dissenting. My disagreement with the majority in this case is not complete, but I am unable to agree with the fashion in which R. C. '2905.34 and R. G. 2905.35 are held applicable.
Before discussing these Ohio statutes, I must first express my dissatisfaction with certain interpretations that the majority places on the constitutional law of the United States respecting this kind of case. As I read the opinion, ■it'is first concluded that the “exploitation, through the medium of á motion picture, of purported acts of sexual intercourse solely for the profit of the producer and exhibí-*287tors cannot constitute the communication of an idea or a thought protected by the First and Fourteenth Amendments.” This emphasis on the profit motive catapults the importance of such evidence to a height never before reached, and as I read Ginzburg v. United States (1966), 383 U. S. 463, it was never intended to be given such determ- ', inative importance. In Ginzburg, the court held that “pan- ■ dering” of materials could be considered by the courts in their determination of whether the materials were obscene. The pandering (i. e., advertising, etc., with a heavy emphasis on the appeal to prurient interest), however, is only “relevant in determining the ultimate question of obscenity,” not determinative in and of itself. Id. at 470.4 Admittedly, and rightly so, the pandering evidence is impor-ant but was never intended to replace the three-part test established in Roth v. United States (1956), 354 U. S. 476. That test was particularly described in Memoirs v. Massachusetts (1966), 383 U. S. 413, at 418, as to whether,'“the dominant theme of the material, taken as a whole, appeals-1 to a prurient interest in sex;” whether the material is “ut-‘ *288terly without redeeming social value;” and whether “the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.”
The majority opinion cites Mr. Justice Douglas, dissenting in Roth v. United States (1956), 354 U. S. 476, at 512, wherein he states: “No one would suggest that the First Amendment permits nudity in public places, adultery and other phases of sexual misconduct.” This principle appears to be so clear that it is almost redundant. However, the conclusion reached by the majority does not necessarily follow from that cited language. The majority then states: “Thus where the actual conduct is offensively shocking and destructive of public morals, an act of simulated sexual intercourse on film is subject to the same regulation as the original.” It must be kept in mind that the majority in Roth did not announce such a principle as definitive of obscenity. Obviously, certain conduct projected on a motion picture screen can be obscene,. But the decision is not reached so easily as to base the determination on what human acts are protected by the First Amendment. The majority appears to conclude that acts depicted in a motion picture are “conduct” and, as such, not protected as expression. Both reason, and the weight of authority hold otherwise. I think it clear that “motion pictures are within the ambit of the constitutional guarantees of freedom of speech and of the press.” Jacobellis v. Ohio (1964), 378 U. S. 184, 187. For this reason I also disagree with the trial court’s determination regarding the film’s affronting contemporary community standards by reference to the fact that the conduct depicted would violate criminal statutes if humans were actually engaged in such acts in public. It seems to me both reason and the weight of authority dictate that the conclusion of the majority, as well as that of the trial court, in this respect is not correct. Daily in modern living the communications media bring to our senses all sorts of verbal or pictorial descriptions of acts which, if performed by live human beings, would *289be subjected to criminal sanctions. Is it the rule of law that the performance of criminal acts cannot be portrayed in the movies or on television? Such is not the law.
Turning now to the real basis of my opposition to the result reached in the instant case, this action was commenced as a nuisance abatement action under E. 0. 3767.-01 et seg., on relation of the state of Ohio. The rationale of this court’s decision leads us to recently enacted statutes, E. CL 2905.34 and 2905.35, all effective September 15, 1970, after both the Court of Common Pleas and the Court of Appeals had rendered their judgments. Eather than using the test of obscenity established in Roth v. United States, supra,5 the determination of this matter on appeal was made with reference to and the application of the above-cited Ohio statutes. E. C. 2905.37 reads, in part:
“(A) Where it appears that Section 2903.14 or 2905.-35 of the Eevised Code is being or is about to be violated, the county prosecutor or chief executive or legal officer of a municipal corporation in the jurisdiction where such violation is taking place or is about to take place, may maintain an action in the Common Pleas Court to enjoin the sale, distribution, or presentation of the obscene material or performance, or enjoin the sale, distribution, or presentation to minors under eighteen of the material or performance harmful to minors.
“ (B) The defendant is entitled to trial on the merits within five days after joinder of the issues, and the court *290shall render its decision within not more than five days after conclusion of the trial. If the court finds that such material or performance is obscene, it shall enjoin the sale, distribution, or presentation of such material or performance, if the court finds that such material or performance is harmful to minors, it shall enjoin the sale distribution, or presentation of such material or performance to minors under eighteen.”
This lawsuit was not brought by the county prosecutor or chief executive or a legal officer of a municipal corporation. Moreover, the defendant did not receive the benefit of a trial, as required by the statute.
If, for the purpose of deciding what is obscene as that Avord is used in R. C. 3767.01 et seq., this court is looking to the definitions provided in R. Ó. 2905.34 to determine the rights of the parties in this appeal, then I believe this procedure gives retroactive application to the statute and is thus violative of the Ohio Constitution. The litigants and the courts below could not have been expected to advocate their legal positions in terms of statutes not yet in existence. If we are to review the rights of the parties under a recently enacted statute, due process of law demands at a minimum that the litigants have their day in court concerning these newly enacted statutes. Obviously the heart of this case, whether the action is to be determined under the Both test or under the newly enacted Ohio standards, is a matter of constitutional determination. I am mindful that there are many instances when appellate courts have exercised their prerogative to use as a basis of determination certain standards not briefed or argued by counsel, and in a proper case in the interest of judicial efficiency that should be done. But, the newness of the statutes (R. C. 2905.34 and 2905.35), and the fact that this is a case of a such great importance, dictates that this should not be done to insure these parties full due process of law.
I conclude by cautioning that none of this is to be taken as expressing this writer’s approval of the subject *291matter of this lawsuit; nor is it intended' to express anything but my most profound displeasure with it. However, we must make a determination with regard to obscenity in this case — when, in the words of Justice Black, “I can imagine no task for which this court of * * * judges is less equipped to deal.” United States v. Thirty-Seven Photographs (1971), 39 L. W. 4518, 4526.
We should determine this lawsuit only after providing the parties an opportunity to consider, argue, and brief the constitutional questions resulting from the application of the facts in this case to the newly enacted statutes. This is no more than reliance upon the mechanics of a judicial process which has served us well.
Therefore, at this time I am not able to agree with the basis of the decision expressed by the majority. I would reverse on a limited basis, leaving the injunction in effect until final determination, and remand the cause to the Court of Common Pleas so that the parties may have an opportunity to fully litigate the constitutionality and applicability of the current standard for determining this cause under the definitions of E. C. 2905.34.
The opinion of the Supreme Court in Ginzburg stated:
“This evidence [of advertising], in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate repre-' sentation of petitioners’ publications as erotically arousing, for example, '■ stimulated the reader to accept them as prurient; he looks for titillation,, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazeness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And, the circumstances of presentation and dissemination of material áre equally relevant to determining whether social importance claimed for' material in the courtroom was, in the circumstances, pretense or reality —whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Cer-' tainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are-used as a subject of pandering is relevant to the application otf the. Both test.’’ (383 U. S., at 470.)
In the case A Book v. Attorney General (1966), 383 U. S. 413, at page 418, the court stated:
“We defined obscenity in Both in the following terms: ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.’ 354 XJ. S. at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”