Splawn v. California, 431 U.S. 595 (1977)

Splawn v. California

No. 76-143

Argued March 23, 1977
Decided June 6, 1977
431 U.S. 595

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA,

FIRST APPELLATE DISTRICT

Syllabus

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, 470. See also Hamling v. United States, 418 U.S. 87, 130. Pp. 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 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. 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. 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. 601. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 602. STEVENS, J., filed a dissenting opinion, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 602.