Harold Wasserman v. The Municipal Court of the Alhambra Judicial District, the People of the State of California, Real Party in Interest-Appellant

This is an appeal by the People of the State of California from the granting of petitioner Wasserman’s writ of habeas corpus. We reverse.

In 1969, Wasserman was charged and convicted of violating California Penal Code § 311.2, a misdemeanor, in that on March 26, 1969, he distributed an obscene brochure. The brochure contained a sketch and textual matter which portrayed ongoing sexual activity. The Superior Court of Los Angeles County affirmed. Habeas Corpus was denied in the California Court of Appeal and in the California Supreme Court.

Wasserman filed a petition for federal habeas corpus in the United States District Court for the Central District of California in 1970. After a hearing, the court, on October 14, 1970, concluded that the material distributed was obscene and denied the petition. This court affirmed that decision in a per curiam opinion reported at 449 F.2d 787 (9 Cir. 1971). The court made an independent constitutional judgment that the material was obscene under Redrup v. New York, 386 U.S. 767, 770-71 , 87 S.Ct. 1414 , 18 L.Ed.2d 515 (1967). Redrup cited and relied upon the “utterly without redeeming social value” test formulated in Memoirs v. Massachusetts,…