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District Court of Appeal, Second District, Division 1, California.

Jacob ZEITLIN and Paul Fergusen, Plaintiffs and Appellants, v. Roger ARNEBERGH, Defendant and Respondent.

Civ. 26592.

Decided: December 18, 1962

Nathan L. Schoichet, Beverly Hills, A. I., Wirin and Fred Okrand, Los Angeles, for appellants. Brock & Fleishman and Stanley Fleishman, Hollywood, and Bayard F. Berman, Beverly Hills, as amici curiae for appellants. Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and William E. Doran and Edward P. George, Deputy City Attys., for respondent.

Plaintiffs sought a declaratory judgment that the sale, or offering for sale, of the book entitled ‘Tropic of Cancer’ by Henry Miller is not violative of section 311.2 of the Penal Code.1 A general demurrer to the complaint having been sustained without leave to amend, plaintiffs appeal from the ensuing judgment of dismissal.

The action is directed against the defendant as City Attorney of Los Angeles. Plaintiff Zeitlin conducts a general book selling business in Los Angeles; plaintiff Ferguson, an instructor of English at a local college, alleges that he desires to purchase the subject book but has been informed that it is unavailable for sale in the city of his residence (Los Angeles). According to plaintiffs' pleading, defendant caused a criminal complaint to be issued against one Bradley A. Smith, likewise engaged in the book selling business, charging the sale by him of the subject book which assertedly was ‘obscene matter’ and therefore contrary to the provisions of section 311.2.2 Other allegations, unnecessary to set forth, declare that the official policy of the defendant is to prevent the further sale of the book in the City of Los Angeles. Accordingly, temporary injunctive relief is also sought. A copy of the book, marked as an exhibit, accompanied the plaintiffs' pleading. Also marked as exhibits, and attached to the complaint, are literary appraisals of the book and its author, book reviews and editorial comment, all tending to support plaintiffs' claim of nonobscenity.

It is agreed that the sole question for determination is whether ‘Tropic of Cancer’ is ‘obscene’ within the meaning of that term as defined in section 311(a) of the Penal Code. Added in 1961, section 311(a) reads as follows: “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.' (Emphasis added.) Certain of the above language has been italicized because it corresponds, exactly or substantially, with the constitutional test for judging obscenity approved four years earlier in Roth v. United States (1957), 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498:3 ‘* * * [W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ The above definition or test takes on added importance here in view of its approval by the California Supreme Court in In re Harris (1961), 56 Cal.2d 879 at 880, 16 Cal.Rptr. 889 at 889, 366 P.2d 305 at 305: ‘The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.’ (Citing Roth v. United States, supra.)

Preliminarily, one principle of law reannounced in the Roth case, is that ‘obscenity is not within the area of constitutionally protected speech or press.’ (354 U.S. 485, 77 S.Ct. 1309.) The court reasoned, quoting (with emphasis added) from Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 572, 62 S.Ct. 766, 86 L.Ed. 1031, that lewd and obscene utterances ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ (354 U.S. 485, 77 S.Ct. 1309.) Other principles established by the Roth case are as follows: First, hard core, commercial pornography, described as ‘utterly without redeeming social importance’ (354 U.S. 484–485, 77 S.Ct. 1308–1309) is not protected by the First Amendment,4 second, ‘[T]he 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.’ (354 U.S. 487–488, 77 S.Ct. 1310); and third, material must be judged by its effect upon the ‘average person’ and by whether the ‘dominant theme of the material as a whole appeals to prurient interest’ which is defined (in a footnote) as ‘material having a tendeney to excite lustful thoughts.’ (354 U.S. 488–489, 77 S.Ct. 1311.) But since ‘[N]o issue [was] presented * * * concerning the obscenity of the material’ (354 U.S. 481, 77 S.Ct. 1307), the discussion of ‘obscenity’ in Roth is highly theoretical—it has been observed that the Roth case and its companion case both reached the Court on a high level of abstraction and that the basic issues (before the Court) were whether the two statutes, on their face and in a vacuum, offended the constitutional guaranties there invoked (45 Minn.L.Rev. 5, 25). In a three-judge dissent (Attorney General v. Book Named ‘Tropic of Cancer’ (Mass.), 184 N.E.2d 328), the Roth case was said to be ‘too dim a beacon by which to guess a Course.’ (p. 335.) Here, however, the obscenity of the material is at issue; we cannot deal with it in the abstract as in a vacuum, but as printed and offered for sale to the public at large. We have read the book and we agree with one favorable reviewer that parts of it ‘will hammer away at some of the strongest of stomachs.’

The book5 relates the experiences of an American in Paris (where it was first published in 1934) after World War I. He has hopes of becoming a writer; usually lives as a down and outer who exists on the charity of his friends. In our opinion there is no connected plot. Sex episodes are described in minute detail. Of the book's 318 pages, there are sex episodes on 85 pages, some of which require two or more pages to describe (always with precise physical detail) and accompanied by four-letter words, which incidentally are sprinkled generously and at random throughout the balance of the book. Every form of sexual abnormality is mentioned or practiced.

According to certain persons recognized in their field, however, the book has literary merit. For example, says T. S. Eliot: ‘A very remarkable book, with passages of writing in it as good as any I have seen for a long time.’

The statute, defendant argues, is not limited to hard core pornography; it also proscribes material which, although possessing literary merit, is ‘utterly without redeeming social importance’ when evaluated by the ‘average person applying contemporary standards.’ If the ‘average person,’ applying those standards, believes that the ‘dominant theme’ of material ‘taken as a whole has an appeal to prurient interest,’ then the material is obscene. Plaintiffs' ‘average person,’ as indicated by the exhibits to their pleading is a litterateur; but the standards of the litterateur are not necessarily those of the average person. In Commonwealth v. Robin, 30 U.S. Week 2551, the Pennsylvania Court of Common Pleas (holding the subject book to be obscene) treated this phase of the problem as follows: ‘* * * [w]e would consider that the average person might well be a composite of the jurors whom we have observed during our forty-five years at the bar and on the bench. Such a person is neither saint nor volitional sinner. He is not a literary critic nor a book burner. He is in fact an average person with average enthusiasms, average prejudices and with normal propensity for sexual activity (which happily, for the most part, is exercised in procreating the race) but who, if given sufficient erotic stimulus, may be distorted to engage in sexually abnormal orillegal behavior. This, then, is the average person to whom we apply the contemporary community standard.’

In People v. Smith, supra, each juror who convicted the defendant as charged was presumably an average person. Plaintiffs refer to that proceeding in their briefs; without objection, therefore, we are directed to the transcript of testimony presented by the prosecution. The opinions of the book are not exclusively those of writers and book reviewers. Testifying that ‘Tropic of Cancer’ was utterly without redeeming social importance or had an appeal to prurient interest, were college presidents, superintendents of schools—active and retired, college professors, clergymen (Jewish and Protestant), psychiatrists, a penologist and a distributor of periodicals—one of the three largest in the country. This is far more representative cross section of community thinking and community standards than that of a select, albeit competent, group of writers and reviewers. After all, the book is proposed to be sold not only to scholars and litterateurs, but to the general public.

There is a contrariety of opinion, of course, in this area of the law—specifically as applied to the subject book. We are advised that in addition to Pennsylvania, courts of first instance in Connecticut, New Hampshire and Wisconsin have determined that the book is not constitutionally protected by reason of its obscenity. An Illinois trial court in an unreported case (Haiman v. Morris) has held the book not to be obscene. On July 17, 1962, the Supreme Judicial Council of Massachusetts in Attorney General v. Book Named ‘Tropic of Cancer,’ supra, 184 N.E.2d 328, concluded that the novel was a conscious effort to create a work of literary art, possessed some social significance and was, therefore, not obscene under the principles discussed in Roth v. United States, supra. We are understandably told by plaintiffs that this case is persuasive authority for their position; but the majority of the Massachusetts court proceeded on the premise that competent literary critics constitute the ‘average person’ mentioned in Roth. Thus, 184 N.E.2d at page 334 it is said: ‘Competent critics assert, and we conclude, that Tropic has serious purpose.’ These critics, listed in a footnote, are all college professors. We have determined that such is not the test. The majority opinion also makes reference to four per curiam decisions following Roth; the opinion does not, as we read it, go so far as to conclude that these four decisions compelled the result there reached and now asked of us by plaintiffs in the present proceeding. A fair analysis of the majority opinion is that, enjoined by Justice Harlan in his separate opinion (Roth v. United States, supra) that the issue is not one of fact ‘but a question of constitutional judgment of the most sensitive * * * kind’ (354 U.S. 497–498, 77 S.Ct. 1316), the guaranties of the First Amendment were found to outweigh all other considerations.

Further proof of the contrariety of views above mentioned is the dissent in the same case (184 N.E.2d 328, 331–332). Three justices were of the opinion that the work ‘should be classified as pornography.’ They state at page 336: ‘The book is pitched at the nadir of scatology. * * * Its detailed and sordid sex episodes, persistently inserted at intervals in what passes for narrative, leaves an outweighing staccato impression.’ The dissent also notes that Manual Enterprises Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, one of the four per curiam decisions mentioned by the majority, is not a ‘brighter’ beacon than Roth for determination of the problem before them.6 In light of the above discussion, therefore, much of the persuasive force of the Massachusetts case seems to have been dissipated. We are not obligated to follows the majority approach, nor do we do so.

The same is true of People v. Richmond County News, Inc., 9 N.Y.2d 578, 216 N.Y.S.2d 369, decided by the Court of Appeals, another tribunal for which we have the greatest respect. This, too, was a four to three decision. While not specifically concerned with ‘Tropic of Cancer,’ the decision turned on the principles discussed in Roth v. United States, supra. The majority, ‘[m]indful of the constitutional necessity to open the door barring state intrusion into this area ‘only the slightest crack necessary’ (Roth v. United States, 354 U.S. 476, 488, 77 S.Ct. 1304, 1 L.Ed.2d 1498)' concluded that the prohibitions of the state obscenity statute ‘should apply only to what may properly be termed as ‘hard-core pornography’.' (216 N.Y.S.2d p. 375). The dissent, in our opinion, expresses the sounder view (216 N.Y.S.2d 380–381): ‘By limiting the applicability of that section only to what may be termed ‘hard-core pornography’, we would be adopting a far more stringent test than is required under present constitutional standards, and in effect be opening the door to obscenity so widely as to be tantamount to a repeal in large measure of section 1141. Since we may constitutionally give vitality to the legislative enactment, why is it necessary for us to strain against the definition laid down by the highest court in the land in order to permit the continued distribution of material which the average person would unhesitatingly condemn as obscene and lewd?

‘There is a broad area between material which all would concede is shockingly and unquestionably obscene, and matter which all would agree is clearly free of obscenity. It is urged that the critical point in the compromise lies between these two extremes, and that, quoting Judge Cardozo (Paradoxes of Legal Science, p. 37): ‘All we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest.’ Yet the determination is promptly made that the statute should apply only to the lowest level, namely, ‘hard-core’ pornography, despite Judge Cardozo's further statement: ‘It [the law] will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous' (id., p. 37).

‘Courts may not abdicate their function of judging material between these two extremes by relegating it all to the area deemed free of obscenity. We do not hesitate to adjudicate similarly close and difficult situations in other branches of the law, such as e. g., determining what is fraud, reasonable doubt, premeditation and deliberation—the latter situations often involving human life itself. Or, as Judge Cardozo put it, ‘jurisprudence has its reasonable man, its negligent man and * * * its moral man’. We cannot supply scientific definitions or require scientific tests in matters such as these, for law itself is by no means an exact science. ‘They do better things with logarithms' (p. 1).

‘Applying the test laid down in Roth v. United States, supra, 354 U.S. at page 487, 77 S.Ct. at page 1310, a test Judge Fuld agrees is within the constitutional ‘boundaries of any permissible definition of obscenity’, all eight Judges below have concluded that the magazine ‘Gent’ is obscene under the statute, and their unanimous judgment, rendered in the exercise of their ‘function as the spokesmen of the thought and sentiment of the community’, should not be lightly set aside (People v. Pesky, 254 N.Y. 373, 374, 173 N.E. 227; People v. Osher, 285 N.Y. 793, 35 N.E.2d 191; People v. Muller, 96 N.Y. 408, 410).

‘The portrayal of sex in the manner presented here is ‘without any redeeming social worth’, is not for the purpose of promoting art, literature or science, but is nothing more than a distribution of smut—dirt for dirt's sake—by a wholesale distributor to local stores and stands for the sole purpose of selfish commercial exploitation, Judges, who in their broad experience have necessarily had to deal with many sordid aspects of human life, are sometimes prone to forget that it is their duty to examine material of this kind through the eyes of ‘the average person’, whether youth or adult. It cannot be gainsaid—and we require no scientific tests to establish it—that the overwhelming mass of people in our State, by and for whom our public policy is made, are opposed to obscenity as finally defined by the Supreme Court in the Roth case (supra).'

The argument is also made that since the pertinent statute (Pen.Code, § 311(a)) provides that the matter be ‘utterly without redeeming social importance’ (emphasis added), it is constitutionally protected if any segment thereof has some redeeming quality. Because of the similarity of language found in the statute and the Roth definition of obscenity, we can properly assume that the legislation (enacted four years after Roth) was enacted with the Roth definition in mind. Reasonably construed, the word ‘utterly’ means ‘predominantly’ which is not contrary to one definition (cited by plaintiffs) in Webster's Third New International Dictionary, namely, ‘to an absolute or extreme degree.’ It is a rule of statutory interpretation that “the intention of the Legislature controls if it can be reasonably drawn from the language used, to the rejection of a more literal construction which would result in inconsistency or absurdity.” (People v. Hale, 156 Cal.App.2d 478, 481, 319 P.2d 660, 662.)

For the foregoing reasons, we hold that the subject book is obscene and therefore violative of section 311.2, Penal Code. Since plaintiffs do not contend that there is substantial ground to believe that their complaint can be amended so as to state a good cause of action, the trial court properly sustained the demurrer without leave to amend. (15 Cal.Jur.2d 163–164, § 35.)

The judgment is affirmed.


1.  Added in 1961, section 311.2 provides that, ‘Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.’

2.  A criminal trial (to a jury) resulted in the conviction of Smith as charged. On October 24, 1962, the conviction was unanimously affirmed by the Appellate Department of the Superior Court (People v. Smith, Crim.A. No. 5113, Cal.App.2d.) Plaintiffs have pleaded the protection of the First and Fourteenth Amendments; since the constitutional applicability of the statute to the facts at bar is specifically in issue, plaintiffs are not without the remedy of declaratory relief despite the criminal appeal. (Portnoy v. Superior Court, 20 Cal.2d 375, 125 P.2d 487.)

3.  In the Roth case, supra, the defendant was convicted of violating the federal obscenity statute: in a companion case, Alberts v. California, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the then California obscenity statute was involved. Both convictions were affirmed, the court holding that the statutes were neither vague nor violated the free speech guaranties of the First and Fourteenth Amendments.

4.  It has been represented to us that the Solicitor General in his brief for the United States described hard core pornography as ‘erotic objects and books, pamphlets, photographs and motion pictures, depicting normal and abnormal sexual activity.’ Continuing, ‘No one would suggest’ that such material had literary merit.

5.  We use the word advisedly since the author himself (p. 2) writes: ‘This is not a book.’

6.  ‘As was the case in Roth, however, the opinions in Manual raiise as many questions as they answer.’ (McCloskey, The Supreme Court 1961, Term (1962) 76 Harv.L.Rev. 54, 125.)

LILLIE, Justice.

WOOD, P. J., and FOURT, J., concur.