Opinion
Page __
__ Cal.App.2d __336 P.2d 6J. KATZEV, Herbert H. Katzev, Sophia Katzev, and Arthur J. Kates, co-partners doing business under the firm name and style of Sunset News Company, Henry A. Epstein, doing business as Independent Magazine Company, Plaintiffs and Appellants,v.COUNTY OF LOS ANGELES, a body politic and corporate, S. Ernest Roll, District Attorney of the County of Los Angeles, and Eugene W. Biscailuz, Sheriff of Los Angeles County, Defendants and Respondents.Civ. 23174.California Court of Appeals, Second District, Second DivisionFeb. 25, 1959Hearing Granted April 22, 1959.
[336 P.2d 7] Gang, Kopp & Tyre, Milton A. Rudin, Los Angeles, Payson Wolff, Hollywood, for appellants.
Harold W. Kennedy, County Counsel, David D. Mix, Deputy County Counsel, Los Angeles, for respondents.
[336 P.2d 8] ASHBURN, Justice.
This declaratory relief action attacks as unconstitutional a county ordinance prohibiting the sale or circulation of any 'crime comic book' to any child under the age of 18 years, and declaring a violation of its proscriptions to be a misdemeanor. From an adverse judgment plaintiffs appeal.
The sections of the ordinance involved in the ensuing discussion are set forth in the margin. [336 P.2d 9] Plaintiffs are dealers in magazines, books and other printed materials, including crime comic books, and their distribution of the latter would be impaired through enforcement of the ordinance. Appellants' contentions may be summarized as follows.
Ord. No. 6633.
1. The ordinance is an unjustifiable abridgement of freedom of the press because distribution of such crime comic books is protected by state and federal constitutions;
2. Only a clear and present danger of an evil subject to regulation by the legislative body will justify restrictions upon freedom of the press and no such danger is shown with respect to crime comic books because no causal relationship exists between their distribution and juvenile delinquency, the evil act at which the ordinance is aimed;
3. The ordinance is too broad in its sweep because it prohibits circulation to minors of all crime comic books, the good ones as well as the bad;
4. The ordinance denies equal protection of the laws because it makes arbitrary and unreasonable exemptions of accounts of crime appearing in newspapers, also those which delineate actual historical events or occurrences set forth in sacred scriptures of any religion;
5. The ordinance is too vague to establish a clearly defined standard of guilt.
First, as to whether crime comics described in the statute--those depicting commission or attempted commission of arson, burglary, kidnapping, mayhem, murder, rape, robbery, theft, train-wrecking, voluntary manslaughter, assault with caustic chemicals or with a deadly weapon,--are protected by the freedom of press sanction of the First Amendment to the Federal Constitution (now absorbed into the Fourteenth Amendment). Certain forms of speech, oral or written, do not fall within the aegis of the fundamental guaranty. Among them are obscenity, profanity, libelous or fighting words tending to cause a breach of the peace. Beauharnais v. People of State of Illinois, 343 U.S. 250, 256, 72 S.Ct. 725, 96 L.Ed. 919; Dennis v. United States, 341 U.S. 494, 544, 71 S.Ct. 857, 95 L.Ed. 1137 (Mr. Justice Frankfurter concurring); Kingsley Books v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Roth v. United States, 354 U.S. 476, 500, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (Mr. Justice Harlan concurring). This concept flows from the immediate and indisputably obnoxious effect of such conduct. The Beauharnais case, supra, dealing with a libel upon the colored race of people says, 343 U.S. at page 255, 72 S.Ct. at page 730: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
The corresponding section of the California Constitution expressly withholds its protection from any publication which is an abuse of the basic freedom: 'Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; * * *' (Calif.Const., art. I, Sec. 9.)
There seems to be no case in the reported decisions that deals with the specific question whether crime comic books are [336 P.2d 10] within the constitutional protection or, like the last cited cases, are automatically exempt from its operation. The question of whether they are harmful to children and whether their distribution to juveniles should be prohibited on that ground is one which has caused much debate among laymen, sociologists, psychologists, psychiatrists, and other experts and pseudo-experts, with resulting disagreement as to causation and appropriate remedy. See, 7 Stanford Law Review, pp. 237, 249-251, 'Crime Comics and the Constitution'; Interim Report of the Subcommittee to Investigate Juvenile Delinquency to the Senate Committee on the Judiciary, 84th Cong., 1st Sess. 14 (1955), p. 12 (Kefauver Committee.) There being no general agreement upon the perniciousness of 'crime comics' it is our opinion that the time has not yet arrived to declare them per se beyond the protection of the First and Fourteenth Amendments.
Speaking of publications principally made up of criminal news, police reports or accounts of criminal deeds or pictures or stories of deeds of bloodshed, lust or crime (not limited to minors), the Supreme Court said, in Winters v. People of State of New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840: 'Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.' That language appears to be applicable here.
The Board of Supervisors found and declared, in passing ordinance 6633, that there are within the county of Los Angeles a great volume and variety of crime comic books available to children under the age of 18 years; that they are sold or circulated (exhibited) to children, many of whom are thereby incited to commit or attempt to commit crime; that such books destroy the moral fiber of children and incite them to crime and juvenile delinquency. The county counsel--recognizing the established rule that the legislative finding incorporated in a statute or ordinance which restricts freedom of speech or the press is not conclusive, and that the courts have the duty of determining independently whether the new law has reasonable basis in fact and with respect to remedy,--introduced oral and documentary evidence in the trial court upon the subject. He called as an expert witness, Dr. Hilde L. Mosse, an experienced psychiatrist attached to the Bureau of Child Guidance in the city of New York, who has made careful and prolonged study of the subject of crime comics. Considerable documentary evidence was also introduced.
Dr. Mosse testified that crime comics are a new phenomenon, printed and circulated primarily for the juvenile trade and carrying advertisements of guns, hatchets, ropes and other instruments of crime which make special appeal to children. There are 60 million to 70 million comic books printed each month in this country, most of which are devoted to crime, its technique and its horror situations. The publishers have a proclivity for gore and gruesomeness. Various forms of cruelty are depicted in such publications. Children are attracted to books containing criminal acts such as described in § 4c of the ordinance. They make their own purchases from the newsstands, read daily one or two or more such books, having about 36 pages each, trade them with one another and repeat the process many times and for years. These books glamorize crime and depict its details. Coming to the child during his fantasy or daydream phase he identifies himself with the criminal or the victim, relives the episode and fails to distinguish between fact and fiction. Often he tries to re-enact the crime or horror of the story with disastrous consequences to himself or other people. All children like to read crime comics and a great majority are doing so. These books have a detrimental effect upon children who are basically healthy as well as those who are already mentally or emotionally disturbed. While there are some good comic books, the witness never saw a goodcrime comic book. Younger children do not actually read them but study the pictures and glean the story of horror from them. They become [336 P.2d 11] picture-gazers. The words often are in the balloons and the format makes it difficult for the children to learn to read, causing 'linear dyslexia,' difficulty in learning to read a straight line; inability to read is 'connected with' juvenile delinquency, though probably not a cause of it. The witness further said that parental supervision is not adequate protection against the harm of crime comics, which are purchased with the child's own money and passed so persistently from small owner to small owner; the mother does not have the capacity to read them in advance. 'The more important point is that comic books are a social phenomenon which one parent alone cannot cope with. It is quite out of the question. So you protect your child, your child goes to the other children, goes to other people's houses, the kids trade them. Most of the time the mothers don't even know what their children look at and they cannot be present with the children day in and day out. That is why I think society has to take this in hand to protect children. It is not a question of the family protecting their children alone. * * * This is a totally new social factor. Your family is not the isolated pioneer family any more. Comic books and especially television bring society in your home and into your family whether you want it or not. There is nothing you can do about it. Organized society has to take action for the protection of children. That is one thing that our studies over the many years have shown very clearly.'
The county counsel also introduced numerous examples of crime comics; exhibit A consists of 19 such books. From the lurid covers we cite as exemplars these titles: The Crypt Keeper; The Old Witch; The Vault Keeper; Weird Yarns of Unseen Terrors; Servants of the Tomb; Mother Ghoul's Nursery Tales; Bloodthirsty; Shoot to Kill; A Web of Evil; Beast of Crime; Bloodstained Bullets; Justice Traps the Guilty; Body Snatchers; Terrifying Mystery from Weird Worlds; The Forbidden Tomb; The Horrible Entity; Haunted; The Raving Maniac; By the Light of the Moon; Bird of Prey; Death Deals a Hand; Heart of the Corpse; Tomb for a Were-Wolf; Call from the Grave; Crime Never Pays; Horror in the Clock; Grim Revenge; Curse of the Castle; Pay Off.
Opposed to the views of Dr. Mosse is the testimony of Dr. Rocco L. Motto, called as plaintiffs' expert. These two witnesses gave the only oral evidence in the case. Dr. Motto is described in the opening brief as 'a psychiatrist who served with the Los Angeles County Juvenile Hall from 1949-1951, for several years thereafter was on the staff of the Marion Davies Clinic and for the last 5 years has been director of the Reiss-Davis Clinic for Child Guidance.' His thesis was that there is no scientific evidence that crime comics have operated as incitement to children's crimes, that other factors are always present; juvenile delinquency is an exceedingly complex problem and no single element of causation is identifiable; the crime depicted in a crime comic does not incite to crime except to the extent that it may 'trigger' some episode in a disturbed child; exposure of the child to crime should not be forbidden within the limit of his ability to tolerate, for it is part of his educational process. The witness also testified:
'Q. * * * in your opinion would the complete enforcement of that ordinance, say, by eliminating such comic books from even coming across the borders of Los Angeles County for a period of two or three years have any effect whatsoever upon the juvenile delinquency problem in this County? A. In my opinion I would doubt it seriously. I would doubt that our statistics in two or three years after the enforcement of an ordinance like this would show any change at all in our delinquency population.' (Emphasis added.)
He further said he had never been the principal investigator in any research that was directed to the effects of mass media [336 P.2d 12] upon children. Also, that the delinquent child reads the greater volume of crime comics, which have a greater influence than television, motion pictures or any other trigger mechanism. Much reading of crime comic books may have some effect upon the disturbed child's willingness or desire to commit crime or to imitate an act of crime read by him. The comic book is accepted by the child as his own and its ads are directed at him. The witness estimated that two million children are in the impressionable stage and identify themselves with the criminal and the victim; they copy details of crime shown in comic books to an extent depending upon the amount of exposure to the same. The picture of a man with a bloody ax, holding up a woman's head by the hair while she drools from the mouth, with her torso shown in the background (found in exhibit A) is designed to have a great deal of impact on a child.
'Q. By Mr. Mix: I show you a reference of a picture of the only comic book in this group, that is Defendants' Exhibit A, which is entitled 'Crimes by Women.' On this front cover it depicts two women fighting. One has torn the other's skirt and one has torn the other one's blouse, so that her brassiere is quite clearly evident, and one says to the other, 'He is mine, I tell you. Keep away from him.' The second says to the first, 'Why, you cheap frill, who helped him pull that bank job? From now on I am the favorite around here.' In the background is a picture of a man. I think perhaps it is obvious he is a criminal. Maybe it isn't to you. He has a holster with a gun in it hanging from his shoulder, leaning against the wall, smoking, blowing smoke in the air, with a smile on his face, saying, 'Tsk, tsk. Now, girls.' Do you think that that sort of drawing, not only the actual drawing itself but the implications from it, would have an impact upon a child, a strong impact? A. It would have an impact and in some children a strong impact.' Finally the witness testified: 'Q. Now, have you made such an investigation in your work that you know that many comic books are solely devoted to violence, that have maybe * * * 30 pages * * * but they have several crimes per page maybe in 30 pages? A. I do know of such comic books and this is precisely a point I am trying to make, around the phrase 'dosage, proper dosage.' * * *
'The Witness: Because I would object to these--I do object to them, and I want to be on record objecting to them, because of my point of dosage, because of my point of content and the structuring of content. In other words, I am not here to defend those particular kinds of presentation at all. * * *
'Q. What I am trying to find out from you is whether or not this reading of the comic book might be one of that number of things that result in the act. A. I think I have so stated.'
Concerning Dr. Motto's theory that normal children are not harmed by addiction to crime comics, Dr. Fredric Werthan says, in 'The Curse of the Comic Books' (exhibit M): 'Perhaps the most insidious of these arguments, and one deserving to be fought at every step, is the claim that only unstable children who are insecure, or otherwise predestined or preconditioned, are adversely affected by comic books. That gives adults complete leeway to corrupt children wholesale for commercial reasons. Obviously, one cannot make any hard and fast rule according to which children can be divided into stable or unstable. Every normal child is immature, growing, and to that extent unstable and vulnerable. And even if he does nothing wrong, temptation exposes him to emotional conflict and that coupled with other factors may do him subtle harm, immediately or later on. The first modern psychologist, Saint Augustine, was well aware of this. He pointed out the effect of mass seduction [336 P.2d 13] by public spectacles on an immature mind, especially in the direction of unconscious fascination by sadism and violence.' Manifestly, it is not the strong, normal child that most needs the protection of the state; it is the mentally retarded or unstable or the emotionally disturbed one that should be the special concern of public authority.
Appellants introduced into evidence certain children's books of fairy tales, e. g., The Three Bears, The Three Little Pigs, Little Red Riding Hood, The Gingerbread Man; also other stories such as Rin Tin Tin, Bugs Bunny, Roy Rogers and the New Cowboy, Annie Oakley and the Rustlers,--all in an effort to show that there are good crime comics as well as harmful ones,--a consideration which bears upon the matter of classification, later discussed herein.
Senator Kefauver's Interim Report, supra, contains the following passages: 'In the years between 1945 and 1954, two striking changes took place in the comic-book industry. The first was the great increase in the number of comic books published and the number of firms engaged in their publication. The second was the increased number of comic books dealing with crime and horror and featuring sexually suggestive and sadistic illustrations. This increase of materials featuring brutality and violence is being offered to any child who has the 10-cent purchase price. That these examples of crime and horror are aimed at children is clearly evident from the advertisements with which each issue is replete' (p. 4); 'It has been pointed out that the so-called crime and horror comic books of concern to the subcommittee offer short courses in murder, mayhem, robbery, rape, cannibalism, carnage, necrophilia, sex, sadism, masochism, and virtually every other form of crime, degeneracy, bestiality, and horror. These depraved acts are presented and explained in illustrated detail in an array of comic books being bought and read daily by thousands of children. These books evidence a common penchant for violent death in every form imaginable. Many of the books dwell in detail on various forms of insanity and stress sadistic degeneracy. Others are devoted to cannibalism with monsters in human form feasting on human bodies, usually the bodies of scantily clad women' (p. 7); 'The subcommittee believes that this Nation cannot afford the calculated risk involved in the continued mass dissemination of crime and horror comic books to children' (p. 23); 'While not attempting to review the several findings included in this report, the subcommittee wishes to reiterate its belief that this country cannot afford the calculated risk involved in feeding its children, through comic books, a concentrated diet of crime, horror, and violence. There was substantial, although not unanimous, agreement among the experts that there may be detrimental and delinquency-producing effects upon both the emotionally disturbed child and the emotionally normal delinquent. Children of either type may gain suggestion, support, and sanction from reading crime and horror comics' (p. 32); 'Standards for such products, whether in the form of a code or by the policies of individual producers, should not be aimed to eliminate only that which can be proved beyond doubt to demoralize youth. Rather the aim should be to eliminate all materials that potentially exert detrimental effects' (p. 33); 'The interest of our young citizens would not be served by postponing all precautionary measures until the exact kind and degree of influence exerted by comic books upon children's behavior is fully determined through careful research. Sole responsibility for stimulating, formulating and carrying out such research cannot be assumed by parents' or citizens' groups. Rather it must also be assumed by the educational and social welfare agencies and organizations concerned. * * *' (p. 33.)
The California Legislature in 1955 passed Assembly Bill 183, containing this finding: 'The Legislature * * * finds that children below the age of 18 years are of a susceptible and impressionable character [336 P.2d 14] and are often stimulated by collections of pictures and stories of criminal acts, and do in fact often commit such crimes partly because incited to do so by such publications. * * *' (7 Stan.Law Rev. p. 251.) The National Association of County and Prosecuting Attorneys found that crime comics contribute to juvenile delinquency and violent crimes (7 Stan.Law Rev. p. 250). 'One psychiatrist reports that 'researches have proved that there is a significant correlation between crime-comics reading and the more serious forms of juvenile delinquency.' The National Council of Juvenile Court Judges and investigating committees of both the Senate and the New York legislature have made similar findings.' 68 Harv.Law Rev. 489.
This Bill was vetoed by the Governor. (7 Stan.Law Rev. 241.)
The trial court held the ordinance to be valid and made factual findings as set forth in the margin.
'That persons under the age of eighteen years are especially attracted to the reading of comic books in preference to other forms of reading material; that persons under the age of eighteen years are so attracted to reading comic books containing accounts of crime.'
It seems to be established law that the Supreme Court of the United States when dealing with an alleged infringement upon rights guaranteed by the First Amendment will make an independent appraisal of the facts, untrammeled by the ordinary presumption of validity of legislation (Pennekamp v. State of Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 90 L.Ed. 1295; In re Porterfield, 28 Cal.2d 91, 112, 168 P.2d 706, 167 A.L.R. 675; City of Corona v. Corona Daily Indepentent, 115 Cal.App.2d 382, 384, 252 P.2d 56), and unembarrassed by the findings of the lower courts,--subject only to the limitation expressed in Feiner v. People of State of New York, 340 U.S. 315, 316, 71 S.Ct. 303, 304, 95 L.Ed. 267, from which we quote: 'In the review of state decisions where First Amendment rights are drawn in question, we of course make an examination of the evidence to ascertain independently whether the right has been violated. Here, the trial judge, who heard the case without a jury, rendered an oral decision at the end of the trial, setting forth his determination of the facts upon which he found the petitioner guilty. His decision indicated generally that he believed [336 P.2d 15] the state's witnesses, and his summation of the testimony was used by the two New York courts on review in stating the facts. Our appraisal of the facts is, therefore, based upon the uncontroverted facts and, where controversy exists, upon that testimony which the trial judge did reasonably conclude to be true.' (Emphasis added.) See, also, Local Union No. 10 United Ass'n of Journeymen, Plumbers and Steamfitters of U. S. and Canada of A. F. of L. v. Graham, 345 U.S. 192, 197, 73 S.Ct. 585, 97 L.Ed. 946; Hoag v. State of New Jersey, 356 U.S. 464, 471, 78 S.Ct. 829, 2 L.Ed.2d 913; Norton Co. v. Dept. of Revenue of State of Ill., 340 U.S. 534, 538, 71 S.Ct. 377, 95 L.Ed. 517; South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 191, 58 S.Ct. 510, 82 L.Ed. 734; Norris v. State of Alabama, 294 U.S. 587, 589-590, 55 S.Ct. 579, 79 L.Ed. 1074. We apprehend that the same rule of review prevails in the state courts of California. See, Lockard v. City of Los Angeles, 33 Cal.2d 453, 461-462, 202 P.2d 38, 7 A.L.R.2d 990; Johnston v. City of Claremont, 49 Cal.2d 826, 839, 323 P.2d 71; Kissinger v. City of Los Angeles, 161 Cal.App.2d 454, 327 P.2d 10; People v. Berve, 51 Cal.2d 286, 332 P.2d 97.
This court has made an independent appraisal of the evidence, oral and written, and has arrived at the same findings as the trial judge, some of which are quoted in footnote 4. They spell the existence of 'a clear and present danger' of 'substantive evils that [the State] has a right to prevent' (quoting Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470),--the specific danger of permitting youth to be led along paths of crime or other forms of delinquency. That this is an evil which the legislative authority is competent to prevent is clear as a matter of fundamental principle and has been recognized by the United States Supreme Court.
In Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 441, 88 L.Ed. 645, the court, speaking of freedom of religion and its relation to a statute forbidding the selling of newspapers, magazines and periodicals by children in any street or public place, said: 'Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children, and the state's assertion of authority to that end, made here in a manner conceded valid if only secular things were involved. * * * It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well-developed men and citizens.' At page 168 of 321 U.S., at page 443 of 64 S.Ct., concerning the 'clear and present danger' argument: 'A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection.' At page 170 of 321 U.S. at page 444 of 64 S.Ct.: 'Massachusetts has determined that an absolute prohibition, though one limited to streets and public places and to the incidental uses proscribed, is necessary to accomplish its legitimate objectives. Its power to attain them is broad enough to reach these peripheral instances in which the parent's supervision may reduce but cannot eliminate entirely the ill effects of the prohibited conduct. We think that with reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children reaches beyond the scope of its authority over adults, as is true in the case of other freedoms, and the rightful boundary of its power has not been crossed in this case.' Winters v. People of State of New York, supra, 333 U.S. 507, 510, 68 S.Ct. 665, 667: 'We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency.' Mr. Justice Frankfurter, [336 P.2d 16] dissenting, 333 U.S. at pages 526-527, 68 S.Ct. at page 675: 'No one would deny, I assume, that New York may punish crimes of lust and violence. Presumably also, it may take appropriate measures to lower the crime rate. But he must be a bold man indeed who is confident that he knows what causes crimes. Those whose lives are devoted to an understanding of the problem are certain only that they are uncertain regarding the role of the various alleged 'causes' of crime. * * * Is it to be seriously questioned, however, that the State of New York, or the Congress of the United States, may make incitement to crime itself an offense? He too would indeed be a bold man who denied that incitement may be caused by the written word no less than by the spoken.' Competency of the Board of Supervisors to deal with the subject in hand cannot be gainsaid.
Nor can prevailing differences of opinion as to appropriate and effective remedies stay legislative action. 'The people have a right of experimentation, of evolution through trial and error.' In re Porterfield, supra, 28 Cal.2d 91, 102, 168 P.2d 706, 714, 167 A.L.R. 675. 'It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings. Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. 'The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment.' * * * Certainly the Due Process Clause does not require the legislature to be in the vanguard of science--especially sciences as young as human ecology and cultural anthropology.' Beauharnais v. People of State of Illinois, supra, 343 U.S. 250, 261-262, 72 S.Ct. 725, 733, 96 L.Ed. 919. 'We, in our private opinions, need not concur in Congress' policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake.' Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586. Mr. Justice harlan, concurring in Roth v. United States, supra, 354 U.S. 476, 501, 77 S.Ct. 1304, 1317, 1 L.Ed.2d 1498: 'We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. * * * The States' power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of 'ordered liberty.' * * * The assumption seems to be that the distribution of certain types of literature will induce criminal or immoral sexual conduct. It is well known, of course, that the validity of this assumption is a matter of dispute among critics, sociologists, psychiatrists, and penologists. There is a large school of though, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California [336 P.2d 17] to accept as truth the most advanced and sophisticated psychiatric opinion.' At page 502, of 354 U.S., at page 1318 of 77 S.Ct.: 'Above all stands the realization that we deal here with an area where knowledge is small, data are insufficient, and experts are divided. Since the domain of sexual morality is pre-eminently a matter of state concern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible command of the Due Process Clause forbids California to prosecute one who sells books whose dominant tendency might be to 'deprave or corrupt' a reader.' To the same effect see, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 550-551, 69 S.Ct. 1221, 93 L.Ed. 1528; Bess v. Park, 144 Cal.App.2d 798, 802, 301 P.2d 978; Fourcade v. City and County of San Francisco, 196 Cal. 655, 664-665, 238 P. 934; Werner v. Southern Cal. Associated Newspapers, 35 Cal.2d 121, 125, 216 P.2d 825, 13 A.L.R.2d 252.
What then is the relation of the 'clear and present danger' doctrine to this case? The rugged words of Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192, served well in the solution of the problem then under consideration, contempt of court. It is there said that 'the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.' But this proved to be an unworkable formula and the erosive processes of time and events worked upon it until the phrase 'clear and present danger' is recognized as 'not a slogan or a shibboleth to be applied as though it carried its own meaning' (United States v. Dennis, 2 Cir., 183 F.2d 201, 212); nor is it a mathematical formula (American Communications Ass'n, C. I. O. v. Douds, 339 U.S. 382, 394, 70 S.Ct. 674, 94 L.Ed. 925). In the Dennis case, supra, Chief Justice Vinson, speaking for four members of the Supreme Court, said at pages 508 and 510, of 341 U.S. at page 866, of 71 S.Ct.: '[N]either Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. * * * Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: 'In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' 183 F.2d at [page] 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.' Mr. Justice Frankfurter, concurring: 'This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a euphemistic disguise for an unresolved conflict.' At page 519 of 341 U.S., at page 872 of 71 S.Ct. 'The phrase 'clear and present danger', in its origin, 'served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.' * * * It were far better that the phrase be abandoned than that it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy * * *.' At page 544, of 341 U.S., at page 885 of 71 S.Ct.
[336 P.2d 18] Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, upheld an ordinance declaring door to door solicitation of subscriptions to magazines etc. to be a misdemeanor. The liberties of the First Amendment were declared not to have been violated. At pages 625-626, of 341 U.S., at page 923 of 71 S.Ct., the court said: 'There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.' At page 633, of 341 U.S. at page 927 of 71 S.C.: 'The problem is legislative where there are reasonable bases for legislative action. We hold that this ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment.' At page 645, of 341 U.S., at page 934 of 71 S.Ct.: 'We think those communities that have found these methods of sale obnoxious may control them by ordinance. It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use those guarantees to force a community to admit the solicitors of publications to the home permises of its residents. We see no abridgment of the principles of the First Amendment in this ordinance.'
Poulos v. State of New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105: 'It is a non sequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.'
Kovacs v. Cooper, 336 U.S. 77, 83, 69 S.Ct. 448, 451, 93 L.Ed. 513: 'The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community. A state or city may prohibit acts or things reasonably thought to bring evil or harm to its people.' To the same effect, see Haggerty v. Associated Farmers of Cal., 44 Cal.2d 60, 64-70, 279 P.2d 734.
The evolution of the doctrine under discussion is interestingly traced in 'Bowing Out 'Clear and Present Danger" by Professor Edward S. Corwin, in 27 Notre Dame Lawyer, p. 325.
The vogue of 'clear and present danger' reached its zenith in Bridges v. State of California, supra, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, but the pendulum has swung back to the concept originally expressed by Mr. Justice Holmes in the Schenck case, supra, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; the evil need by only a substantive one which the legislative branch has a right to prevent--exemplified by any problem which no longer needs to be pounded out on the anvil of debate. Juvenile delinquency and the need for a remedy lie indisputably in that area.
Appellants' counsel draw a distinction between regulation of the place and manner of speech and the regulation or suppression of its content. We deem this distinction a factual rather than a constitutional one. 'At the opposite pole is the belief of many agitators that the First Amendment renders unconstitutional any Act of Congress without exception 'abridging the freedom of speech, or of the press,' that all speech is free, and only action can be restrained and punished. This view is equally untenable.' Chafee on Free Speech in the United States, p. 8. Cases such as Beauharnais, supra, 343 U.S. 250, 72 S.Ct. 725, show that the quality of speech may be such as to withdraw [336 P.2d 19] entirely the normal constitutional protection. Prince v. Commonwealth of Massachusetts, supra, 321 U.S. 158, 64 S.Ct. 438, holds that although religious literature may not be suppressed or its distribution substantially curtailed, a law prohibiting its sale or distribution by a child on a public street is unobjectionable. The ordinance under consideration does not prohibit sale or distribution or display of crime comic books so long as they are kept away from children. There is little, if any, difference of substance between the Prince situation and that created by the county ordinance. Both properly protect young people from deleterious influences and there is no substantial constitutional objection to that sort of regulation of speech or press.
What we have here is a situation wherein the effect of an ordinance upon the exercise of freedom of the press is relatively small in contrast with the public interest to be protected, one of great magnitude. Application of the rationale of the cases above quoted solves this case and shows that the clear and present danger concept has no real and substantial application at bar. Certainly that philosophy has not been violated by the ordinance in question.
Appellants' argument that the ordinance is too broad in its sweep because it includes good crime comics as well as bad ones cannot prevail. The ordinance is carefully and narrowly drawn and includes only the depiction of commission or attempted commission of arson, burglary, and other specified crimes; also acts by animals or any nonhuman, part-human or imaginary beings which if performed by a human would constitute one of the enumerated crimes. This latter provision covers personification of animals or mythical characters and the commission by them upon a human being of any of the specific crimes named. It is clear that there are no good crime comics when that term is confined to the ordinance definition. Dr. Mosse testified that there are some good comic books, but no good crime comic books; also that the fairy tales upon which appellants rely have nothing whatsoever in common with crime comic books.
Moreover, it is the law that the legislative authority may strike an evil where it is felt most (Werner v. Southern Cal. Associated Newspapers, supra, 35 Cal.2d 121, 132-133, 216 P.2d 825); that some one must draw the line between the permitted and the proscribed, and that is the function of the legislative body. The fact that some fairy tales, or Bugs Bunny or Roy Rogers comics, or Disney stories or others thought to be innocuous, may fall within the terms of the ordinance (if they do) does not condemn the law but merely prohibits in the light of modern conditions stories which, considered alone or as ancient and standard pabulum for children, must now take their place as parts of an evil tide and be stemmed with it. The suggested line of innocuous stories is not sacrosanct. Dr. Wertham, in 'The Curse of the Comic Books' at page 9: 'Even in many 'good' animal comic books the animals glorify violence and delinquency. In a recent Disney comic book, published by Dell, two fires are set, one involving a schoolhouse, and we learn--believe it or not, five times that little Pinocchio suffers from chronic gonorrhea! When the child is a little older he gest the full course, of crime, love, sex, horror, jungle, Superman comic books.'
The police power is not static. Wholesale Tobacco Dealers Bureau of Southern California v. National Candy & Tobacco Co., 11 Cal.2d 634, 644, 82 P.2d 3, 9, 118 A.L.R. 486: 'The police power has not expanded. Its proper exercise has always been and still is confined to regulation in the public welfare, and has always been and still is subject to the standard of reasonableness in its relation to that interest. However, changed social, political and economic conditions have enlarged the field of conduct which may properly be subjected to regulation in order that the general welfare may be adequately protected.
[336 P.2d 20] The proper application of the power cannot be measured by past precedents--the test is, of course, present day conditions. * * * 'Thus it is apparent that the police power is not a circumscribed prerogative, but is elastic and, in keeping with the growth of knowledge and the belief in the popular mind of the need for its application, capable of expansion to meet existing conditions of modern life, and thereby keep pace with the social, economic, moral, and intellectual evolution of the human race. * * *''
Counsel also contend that news dealers are precluded from displaying crime comics to adults and therefore the ordinance embraces and proscribes publications which are outside the scope of the evil sought to be corrected. Reliance is placed on Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412, in which the court invalidated a statute forbidding the sale to anyone of magazines tending to incite minors to violent, depraved or immoral acts, manifestly tending to the corruption of the morals of youth. Sale of an obscene book was made to a police officer, conviction was reversed, and the court said at page 383, of 352 U.S. at page 526 of 77 S.Ct.: 'Surely, this is to burn the house to roast the pig. * * * We have before us legislation not reasonably restricted to the evil with which it is said to deal. The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children.' That presents no analogy to the facts at bar. The sale or circulation to minors under 18 years is the thing that is prohibited. The phrase 'sells or circulates' is defined by the ordinance to include an offer for sale, exhibition, or in any way furnishing or attempting to furnish a crime comic to a minor. Of course this precludes the dealer from keeping crime comics in a rack readily available to minors or so positioned as to be read by them. That is necessary to effect the main purpose of the ordinance and cannot be said to be within the philosophy of the Butler case. Exhibition to adults is not forbidden but it is limited to such place and manner as will keep the crime material away from the eyes of impressionable children.
The fact that the dealer must know what he is selling raises no bar to legislation prohibiting sale or display of obnoxious literature. The ordinance does not expressly or impliedly make knowledge or intention an element of the crime, but there is no constitutional objection to such a statute operating within the area of public welfare which deals with juvenile delinquency. See, Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 67, 30 S.Ct. 663, 54 L.Ed. 930; Williams v. State of North Carolina, 325 U.S. 226, 238, 65 S.Ct. 1092, 89 L.Ed. 1577; United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604; People v. Darby, 114 Cal.App.2d 412, 427, 250 P.2d 743 (appeal dismissed for want of substantial federal question in 97 L.Ed. 1364).
People v. Daniels, 118 Cal.App.2d 340, 343, 257 P.2d 1038, 1039: 'It is the universal rule that it is within the power of the Legislature to declare an act criminal, irrespective of the knowledge of the doer that the facts exist which make the act unlawful. People v. McClennegen, 195 Cal. 445, 468, 234 P. 91; 22 C.J.S. Criminal Law § 30, p. 85; 14 Am.Jur. 768, § 16.' To the same effect see, In re Marley, 29 Cal.2d 525, 528, 175 P.2d 832; People v. Stuart, 47 Cal.2d 167, 172, 302 P.2d 5, 55 A.L.R.2d 705; People v. Reznick, 75 Cal.App.2d 832, 838, 171 P.2d 952; Wharton's Criminal Law and Procedure, § 783, p. 624; 14 Cal.Jur.2d § 79, p. 265; 22 C.J.S. Criminal Law§ 30, p. 86. The dealer's convenience in remaining ignorant of his violation of the law cannot override the welfare of the community or that segment whose protection the statute is legitimately designed to serve. Cf. Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 75 L.Ed. 156; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333, 59 S.Ct. 191, 83 L.Ed. 195; [336 P.2d 21] People v. Malley, 49 Cal.App. 597, 603, 194 P. 48; People v. Pay Less Drug Store, 25 Cal.2d 108, 116, 153 P.2d 9.
Unreasonable and arbitrary classification is claimed because of the exemption (§ 3) of accounts of crime which are part of the general dissemination of news or which appear in newspapers of general circulation or delineate actual historical events or occurrences set forth in the sacred scriptures of any religion. The thrust of the argument is directed primarily at the exemption of newspaper comic strips, it having been stipulated that newspapers contain in their comic pages, daily and Sunday, accounts of crime the sale of which would constitute a violation of the ordinance but for the exemption granted by § 3.
The legislature may select one phase of a problem for appropriate action without the necessity of including all others which might be affected in the same field of legislation (First Unitarian Church of Los Angeles v. County of Los Angeles, 48 Cal.2d 419, 433, 311 P.2d 508; Williamson v. Lee Optical of Okl., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563), thus striking 'at the evil where it is felt, and [reaching] the class of cases where it most frequently occurs' (Sliver v. Silver, 280 U.S. 117, 123-124, 50 S.Ct. 57, 74 L.Ed. 221; Werner v. Southern Cal. Associated Newspapers, supra, 35 Cal.2d 121, 133, 216 P.2d 825). The Williamson case, supra, says at page 489, of 348 U.S., at page 465, of 75 S.Ct.: 'The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. [Citation.] Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. [Citation.] The legislature may select one phawe of one field and apply a remedy there, neglecting the others. [Citation.] The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.'
The criteria for determining permissible statutory classification are stated in Lelande v. Lowery, 26 Cal.2d 224, 232, 157 P.2d 639, 645, 175 A.L.R. 1109, wherein the court quotes the United States Supreme Court as follows: "The legislature is not debarred from classifying according to general considerations and with regard to prevailing conditions; otherwise, there could be no legislative power to classify. * * * [T]he legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the legislature may be guided by experience. [Citation.] It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.' (Miller v. Wilson (1915), 235 U.S. 373, 382-384, 35 S.Ct. 342, 344, 59 L.Ed. 628, L.R.A.1915F 829, affirming In re Miller (1912), 162 Cal. 687, 124 P. 427; [see, also,] Patsone v. [Commonwealth of] Pennsylvania (1914), 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539, and cases there cited.) When the classification made by the Legislature is questioned, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts is presumed, and one who assails the classification must carry the burden of showing that it is arbitrary. [Citations.]'
Mr. Justice Frankfurter, concurring in Dennis v. United States, supra, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137: 'Freespeech cases are not an exception to the principle that we are not legislators, that direct policy-making is not our province. How best to reconcile competing interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment. * * * But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative [336 P.2d 22] judgment been for it to make.' 341 U.S. at pages 539-540, 71 S.Ct. at page 883.
Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 857, 58 L.Ed. 1288: 'But while there are differences of opinion as to the degree and kind of discrimination permitted by the 14th Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear.' To same effect, see People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 73, 49 S.Ct. 61, 73 L.Ed. 190; United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 102, 67 S.Ct. 556, 91 L.Ed. 754, 774.
There is ample justification for the exemption of newspaper comic strips in the present instance. 'Crime Comics and the Constitution,' 7 Stanford Law Review, page 237 says: 'Recently, criticism of certain types of comic books has become widespread. It has been directed neither at comic strips in newspapers nor at animal or humor comic books, but at 'crime and horror' comics. It has been said that these constitute one-fourth of all comics.' Dr. Mosse testified that newspaper comic strips are mostly written for adults, although they are also read by children; their volume is not so great as that of crime comic books; and 'comic strips are very carefully edited by many newspaper editors and you could not possibly print in strips of newspapers what goes completely unaltered in comic books. There are scenes of violence which no newspaper editor would let you portray which can be portrayed in the comic books for children.' Apparently quoting from Dr. Wertham's 'Seduction of the Innocent' she further said: "The easiest way to study abnormal psychology these days is to read the unfunny crime comic books. Don't mistake them for the comic strips your paper prints. Papers wouldn't dream of printing the stuff." Also, that there are many more pictures of crime in one comic book than a person would find in any newspaper comic strip; sometimes there are more in one page of a comic book.
'Q. Now, if we had the type of pictures as appears in Mysterious Adventures showing five corpses operating on an individual, if they had that type---- A. She was awake and not anesthetized.
'Q. That's right. A person awake, and five corpses operating on the person. If it appeared in a newspaper would it be disturbing to a child? A. It cannot appear in a newspaper. No newspaper editor would permit it. I have an example. There is a comic strip, Brenda Starr * * * a picture of an operation. She is shown as the cover picture. You see, sometimes they make comic books out of comic strips. I have to specify that. In Brenda Starr they made a comic book and the cover showed a sadistic scene of a woman about to be operated. This picture could never and did never appear in a newspaper comic strip because there are editors who see to it that it doesn't.'
In short, the newspaper does not present the problem which requires legislative remedy. .that is not the place where the evil is felt substantially, and the legislature need not cover the entire field. Some one must draw the line in every classification and that is the business of the legislative body when definition of crime is involved. Plaintiffs' witness, Dr. Motto, seemed to take a gloomier view of comic strips than did Dr. Mosse, but it is for the legislature, not the witnesses, to decide between different schools of thought. See quotation, supra, from Mr. Justice Harlan's concurring opinion in Roth v. United States, 354 U.S. 476, 501, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
[336 P.2d 23] The trial court's findings on this phase of the case are set forth below.
'That accounts of crime which appear in comic book form (as defined in Ordinance No. 6633) are factually distinguished in their effect upon persons under the age of eighteen years, from accounts of crime appearing in the comic section or elsewhere in newspapers of general circulation. That the factual difference between the said two types of accounts include the following:
Our Supreme Court, in Werner v. Southern Cal. Associated Newspapers, supra, 35 Cal.2d 121, 216 P.2d 825, 13 A.L.R.2d 252, upheld as reasonable classification an amendment to § 48a of the Civil Code providing that recovery for libel published in a newspaper or slander by radio broadcast be limited to special damages unless a correction be demanded and be not published or broadcast. The claim was that this discriminated without cause against defendants in all other instances of libel or slander. At page 132 of 35 Cal.2d, at page 832 of 216 P.2d the court said: 'The Legislature could reasonably conclude that defamation suits against newspapers and radio stations constituted the most conspicuous example of the danger it sought to preclude. It is not prohibited by the equal protection clause from striking the evil where it is felt most.'
Appellants rely upon Adams v. Hinkle, supra, 354 U.S. 436, 441, 77 S.Ct. 1325, 1 down a comic book statute requiring a previous license for publication (322 P.2d at page 850), thus presenting quite a different constitutional problem from a statute providing for punishment for abuse of speech or press administered after the event. See, Near v. State of Minnesota, 283 U.S. 697, 715, 51 S.Ct. 625, 75 L.Ed. 1357, et seq.; Kingsley Books v. Brown, supra, 354 U.S. 436, 441, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302. The Adams decision, supra--five to four--rested principally upon the license theory, but it also dealt with other questions such as the exemption from its operation of comic sections of newspapers. The majority opinion held this to be invalid because, so it asserted, the reasonable classification principle has no application to laws dealing with fundamental liberties such as freedom of speech or press as guaranteed by the First Amendment, now absorbed into the Fourteenth (322 P.2d at page 857). West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628, is relied on [336 P.2d 24] and quoted but it actually is not in point, does not discuss the present problem and the language quoted therefrom does not support the majority view. The dissenting justices quoted from Tigner v. State of Texas, 310 U.S. 141, 60 S.Ct. 879, 84 L.Ed. 1124: "The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." 322 P.2d of page 860. They stated that the classification was reasonable, and said further: 'It is clear to me that even without the proviso the act does not cover or attempt to regulate comic sections of newspapers for the simple reason that only a page or two--i. e., only a minor portion of newspapers--is devoted to comic strips. To me it seems anomalous that the addition of a gratuitous proviso by the legislature should be responsible for this court holding the act here involved unconstitutional as an infringement of the equal protection clause.' 322 P.2d at page 861. 'The majority opinion points out 'that newspapers might print or publish anything found in any comic book without being subject to the restrictions imposed.' That is not the question. We are only concerned with whether the legislature could reasonably conclude that newspapers do not in fact publish the same things that are found in many comic books.' 322 P.2d at page 862. 'To use the language above quoted, it is a matter of common knowledge that newspapers are doing a distinctively different sort of business from that done by dealers in comic books. * * * I am unwilling to say that a newspaper is the same thing as a comic book. And I do not think it unreasonable for the legislature to come to this rather obvious conclusion and to find a different set of laws necessary to regulate the comic book business from that necessary to regulate the newspaper business.' 322 P.2d at page 863. We deem the views expressed by the minority to be sound and we hold that there is no unlawful classification with respect to newspapers in the ordinance now under consideration.
So far as concerns the exemption of accounts of crime which delineate actual historical events or occurrences found in sacred scripture the same general considerations are applicable as in the case of newspaper comics. Counsel by way of argument set forth numerous instances of carnage or the like found in history or in scripture, and assert that they cannot be reasonably differentiated from the crime comics which gave rise to the argument. This argument is governed by the principles just discussed and cannot be sustained.
Vagueness of definition has not been overlooked as a basis for possible reversal. It is argued that the ordinance definition of the crime requires a dealer or a parent or another to speculate upon whether he is within the ordinance (1) when the former displays crime comics in such manner that a child may approach the rack, pick up the book and examine it, or (2) when the parent or another hands it to a child. We see nothing puzzling or uncertain about this. Also it is argued that fairy tales and folk tales may fall within the definition of crime comic book; that the phrase 'account of crime' is subject to debate concerning its scope; that one cannot know when an animal commits a crime on a human being. These synthetic problems are illustrated by situations which, though counsel assert the contrary, are within the doctrine of United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989: 'The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. On the other hand, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise. [Citations.] And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.' Jordan v. De George, 341 U.S. 223, 231, [336 P.2d 25] 71 S.Ct. 703, 708, 95 L.Ed. 886: 'We have several times held that difficulty in determining whether certain marginal offenses are within the meaning of the language under attack as vague does not automatically render a statute unconstitutional for indefiniteness. [Citations.] Impossible standards of specificity are not required. [Citations.] The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877: 'That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. * * * The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.'
We perceive no difficulty in construing or applying the terms of the ordinance to the factual situations suggested by appellants, for the language is plain and is easily understood by the ordinarily intelligent person. It is true, as stated in Chaplinsky v. State of New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031, that '[a] statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573, [575].' We have such a statute at bar.
The trial judge correctly concluded that County Ordinance 6633 is valid.
Judgment affirmed.
FOX, P. J., and HERNDON, J., concur.
'An ordinance prohibiting the sale and circulation of crime 'comic' books to children under the age of eighteen (18) years.
'The Board of Supervisors of the County of Los Angeles do ordain as follows:
'Section 1. The Board of Supervisors finds that in the unincorporated area of Los Angeles County:
'a. There is a great volume in the number and variety of crime 'comic' books available to children under the age of eighteen (18) years.
'b. These crime 'comic' books resemble closely other publications devoted in substance to humor.
'c. These crime 'comic' books are placed for sale side by side with numerous publications.
'd. These crime 'comic' books have been sold or circulated to children under eighteen (18) years of age.
'e. Many children have been incited to commit crimes as a consequence of looking at crime 'comic' books.
'f. Many children have been incited to attempt the commitment of a crime as a consequence of looking at crime 'comic' books.
'g. There is a clear and present danger which the Board of Supervisors finds is great and imminent that the continued sale and circulation in the unincorporated area of Los Angeles County of crime 'comic' books to children will incite said children to commit crimes or attempt to commit crimes and inculcate a preference in the minds of many of the children to participate in crime.
'h. The Board of Supervisors specifically finds that the prohibition against the sale to or circulation of crime 'comic' books to children is a reasonable measure to meet the clear and present danger hereinabove found.
'Section 2. Every person is guilty of a misdemeanor who sells or circulates any crime 'comic' book to any child under the age of eighteen (18) years.
'Section 3. This ordinance shall not apply:
'a. To those accounts of crime which are part of the general dissemination of news.
'b. To those accounts of crime which appear in a newspaper of general circulation.
'c. To those accounts of crime which delineate actual historical events.
'd. To those accounts which delineate occurrences actually set forth in the sacred scriptures of any religion.
'Section 4. As used in this ordinance, the following terms shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number.
'a. Crime 'comic' book: Any book, magazine, or pamphlet in which an account of crime is set forth by means of a series of five (5) or more drawings or photographs, in sequence, which are accompanied by either narrative writing or words represented as being spoken by a picture character, whether such narrative or words appear in 'balloons,' captions or on or immediately adjacent to the photograph or drawing.
'* * *
'c. Crime: The commission or attempted commission of an act of arson, burglary, kidnapping, mayhem, murder, rape, robbery, theft, train-wrecking, or voluntary manslaughter; or the commission of an act of assault with caustic chemicals or assault with a deadly weapon. As the term 'crime' is used in paragraph 'a.' of this section, it includes but is not limited to, acts by human beings and further includes acts by animals or any non-human, part human, or imaginary beings, which if performed by a human would constitute any of the crimes named.
'* * *
'f. Sells or circulates: To sell, offer for sale, attempt to sell, exhibit, give away, keep in possession with intent to sell or give away, or in any way furnish or attempt to furnish.
'g. Sacred scriptures: The Bible, including any version thereof, or any writing of similar statute in any established religion.
'* * *
'Section 7. Crime 'comic' books are now being sold and circulated to children under the age of eighteen (18) years in the unincorporated territory of Los Angeles County, destroying their moral fiber and inciting them to crime and juvenile delinquency. Such damage, once accomplished, is irreparable. By reason of the foregoing, this ordinance is immediately needed for
the preservation of the public health, safety, and welfare and shall take effect upon the passage hereof.
'* * *'
'That crime comic books contain accounts of brutal and seriously aggravated crimes. That such accounts include, among others, acts of cannibalism, decapitation of persons, arson committed by children, torture of and acts of mayhem upon persons, and murder for profit and revenge. That such accounts are illustrated in a lurid manner, and in a manner creating great visual impact upon the reader.'
'That crime comic books contain episodes of crime in which the criminal does not suffer a penalty for his crimes. That crime comic books contain episodes in which homicide is depicted as an enjoyable emotional experience for the murderer. * * *'
'That persons under the age of eighteen years are in a period of their development during which their character is being formed. That such persons are prone to fantasies and undergo stages of development in which they are unable to differentiate between fact and fantasy. That such persons are affected by stories which they read in crime comic books and imitate the accounts which they read therein. That many persons under the age of eighteen years believe that the characters and events portrayed in such accounts of crime are real persons and actual events.'
'That the reading of crime comic books by normal persons under the age of eighteen years is deleterious to the moral character and development of such persons. That there are within the County of Los Angeles many thousands of children who because of their individual emotional development are especially susceptible to injury to their moral character and are especially susceptible to being influenced to commit crimes by and as a result of reading by them of crime comic books.'
'That the reading of crime comic books by persons under the age of eighteen years inculcates into the minds of such persons a preference to participate in crime. That persons under the age of eighteen years have been influenced to commit crimes and to attempt to commit crimes as a consequence of their having read accounts of crime in crime comic books.'
'A. Many more accounts of crimes appear in comic book form than in newspapers of general circulation.
'B. Many comic books are devoted exclusively to accounts of crime, whereas no newspaper of general circulation is so devoted, nor is the comic section of any newspaper of general circulation so devoted.
'C. Children under the age of eighteen years customarily purchase comic books for their own use, whereas this practice is infrequent relative to the purchase by said persons of newspapers of general circulation.
'D. Accounts of crime which appear in comic book form are frequently sanguinary, lurid and of a seriously aggravated and revolting character, whereas the same is seldom if ever found in newspapers of general circulation.
'E. Parents of persons under the age of eighteen years customarily are aware of the content of newspapers of general circulation available to their children. Said parents are frequently unaware of the content of comic books read by their children.
'F. Comic books are often secreted from adults by persons under eighteen years of age. Persons under eighteen years of age collect comic books, read and re-read them many times, trade them with other such persons, and hoard and collect them. Said persons do not perform the said acts upon newspapers of general circulation nor upon the comic sections thereof.
'G. The massed presentation of comic strips found in the comic book form of publication encourages persons under the age of eighteen years to read comic books in preference to comic strips appearing in newspapers of general circulation.
'H. The massed presentation of comic strips found in the comic book form of publication has a greater impact upon the mind of a person under the age of eighteen years than does the comic strip presentation found in newspapers of general circulation.'