People v. Noroff

• Citation: 433 P.2d 479,67 Cal.2d 791,63 Cal.Rptr. 575
• Decision Date: 21 November 1967
• Docket Number: Cr. 11200
• Court: United States State Supreme Court (California)
• Parties: , 433 P.2d 479 The PEOPLE, Plaintiff and Appellant, v. David NOROFF et al., Defendants and Respondents.

Page 575

63 Cal.Rptr. 575

67 Cal.2d 791, 433 P.2d 479

The PEOPLE, Plaintiff and Appellant, v. David NOROFF et al., Defendants and Respondents.

Cr. 11200.

Supreme Court of California In Bank.

Nov. 21, 1967.

Rehearing Denied Dec. 20, 1967.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Michael T. Sauer, Deputy City Atty., for plaintiff and appellant.

Herald Price Fahringer, Buffalo, N.Y., and Gerald J. Levie, Los Angeles, for defendants and respondents.

TOBRINER, Justice.

Defendants were charged in the Municipal Court of the Los Angeles Judicial District with a violation of Penal Code section 311.2, which proscribes the possession of obscene matter for distribution in this state. ¹ In chambers, the trial court examined the challenged material, a single copy of a magazine entitled 'International Nudist Sun, Vol. 1, No. 5' (hereinafter referred to as 'INS #5'). The court ruled that the magazine fell within the constitutional protection of the First and Fourteenth The People initially charged that INS #5 was obscene on its face. Unlike Ginzburg v. United States (1966) 383 U.S. 463, 87 S.Ct. 942, 16 L.Ed.2d 31, this is Not a case in which 'the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene.' (Id., at 465, 86 S.Ct. at 944.) On the contrary, the prosecution expressly recognized that the only issue relevant to its charge was the obscenity of the magazine per se.

[433 P.2d 480] Amendments of the United States Constitution; concluded that it was not 'obscene' ² within the meaning of Penal Code section 311, subdivision (a); and ordered the case dismissed. On appeal by the People, the Appellate Department of the Superior Court of Los Angeles County affirmed and then certified the case to the Court of Appeal which granted a transfer. After reversal by the Court of Appeal, we granted a hearing.

We cannot accept the People's argument, advanced for the first time on appeal, that the trial court should have permitted the prosecution to go to the jury with evidence bearing upon the defendant's 'pandering' of the magazine in question. First, the indictment did not charge the defendants with pandering; second, the State Legislature has created no such crime. ³ Insofar as dictum in Landau v. Fording (1966) 245 Cal.App.2d 820, 824, 830, 54 Cal.Rptr. 177, affd. per curiam (1967) 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317, suggests a contrary reading of the California statutes, it is hereby disapproved. ⁴

Since there can thus be no doubt that the trial court properly proceeded to determine from its own examination of INS #5 whether or not the magazine itself was obscene in the constitutional sense (Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 904, 908--911, 31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707; see also Jacobellis v. State of Ohio (1964) 378 U.S. 184, 190 fn. 6, 84 S.Ct. 1676, 12 L.Ed.2d 793; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686), the only question properly before us is whether the trial court committed error in deciding that INS #5 was constitutionally protected. We We turn at once to the magazine itself. Its text, illustrated by numerous photographs of naked adults, proclaims the supposed virtues of nudism as a 'pattern of life.' One could hardly suggest that the articles in the magazine are provocative or even in bad taste. ⁵ The publication admittedly makes no effort to conceal either male or female genitals, and several of the poses seem contrived to preserve genital exposure at the expense of aesthetic considerations. Most of the pictures, however, depict entirely innocuous outdoor activities at a nudist colony or sunbathing camp; none of the photographs displays any form of Sexual activity. ⁶ Viewed as a whole (Roth v. United States (1957) 354 U.S. 476 at 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498), the work is in no sense calculated to stimulate a predominantly sexual response. On the contrary, the static and wooden quality which prevents INS #5 from rising to the level of art simultaneously lifts it above the level of pornography. In the words of Penal Code section 311, we do not find that, 'Taken as a whole,' the 'predominant appeal' of the magazine, including its depiction of nude adults, though revealing, 'is to prurient interest, i.e., a Shameful or Morbid interest in nudity * * * which goes substantially beyond the customary limits of candor.' (Italics added.)

[433 P.2d 481] uphold the trial court's determination and conclude that INS #5 is not obscene.

Since the 'dominant theme of the material taken as a whole' does not appeal to 'a prurient interest in sex,' INS #5 could not be deemed obscene even if it were 'patently offensive' and 'utterly without redeeming social value.' (A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Having examined INS #5 in light of these decisions, we can reach only one conclusion: Given the materials to which the Supreme Court has accorded constitutional protection, we cannot withhold such protection here. Accordingly, we must sustain the trial court's ruling that the magazine is not obscene.

[433 P.2d 482] Massachusetts (1966) 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1.) We need not explore these issues at greater length, however, since the question before us is not truly an open one. In Manual Enterprises v. Day (1962) 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, and in Sunshine Book Co. v. Summerfield (1958) 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 3 52 (per curiam), ⁷ the Supreme Court summarily reversed obscenity convictions involving magazines more crudely explicit ⁸ and certainly more vulgar ⁹ than INS [67 Cal.2d 796] #5. On June 12, 1967, the court reaffirmed these holdings by reversing, on the authority of Sunshine Book Co., a Virginia judgment involving similar material. (Rosenbloom v. Virginia (1967) 388 U.S. 450, 87 S.Ct. 2095, 18 L.Ed.2d 1312 (per curiam).) Even more recently, the United States Supreme Court has reversed decisions of the federal circuit courts which held that magazines containing pictures of nude males and females focusing on the genitalia were obscene. Indeed, one of the magazines there involved is the same as that which is now before us ('International Nudist Sun'), although we deal with a different issue of it. (Central Magazine Sales, Ltd. v. United States (1967) 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49, reversing per curiam United States v. 392 Copies of Magazine Entitled 'Exclusive' (4th Cir. 1967) 373 F.2d 633; Potomac News Co. v. United States (1967) 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46, reversing per curiam United States v. 516 Cartons Containing 19,500 Copies of Mag. (4th Cir. 1967) 373 F.2d 635.)

The United States Supreme Court has wisely recognized that ultimately the public taste must determine that which is offensive to it and that which is not; a public taste that is sophisticated and mature will reject the offensive and the dull; it will in its own good sense discard the tawdry, and once having done so, the tawdry will disappear because its production and distribution will not be profitable. Understandingly, such maturity does not come quickly or easily, and, in a time when the strictures of Victorianism have been replaced by wide swings of extremism, it seems hopelessly remote.

Yet this court is bound, of course, by the decisions of the United States Supreme Court. That court has imposed its prohibitions only at the outer limits of the area of publication, leaving to the public the task of voluntarily casting out the offensive. That court has held that the representation of the nude human form in a nonsexual context is not obscene. The Supreme Court has decided that the judiciary cannot engage in the task of placing legal fig leaves upon variegated presentations of the human figure. That court has told us that no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene. In the materials before us we find some of the poses of the subjects to be inexcusably repulsive, and we trust that a discerning public will discard and reject them. But the decisions of the United States Supreme Court tell us that the task of rejection lies not with us but with the public.

The judgment is affirmed.

TRAYNOR, C.J., and McCOMB, PETERS, MOSK and SULLIVAN, JJ., concur.

DISSENTING OPINION

BURKE, Justice.

I dissent. The pseudo-nudist cult magazine, which is the subject of this action, flagrantly fails to pass any one of the tests adopted by the United States Supreme Court and more recently incorporated in the laws of this state by the Legislature.

Taken as a whole, the predominant appeal is to prurient interest which goes substantially beyond customary limits of candor and the magazine is utterly without redeeming social importance. According to small print at the bottom of the cover it purports to be 'an educational, cultural, and scientific publication, for the advancement of nudism,' and briefly included among its pages of pictures is editorial material replete with pious platitudes about the beneficial aspects of sunbathing and the freedom and relaxation to be gained by families' participation in outdoor games and activities. ¹ But the statement of such a purpose and the inclusion of such material belie its all too obvious purpose of appealing to prurient interest. The pages of this magazine contain no pictures of families engaging in outdoor games and activities. In fact, no children are portrayed, and the only suggestion of games is the inclusion of studio props which, like the text employed, are clearly designed as window dressing. The price of the magazine, $4.00, and the warning on its cover, 'For Adults Only,' are also indicative of what is the real purpose and interest of its purveyors. Sensual detail in...