Wiener

This case concerns the validity of California’s obscene matter statutes, Penal Code sections 311 and 311.2, as applied to distributors of such matter under the right to privacy set forth in article I, section 1, of the California Constitution. Finding section 311.2 invalid on this privacy right ground, the Municipal Court, San Diego Judicial District, sustained a demurrer without leave to amend to two counts charging six defendants with conspiracy to distribute obscene matter (§§ 182, subd. (a)(1), 311.2), and with violating section 311.2 making it a misdemeanor where one “possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter . . . .” The People appeal an order of the San Diego County Superior Court denying their motion to reinstate those portions of the complaint that are dependent on the validity of section 311.2. (§§ 871.5, 1238, subd. (a)(9).)

Each of the defendants has filed a respondent’s brief, the basic thrust of which is that they, as distributors of obscene matter, have standing to assert their customers’ privacy right to possess, which…