Petitioner, who was convicted of selling obscene film in
violation of California law, contends that portions of the
instructions to the jury violated his First and Fourteenth
Amendment rights, claiming that the instructions (1) allowed the
jury to convict him even though it might otherwise have found that
the film was protected under the standards of
Miller v.
California, 413 U. S. 15,
because the instructions permitted the jury to consider motives of
commercial exploitation on the part of persons in the chain of
distribution other than petitioner, and (2) violated the
prohibition against
ex post facto laws, and the fair
warning requirement of
Bouie v. Columbia., 378 U.
S. 347. The challenged instruction permitted the jury,
in determining whether the film was utterly without redeeming
social importance, to consider the circumstances of the sale and
distribution, particularly whether such circumstances indicated
that the film was being commercially exploited for the sake of its
prurient appeal.
Held:
1. The instruction violated no First Amendment rights of the
petitioner. The circumstances of distribution of the material are
relevant from the standpoint of whether public confrontation with
potentially offensive aspects of the material is being forced, and
are
"equally relevant to determining whether social importance
claimed for material in the courtroom was, in the circumstances,
pretense or reality -- whether it was the basis upon which it was
traded in the marketplace or a spurious claim for litigation
purposes."
Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 470.
See also Hamling v. United States, 418 U. S.
87,
418 U. S. 130.
Pp.
431 U. S.
598-599.
2. Though the section of the California Penal Code that
authorized the challenged instruction was enacted after part of the
conduct for which petitioner was convicted but prior to his trial,
that section does not create any new substantive offense, but
merely declares what type of evidence may be received and
considered by the jury in deciding whether the allegedly obscene
material was "utterly without redeeming social importance."
People v. Noroff, 67 Cal. 2d
791, 433 P.2d 479, relied on by petitioner in support of his
ex post facto claim, did not
Page 431 U. S. 596
disapprove of any use of evidence of pandering for its probative
value on the obscenity issue, but merely rejected the concept of
pandering of nonobscene material as a separate crime under sate
law. Pp.
431 U. S.
599-601.
3. There was no change in the interpretation of the elements of
the substantive offense prohibited by California law, and
Bouie, supra, is therefore inapplicable. P.
431 U. S.
601.
Affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which STEWART and
MARSHALL, JJ., joined,
post, p.
431 U. S. 601.
STEWART, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined,
post, p.
431 U. S. 602.
STEVENS, J., filed a dissenting opinion, in which BRENNAN, STEWART,
and MARSHALL, JJ., joined,
post, p.
431 U. S.
602.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Splawn was convicted in 1971 of the sale of two reels
of obscene film, a misdemeanor violation of California Penal Code §
311.2 (West 1970). After the conviction was affirmed on appeal by
the California First District Court of Appeal and the State Supreme
Court denied review, this Court granted certiorari, vacated the
judgment, and remanded for consideration in light of our decision
in
Miller v. California, 413 U. S. 15
(1973), which had set forth the standards by
Page 431 U. S. 597
which the constitutionality of § 311.2 was to be determined.
After the State Supreme Court ruled that the statute satisfied the
requirements articulated in
Miller, see Bloom v. Municipal
Court, 16 Cal. 3d 71,
545 P.2d 229 (1976), the Court of Appeal again affirmed the
conviction and the California Supreme Court denied petitioner's
motion for a hearing.
We again granted certiorari, 429 U.S. 997 (1976), to consider
petitioner's assorted contentions that his conviction must be
reversed because portions of the instructions given to the jury
during his trial render his conviction violative of the First and
Fourteenth Amendments. He claims that the instruction allowed the
jury to convict him even though it might otherwise have found the
material in question to have been protected under the
Miller standards. He also contends that the same portions
of the instructions render his conviction invalid by reason of the
constitutional prohibition against
ex post facto laws and
the requirement of fair warning in the construction of a criminal
statute enunciated in
Bouie v. City of Columbia,
378 U. S. 347
(1964). We consider these contentions in light of the fact that
petitioner has abandoned any claim that the material for the
selling of which he was convicted could not be found to be obscene
consistently with the First and Fourteenth Amendments, and any
claim that the California statute under which he was convicted does
not satisfy the requirements articulated in
Miller,
supra.
As it was understood by the California Court of Appeal,
petitioner's challenge is leveled against the following portion of
the instructions:
"In determining the question of whether the allegedly obscene
matter is utterly without redeeming social importance, you may
consider the circumstances of sale and distribution, and
particularly whether such circumstances indicate that the matter
was being commercially exploited by the defendants for the sake of
its prurient appeal. Such evidence is probative with respect to the
nature of
Page 431 U. S. 598
the matter and can justify the conclusion that the matter is
utterly without redeeming social importance. The weight, if any,
such evidence is entitled [to] is a matter for you, the Jury, to
determine."
"
* * * *"
"Circumstances of production and dissemination are relevant to
determining whether social importance claimed for material was, in
the circumstances, pretense or reality. If you conclude that the
purveyor's sole emphasis is in the sexually provocative aspect of
the publication, that fact can justify the conclusion that the
matter is utterly without redeeming social importance."
App. 38-39.
There is no doubt that, as a matter of First Amendment obscenity
law, evidence of pandering to prurient interests in the creation,
promotion, or dissemination of material is relevant in determining
whether the material is obscene.
Hamling v. United States,
418 U. S. 87,
418 U. S. 130
(1974);
Ginzburg v. United States, 383 U.
S. 463,
383 U. S. 470
(1966). This is so partly because, as the Court has pointed out
before, the fact that the accused made such an appeal has a bearing
on the ultimate constitutional tests for obscenity:
"The deliberate representation of petitioners' publications as
erotically arousing,.for example, stimulated the reader to accept
them as prurient; he looks for titillation, not for saving
intellectual content. Similarly, such representation would tend to
force public confrontation with the potentially offensive aspects
of the work; the brazenness of such an appeal heightens the
offensiveness of the publications to those who are offended by such
material. And the circumstances of presentation and dissemination
of material are equally relevant to determining whether social
importance claimed for material in the courtroom was, in the
circumstances, pretense or reality -- whether
Page 431 U. S. 599
it was the basis upon which it was traded in the marketplace or
a spurious claim for litigation purposes."
Ibid.
Petitioner's interpretation of the challenged portions of the
instructions in his case is that they permitted the jury to
consider motives of commercial exploitation on the part of persons
in the chain of distribution of the material other than himself. We
upheld a similar instruction in
Hamling, supra, however,
wherein the jury was told that it could consider
"whether the materials had been pandered, by looking to their
'[m]anner of distribution, circumstances of production, sale, . . .
advertising . . . [, and] editorial intent. . . .' This instruction
was given with respect to both the Illustrated Report and the
brochure which advertised it, both of which were at issue in the
trial."
418 U.S. at
418 U. S.
130.
Both
Hamling and
Ginzburg were prosecutions
under federal obscenity statutes in federal courts, where our
authority to review jury instructions is a good deal broader than
is our power to upset state court convictions by reason of
instructions given during the course of a trial.
See Cupp v.
Naughten, 414 U. S. 141
(1973);
Henderson v. Kibbe, ante p.
431 U. S. 145. We
can exercise the latter authority only if the instruction renders
the subsequent conviction violative of the United States
Constitution. Questions of what categories of evidence may be
admissible and probative are otherwise for the courts of the States
to decide. We think
Hamling, supra, and
Ginzburg,
supra, rather clearly show that the instruction in question
abridges no rights of petitioner under the First Amendment as made
applicable to the States by the Fourteenth Amendment.
But petitioner contends that, even though this be so, the
particular portions of the instructions of which he complains were
given pursuant to a statute enacted
after the conduct for
which he was prosecuted. In his view, therefore, his conviction
both violates the constitutional prohibition against
ex post
facto laws,
See Calder v. Bull,
3 Dall. 386,
3 U. S. 390
(1798),
Page 431 U. S. 600
and failed to give him constitutionally fair warning of the
prohibited conduct with which he was charged.
Bouie v.
Columbia, supra. We find these contentions to be without
merit, and we reject them.
The section of the California Penal Code defining the
substantive misdemeanor with which petitioner was convicted, §
311.2, was in full force and effect at all times relevant to
petitioner's conduct. California Penal Code § 311(a) (West 1970),
which authorized the above-quoted instructions, was enacted after
part of the conduct for which he was convicted but prior to his
trial. That section, however, does not create any new substantive
offense, but merely declares what type of evidence may be received
and considered in deciding whether the matter in question was
"utterly without redeeming social importance."
Petitioner's
ex post facto argument is based on his
reading of an earlier decision of the Supreme Court of California,
People v. Noroff, 67 Cal. 2d
791, 433 P.2d 479 (1967). His view is that, under that case,
evidence such as was admitted here would not have been admissible
at his trial on the substantive offense but for the enactment of §
311(a)(2). He claims that such a change in procedural rules
governing his trial amounts to the enactment of an
ex post
facto law in violation of Art. I, § 9, cl. 3. The California
Court of Appeal's opinion in this case rejected that contention,
and since it is a contention which must in the last analysis turn
on a proper reading of the California decisions, such a
determination by the California Court of Appeal is entitled to
great weight in evaluating petitioner's constitutional
contentions.
The Court of Appeal, commenting on
Noroff, said with
respect to the California Supreme Court's decision in that
case:
"The court did not, however, disapprove of any use of evidence
of pandering for its probative value on the issue of whether the
material was obscene. It merely rejected
Page 431 U. S. 601
the concept of pandering of nonobscene material as a separate
crime under the existing laws of California."
App. to Pet. for Cert. ix.
We accept this conclusion of the California Court of Appeal, and
therefore find it unnecessary to determine whether if § 311(a)(2)
had permitted the introduction of evidence which would have been
previously excluded under California law, petitioner would have had
a tenable claim under the
Ex Post Facto Clause of the
United States Constitution.
Bouie v. City of Columbia, supra, holds that the
elements of a statutory offense may not be so changed by judicial
interpretation as to deny to accused defendants fair warning of the
crime prohibited. No such change in the interpretation of the
elements of the substantive offense prohibited by California law
took place here, and petitioner may therefore derive no benefit
from
Bouie.
We thus find no merit in petitioner's claims based on First and
Fourteenth Amendment protection of nonobscene matter, the
constitutional prohibition against
ex post facto laws, or
Bouie v. City of Columbia. We have considered petitioner's
other claims, which appear to be variations on the same theme. and
likewise reject them. The judgment of the California Court of
Appeal is
Affirmed.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR.
JUSTICE MARSHALL join, dissenting.
The California courts, in response to our remand for
reconsideration in light of
Miller v. California,
413 U. S. 15
(1973), reaffirmed petitioner's 1971 conviction of selling obscene
films in violation of California Penal Code § 311.2 (West 1970). I
would reverse the conviction. I adhere to my view expressed in
Miller that this statute is "unconstitutionally overbroad,
and therefore invalid on its face." 413 U.S. at
413 U. S. 47
(BRENNAN, J., dissenting).
See also Pendleton v.
California, 423 U.S.
Page 431 U. S. 602
1068 (1976) (BRENNAN, J., dissenting from dismissal of appeal);
Sandquist v. California, 423 U. S. 900, 901
(1975) (BRENNAN, J., dissenting from denial of certiorari);
Tobalina v. California, 419 U. S. 926
(1974) (BRENNAN, J., dissenting from denial of certiorari);
Kaplan v. California, 419 U. S. 915
(1974) (BRENNAN, J., dissenting from denial of certiorari);
Blank v. California, 419 U. S. 913
(1974) (BRENNAN, J., dissenting from denial of certiorari).
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.
In my view, the statute under which the petitioner was convicted
is constitutionally invalid on its face. Accordingly, I have joined
MR. JUSTICE BRENNAN's dissent.
But even if, as the Court believes, the statute itself is not
invalid, MR. JUSTICE STEVENS has surely demonstrated that this
petitioner was unconstitutionally convicted under it. On that
basis, I also join the dissenting opinion of MR. JUSTICE
STEVENS.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
STEWART, and MR. JUSTICE MARS:ALL join, dissenting.
Under the trial court's instructions, the jury may have
determined that the films sold by the petitioner had some social
significance, and therefore were not, in themselves obscene, but
nevertheless found him guilty because they were advertised and sold
as "sexually provocative." [
Footnote 1] A conviction pursuant to such an instruction
should not be allowed to stand.
Truthful statements which are neither misleading nor offensive
are protected by the First Amendment even though
Page 431 U. S. 603
made for a commercial purpose.
Virginia Pharmacy Bd v.
Virginia Consumer Council, 425 U. S. 748.
Nothing said on petitioner's behalf in connection with the
marketing of these films was false, misleading, or even arguably
offensive either to the person who bought them or to an average
member of the community. The statements did make it clear that the
films were "sexually provocative," but that is hardly a confession
that they were obscene. And, if they were not otherwise obscene, I
cannot understand how these films lost their protected status by
being truthfully described. [
Footnote 2]
Even if the social importance of the films themselves is
dubious, there is a definite social interest in permitting them to
be accurately described. Only an accurate description can enable a
potential viewer to decide whether or not he wants
Page 431 U. S. 604
to see them: signs which identify the "adult" character of a
motion picture theater or of a bookstore convey the message that
sexually provocative entertainment is to be found within; under the
jury instructions which the Court today finds acceptable, these
signs may deprive otherwise nonobscene matter of its constitutional
protection. Such signs, however, also provide a warning to those
who find erotic materials offensive that they should shop elsewhere
for other kinds of books, magazines, or entertainment. Under any
sensible regulatory scheme, truthful description of subject matter
that is pleasing to some and offensive to others ought to be
encouraged, not punished. [
Footnote
3]
I would not send Mr. Splawn to jail for telling the truth about
his shabby business. [
Footnote
4]
[
Footnote 1]
The relevant instruction is quoted by the Court,
ante
at
431 U. S.
597-598. I would emphasize this sentence:
"If you conclude that the purveyor's sole emphasis is in the
sexually provocative aspect of the publication, that fact can
justify the conclusion that the matter is utterly without redeeming
social importance."
[
Footnote 2]
Ginzburg v. United States, 383 U.
S. 463, does not foreclose this analysis, because it was
decided before the Court extended First Amendment coverage to
commercial speech.
Ginzburg cannot survive
Virginia
Pharmacy. Ginzburg is based on the premise that
advertising the character of the material may "catch the
salaciously disposed," 383 U.S. at
383 U. S. 472,
and "stimulat[e] the reader to accept them as prurient,"
id. at
383 U. S. 470.
But MR. JUSTICE BLACKMUN's opinion for the Court in
Virginia
Pharmacy makes it clear:
"There is . . . an alternative to this highly paternalistic
approach. That alternative is to assume that this information is
not, in itself, harmful, that people will perceive their own best
interests if only they are well enough informed, and that the best
means to that end is to open the channels of communication, rather
than to close them. . . . It is precisely this kind of choice,
between the dangers of suppressing information and the dangers of
its misuse if it is freely available, that the First Amendment
makes for us."
425 U.S. at
425 U. S. 770.
See also Linmark Associates, Inc. v. Willingboro, ante p.
431 U. S. 85.
Indeed, the case for First Amendment protection in advertising is
stronger in this case than in
Linmark or
Virginia
Pharmacy. For to ban advertising of a book or film is to
suppress the book or film itself.
MR. JUSTICE BRENNAN does not join this footnote. Because he
agrees that the California Legislature's retroactive adoption of
Ginzburg violates the
Ex Post Facto Clause,
n 4,
infra we need not
in his view decide the question whether Ginzburg survives
Virginia Pharmacy.
[
Footnote 3]
It is ironic that, in upholding obscenity laws, this Court has
stressed the State's
"legitimate interest in prohibiting dissemination or exhibition
of obscene material when the mode of dissemination carries with it
a significant danger of offending the sensibilities of unwilling
recipients or of exposure to juveniles."
Miller v. California, 413 U. S. 15,
413 U. S. 18-19
(footnote omitted).
[
Footnote 4]
I must also record my dissent from the Court's disposition of
petitioner's
ex post facto argument.
In
People v. Noroff, 58 Cal. Rptr. 172 (1967), the
California Court of Appeal reversed a trial judge who had
determined the obscenity issue before trial solely on the basis of
the materials themselves. Relying on
Ginzburg, the Court
of Appeal held that the prosecution should have been allowed to
present evidence of pandering;
"although the ultimate constitutional fact in issue remains a
question of law to be decided by the court, it will be a rare case
. . . when a trial court may properly undertake to determine this
issue prior to trial by a mere examination of the material itself
unaided by expert testimony or evidence relating to the conduct of
defendant in connection with the material."
58 Cal. Rptr. at 177.
The California Supreme Court reversed, and rejected the
argument
"that the trial court should have permitted the prosecution to
go to the jury with evidence bearing upon the defendant's
'pandering' of the magazine in question."
67 Cal. 2d
791, 793, 433 P.2d 479, 480 (1967). The court also expressly
rejected an argument that an earlier California case had adopted "a
pandering' concept similar to that elaborated in
Ginzburg in the context of the federal obscenity statute."
Id. at 793 n.4, 433 P.2d at 480 n. 4.
After petitioner's offense, the California Legislature
retroactively adopted
Ginzburg by statute. In my view,
petitioner had the right to rely on the
Noroff decision,
and to believe that he was entitled to truthfully advertise
otherwise nonobscene material. The
Ex Post Facto
Clause
"reflect[s] the strong belief of the Framers of the Constitution
that men should not have to act at their peril, fearing always that
the State might change its mind and alter the legal consequences of
their past acts so as to take away their lives, their liberty or
their property."
El Paso v. Simmons, 379 U. S. 497,
379 U. S. 522
(Black, J., dissenting).