Appeal on News Rack Law Rejected

Coin-operated news boxes featuring sex-oriented magazines and newspapers may soon disappear from California’s streets and sidewalks.

A state law that makes it a crime to display such publications in an unattended news rack was cleared to take effect by the Supreme Court on Monday.

The justices unanimously denied a final free-speech appeal filed by two Hollywood distributors of magazines known as Hollywood Playdate, Kinky and Swinger.

Though the 1994 law has been upheld by two lower courts, judges have blocked the state from enforcing it pending the appeals.

State Atty. Gen. Dan Lungren hailed the decision and said it was long overdue.

“After two years of legal battles, the state will finally be able to implement a law which was designed to protect children from sexually explicit publications,” he said.

State lawyers and anti-pornography activists said the measure closes a loophole in the law.

It is already illegal under state law to “knowingly” sell sexually explicit material to minors. But distributors of “adult” material could evade the law by putting their publications in unattended news boxes, activists said.

Until now, “any child with four quarters could purchase these magazines with hard-core depictions of sex and solicitations involving sex,” said Janet M. Larue, counsel for the National Law Center for Children and Families in Santa Ana, which pushed for the law. “This is the culmination of a long fight, and it’s a much-sought-after victory for parents.”

But Stanley Fleishman, the Century City lawyer who appealed the case, called the outcome “a great loss for the 1st Amendment. This is the first such law that I know of that says the government can limit what adults buy on the street in the name of protecting little darlings who might be corrupted by nude pictures.”

The law was challenged on free-speech grounds by two Hollywood publishers, Bryan Crawford and Jim Atwell, who put out a number of “adult newspapers,” including the Sun. They also distribute the monthly magazines Kinky and Swinger through news boxes.

Fleishman said he was disappointed that the high court denied his appeal without comment (Crawford vs. Lungren, 96-1092), refusing to wait until it had heard arguments in an Internet case on Wednesday.

“The Internet case involves basically the same issue: whether the government can limit what adults read in order to protect children,” Fleishman said.

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Last year, Congress made it illegal to “display” pornography on the Internet, but a three-judge court in Philadelphia quickly struck down the measure on the grounds that it was vague and went too far in limiting free expression among adults.

The news box distributors tried the same arguments, but failed in the federal courts in California.

After a trial in Los Angeles, U.S. District Judge Manuel Real upheld the law in 1995, ruling the state had “a compelling interest in shielding minors from the influence of literature” that is pornographic. Last September, the U.S. 9th Circuit Court of Appeals in San Francisco came to the same conclusion.

The law imposes a $2,000 fine and up to a year in jail for “any person who knowingly displays, sells or offers to sell . . . any harmful matter . . . in any coin-operated vending machine that is not supervised by an adult and that is located in a public place.” The law defines “harmful matter” as material that the “average person applying contemporary statewide standards” would say “appeals to the prurient interest and . . . depicts or describes in a patently offensive way sexual conduct.”

The law also says news box owners can protect themselves from prosecution by using a credit card or coding numbers that are limited to adults, but Fleishman said that it is not a realistic option.

Still, the Century City lawyer said he and his clients are not giving up.

“Now we will have to fight them on whether these publications are ‘harmful matter,’ ” he said. “California is a fairly liberal state and, in my judgments, these publications are not outside the statewide standards.”

Meanwhile, in other actions, the court:

* Asked the Justice Department for guidance on whether Indian tribes in California have a right to offer high-stakes gambling on their reservations.

Last year, the U.S. 9th Circuit Court of Appeals dealt the tribes a setback by ruling they can offer only the gaming that California permits by law.

This means a lottery and horse racing, state officials say. But the tribes say federal law gives them the right to offer all forms of electronic gaming because the state lottery includes electronic devices. Before ruling on that issue in the case (Sychuan Band vs. Wilson, 96-1059), the justices asked the U.S. solicitor general for his view of the federal law.

* Let stand a judge’s injunction that bars sidewalk picketing in front of an abortion clinic in Vallejo. In a sharp dissent in Williams vs. Planned Parenthood, 95-576, Justice Antonin Scalia faulted his colleagues for not forcing the California courts to reconsider the matter under the high court’s recent ruling in a New York case.

* Refused to hear San Francisco’s plea to preserve the city’s ownership of a 103-foot Christian cross in a public park. A lower court said the cross violated California’s constitutional bar against preferences based on religion (San Francisco vs. Carpenter, 96-1111).

* Without setting a precedent, refused to hear an appeal from a San Bernardino community college that sought to charge a professor with violating its sexual harassment policy.

The professor, Dean Cohen, was accused of repeatedly using vulgar language in class. However, he won a U.S. appeals court ruling saying the college could not discipline him based on its vaguely word policy. The justices refused to review the ruling in Beeman vs. Cohen, 96-1173.