Scherr v. Municipal Court

Opinion

DEVINE, P. J.

This case comes to the Court of Appeal by the process of appeal from an order of the superior court denying a petition for writ of prohibition to prevent the municipal court from proceeding with the prosecution of a misdemeanor charge, violation of Penal Code section 311.2, subdivision (a).

[932]

Appellant was charged originally with knowingly preparing, publishing and distributing obscene matter, to wit, a picture in The Berkeley Barb. Demurrer was sustained on the ground that it was not charged that the newspaper as a whole was obscene. The People filed an amended complaint charging appellant with knowingly preparing, publishing, exhibiting and distributing obscene matter, to wit, the issue of The Berkeley Barb. Demurrer was overruled. Appellant petitioned for writ of prohibition, attaching a copy of the issue to the petition, and contending, as a matter of law, that the issue of the newspaper was not obscene. The same contention is before us.

Of course, we could not decide, in this criminal case, that the newspaper

is

obscene. Appellant is entitled to trial by jury. But he seeks determination that because the newspaper contains articles on international affairs, student strikes, the grape boycott, the police department, San Francisco State President S. I. Hayakawa, candidates for the Berkeley City Council, drugs, conservation, cultural events and moving pictures, and also a physician’s column and advertisements, it cannot be deemed to be “utterly without redeeming social importance.” The Attorney General contends that the “taken as a whole . . . utterly without redeeming social importance” rule (Pen. Code, § 311), although applicable to a single book or motion picture, does not relate in the same way to a newspaper, the numerous parts of which are generally unrelated. If it were held to do so, he argues, obscene matter would be freely published by use of the simple expedient of combining it with news articles, editorial comment or any of the multitudinous expressions which are protected by the First Amendment.

The newspaper contains one photograph of an act of sexual intercourse, specially arranged to show a female and three males in various states of. participation or onlooking; advertisements as “personals” for bisexual or homosexual liaisons; advertisements for mechanical devices as sexual stimulators, and like material. Appellant does not, presently, contend that none of these individual items is obscene. The cases denying the characterization of obscenity to nudity have done so only when it appears in a nonsexual context.