I respectfully dissent and state my reasons in summary fashion:
1. Basically, I am convinced that even if this action fits literally within the framework of section 17200 et seq. of the Business and Professions Code,1 as written and as heretofore interpreted, the Legislature did not intend that a statute designed to regulate business practices be used to censor the contents of books, films, and other means of expression. “It has long been a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.’ Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892).” (Muniz v. Hoffman (1975) 422 U.S. 454, at p. 469 [45 L.Ed.2d 319, 331, 95 S.Ct. 2178]. See also, People v. Daniels (1969) 71 Cal.2d 1119, at p. 1139 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; Estate of Getty (1978) 85 Cal.App.3d 755, at pp. 760-761, fn. 4 [149 Cal.Rptr. 656]; People v. Riddle (1978) 83 Cal.App.3d 563, at p. 571 [148 Cal.Rptr. 170]; Rucker v. Superior Court (1977) 75 Cal.App.3d 197, at p. 200 [141 Cal.Rptr. 900]; Westfall v. Swoap (1976) 58 Cal.App.3d 109, at p. 116 [129 Cal.Rptr. 750].)
2. Section 17200 prohibits, inter alia, “unlawful... business practice^].” While we must accept that the end result of defendants’ business operations consists of wholesale violations of section 311.2 of the Penal Code, it is not alleged that defendants achieved their objective by means of any illegal business practice—a notion which relates to the “how” of doing business as distinguished from the effect.2
*325I submit that while this distinction has not been pointed up in any reported decision known to me, it is vital. Regardless how liberally the Supreme Court interpreted section 17200 in Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, at pages 108-113 [101 Cal.Rptr. 745, 496 P.2d 817], and lately in People v. McKale (1979) 25 Cal.3d 626 [159 Cal.Rptr. 811, 602 P.2d 731], we must not lose sight of the fact that section 17200 is a definition of unfair competition. Surely the concept of “competition” relates solely to the method of conducting a business, and not to the nature of the product sold or service rendered. There is nothing inherently unlawful in collecting debts (Barquis) or running a mobilehome park (McKale).
3. Unlawfulness aside, the complaint does allege that defendants have competed unfairly. It does so, however, in the most conclusory manner.3 Offered an opportunity to amend, plaintiffs declined. For obvious reasons we should, therefore, not be concerned with the concept of unfairness.
4. My final point is purely speculative and would be of doubtful validity as the basis for a majority opinion. Nevertheless, I cannot help wondering whether the aspect of People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42 [130 Cal.Rptr. 328, 550 P.2d 600], which permits findings of obscenity without the benefit of a jury, would command a majority in the California Supreme Court as it is now constituted.
Respondents’ petition for a hearing by the Supreme Court was denied August 21, 1980. Tobriner, J., Mosk, J., and Newman, J., were of the opinion that the petition should be granted.
All code references, unless otherwise noted, are to the Business and Professions Code.
To illustrate: assume a merchant who sells his product by methods which scrupulously adhere to every law that tells business people how to run their shops: he engages in no combinations in restraint of trade (§ 16700), does not practice locality discrimination (§ 17040), refuses to sell below cost (§ 17043), never gives a secret rebate (§ 17045), and never engages in false advertising (§ 17500). He discriminates against *325no one on account of race, color, or creed (Civ. Code, § 51.5), and scrupulously observes the rules relating to venue when suing defaulting customers. The only legal blemish on his operation is that his product is heroin. Does he engage in an illegal business practice or is he committing serious crimes by means of otherwise legal methods of doing business?
“Defendants.. .have competed unfairly.. .to the damage and injury of the public, as competitors and consumers.”