dissenting. I find myself in disagreement with the conclusion of the majority, that the film “Vixen” is in fact obscene matter, under the tests established by the Supreme Court of the United States.
As a court we are bound by the definition of obscenity delineated in Roth v. United States (1957), 354 U. S. 476, 489, and that standard is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
That court later in Jacobellis v. Ohio (1964), 378 U. S. 184, 191, set out in the majority opinion that: “The question of the proper standard for making this determination has been the subject of much discussion and controversy since our'decision in Both seven years ago. Eecognizing that the test for obscenity enunciated there — ‘ whether to the *292average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest,’ 354 U. S. at 489; — is not perfect, we think any substitute would raise equally difficult problems, and we therefore adhere to that standard. We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance,’ and that ‘the portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.’ Id. at 484, 487. It follows that material dealing with sex in a manner that advocates ideas1, Kingsley International Pictures Corp. v. Regents of University of the State of New York (1959), 360 U. S. 684, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance * *
“Under the Both 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.” A Book v. Attorney General (1966), 383 U. S. 413, 418. (Emphasis added.) Further on in the latter case Justice Brennan gave emphasis to the third criterion of the test as follows:
“* * * A book cannot be proscribed unless it is found to be utterly without redeeming social value.” 383 U. S. 419. Utterly, of course, means completely, absolutely, entirely.
In my view, the film in question is not “utterly with*293out redeeming social value.” At least half of the running time of the film is devoted to activity other than sex. Some of the material provides much more than mere transitional continuity between the sexual episodes. In fact, there is portrayal of racial problems in relation to the companion of Vixen’s brother; to draft evasion by the evader taking-residence in Canada; and to communism versus our system of government as a way of life. It must be noted, too, that some would conclude that this material deals with sex in a manner that advances ideas. Also, some viewers could with justification consider the film as having some artistic value.
Although I can agree that the producer did intend to exploit sex for the sake of money and that the dominant theme of the film is sex, it does not follow from this, as demonstrated from the citations above, that it is therefore obscene.
In my opinion the film, taken as a whole, at least contains sufficient commentary on matters of some social importance to bring it within the ambit of the protection of the First and Fourteenth Amendments. For the reasons stated, I am constrained to dissent.