Ward, In re

• Decision Date: 20 July 1978
• Docket Number: Cr. 17736
• Citation: 147 Cal.Rptr. 476,82 Cal.App.3d 981
• Parties: , 4 Media L. Rep. 1318 In re William WARD on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 476

147 Cal.Rptr. 476

82 Cal.App.3d 981, 4 Media L. Rep. 1318

In re William WARD on Habeas Corpus.

Cr. 17736.

Court of Appeal, First District, Division 4, California.

July 20, 1978.

David M. Brown, Fleishman, Brown, Weston & Rohde, Beverly Hills, for petitioner.

David J. Levy, City Atty., by Mark Commerford, Deputy City Atty., Concord, for People of the State of Cal.

CHRISTIAN, Associate Justice.

William Ward seeks a writ of habeas corpus to annul a 15-day sentence for contempt of court (Pen.Code, § 166) imposed for violation of a preliminary injunction.

Petitioner is a defendant in an action commenced by the City Attorney of Concord to enjoin as a nuisance the exhibition of an allegedly obscene motion picture. He challenges the validity of the preliminary injunction, which restrains exhibition of the film pending further proceedings in the action, upon the grounds (1) that the court did not conduct a "full adversary hearing" on the issue whether the film was obscene and (2) that the trial court did not view the film for the purpose of resolving this issue. (See People v. Noroff (1967) 67 Cal.2d 791, 793, 63 Cal.Rptr. 575, 433 P.2d 479; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 904, 908-911, 31 Cal.Rptr. 800, 383 P.2d 152.)

I

Petitioner bases his argument on language in People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600, and U.S. Supreme Court decisions cited therein. In Busch, the court held that the exhibition of obscene magazines and films was a form of activity which could be characterized as "indecent" or "offensive to the senses" interfering with the comfortable enjoyment of life of a "considerable number of persons" within the contemplation of Penal Code section 370, defining a public nuisance. The court also held that the public nuisance statutes must be enforced in such a way as to operate in a constitutional fashion, and, as so applied, there is no overriding principle of law which precludes the state from regulating the exhibition of obscene matter by application of the public nuisance statutes.

Petitioner specifically relies on the following language in Busch, supra, 17 Cal.3d at page 57, 130 Cal.Rptr. at page 337, 550 P.2d at page 609: "Thus, in the matters before us if the trial court finds the subject matter obscene under prevailing law an injunctive order may be fashioned that is 'proper and suitable' in each case. It is entirely permissible from a constitutional standpoint to enjoin further exhibition of specific magazines or films which have been finally adjudged to be obscene following a full adversary hearing." (Emphasis added.)

Petitioner contends that the procedure adopted by the court did not meet this test because there was no final determination of obscenity after a "full adversary hearing" before the preliminary injunction issued. He construes the use of the term "full adversary hearing" as requiring a trial on the merits before the showing of the allegedly obscene film may be preliminarily enjoined.

Busch, however, does not prohibit issuance of a preliminary injunction prior to trial. Indeed, in discussing the necessity for a prior adversary hearing the court declined the opportunity to set forth requisite standards for such a procedure, stating at page 60, 130 Cal.Rptr. at page 339, 550 P.2d at page 611 "We emphasize that the proceedings now before us remain at the pleading stage. Having determined that plaintiffs' complaint is sufficient to state a cause of action based upon a general nuisance theory, we consider it inappropriate to describe in detail the precise dimensions of the injunctive and other relief which might be suitable in this and the related cases. It is enough that the parties and the trial court recognize that substantial constitutional issues are presented in this litigation, and that care must be exercised to assure that defendants' constitutional rights are not infringed. More than this is not required."

(Emphasis added.)

The above-quoted language from Busch, relied on by petitioner, requires only that a final adjudication of obscenity following a full adversary hearing is required before a court may permanently enjoin the exhibition of obscene matter.

This differentiation between a preliminary and a permanent determination was made by the U.S. Supreme Court in Freedman v. Maryland (1965) 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, wherein the court reversed a conviction for exhibiting a motion picture without submitting it to a State Board of Censors for prior approval, because the Maryland procedure of prior submission lacked adequate safeguards against undue inhibition of protected expression, and thus constituted an invalid previous restraint. The court stated, at pages 58-59, 85 S.Ct. at page 739:

". . . while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra (372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584); A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrant, supra (367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 518-519, 82 S.Ct. 1432, 8 L.Ed.2d 639. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." (Emphasis added.)

Therefore, preliminary restraint may be imposed as long as the state's procedure assures a prompt judicial determination prior to the imposition of any final restraint. The court also reaffirmed its holding in Times Film Corp. v. Chicago (1961) 365 U.S. 43, 49-50, 81 S.Ct. 391, 394, 395, 5 L.Ed.2d 403, wherein it held that a municipal code provision requiring submission of motion pictures for examination or censorship prior to their public exhibition was not void on its face as violative of the First and Fourteenth Amendments. In so doing, the court stated:

" 'The phrase "prior restraint" is not a self-wielding sword. Nor can it serve as a talismanic test.' Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power 'to prevent the distribution of obscene matter.' Smith v. California, 361 U.S. 147, 155, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

"Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State's sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill.Rev.Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment a claim without sanction in our cases. . . .

(P) ". . . It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances."

Petitioner's constitutional rights have not been violated by the superior court's issuance of the preliminary injunction in this case. No restraint was imposed on the showing of the film in question until after petitioner and his codefendants, represented by counsel, were afforded an adversary hearing by the court. The record reveals that at that hearing, petitioner did not request that the court view the film and did not offer it in evidence. The court issued the preliminary injunction based on the affidavit of a police officer who viewed the entire film and described in detail the various sexual activities which it displayed. The affidavit concluded that, "During approximately 95% of the exhibition time the above described sex acts were explicitly portrayed on the screen. The remaining 5% of the time involved gutter language dialogue about the sex acts. There was no plot to this motion picture. 'Slippery When Wet' is hardcore pornography which left nothing to the viewer's imagination." The defendants (including petitioner), appearing through counsel at the hearing, did not cross-examine the officer, and offered no evidence on the issue of obscenity.

Petitioner argues that the court's procedure was constitutionally defective insofar as there was no guarantee that a final determination on the issue of obscenity would promptly follow the preliminary restraint. However, Code of Civil Procedure section 527, subdivision (a),...