TOBRINER, J. I dissent. The majority today attempt to save the
California obscenity statute (Pen. Code, § 311.2) through incorporating by reference the general guidelines set forth in Miller v. California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct. 2607], This effort is unlikely to prove any more successful in resolving the “intractable obscenity problem” (Interstate Circuit v. Dallas (1968) 390 U.S. 676, 704 [20 L.Ed.2d 225, 243, 88 S.Ct. 1298] (Harlan, J. concurring and dissenting), than was Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304] and its progeny. The adopted approach fails to remedy either the inherent vagueness of the obscenity concept, or the unwarranted interference of such regulation with the individual’s fundamental right to speak, to read and to view freely, subject only to constitutional limitation. As I do not believe that either of these deficiencies can be corrected in the context of a statute prohibiting the communication of “obscenity” to consenting adults, I would hold Penal Code section 311.2 invalid under the California Constitution.
The somewhat tortured history of judicial attempts to define obscenity has been fully reviewed elsewhere,1 and requires no repetition here. Suffice it to say that the extraordinary difficulty of pronouncing intelligible standards capable of providing notice to the public and guidelines to the judiciary by which to distinguish between protected and unprotected speech has been recognized by courts and commentators alike.2
[87]Following repeated failure to develop an adequate standard, essentially two views have coalesced: one maintains that the traditional approach will suffice provided that the standard is “fine tuned” to limit the scope of liability and specify the acts whose depiction will render a work obscene; the other recognizes that the vagueness and uncertainty in the obscenity area stems primarily not from disagreement as to the permissible scope of regulation, or lack of an agreed verbal formulation, but rather from the inherent subjectivity that attaches to regulation of this nature.3 Miller exemplifies the former approach; I have concluded that the latter is the only path consistent with established constitutional principles.
The most basic of these principles is embodied in the rule that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618].) Recognizing that a civilized society does not imprison a person for violating prohibitions on conduct that cannot even be defined, this court has repeatedly stated that “[t]he requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well established element of the guarantee of due process of law.” {In re Newbern (1960) 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116].) At a minimum, therefore, any proposed obscenity standard must meet the test that it is not so vague “that men of common intelligence must necessarily guess at its meaning and differ as to its application. . . .” {Connallv v. General Construction Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].)
The requirement of fair notice is rooted not only in the federal Constitution, but also in the due process clause of the California Constitution. (Art. I, § 7.) We have had several occasions to note that our state Constitution is a document of independent force and significance.4 Indeed, the California Constitution expressly so provides: “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” (Art. I, § 24.) It is therefore the duty of this court to exercise independent judgment as to the validity of obscenity legislation in the light of constitutional principles.
[88]I am convinced that no formulation of an obscenity standard aimed at consenting adults can provide adequate notice to potential violators as to what conduct is permissible and what will later be deemed criminal. This conclusion rests not merely upon the fact that years of effort to develop a predictable rule has led only to “utter bewilderment” (Interstate Circuit v. Dallas, supra, 390 U.S. at p. 707 [20 L.Ed.2d at p. 245] (Harlan, J; concurring and dissenting)), but more importantly upon the realization that the very characteristics of the obscenity concept are inherently subjective, and cannot be communicated in a rule of predictable application. These factors, in my view, point inescapably towards the conclusion that the type of regulation attempted by Penal Code section 311.2 is unsuitable for the composition of criminal penalties.
The subjectivity that is unavoidable in formulating legal standards that define obscenity stems initially from the fact that the First Amendment protects any work which communicates significant ideas, including those which pertain to sex. A rule merely prohibiting the depiction of certain specifically defined acts is thereby foreclosed. “We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is . . . open to suppression by the States. . . . But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard.” (Paris Adult Theater I v. Slaton, supra, 413 U.S. 49, 94 [37 L.Ed.2d 446, 479] (Brennan, J. dissenting).) Thus every court since Roth has adhered to the fundamental view that, in order to be held obscene, a work must lack a significant quantum of social value.5
Even if we assume the viability of the social value test, its application requires that the jury in each case pass upon the intellectual content and [89]social utility of the challenged work. We need not elaborate upon the utterly subjective and unpredictable nature of such an undertaking. In truth this standard demands of the jury an evaluation of whether, despite its sexually explicit nature, a work is sufficiently important to merit public dissemination. This issue does not turn upon fact, but upon judgment—which necessarily derives from personal taste, values, and experience. That individuals consistently reach different judgments in appraising a given work on this basis can hardly come as a surprise.6 Yet the Penal Code requires the defendant, at peril of liberty, to guess whether a particular jury will hold that his work is obscene under this diffuse standard.
The problem of vagueness is aggravated still further by the fact that the jury is called upon to determine and apply a “community ” standard in some phases of its deliberations. This delegation of judgment contrasts sharply with virtually the entire corpus of the criminal law, in which the community’s view of appropriate conduct is embodied in the rule itself.7 Here, however, the jury is expected both to determine the applicable standard and to judge whether the defendant’s conduct conforms to it. “By its terms the statute leaves to the individual judge or jury the determination of the meaning of the law as well as what proven facts render the accused guilty or innocent. It is not difficult to visualize the divergence of decisions or verdicts that must ensue when the law leaves its definition and meaning to be determined by judges and juries who might differ widely in regard to it.” {In re Newbern, supra, 53 Cal.2d, at p. 796.)
Clearly the validity of conditioning criminal liability upon the accurate prediction of a “community” standard not specified by statute heavily relies upon the presence of a highly cohesive community view which is both predictable in application, and readily apparent to the average person. Yet findings contained in the Commission Report cast serious doubt upon the very concept of a “community standard,” let [90]alone the existence of one capable of providing fair notice of what is prohibited: “. . . people do not agree about whether or not a given sexual stimulus is ‘sexually arousing,’ ‘offensive’ or ‘pornographic’. ... In nearly every case the judgments provided by a group for a given stimulus ranged from one extreme to another. For example . . . [the subjects in one test] so differed among themselves in their judgments of this picture-on each of these dimensions that their judgments were distributed on each of the 11 points of the scale. .. . Similar findings, regarding the lack of consensus among members of the groups in their judgments of explicit sexual stimuli along dimensions related to constitutional standards for obscenity were found by other investigators using a variety of kinds of subject and stimuli.” (Commission Report, supra, at pp. 355-356.)
These findings confirm the lesson of nearly two decades of experience with obscenity regulation—that there is no representative “community view,” but rather a spectrum of response to identical material within a community. To delegate to the jury the determination of a hypothetical community standard is thus necessarily to deprive the defendant of advance warning of what is prohibited. Although a state “community standard” is more realistic than a national standard, it falls far short of providing the level of certainty required of a criminal statute.
While failure to provide fair notice of what is prohibited would, of course, be independently sufficient to invalidate Penal Code section 311.2 on due process grounds, we tread here, of course, on territory at least closely bordered by the First Amendment. “While the basic standard against which statutes must be measured for vagueness is a constant, the vigor with which that standard is applied varies with the determination whether a constitutionally protected right is involved.” {People v. Barksdale (1972) 8 Cal.3d 320, at p. 327 [105 Cal.Rptr. 1, 503 P.2d 257].) “. . . [Standards of permissible statutory vagueness are strict in the area of free expression” (N. A. A. C. P. v. Button (1963) 371 U.S. 415, at p. 432 [9 L.Ed.2d 405, at p. 417, 83 S.Ct. 328]) for “[w]here regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.” {Thornhill v. Alabama (1940) 310 U.S. 88, at p. 98 [84 L.Ed. 1093, at p. 1100, 60 S.Ct. 736].)
Vague standards at the perimeter of the First Amendment give rise to twin dangers: ambiguity leads to applications of the statute directly [91]suppressing protected speech; and fear of prosecution—regardless of outcome—casts a chilling effect on expression, causing the wary to “ ‘steer far wider of the unlawful zone.’ ” (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279 [11 L.Ed.2d 686, 706, 84 S.Ct. 710, 95 A.L.R.2d 1412],)8 In the obscenity area these dangers are not merely theoretical. The Commission on Obscenity and Pornography, following the study of the effects of the Roth-Memoirs standard, were led to the alarming conclusion that “. . . in some communities constitutionally protected material may simply not be available because of the dangers of attempting to engage in distribution of sexually explicit works” (Commission Report, supra, at p. 359). Obscenity prosecution in the post-Miller era has led one judge to remark that, “[M]y experience with this one case teaches me that the ‘alarm of repression’ was validly sounded; it also teaches me that the Miller majority’s assumption that courts can distinguish commerce in ideas that is protected from commercial exploitation of obscene material that is not protected is a too optimistic assumption.” (Jenkins v. State (1973) 230 Ga. 726 [199 S.E.2d 183, 188] revd. sub. nom. Jenkins v. Georgia (1974) 418 U.S. 153 [41 L.Ed.2d 642, 94 S.Ct. 2750].) (Gunter, J. dissenting.)
Although no definition of obscenity calculated to curtail the flow of material to consenting adults may be framed within the permissible scope of the vagueness doctrine, the state can nevertheless properly protect the unwilling adult from offensive assaults on his sensibilities and shield its children from sexually explicit material. In these areas, as will be shown below, the permissible scope of regulation under the First Amendment is wider and greater. Consequently, far more strict explicit statutory standards may be employed, alleviating the problems of notice and overbroad application.
The notion that the state pursues a legitimate interest in protecting the privacy of those who may be subjected to unwanted and offensive displays of sexually explicit material now finds endorsement by those on all sides of the obscenity debate.9 Having evolved gradually over the past 16 years, this concept has been articulated into a rule which recognizes the propriety of state regulation over the manner of public distribution of [92]even constitutionally protected material for the purpose of protecting a “captive audience.”10 Justice Stewart, concurring in Ginsberg v. New York (1968) 390 U.S. 629, 649 [20 L.Ed.2d 195, 209, 88 S.Ct. 1274], explained that “[w]hen expression occurs in a setting where the capacity to make a choice is absent, government regulation of that expression may co-exist with and even implement First Amendment guarantees. So it is that this court sustained a city ordinance prohibiting people from imposing their opinions on others ‘by way of sound trucks with loud and raucous noises on city streets’ [Kovacs v. Cooper, 336 U.S. 77, 86 (93 L.Ed. 513, 521-522, 69 S.Ct. 448, 10 A.L.R.2d 608)]. And so it was that my Brothers Black and Douglas thought that the First Amendment itself prohibits a person from foisting his uninvited view upon the members of a captive audience [Public Utilities Comm’n v. Pollak, 343 U.S. 451, 466 (96 L.Ed. 1068, 1079, 72 S.Ct. 813) (Black, J. dissenting), 467 (96 L.Ed. 1079-1080) (Douglas, J. dissenting)].”
A broader scope of permissible state regulation has similarly been recognized for the protection of children from obscenity. Thus, in Ginsberg the court upheld the constitutionality of a special statute directed at the sale of “obscene” material to minors. The court concluded that the state could constitutionally prohibit the dissemination of certain material to minors, even though a general prohibition on such dissemination would have violated the First Amendment. Quoting with approval from Bookcase, Inc. v. Broderick (1966) 18 N.Y.2d 71, [218 N.E.2d 668, 671], the court noted that “[mjaterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined.” (390 U.S., at p. 636 [20 L.Ed.2d at p. 202].)
In the interest of protecting minors as well as unconsenting adults, therefore, it is permissible to define for regulation material that in other contexts would be deemed insulated by the First Amendment. The definition of obscenity for these purposes need not incorporate the subjective “social value” and “community standard” tests, which are designed to distinguish between protected and unprotected speech. By focusing directly upon the characteristics of the material offensive to unwilling adults and inappropriate for children, the state could permissibly define obscenity for these groups in specific terms to prohibit the [93]description or depiction of particular sexual acts. Such narrowly drawn statutes would not be subject to the due process and First Amendment objections applicable to Penal Code section 311.2.
By merely copying Miller, the court today only postpones the difficult though inevitable task of formulating new standards that are consistent with fundamental constitutional principles. It does so in the face of a rising tide of opinion that Miller is “probably transient” (Commonwealth v. Horton (Mass. 1974) 310 N.E.2d 316, 325 (Kaplan, J. concurring)), and must ultimately yield to the conclusion that, “. . . no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment" (Paris Adult Theater I v. Slaton, supra, 413 U.S., at p. 85 [37 L.Ed.2d at p. 474] (Brennan, J. dissenting)). This view now commands the support of four members of the United States Supreme Court (see Paris Adult Theater I v. Slaton, supra, at p. 70 [37 L.Ed.2d at p. 465] (Douglas, J. dissenting) and p. 73 [37 L.Ed.2d at pp. 466-467] (Brennan, J. dissenting)), an increasing number of state court judges,11 and even more widespread acceptance among commentators.12 In my opinion, we should now recognize that Penal Code section 311.2 is void for vagueness.
Even apart from vagueness, Penal Code section 311.2 must be invalidated on other constitutional grounds. By seeking to suppress the consenting adult’s access to “obscene” material, the state intrudes upon the individual’s fundamental right to receive information and ideas. This intrusion is not supported, in my view, by any compelling state interest.
The foremost articulation of the right to receive information and ideas appears in Stanley v. Georgia (1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], which held that the state could not permissibly prohibit the [94]private possession of obscene material for personal use. Although the far-reaching implications of Stanley have been largely repudiated in subsequent decisions of the United States Supreme Court,13 I believe that the constitutional rationale underlying Stanley suggests the fundamental principles that properly guide analysis of obscenity regulation. The logic of these principles compels the invalidation of Penal Code section 311.2.
Synthesizing a line of cases spanning the last half-century, the Stanley court unequivocally identified a fundamental interest in the individual as a recipient of ideas: “It is now well established that the Constitution protects the right to receive information and ideas. ‘This freedom [of speech and press]. .. necessarily protects the right to receive. . ..’ Martin v. City of Struthers, 319 U.S. 141 (1943); see Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965) (Brennan, J. concurring); cf. Pierce v. Society of Sisters 268 U.S. 510 (1925). This right to receive information and ideas, regardless of their social worth, see Winters v. New York, 333 U.S. 507, 510 (1948), is fundamental to our free society.” (Stanley v. Georgia, supra, 394 U.S. 557, 564 [22 L.Ed.2d 542, 549].)
Stanley makes clear that the “right to receive” is not subordinated simply by the fact that the material at issue is “obscene.” “. . . [M]ere categorization of these films as ‘obscene’ is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments.” (Stanley v. Georgia, supra, 394 U.S., at p. 565 [22 L.Ed.2d at p. 549].) Rather, under Stanley, the state’s interest in regulating obscenity is to be balanced against the intrusion of such regulation upon the fundamental rights of the individual: “RozA and its progeny certainly do mean that the First and Fourteenth Amendments recognize a valid governmental interest in dealing with the problem of obscenity. But the assertion of that interest cannot, in every context, be insulated from all constitutional protections.” (Id., at p. 563 [22 L.Ed.2d at p. 548].) Balancing the competing interests before it, the court in Stanley found the state’s interest in suppressing obscenity to be insufficiently compelling to outweigh the individual’s right to private possession of obscene material.
Although Stanley recognized that Roth and the cases following it discerned a subordinating interest in the regulation of commercial [95]distribution of obscene material, it is for this court to weigh independently the asserted governmental interests in censorship against the fundamental rights protected by the California Constitution.14 I have concluded that Penal Code section 311.2 is unsupported by any subordinating state interest insofar as it attempts to keep assertedly obscene material from consenting adults.15
The fundamental right to receive information and ideas “regardless of their social worth” is predicated upon the notion that in a free society, the worth of an idea or form of expression is measured not by the willingness of the state to tolerate it, but rather by the willingness of the individual to receive it. “The constitutional right of free expression ... is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.... To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. . .. That is why ‘[w]holly neutral futilities ... come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,’ Winters v. New York 333 U.S. 507, 528 (1948) (Frankfurter, J. dissenting), and why ‘so long as the means are peaceful, the communication need not meet standards of acceptability.’ Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).” (Cohen v. California (1971) 403 U.S. 15, at pp. 24-25 [29 L.Ed.2d 284, at pp. 293-294].)
Moreover, the “inherent dangers of undertaking to regulate any form of expression” (Miller v. California, supra, 413 U.S., at p. 23 [37 L.Ed.2d at p. 430]) cautions against the casual suppression of any material, [96]regardless of its deemed social value. Government censorship, though aimed at the elimination of “obscenity,” inevitably threatens to curtail a measure of political expression as well.16 This danger becomes aggravated in light of the vagueness and related ills that naturally attend this type of regulation. This possibility necessitates not only that the scope of the content of suppressible material be narrowly circumscribed, but also that a state interest of more substantial proportions be shown before attempting such suppression at all.
In the absence of a powerful governmental purpose, therefore, the First Amendment, in my view, prohibits the state from barring from those who consent to receive it any designated category of communication. To intrude upon the individual’s fundamental right to obtain information the statute must be premised on more than a mere rational relation to a permissible state purpose; the proffered regulation must be necessary to the effectuation of a compelling state interest. (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 268 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313].) Only if it meets this test may Penal Code section 311.2 be sustained.
Three state interests are generally proffered to support governmental suppression of the acquisition of obscenity by consenting adults: (1) prevention of anti-social behavior assertedly caused by viewing such material; (2) protection of the individual’s morality by restricting his access to it; and (3) preservation of the quality of life and community environment by eradicating public sanction of obscenity. Stanley explicitly rejected as incompatible with the First Amendment the first two of these purported state interests; I believe the third is equally inadequate to sustain an invasion of fundamental rights.
The notion that the state can proffer a compelling interest in obscenity regulation upon the theory that viewing obscenity leads to criminal behavior was dismissed by the Stanley court as both empirically baseless and constitutionally infirm. Noting that there is little scientific evidence to support the assertion that exposure to obscenity leads to deviant or criminal sexual behavior,17 the court observed that, “[g]iven the present state of knowledge, the state may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they [97]may lead to the manufacture of home-made spirits.” (Stanley v. Georgia, supra, 394 U.S. at p. 567 [22 L.Ed.2d at p. 551].) Moreover, irrespective of obscenity’s effect on conduct, censorship is simply impermissible as a preventative measure to enforce the criminal law: “. .. if the State is only concerned about [literature] inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that ‘[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law. . . .’ ” (394 U.S., at pp. 566-567 [22 L.Ed.2d at p. 550].)
The Stanley court rejected as well the state’s attempt to justify suppression in order to foster morality among its citizens: “. . . Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the state has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment.” (Fn. omitted.) (394 U.S., at pp. 565-566 [22 L.Ed.2d at p. 550].)
Ultimately, the proponents of censorship must rely, almost exclusively, upon a vague if vigorously asserted state interest in the preservation of a “desirable” moral tone and climate in society.18 Yet this proffered governmental purpose is equally incompatible with the First Amendment, for it suggests that the right to receive information and ideas is limited to expression found acceptable by the majority.
The “right to receive,” however, has never been conditioned upon public tolerance for the form or content of the proffered communication. “Plainly a community cannot suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful.” (Murdock v. Pennsylvania (1943) 319 U.S. 105, 116.) Similarly, the freedom to disseminate information to receptive citizens may be protected even [98]where the means of distribution is sometimes “a nuisance or a blind for criminal activities.” (Martin v. City of Struthers, supra, 319 U.S. 141, 145 [87 L.Ed. 1313, 1318].) Given a fundamental right to receive information and ideas regardless of their social worth, that right clearly is not defeasible upon a showing that some find its exercise distasteful.
Whatever the power of the state to regulate the public distribution of sexually explicit material for the purpose of protecting the privacy of nonconsenting adults, this power does not extend, in my view, to the suppression of communication between consenting parties, merely because others—not themselves exposed to the undesired communication—are nonetheless offended by the fact that the communication occurs. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” (Cohen v. California, supra, 403 U.S. 15, 21 [29 L.Ed.2d 284, 291-292].)
Finally, a governmental effort to impose a societal standard of morality by restricting the ability of individuals to obtain entertainment or satisfaction out of any form of expression that appeals to them, absent a concrete showing of harm, runs contrary to the fundamental right of privacy that is lodged in the “penumbra” of the Bill of Rights (see Griswold v. Connecticut, supra, 381 U.S. 479; Eisenstadt v. Baird (1972) 405 U.S. 438 [31 L.Ed.2d 349, 92 S.Ct. 1029]; Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705]; Stanley v. Georgia, supra, 394 U.S. 557; Olmstead v. United States (1928) 277 U.S. 438 [72 L.Ed. 944, 48 S.Ct. 564, 66 A.L.R. 376] (Brandris, J. dissenting), and is now explicitly guaranteed by the California Constitution (art. I, § 1).
Underlying these decisions lies the common theme that, unless demonstrable harm can be shown, the state may not restrict an individual’s behavior as to certain intimate matters merely on the basis of ancient taboos and commonly held views of morality. “Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the [99]constitutionally protected privacy interests of a pregnant woman.” (Paris Adult Theater I v. Slaton, supra, 413 U.S. 49, 109-110 [37 L.Ed.2d 446, 488] (Brennan, J. dissenting).)
The fundamental difficulty with legislation that would suppress obscenity is that it attempts to codify ever-changing and elusive social mores. Society itself is convulsed in a contradiction of approaches: it is torn between deeply felt moral exhortations that sexual fulfillment is sinful and the widely held Freudian teaching that the very lack of such fulfillment is, as to the individual’s emotional wellbeing, sinful. In the wake of these attitudes the Legislature frames its enactments in broad generalities and loose terminology that can hopefully satisfy both contentions. The result of these efforts becomes legislation that is so distended that it is unenforceable.
In this undertaking the courts and legislators must deal with a public opinion that is as restless and changing as the waters of the ocean: the would-be legislative and judicial King Canutes must fail in ordering back the waves of a cultural revolution.
In fixing the constitutional limits of this legislation the court must therefore recognize the limited nature of the legal process. As I have explained, I would hold back the sweep of the prohibition here to the enforceable and reasonable goal of the protection of the viewing but nonconsenting public. I realize that to some persons pornographic depiction is repulsive; to others the prohibition of it threatens intrusion upon constitutionally protected free expression, and incurs the danger that the suppression may spill over to inhibit the political protest that surely should be protected. Perhaps ultimately the courts must recognize that each protagonist in this field makes a point—that the single citizen has as much constitutional right to view the erotic creations of a Blake. Picasso, or Bosch in privacy as the general citizenry has the right not to see such erotica depicted on public billboards.
Finally, I urge the acceptance of a limited range of inhibiting legislation in this field because the past attempt at a more ubiquitous prohibition has not only been wasteful but harmful. It has been wasteful in that it has consumed law enforcement resources that could have better been devoted to combat more serious crime. No better or more convincing statement of this misdirection of public energy and resources can be found than the late Professor Packer’s classic exposition The Limits of the Criminal Sanction (1968), particularly pages 316 to 328. But [100]the loose use of the criminal process for these purposes has been worse than wasteful: its obvious failure, which is manifest to any casual observer of book stores or motion picture theaters in our metropolitan areas, has brought the law itself into disrepute. The impotence of courts to enforce their grandiloquent if contradictory rulings on this subject inevitably leads to the conclusion that other criminal sanctions cannot or will not be enforced and therefore may safely be disregarded.
In view of these considerations, I believe that the Penal Code’s intrusion upon the individual’s fundamental right to receive information and ideas cannot stand. To yield to the fear that a “moral” society cannot be maintained unless the state chooses the books we may read and the movies we may watch is to reject the fundamental premise of the First Amendment, the premise that freedom of expression, in the absence of demonstrable harm, leads ultimately toward enhanced human dignity and social progress rather than vulgarity and decay. We may personally take displeasure in the type of expression which some individuals seek, but it is precisely the purpose of the First Amendment to forestall governmental enforcement of that displeasure by use of the criminal law.
I would reverse the judgment.
Mosk, J„ concurred.
See Miller v. California, supra, 413 U.S. 15, 20 [37 L.Ed.2d 419. 428]; Paris Adult Theater I v. Slaton (1973) 413 U.S. 49, 73 [37 L.Ed.2d 446, 466-467, 93 S.Ct. 2628] (Brennan, J., dissenting); Interstate Circuit v. Dallas, supra, 390 U.S. 676, 704 [20 L.Ed.2d 225, 243] (Harlan. J. concurring and dissenting).
The majority in Miller v. California, supra, 413 U.S. 15, 22 [37 L.Ed.2d 419, 429] noted that “[a]part from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. See. e.g.. Redrup v. New York, 386 U.S., at 770-771. We have seen ‘a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704-705 (Harlan, J. concurring and dissenting) (footnote omitted).” (Fn. omitted.) (See Note. The First Amendment Overbreadth Doctrine (1970) 83 Harv.L.Rev. 844, at pp. 883-890; Note. New Prosecutorial [87]Techniques and Continued Judicial Vagueness: fAn Argument for Abandoning Obscenity as a Legal Concept (1973)21 U.C.L.A. L.Rev. 181.)
Compare Miller v. California, supra, 413 U.S. 15 with Paris Adult Theater I v. Slaton, supra, 413 U.S. 49, 73 [37 L.Ed.2d 446, 466-467] (Brennan, J. dissenting).
Sec. e.g., People v. Brisendine (1975) 13 Cal.3d 528, 549 [119 Cal.Rptr. 315, 531 P.2d 1099]; Curry v. Superior Court (1970) 2 Cal.3d 707, 716 [87 Cal.Rptr. 361, 470 P.2d 345],
In Roth v. United States, supra, 354 U.S. 476 the court stated that. “[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the [First Amendment] guarantees, unless excludable because they encroach upon the limited area of more important interests." (354 U.S. 476, at 484 [I L.Ed.2d 1498, at p. 1507] (fn. omitted).) This statement was interpreted by the court in Memoirs v. Massachusetts (1966) 383 U.S. 413, 419 [16 L.Ed.2d 1, 6, 86 S.Ct. 975] to require the jury to find the challenged material to be “utterly without redeeming social value." Most justices adopted some variant of the “social value" test in formulating their individual standards for identifying obscenity. (See Redrup v. New York (1967) 386 U.S. 767, 770 [18 L.Ed.2d 515, 517-518, 87 S.Ct. 1414].) Miller revised the Memoirs test to require a showing of “serious" literary, artistic, political, or scientific value. (Miller v. California, supra. 413 U.S. at p. 24 [37 L.Ed.2d at p. 431].)
See. for example, the record of Supreme Court per curiam reversals of obscenity determinations following Roth and Reclrup. listed in the Report of the United States President’s Commission on Obscenity and Pornography (Sept. 1970) (hereafter cited as Commission Report) at page 318. Although the jury in virtually each such case presumably found beyond a reasonable doubt that the material at issue was “utterly without redeeming social value.” the court—exercising its independent judgment—disagreed.
All penal statutes are. of course, statements of conduct that the community finds offensive. Yet uniquely with respect to obscenity, the statute does not identify the offensive conduct, but rather makes reference to a community standard that is applied by the jury to the defendant's conduct after the allegedly offensive act has already occurred.
See N. A. A. C. P. v. Button, supra, 371 U.S. 415 at p. 433 [9 L.Ed.2d 405, at p. 418]; Note. The Void-for- Vagueness Doctrine in the Supreme Court (1960) 109 U.Pa.L.Rev. 67 at pp. 76. 80.
See Miller v. California, supra, at pages 18-19 [37 L.Ed.2d at pp. 427-428]: Miller at page 44 [37 L.Ed.2d at pp. 442-443] (Douglas, J. dissenting): Paris Adult Theater I v. Slaton, supra, at pages 105-107 [37 L.Ed.2d at pp. 485-487] (Brennan, J. dissenting).
See People v. Luros (1971) 4 Cal.3d 84, 101, footnote 13 [92 Cal.Rptr. 833, 480 P.2d 633] (Tobriner, J. dissenting).
See Jenkins v. State, supra, 199 S.E.2d 183, 185 (Gunter, J. dissenting); Commonwealth v. Horton, supra, 310 N.E.2d 316 (Kaplan, J. concurring); State ex rel. Wampler v. Bird (Mo. 1973) 499 S.W.2d 780 (Seller, J. dissenting): People v. Heller (1973) 33 N.Y.2d 314 [352 N.Y.S.2d 601, 307 N.E.2d 805] (Wachtler. J. dissenting).
See. e.g., Note. New Prosecutorial Techniques and Continued Judicial Vagueness: An Argument for Abandoning Obscenity as a Legal Concept (1973) 21 U.C.L.A. L.Rev. 181: Note. In Quest of a “Decent Society”: Obscenity and the Burger Court (1973) 49 Wash.L.Rev. 89; Wolf. Obscenity: The Lingering Uncertainty (1972) N.Y.U.Rev. L. & Soc. Change: Hunsaker, The 1973 Obscenity-Pornography Decisions: Analysis. Impact, and Legislative Alternatives (1974) 11 San Diego L.Rev. 906: Note. Obscenity '73: Something Old, A Little Bit New, Quite a Bit Borrowed, But Nothing Blue (1973) 33 Md.L.Rev. 421.
See United States v. Reidei, (1971) 402 U.S. 351 [28 L.Ed.2d 813, 91 S.Ct. 1410]; United States v. Thirty-Seven Photographs (1971) 402 U.S. 363 [28 L.Ed.2d 822, 91 S.Ct. 1400]; Paris Adult Theater I v. Slaton, supra, 413 U.S. 49.
See footnote 4 and accompanying text: California Constitution, article I. sections 1 and 2.
I have previously had occasion to suggest that constitutional protection for some forms of public distribution of obscenity may be directly implied .from the right to possess privately obscene material in the home (see People v. Luros, supra, 4 Cal.3d 84, 93 (Tobriner, J. dissenting). The present analysis focuses on constitutional limitations on obscenity regulation under the broader right to receive information and ideas. Under either of these principles, in my opinion. Penal Code section 311.2 may be invalidated on its face as constitutionally overbroad. (See. e.g., N. A. A. C. P. v. Button, supra, 371 U.S. 415, 432 [9 L.Ed.2d 405. 417-418].)
See People v. Luros, supra, 4 Cal.3d 84, 96 (fn. 4). page 98 (fn. 7) (Tobriner, J. dissenting).
This view was confirmed by the Commission Report.supra. page 27.
The majority in Paris Adult Theater I v. Slaton, supra, characterized this interest in the following terms: “Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel: 'It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an "obscene book in his room, or expose himself indecently there.... We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places—discreet, if you will, but accessible to all—with others who share his tastes, then to grant him his right is to affect the world about the rest of us. and to impinge on other privacies. . . (Italics in original, fn. omitted.) (415 U.S., at pp. 58-59 [37 L.Ed.2d at pp. 457-458].)