

Division 2, California.

Oct. 24, 1966.

Hearing Denied Dec. 21, 1966.

Johnston & Platt, Neil F. Horton, Oakland, Albert M. Bendich, Berkeley, Marshall W. Krause, Staff Counsel, American Civil Liberties Union of Northern California, San Francisco, for appellant.

Robert T. Anderson, Robert P. Berkman, Berkeley, for respondents.

TAYLOR, Justice.

The only question presented on this appeal is whether the trial court properly found that 'Un Chant d'Amour,' a film written and directed by Jean Genet, was obscene within the meaning of section 311, subdivision (a), of the Penal Code and, therefore, excluded from the constitutional guarantees of freedom of speech and of the press.

The pertinent facts are not in dispute. Appellant, Saul Landau, was authorized by the New York distributor to exhibit the film in the San Francisco Bay Area. Appellant shared the proceeds derived from such exhibitions with the San Francisco Mime Troupe, an unincorporated association. Under his agreement with the New York distributor, appellant was not entitled to exhibit the film at commercial movie houses catering to a general movie audience.

Prior to the instant proceeding, appellant had exhibited the film in Santa Barbara (before an audience comprised mainly of people from the Center for the Study of Democratic Institutions), in San Francisco at several private showings, at San Francisco State College, in several art movie houses in San Francisco, and in Berkeley at Stiles Hall, the University Y.M.C.A. After appellant sought to show the film a second time in Berkeley, his agent was advised by respondent Bergfeld, the Director of the Special Investigations Bureau of the Police Department, that the next time the film was exhibited in Berkeley, it would be confiscated and all persons responsible arrested. In so advising the agent of appellant, respondent Bergfeld acted as the agent of the Berkeley Police Department headed by respondent Fording.

Thereafter, appellant instituted this action for declaratory relief. At the trial of the action, the trial court, in order to determine the artistic value and social importance of the film, admitted the testimony of seven expert witnesses called by appellant ¹ as well as its own expert witness ² over the repeated objections of respondents who chose not to present any evidence, but argued that the court had to base its conclusions on the film alone. All of appellant's witnesses had different views as to the theme of the film, and while contending that it was not hard-core pornography, they agreed that the film should not be shown over television or in commercial motion picture theatres.

The trial court twice viewed the film and found that to the average person applying contemporary community standards, the predominant appeal of the film as a whole was to prurient interest, i.e., a shameful and morbid interest in nudity and sex, substantially beyond customary limits of candor in the description or representation of such matters. The court further found that the film explicitly and vividly revealed acts of masturbation, oral copulation, the infamous crime against nature (sodomy), voyeurism, nudity, sadism, masochism and sex and that it was 'nothing more than cheap pornography calculated to promote homosexuality, perversion, and morbid sex practices,' that it fell 'far short of dealing with homosexuality, perversion, masturbation or sex from the scientific, historical or critical point of view,' was completely lacking in the exposition of any ideas of social importance, and had no value as art or otherwise to give it redeeming social importance and thus obtain the benefit of the constitutional guarantees.

Accordingly, the court concluded that: the film was obscene within the meaning of section 311, subdivision (a), of the Penal Code; therefore, any exhibition or showing thereof would be in violation of section 311.2 of the Penal Code, and any person showing the film would not be able to claim as a defense that the exhibition was in aid of legitimate scientific or educational purposes within the meaning of section 311.8 of the Penal Code. This appeal is from the judgment entered in favor of respondents.

While motion pictures, like other forms of expression, are within the ambit of the constitutional guarantees of freedom of speech and of the press (Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098), obscenity is not subject to those guarantees (Roth v. United States, (Alberts v. State of California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498).

Section 311, subdivision (a), of the Penal Code provides: "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 substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.'

The statute was the codification of the definition of obscenity announced by the U.S. Supreme Court in Roth v. United States, supra (Zeitlin v. Arnebergh, 59 Cal.2d 901, 918--919, 31 Cal.Rptr. 800, 383 P.2d 152). The section, in substance, prohibits 'hard-core' pornography (Zeitlin v. Arnebergh, supra, at p. 919, 31 Cal.Rptr. 800, 383 P.2d 152). The U.S. Supreme Court has not yet determined whether Roth and the subsequent cases are limited to 'hard-core' pornography. ³ (Manual Enterprises v. Day, 370 U.S. 487, 489, 82 S.Ct. 1432). In its most recent opinion dealing with a film, the U.S. Supreme Court said: 'We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is 'utterly without redeeming social importance,' and that 'the portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.' Id. 354 U.S. at 484, 487, 72 S.Ct. at 1310. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a 'weighing' of its social importance against its prurient appeal, for a work cannot be proscribed unless it is 'utterly' without social importance.' (Jacobellis v. State of Ohio, 378 U.S. 184, at p. 191, 84 S.Ct. at p. 1680.)

The Jacobellis opinion also indicated that the applicable contemporary community standard is not that of the local community where the case arises, but a national standard (supra, pp. 192--195, 84 S.Ct. 1676). The most recent decisions of the U.S. Supreme Court affirm the requirement that the elements of obscenity defined in Roth must coalesce, that there will be no balancing of 'social importance' against the other elements (Memoirs of a Woman of Pleasure v. Massachusetts, 383 U.S. 413, 419, 86 S.Ct. 975), and announced a new doctrine, namely, that evidence that material was commercially exploited for the sake of prurient appeal to the exclusion of all other values would justify the conclusion that the material was utterly without redeeming social importance (Ginzburg v. United States, 383 U.S. 463, 470--473, 86 S.Ct. 969, 16 L.Ed.2d 31; Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56), Ginzburg and Mishkin indicating that apart from the nature of the material, the conduct of the disseminator and the commercial context in which the dissemination occurs are significant.

We first dispose of respondents' contention that the trial court erred in admitting the testimony of the expert witnesses and in failing to base it conclusions solely on the viewing of the film. The question here presented is not one of fact alone but is mixed with a determination of law (Zeitlin v. Arnebergh, 59 Cal.2d 901 at p. 910, 31 Cal.Rptr. 800, 383 P.2d 152). The court must make an independent judgment as to whether the Material involved is constitutionally protected (Jacobellis v. State of Ohio, supra, 378 U.S. p. 190, 84 S.Ct. p. 1679). In almost every field of the law, expert testimony is permitted on subjects concerning which the judge or administrator has no specialized competence. So here, the lower court properly received evidence to assist in the determination of contemporary community standards as well as the artistic merit and social importance of the film (Smith v. People of State of California, 361 U.S. 147 at pp. 157, 166--167, 80 S.Ct. 215, 4 L.Ed.2d 205).

The principal question is whether 'Un Chant d'Amour' satisfies the test of obscenity established by our statute and the decisions of the U.S. Supreme Court. Before exploring the 'dim and uncertain' line that often separates obscenity from a constitutionally protected expression (Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584), we give a description of the film which was viewed in its entirety by the justices of this court.

'Un Chant d'Amour' is an 8 mm. silent film of about 30 minutes' duration made in the style of the short silent films of the 1920's and apparently deliberately ambiguous. No music or text accompanies the film. The actors are professionals. The picture was made with artificial lighting on autochromatic film which is...