San Diego Law Review


Robert R. Royse

Library of Congress Authority File


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On July 7, 1966, the California Legislature added to the Penal Code section 404.6 proscribing urging to riot. Ostensibly, the new section is intended to create a first line of defense against riots. It is meant to be an aggressive measure, designed to prevent the eruption of physical force or violence. It should be contrasted to the more restricted method of control, which goes into effect only after physical force or violence has erupted, or after a threat of such force or violence, accompanied by immediate power of execution. Section 404 of the Penal Code, which defines riot, embodies this more restrictive method of control. Section 404.6 permits the arrest and prosecution of every person who, by acts or conduct, intends to cause a riot under circumstances where the probabilities that he will succeed are imminent. By allowing the police to arrest such a person or persons, the section intends to nip the riot-rose in the bud and thereby preserve the public peace. Through an analysis of legislative history, case history, and recent opinions of the Supreme Court, the writers will endeavor to support the proposition that private correspondence between consenting parties, whether "obscene" or not, is outside to scope of the obscenity statute.

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