Friday, Jul. 22, 1966

Ginzburg as Precedent

There was little question about the quality of the movies that Robert A. Klor intended to produce. In 1964, he hired a couple of models named Candy Bunch and Lori Lorianne to "star" in two films, each of which depicted a single nude woman in poses that the Los Angeles prosecutor described as "invitations to sexual activity." After playing their parts, Candy and Lori became suspicious about Klor's plans for the films, and they called the cops. Three officers entered Klor's home under authority of an arrest warrant charging him with an overdue parking ticket, then asked to see his "lewd" films. Klor willingly displayed his motion pictures, but wisely stated: "These are not ready for distribution through the mail. They need to be edited."

Despite that disclaimer and the fact that police were unable to prove that he had ever before peddled smut, Klor was convicted of violating a state law banning the distribution of obscene matter. Had he actually done so?

Conduct, Not Content. The evidence failed to show that he had even planned to, ruled California's highest court as it reversed Klor's conviction. Basing its reasoning in large part on the Supreme Court decision affirming Eros Publisher Ralph Ginzburg's five-year federal sentence for sending obscene matter through the mails, the California Supreme Court held that obscenity cases should turn more on the objective conduct of the defendant than on a judge or jury's subjective opinion about the content of his product.*

Whether or not Klor's films were really obscene, said the court, the California antismut law does not forbid "mere preparation of obscene materials." Instead, it penalizes "dissemination or intended dissemination." Not only had the prosecution failed to prove that Klor intended to distribute his unedited films in their allegedly obscene form, but worse, said the State Supreme Court, the trial judge had misconstrued the law and wrongly "communicated to the jury the idea that it need not find 'an intention to distribute' if it concluded that defendant had prepared the materials."

The court called this construction "a gratuitous unconstitutional reach" that might well encourage lower courts to penalize "matter produced solely for the personal enjoyment of the creator." Construing Ginzburg, the court stressed: "No constitutionally punishable conduct appears in the case of an individual who prepares material for his own use" or who "intends to purge the material of any objectionable element before distributing or exhibiting it." To hold otherwise, the court said, "would pose grave technical difficulty for the unconventional artist" and "tend to suppress experimental productions that might become, in finished form, constitutionally protected communication."

* An argument that Ginzburg himself has finally turned to. Last week a U.S. appellate court stayed his sentence for two months to allow him to hone a new appeal claiming he was not personally responsible for trying to mail his products from such "titillating" addresses as Intercourse, Pa. As Ginzburg now tells it, the mailing company he hired devised that ploy without his knowledge.

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