}

lated the section. When a newspaper publisher publishes it, does he commit an offense? Apparently not, unless "writes" or "creates" is to be interpreted very broadly. Further, this provision applies only when the matter is "represented" or "held out" to be obscene. Thus, creation of a decorous advertisement for obscene matter would not be punishable (although it might be punishable under another section as a knowing offer to distribute obscene matter), but the holding out as obscene of matter which in fact is not obscene would be punishable. This latter offense is one that arouses indigna'tion among all factions.

The new law separately defines the offense of knowingly distributing or exhibiting obscene matter or offering to distribute it to a person under 18, if the offender knows or is in possession of facts from which he reasonably should know that the person is of such age (Pen. C. sec. 311.3). In addition it creates the offense of hiring, employing, or using a minor (not just persons under 18 in this case) to prepare, distribute, etc., obscene matter, when the offender knows or is in possession of facts from which he reasonably should know that the person hired, employed, or used is a minor (Pen. C. sec. 311.4).

The new law includes a prohibition against tie-in sales and consignments. It makes it a misdemeanor "knowingly" to require as a condition of sale, allocation, consignment, or delivery for resale of any "paper, magazine, book, periodical, publication or other merchandise" (here the defined term "matter" is not used) that the purchaser or consignee receive any obscene matter (Pen. C. sec. 311.7). At its 1961 session the Legislature also enacted another law generally prohibiting tie-in sales and consignments of publications, which law is not restricted to tie-ins of obscene matter (Bus. & Prof. C. sec. 16604, as added by ch. 2029, Stats. 1961) and it had previously prohibited tie-in sales and consignments of "horror comic books" (Bus. & Prof. C. sec. 1955, added by ch. 214, Stats. 1955). A tie-in sale of course involves sale of obscene matter, which would have been punishable under the old law as well as the new, but the new law actually goes further than prohibiting tie-in sales and consignments. It prohibits also denial of a franchise, revocation or threatening to revoke a franchise, or imposition of any penalty for failure to accept, or for return of, obscene matter (Pen. C. sec. 311.7).

It continues to be an offense to sing or speak obscene words in a public place (Pen. C. sec. 311.6; the former law referred

also to "any place where there are persons present to be annoyed thereby") but gone is a provision which has long fascinated persons concerned with the law in this field. The last paragraph of former section 311 of the Penal Code provided, in part:

The provision [prohibiting speaking of obscene words in public places] shall not apply to any person participating in violation thereof only as an actor, unless and until the proper court shall have passed upon the matter and found the actor to have violated [said provision]

...

This provision seemed to say that an actor could not commit the offense unless convicted, of it, and must have been unique in the law. Gone also is the provision imposing liability:

...

where after a complaint has been filed against the owner, manager, producer or director charging a violation of said [provision], and pending the determination thereof an actor or actress utters the particular word or words complained against or other word or words of the same or similar import, in connection with such performance, act, play, drama, exhibition or entertainment."

Under the new law, an actor is liable for uttering an obscenity, regardless of the fate of the owner, manager, producer, or director, just as a bookseller is liable for knowing distribution of obscene matter whether or not the publisher or writer has been charged.

Penalties

Under the old law, all offenses were misdemeanors, punishable by imprisonment in the county jail not exceeding six, months or fine not exceeding $500 or both (former Pen. C. sec. 311; Pen. C. sec. 19). Under the new law (Pen. C. sec. 311.9), permissible penalties have been increased in all cases; second and subsequent offenses are more severely punished than first offenses; and; particularly, a second or third offense, depending on the offense committed, is a felony. In no case · has probation been restricted. An unusual feature of the penalty provisions of the new law is that for the basic offenses of preparing, distributing, importing, and exhibiting obscene matter and other offenses described in Penal Code,

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