Enterprises, Inc. v. Day, 289 Fed.2d 455 (D.C. Cir. 1961), petition for cert. filed, 29 L.W. 3373 (U. S. May 29, 1961) (No. 1009)).

It can scarcely be claimed that the new statutory definition of "obscene" is precise, but, the subject being what it is, precision has never been a characteristic of legislation in this field and is not likely ever to be. Our sympathies go out to those who must label matter "obscene" or "not obscene." It is suggested, however, that much help for a person who must decide whether or not written material is obscene can be found in Pornography and the Law, a remarkable book by Drs. Eberhard and Phyllis Kronhausen, published in 1959, in which the distinguishing characteristics of obscenity and "erotic realism" are discussed in objective terms and within the framework of the rules announced in the Roth case.

. Under the new law the defense can be made that an act involving concededly obscene matter was committed in aid of "legitimate scientific or educational purposes" (Pen. C. sec. 311.8) This was not provided in the former statutes, and it does not appear that any California court ever had occasion to decide whether or not such a defense was available. Without the aid of such a provision a federal court was able to conclude that otherwise obscene material was not obscene when intended for the exclusive use of the Kinsey researchers (United States v. 31 Photographs, 156 F.Supp. 350 (S.D.N.Y. 1957)), and it may be that the California courts, if presented with the same question, would have reached the same conclusion.

Media to Which the New Law Applies

The new law applies to obscene "matter," and this term is defined in subdivision (b) of Penal Code section 311. The definition is such that the new law, like the old, applies to such objects as books and pictures and is more explicit in its application to motion pictures. In addition, the definition. of "matter" includes a catchall reference to "any other articles, equipment, machines or materials," which did not appear in the old law. If Aldous Huxley's "feelies" ever become a reality, they will be covered by this definition. Although oral expression (not produced by playing a record or by other artificial means) is not within the definition of "matter," certain oral expression is covered by the new law, as it was by the old, and this is discussed further below.

matṭachine REVIEW

Intent

Whereas the former law required that the act, to be pun+ ishable, be committed "wilfully and lewdly," the new law requires, instead, that it be committed "knowingly," i.e., with knowledge that the matter is obscene (Pen. C. sec. 311, subd. (e)). Thus, formerly a lewd intent was required, which could be inferred from knowledge of the contents of the book, magazine, etc. (see People v. Wepplo, supra). Under the new law, knowledge that the material is obscene is sufficient whether or not defendant has a nasty purpose, and presumably knowledge need not necessarily be derived from examination of the material. But the requirement that defendant know that the matter is obscene would seem to be more generous to defendants than the requirement, said to be imposed by the former law, that defendants know the "contents" of the material (People v: Harris, supra).

Acts Penalized

The new law is, broader than the old in terms of the acts covered. In addition to those acts formerly penalized it penalizes the act of knowingly sending obscene matter into, or causing such matter to be sent into this State, or bringing it into, or causing it to be brought into the State, for the purpose of sale or other distribution. It makes it an offense to possess obscene matter with intent to sell or otherwise distribute it (distribution may be without consideration), exhibit it, or offer to distribute it (Pen. C. sec. 311.2), whereas under the corresponding provision of the former law, it was an offense only to possess for sale. Offering to distribute is an offense under the new law.

The provisions of the new law relating to advertising differ substantially from the corresponding provisions of the old law. Under the old law it was an offense wilfully and lewdly to write, compose, or publish any notice or advertisement of an obscene writing, paper, book, picture, print, or figure. Under the new law a person who "writes or creates advertising or solicits anyone to publish such advertising or otherwise promote the sale or distribution of matter represented or held out by him to be obscene" is guilty of a misdemeanor (Pen. C. sec. 311.5). If a purveyor of obscene matter composes the copy for an advertisement for matter represented to be obscene, or asks a newspaper publisher to publish such an advertisement, it is clear that he has vio-