Constitutional Law: The Meaning of Obscenity In California

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California seems to be a place where the nation's most progressive state court is forced to cool down the nation's most combustible voters. In 1964, Californi ans overwhelmingly approved amendments to their state constitution that prohibited pay-TV and rejected the fair-housing law that forbade discrimination in the sale or rental of private homes. The California Supreme Court subsequently voided both amendments as unconstitutional. This election day, the voters face another explosive issue: Proposition 16, which is aimed at sharply amending the state's anti-obscenity statute in order to "control the flood of filth which is engulfing California."

Proposition 16 is the product of CLEAN Inc. (California League Enlisting Action Now), a Los Angeles-based lobby founded by San Diego's conservative Republican State Assemblyman E. Richard Barnes, a retired Navy chaplain who argues that smut has brought about a U.S. "moral crisis." The organization's campaign director is William K. Shearer, a top tactician in putting across the now-voided housing initiative (Proposition 14). Says Shearer: "I always liked to think of myself as the most conservative man in San Diego County."

Blatant Display. Shearer & Co. not only claim that U.S. smut peddlers now gross $2 billion a year, but they calculate that "about 60% of the lewd paperbacks and magazines circulating today in the U.S. are published by California firms," three-quarters of whose products "fall into the hands of teenagers under 18." In January, for example, Los Angeles Publisher Milton J. Luros (estimated annual sales: $6 million) and eight associates were convicted on 147 counts of violating anti-obscenity laws by deluging Iowa with six smutty paperbacks and 14 nudist magazines. Although 250 obscenity cases are now pending in California, even the state's best bookstores still blatantly display "nudie" magazines, while others peddle prurient paperbacks, ranging from Carnal Code to Passion Puppet.

As CLEAN tells it, the villain is Section 311 of the California Penal Code, a 1961 response to the U.S. Supreme Court's famous decision in Roth v. U.S. (1957), which held for the first time that the First Amendment does not protect obscenity because such expression is "utterly without redeeming social importance." Did this mean that "social importance" might save challenged material? The court did not say. Although Roth established other criteria for judging whether alleged obscenity should be protected, social importance was not included. In writing Section 311, however, the California legislature did include that test, thus going beyond Roth and the law in other states. To prove obscenity in California, says Section 311, the prosecution must show that challenged material is "utterly without redeeming social importance."

Endorsing a Test. In an effort to avoid censorship of legitimate literature, the California Supreme Court has endorsed the social-importance test as a necessary element in the prosecution of obscenity. In several recent cases, the U.S. Supreme Court has seemed to agree. CLEAN's Proposition 16 would retain other Roth criteria but delete so cial importance entirely from Section 311's obscenity test.