Zeitlin v. Arnebergh

• Citation: 31 Cal.Rptr. 800,383 P.2d 152,59 Cal.2d 901,10 A.L.R.3d 707
• Parties: , 383 P.2d 152, 10 A.L.R.3d 707 Jacob ZEITLIN et al., Plaintiffs and Appellants, v. Roger ARNEBERGH, Defendant and Respondent. L. A. 26905.
• Decision Date: 02 July 1963
• Court: United States State Supreme Court (California)

Page 800

31 Cal.Rptr. 800

59 Cal.2d 901, 383 P.2d 152, 10 A.L.R.3d 707

Jacob ZEITLIN et al., Plaintiffs and Appellants, v. Roger ARNEBERGH, Defendant and Respondent.

L. A. 26905.

Supreme Court of California, In Bank.

July 2, 1963.

Rehearing Denied July 31, 1963.

Nathan L. Schoichet, Beverly Hills, A. L. Wirin and Fred Okrand, Los Angeles, for plaintiffs and appellants.

Brock & Fleishman, Stanley Fleishman, Hollywood, Bayard F. Berman and Sol Rosenthal, Beverly Hills, as amici curiae on behalf of plaintiffs and appellants.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran and Edward P. George, Deputy City Attys., Los Angeles, for defendant and respondent.

TOBRINER, Justice.

In this case 'Tropic of Cancer' by Henry Miller makes another one of its many court appearances. Its record to date has been a varied one; in some places the book is 'obscene' and in others it is not; presently its legal status is largely tied into the geography of its sale or publication. ¹ In any event, our first task must be to determine whether the instant form of action, that of declaratory relief requested by a bookseller and would-be reader, properly presents the issue of the book's proscription under Penal Code section 311. We hold this form of relief appropriate. Our second question turns upon whether the issue of the application of the statute to this book, within constitutional limitations, rests ultimately with the court, as a matter of law, or with the jury as a question of fact. We think it a legal issue. Finally, since we believe the Penal Code section constitutionally may exorcise only hard-core pornography, and since the statute does no more, we hold the book does not fall within its prohibition because 'Tropic of Cancer' is not hard-core pornography.

The plaintiff bookseller and plaintiff prospective purchaser brought the action against the city attorney of Los Angeles to secure a declaratory judgment that the book was not 'matter' defined as 'obscene' by Penal Code section 311, ² and that its sale would not violate Penal Code section 311.2. ³ Plaintiffs appended to the complaint a copy of the book and excerpts from several book reviews by critics which proclaim its literary merit. Defendant answered, denying many of the allegations of the complaint, but admitting that he contends that the sale of the book violates Penal Code section 311.2. In a separate declaration the defendant stated that he intends to prosecute all persons arrested in the City of Los Angeles for the sale of 'Tropic of Cancer.' Defendant also entered a general demurrer to the complaint.

The trial court sustained the demurrer without leave to amend and entered a judgment dismissing the action. In a memorandum entry in the minutes the judge stated that he had upheld the demurrer both because, having read the book, he determined it to be obscene and because plaintiffs have failed to state a cause of action.

In assessing the propriety of the trial court's order sustaining the demurrer without leave to amend, we face the preliminary question of whether an action for declaratory judgment instituted by a bookseller and a prospective purchaser will lie to determine the alleged obscenity of a particular book under the code provisions. While potential defendants have frequently sought declaratory relief to avoid prosecution under statutes which they have sought to prove unconstitutional (see e. g., Wollam v. City of Palm Springs (1963), 59 Cal.2d , 29 Cal.Rptr. 1, 379 P.2d 481; Katzev v. County of Los Angeles (1959), 52 Cal.2d 360, 341 P.2d 310), plaintiffs here do not challenge the constitutionality of the involved statute unless it sanctions the prosecution of 'Tropic of Cancer.' In that event, however, plaintiffs do contend that the statute both constitutes an unconstitutional restraint on freedom of speech and also attempts a proscription which is unconstitutionally vague under the First and Fourteenth Amendments to the United States Constitution and article I section 9 and 13, of the California Constitution. ⁴

The precedents, as well as other compelling reasons, support a declaratory relief action in the present case. The gravamen of the plaintiffs' complaint is that although the statute cannot properly be interpreted to apply to 'Tropic of Cancer,' defendant nevertheless contends that the book is 'obscene matter' within the terms of the statute and intends to prosecute those who sell it. Thus the complaint alleges a genuine controversy involving the construction of particular legislation as to which it seeks a judicial determination. Such a complaint, according to the prior case, sufficiently states a claim for declaratory relief. (Walker v. County of Los Angeles (1961), 55 Cal.2d 626, 637, 12 Cal.Rptr. 671, 361 P.2d 247; Hoyt v. Board of Civil Service Com'rs (1942), 21 Cal.2d 399, 132 P.2d 804.)

We have stated that considerations beyond the precedents support the adjudication of the alleged obscenity of a particular book in a declaratory relief action. ⁵ As we shall explain in more detail, the vendor of the questioned book faces the possibility of prosecution and his very fear of it may work a de facto censorship of the publication. The would-be reader, in the absence of declaratory relief, may be deprived of his constitutional rights. Finally, diverse results of the enforcement of the obscenity statute may result in a crazy-quilt pattern of a publication's suppression.

Plaintiff Zeitlin alleges that he is engaged in business as a bookseller and that he wishes to sell 'Tropic of Cancer' in his bookstore, but that he is prevented from offering the book because he fears that if he does so defendant will institute criminal proceedings against him. To deny Zeitlin, a legitimate businessman, an opportunity for declaratory relief is to force him to choose between undesirable alternatives. If the continues to sell the book he incurs the risk of criminal prosecution and faces the fine, jail sentence, or both, which may be imposed if he is found guilty, ⁶ or he sustains the accompanying stigma which attaches even though he may ultimately be found innocent. ⁷ As an alternative he may assume the role of self-appointed censor, prodded by the city attorney, and discontinue the sale of any book which could possibly offend the latter. The city attorney should not thus become an indirect censor of public reading matter; his abuse of such power could constitute an unlawful restraint upon the dissemination of literature not otherwise censorable. (Bentam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584.)

Plaintiff Ferguson alleges that he desires to purchase a copy of 'Tropic of Cancer' but is unable to do so because the bookseller, thus fearful of prosecution, refuses to sell the publication. Unless Ferguson is able to find a bookseller willing to face the possibility of criminal prosecution and the attendant described risks, he will be deprived of his basic constitutional right to read. Thus declaratory relief may offer the only method for vindication of this constitutional right.

A final reason for the invocation of declaratory relief lies in its decisiveness. Sporadic and diverse criminal prosecutions must necessarily produce discriminatory results. A finding of guilt of one purveyor of obscene publications will not necessarily discourage others; indeed such vendors characteristically operate undercover ⁸ and are inclined to recidivism. ⁹ If, on the other hand, a verdict expresses a determination that the material is not obscene the city attorney is still free to prosecute another bookseller for selling the same publication. If a criminal verdict, whether of guilt or of innocence, operates primarily within a particular county to ban the book in the case of guilt, or to encourage its sale in the case of innocence, an opposite result might readily obtain in another county. Such an approach must inevitably engender a hodge-podge pattern of suppression and sale.

Nor does our statutory procedure insure a method of uniform adjudication by means of criminal prosecution. Until a third offense, the sale of obscene matter to adults constitutes a misdemeanor. (Pen.Code, § 311.9.) Thus the defendant ordinarily will be tried in the municipal court; if found guilty he may appeal, as a matter of right, only to the appellate department of the superior court. ¹⁰ To resolve the issue at this level raises not only the possibility of contradictory rulings on the obscenity of a particular work, but also the probability of conflicting interpretations of the obviously perplexing Penal Code section 311.

Since plaintiffs set forth facts showing the existence of an actual controversy and have requested that these rights be adjudged by the court in a matter in which the court is competent to grant declaratory relief, they have stated a legally sufficient complaint. Upon presentation of such complaint, a plaintiff is entitled to a declaration of his rights, whether the declaration be favorable or adverse; thus in the instant case the trial court's order sustaining the demurrer and its dismissal of the action cannot be upheld upon the ground that plaintiffs pursued the wrong kind of action. Salsbery v. Ritter (1957), 48 Cal.2d 1, 306 P.2d 897; Columbia Pictures v. De Toth (1945), 26 Cal.2d 753, 161 P.2d 217; Maguire v. Hibernia Savings & Loan Soc. (1944), 23 Cal.2d 719, 146 P.2d 673, 151 A.L.R. 1062.)

As we have stated, 'Our decision that controversies are shown to exist, however, does not resolve them, and we must therefore pass upon the questions of law that must be decided to reach a final determination of the case. Code Civ.Proc. § 53.' (Salsbery v. Ritter, supra, 48 Cal.2d at p. 7, 306 P.2d at p. 900; Columbia Pictures v. De Toth, supra.) While in Maguire the unresolved issues of the special demurrer in the trial court justified the termination of appellate review, we do not face such a situation here....