Noroff

Defendants were charged in the Municipal Court of the Los Angeles Judicial District with a violation of Penal Code section 311.2, which proscribes the possession of obscene matter for distribution in this state. 1 In chambers, the trial court examined the challenged material, a single copy of a magazine entitled 1 ‘ International Nudist Sun, Yol. 1, No. 5” (hereinafter referred to as “INS #5”). The court ruled that the magazine fell within the constitutional protection of the First and Fourteenth Amendments of the United States Constitution; concluded that it was not “obscene” 2 within the meaning of Penal Code section 311, subdivision (a) ; and ordered the case dismissed. On appeal by the People, the Appellate Department of the Superior Court of Los Angeles County affirmed and then certified the case to the Court of Appeal which granted a transfer. After reversal by the Court of Appeal, we granted a hearing.

The People initially charged that INS #5 was obscene on its face. Unlike Ginzburg v. United States (1966) 383 U.S. *793 463 [ 16 L.Ed.2d 31 , 86 S.Ct. 942 ], this is not a ease in which “the prosecution charged the offense in the context of the circumstances of production,…

I dissent. The pseudo-nudist cult magazine, which is the subject of this action, flagrantly fails to pass any one of the tests adopted by the United States Supreme Court and more recently incorporated in the laws of this state by the Legislature.

Taken as a whole, the predominant appeal is to prurient interest which goes substantially beyond customary limits of candor and the magazine is utterly without redeeming social importance. According to small print at the bottom of the cover it purports to be “an educational, cultural, and scientific publication, for the advancement of nudism,” and briefly included among its pages of pictures is editorial material replete with pious platitudes about the beneficial aspects of sunbathing and the freedom and relaxation to be gained by families’ participation in outdoor games and activities. 1 But *798 the statement of such a purpose and the inclusion of such material belie its all too obvious purpose of appealing to prurient interest. The pages of this magazine contain no pictures of families engaging in outdoor games and activities. In fact, no children are portrayed, and the only suggestion of games is the inclusion of studio props which,…