Bloom v. Municipal Court

545 P.2d 229, 16 Cal. 3d 71, 127 Cal. Rptr. 317, 1976 Cal. LEXIS 209

• Court: California Supreme Court
• Decided: February 6, 1976
• Docket: L.A. 30258
• Status: Published

Opinions

Opinion

CLARK, J.

Plaintiff Bloom appeals from a judgment of the Los Angeles Superior Court denying his petition for writ of prohibition to restrain the Inglewood Municipal Court from proceeding on a complaint charging him in the statutory language with violation of section 311.2, subdivision (a), of the Penal Code.¹ We affirm the judgment.

I

We first consider a question of appellate jurisdiction raised by the Court of Appeal on its own motion.²

The Court of Appeal held that a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is not appealable, and that the only remedy is a petition in the Court of Appeal for an original writ of prohibition. Treating plaintiff’s appeal as a petition for writ of prohibition on which an alternative writ had been issued, the Court of Appeal heard and determined the matter on the merits and denied the peremptory writ. We ordered a hearing and transferred the cause to this court on our own motion.

Prior to revision of the Constitution in 1966, appeals from rulings by the superior courts on petitions for writs of prohibition were expressly included within the appellate jurisdiction of the Courts of Appeal. “The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts ... in proceedings of . . . prohibition . . . .” (Cal. Const., art. VI, § 4b.)³ When the judicial article was revised, “detailed references to instances of appellate jurisdiction,” except for this court’s appellate jurisdiction in death penalty cases, were deleted as “unnecessary.” (Cal. Const. Rev. Com., Proposed Rev. of Cal. Const. (Feb. 1966) P- 91.)

Although no longer spelling it out in so many words, article VI still clearly provides that Courts of Appeal have jurisdiction over appeals from superior court judgments in prohibition proceedings. Section 11 provides in part that “courts of appeal have appellate jurisdiction when superior courts have original jurisdiction . . . .” Section 10 provides in part that superior courts “have original jurisdiction in proceedings for extraordinary relief in the nature of . . . prohibition.” There is not the slightest indication in the comments of either the Constitution Revision Commission or the Judicial Council that revision of article VI was intended or expected to affect the appellate jurisdiction of the Courts of Appeal in this regard. (Cal. Const. Rev. Com., Proposed Rev. of Cal. Const. (Feb. 1966) pp. 90-91; Judicial Council of Cal., 1967 Rep. to Governor and Legislature, pp. 76-77.)

Analogy to habeas corpus procedure is not persuasive. An order by a superior court denying a writ of habeas corpus can be challenged only by filing a new petition in a higher court, but that rule is statutory. (Pen. Code, § 1506; People v. Griggs (1967) 67 Cal.2d 314, 317 [61 Cal.Rptr. 641, 431 P.2d 225]; Loustalot v. Superior Court (1947) 30 Cal.2d 905, 913 [186 P.2d 673].) In contrast, the Code of Civil Procedure makes the statutes pertinent to appeals applicable to writs of prohibition. Section 1110 provides that “The provisions' of Part two of this code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title.” Prohibition is a proceeding mentioned in chapter 3 of the title. (See 5 Witkin, Cal. Procedure (2d ed.) Extraordinary Writs, § 178, p. 3938, citing Mellinger v. Municipal Court (1968) 265 Cal.App.2d 843, 845 [71 Cal.Rptr. 535].)

In conclusion, a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is within the appellate jurisdiction of the Courts of Appeal.

II

We now consider the merits of plaintiff’s appeal.

Plaintiff contends California’s statutory definition of obscenity (Pen. Code, § 311) is unconstitutionally vague in light of the recent restatement of the constitutional standard in Miller v. California (1973) 413 U.S. 15 [37 L.Ed.2d 419, 93 S.Ct. 2607], Plaintiff argues section 311 fails to satisfy Miller’s requirement that material pi escribed as obscene be “specifically defined by the applicable state law, as written or authoritatively construed.” (413 U.S. at p. 24 [37 L.Ed.2d at p. 430].) We hold section 311 sufficiently specific “as ... authoritatively construed.”

In Roth v. United States (1957) 354 U.S. 476, 489 [1 L.Ed.2d 1498, 1509, 77 S.Ct. 1304], the court articulated the following test of obscenity: “]W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” In the course of rejecting the claim that obscene materials are protected by the First Amendment, the court in Roth observed that “implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” (354 U.S. at p. 484 [1 L.Ed.2d at p. 1507], italics added.) This observation was incorporated into the definition of obscenity by a plurality of the court in Memoirs v. Massachusetts (1966) 383 U.S. 413, 418 [16 L.Ed.2d 1, 5-6, 86 S.Ct. 975], “Under [the Roth] definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. ” (Italics added.)

The element added by the Memoirs plurality was repudiated by the majority of the court in Miller v. California. “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . .; (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U.S., at 419; that concept has never commanded the adherance of more than three Justices at one time.” (413 U.S. at pp. 24-25 [37 L.Ed.2d at p. 431]; citation and fn. omitted.) “While Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was ‘utterly without redeeming social value’—a burden virtually impossible to discharge under our criminal standards of proof.” (413 U.S. at pp. 21-22 [37 L.Ed.2d at p. 429].)

California’s statutory definition of obscenity is based on the Memoirs plurality test. “Obscene matter” is defined in section 311 as “matter, taken as a whole, the predominant appeal of which to the average person, applying contemporaiy standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance. ” (Italics added.)

Plaintiff may not complain of the fact that California by statute continues to impose a greater burden on the People in an obscenity prosecution than is constitutionally required. In Hamling v. United States (1974) 418 U.S. 87 [41 L.Ed.2d 590, 94 S.Ct. 2887], the court rejected the contention that revision of the Memoirs test in Miller meant a pre-Miller federal obscenity statute was unconstitutionally vague. “[Ojur opinion in Miller plainly indicates that we rejected the Memoirs ‘social value’ formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to ‘prove a negative,’ it imposed a ‘[prosecutorial] burden virtually impossible to discharge’ and which was not constitutionally required. 413 U.S., at 22. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller. ” (418 U.S. at pp. 116-117 [41 L.Ed.2d at p. 620].)

However, plaintiff’s vagueness argument is based primarily on part (b) of the Miller test—the requirement that material proscribed as obscene depict or describe, in a patently offensive manner, sexual conduct “specifically defined by the applicable state law, as written or authoritatively construed.” (Miller v. California, supra, 413 U.S..at p. 24 [37 L.Ed.2d at p. 430].) The court in Miller gave “a few plain examples of what a state statute could define for regulation under part (b).” The examples were “[pjatently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “[pjatently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals.” (413 U.S. at p. 25 [37 L.Ed.2d at p. 431].) Plaintiff contends section 311 is unconstitutionally vague because it lacks such specificity.

Rejecting such a challenge to a pre-Miller federal obscenity statute (18 U.S.C. § 1461)⁴ in Hamling v. United States, supra, 418 U.S. 87, the court emphasized; “At no point does Miller or any of the other obscenity decisions decided last Term intimate that the constitutionality of pre-Miller convictions under statutes such as 18 U.S.C. § 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U.S., at 24 n. 6, that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes ‘as construed heretofore or hereafter, may well be adequate.’ That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973).” (418 U.S. at pp. 112-113 [41 L.Ed.2d at pp. 617-618].)

United States v. 12 200-ft. Reels of Film came to the court on appeal from the district court’s dismissal of a forfeiture action under title 19 United States Code section 1305, subdivision (a), which statute the district court had found unconstitutional. In vacating the constitutional decision and remanding the case for a determination of the obscenity vel non of the materials claimant sought to import, the court stated: “We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where ‘a serious doubt of constitutionality is raised’ and ‘ “a construction of the statute is fairly possible by which the question may be avoided.” ’ If and 'when such a ‘serious doubt’ is raised as to the vagueness of the words ‘obscene,’ ‘lewd,’ ‘lascivious,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated material in 19 U.S.C. § 1305 (a) and 18 U.S.C. § 1462, we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California, at 25. Of course, Congress could always define other specific ‘hard core’ conduct.” (413 U.S. at p. 130, fn. 7 [37 L.Ed.2d at p. 507]; citations omitted.)

In Hamling, the court similarly construed title 18 United States Code section 1461. “[Wje indicated in United States v. 12 200-ft. Reels of Film, supra, at 130 n. 7, that we were prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of ‘patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California. ’ We now so construe the companion provision in 18 U.S.C. § 1461, the substantive statute under which this prosecution was brought. As so construed, we do not believe that petitioners’ attack on the statute as unconstitutionally vague can be sustained.” (418 U.S. at p. 114 [41 L.Ed.2d at pp. 618-619].)

Understanding the lesson of 12 200-ft. Reels prior to its reiteration in Hamling, the Court of Appeal in People v. Enskat (1973) 33 Cal.App.3d 900 [109 Cal.Rptr. 433] (hg. den.; cert, den., 418 U.S. 937 [41 L.Ed.2d 1172, 94 S.Ct. 3225]), held that section 311, as authoritatively construed, satisfies Miller’s requirement of “specificity.” “In requiring that obscene matter must go ‘substantially beyond contemporary limits of candor in description or representation of such matters,’ the statute is substantially the same as the general Miller formulation which inquires ‘whether the work depicts or describes, in a patently offensive way, sexual conduct.’ Miller states that those matters must be ‘specifically defined by the applicable state law.’ Previous California cases have so limited section 311. Thus it is clear that section 311 prohibits only ‘hardcore pornography’ (Zeitlin v.Arnebergh, 59 Cal.2d 901 [31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707]), that nudity does not equate with obscenity and that ‘no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene’ (People v. Noroff, 67 Cal.2d 791 at p. 797 [63 Cal.Rptr. 575, 433 P.2d 479]), and that ‘[t]o constitute obscenity ... the material must contain a graphic description of sexual activity’ (People v. Cimber, 271 Cal.App.2d Supp. 867, 869 [76 Cal.Rptr. 382]). . . . Miller, thus has not imposed any new requirements upon California law insofar as [the first] two of the three elements required by section 311 are involved.” (33 Cal.App.3d at pp. 908-910; fns. omitted.)

In Miller, the court vacated the judgment and remanded the case to the Appellate Department of the Orange County Superior Court for further proceedings “not inconsistent with the First Amendment standards established by this opinion.” (413 U.S. at p. 37 [37 L.Ed.2d at p. 438].) Citing Enskat, the appellate department reaffirmed Miller’s conviction for distributing obscene materials in violation of section 311.2, subdivision (a). The United States Supreme Court dismissed Miller’s second appeal “for want of a substantial federal question.” (418 U.S. 915 [41 L.Ed.2d 1158, 94 S.Ct. 3206] (Miller II).) Certiorari was denied in Enskat. (418 U.S. 937 [41 L.Ed.2d 1172, 94 S.Ct. 3225].)

Concluding it was not bound by Miller II, a three-judge federal district court declared section 311 et seq. unconstitutional under Miller I. (Miranda v. Hicks (C.D.Cal. 1974) 388 F.Supp. 350, revd., Hicks v. Miranda (1975) [422 U.S. 332, 45 L.Ed.2d 223, 95 S.Ct. 2281].) Citing Bouie v. City of Columbia (1964) 378 U.S. 347, 350-351 [12 L.Ed.2d 894, 897-898, 84 S.Ct. 1697], for the “established rule of Due Process that no person may be subject to criminal prosecution without ‘fair notice that his contemplated conduct is forbidden by statute,’ ” the district court held: “(1) the California obscenity statute as written does not meet the specificity test of Miller and (2) the California courts, in interpreting the statute may have liberalized it beyond its wording but have not specifically construed it so as to give fair notice as to what is constitutionally prohibited.” (Miranda v. Hicks, supra, 388 F.Supp. at pp. 356, 359, fn. omitted.)

The “fair notice” argument found persuasive in Miranda v. Hicks was rejected with regard to an equivalent federal obscenity statute in Hamling v. United States. “Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U.S. 347 (1964), require reversal of their convictions. . . . [T]he enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a ‘clarifying gloss’ to the prior construction and' therefore made the meaning of the federal statute involved here ‘more definite’ in its application to federal obscenity prosecutions. Bouie v. City of Columbia, supra, at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners’ claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail.” (418 U.S. at pp. 115-116 [41 L.Ed.2d at pp. 619-620]; italics added.)

Having failed to recognize the authority of Miller II, the three-judge court disregarded the plain significance of Hamling. (Miranda v. Hicks, supra, 388 F.Supp. at pp. 362-364.) Therefore, the United States Supreme Court was compelled to address itself to the constitutionality of section 311 once more. “[T]he District Court was in error in holding that it could disregard the decision in Miller II. That case was an appeal from a decision by a state court upholding a state statute against federal constitutional attack. A federal constitutional issue was properly presented, it was within our appellate jurisdiction under § 1257(2), and we had no discretion to refuse adjudication of the case on its merits as would have been true had the case been brought here under our certiorari jurisdiction. We are not obligated to grant the case plenary consideration, and we did not; but we were required to deal with the merits. We did so by concluding that the appeal should be dismissed because the constitutional challenge to the California statute was not a substantial one. The three-judge court was not free to disregard this pronouncement.” (Hicks v. Miranda, supra, 422 U.S. 332, 343-344 [45 L.Ed.2d 223, 236].)

Having previously denied hearing in Enskat, we now expressly approve that decision. Section 311 has been and is to be limited to patently offensive representations or descriptions of the specific “hard core” sexual conduct given as examples in Miller I, i.e., “ultimate sexual acts, normal or perverted, actual or simulated,” and “masturbation, excretory functions, and lewd exhibitions of the genitals.” (413 U.S. at p. 25 [37 L.Ed.2d at p. 431].) As so construed, the statute is not unconstitutionally vague.

Assuming arguendo that section 311 as authoritatively construed is as “specific” as Miller I requires, plaintiff contends the statute is, nevertheless, so vague as to deny him due process of law. Plaintiff argues that judging a work’s “prurient interest” or “social value” is so subjective a process that its outcome is inherently .unpredictable, denying a potential violator fair notice of what is prohibited. Rejecting this argument, the United States Supreme Court has repeatedly upheld obscenity legislation against attacks mounted under the due process clause of the federal Constitution. (Hamling v. United States, supra, 418 U.S. 87, 89 [41 L.Ed.2d 590, 604]; Miller v. California, supra, 413 U.S. 15, 27-28 [37 L.Ed.2d 419, 432-433]; Roth v. United States, supra; 354 U.S. 476, 491-492 [1 L.Ed.2d 1498, 1510-1511].) The due process clause of the California Constitution does not impose a stricter standard in this regard.

Plaintiff’s contention that the right to possess obscene material in the privacy of one’s own home, announced in Stanley v. Georgia (1969) 394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], implies the right not only to receive, but also to sell and distribute such material, has been completely discredited. “The District Court ignored both Roth and the express limitations on the reach of the Stanley decision. Relying on the statement in Stanley that ‘the Constitution protects the right to receive information and ideas . . . regardless of their social worth,’ 394 U.S., at 564, the trial judge reasoned that ‘if a person has the right to receive and possess this material, then someone must have the right to deliver it to him.’ . . . [1Í] The District Court gave Stanley too wide a sweep. To extrapolate from Stanley’s right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion abjured. Whatever the scope of the ‘right to receive’ referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here [distributing it by mail]—dealings that Roth held unprotected by the First Amendment.” (United States v. Reidel (1971) 402 U.S. 351, 355 [28 L.Ed.2d 813, 817, 91 S.Ct. 1410]; see Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 69 [37 L.Ed.2d 446, 464, 93 S.Ct. 2628]; United States v. Thirty-Seven Photographs (1971) 402 U.S. 363, 375-377 [28 L.Ed.2d 822, 833-835, 91 S.Ct. 1400]; People v. Luros (1971) 4 Cal.3d 84, 90-93 [92 Cal.Rptr. 833, 480 P.2d 633].)

Plaintiff next contends that section 311.2, subdivision (a), should be declared invalid under article I, sections 1 and 2, of the California Constitution on the ground that the state has no legitimate interest in regulating commercial distribution of obscene material. This contention, too, has been thoroughly discredited. “[W]e hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. [Fn. omitted.] Rights and interests ‘other than those of the advocates are involved.’ [Citation omitted.] These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The ■ Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. [Fn. omitted.] . . . . [K] But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is ‘impermissible.’ We reject this argument. ... [If] ... . [If] ... . [U] If we accept the unprovable assumption that a complete education requires the reading of certain books [citation omitted], and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that" commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? . . . The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data.” (Paris Adult Theatre I v. Slaton, supra, 413 U.S. at pp. 57-63 [37 L.Ed.2d at pp. 456-460].)

Finally, plaintiff makes the unorthodox argument that section 311.2, subdivision (a), should be declared unconstitutional on the ground that society’s limited resources can be better spent on problems other than obscenity. The appropriate answer to this argument was given in United States v. Reidel, supra, 402 U.S. 351. “It is urged that there is developing sentiment that adults should have complete freedom to produce, deal in, possess, and consume whatever communicative materials may appeal to them and that the law’s involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential. This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances.” (402 U.S. at p. 357 [28 L.Ed.2d at p. 818].)

The remainder of plaintiff’s contentions do not merit extended discussion. Federal statutes do not preempt state prosecution of distribution of obscene matter through the mails. (Miller v. California, supra, 413 U.S. at pp. 17-18, fn. 1 [37 L.Ed.2d at pp. 426-427].) Distribution and exhibition of obscene matter may be charged in a single count under section 311.2, subdivision (a). (People v. McClennegen (1925) 195 Cal. 445, 452 [234 P. 91]; People v. Horiuchi (1931) 114 Cal.App. 415, 427 [300 P. 457].)

The judgment is affirmed.

McComb, J., Sullivan, J., and Burke, J.,

* concurred.

1 Section 311.2. subdivision (a), provides: “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 possesses, prepares, publishes or prints, with intent to distribute or to exhibit to others, or who oiters to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.” Film was the allegedly obscene matter here.

Hereafter, unless otherwise indicated, all section references are to the Penal Code.

2 The granting of a hearing automatically vacated the opinion of the Court of Appeal (Cal. Rules of Court, rule 976 (d)). but because of its importance, we deem it appropriate to discuss the question raised by that court.

3 Section 4b, paragraph 1. provided in full: “The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts (except in cases in which appellate jurisdiction is given to the supreme court) in all cases at law in which the superior courts are given original jurisdiction: also, in all cases of forcible or unlawful entry or detainer (except such as arise in municipal, or in justices’ or other inferior courts); in proceedings in insolvency: in actions to pre,vent or abate a nuisance: in proceedings of mandamus, certiorari, prohibition, usurpation of office, removal from office, contesting elections, eminent domain, and in such other special proceedings as may be provided by law; also, on questions of law alone, in all criminal cases prosecuted by indictment or information, where judgment of death has been rendered.”

Section 4e provided: “The district courts of appeal shall have appellate jurisdiction on appeal in all cases within the original jurisdiction of the municipal and justice courts, to the extent and in the manner provided for by law.”

4 Title 18 United States Code section 1461 declares “obscene, lewd, lascivious, indecent, filthy or vile” material, or advertisements for such material, to be “nonmailable matter.” Petitioners were convicted of violating the section by mailing and conspiring to mail an obscene advertisement. The jury was instructed in accordance with the test of the Memoirs plurality. (Hamling v. United States, supra, 418 U.S. at pp. 91-92, 100 [41 L.Ed.2d at pp. 605-606, 610-611].)

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.