dissenting. I dissent because I am convinced that sexually oriented expression should be protected under the First and Fourteenth Amendments to the Constitution of the United States and especially under Section 11, Article I of the Ohio Constitution, unless it is established that the material at issue causes harm.
In Roth v. United States (1957), 354 U.S. 476, 484, the majority stated:
“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless ex-cludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. * * *” (Footnote omitted.)
Yet even in Roth, the court stressed that “sex and obscenity are not synonymous.” Id. at 487. Thus sexually oriented matter which was not obscene had the full protection of the Constitution. Roth struggled to devise a test to distinguish constitutionally protected from unprotected sexual expression. Courts have continued to wrestle with these determinations for three decades, variously modifying the test, substituting new terms for old and even reversing some former declarations. These efforts have created a hopelessly muddled and con*120fused body of law which provides little guidance to courts and fails to give notice to distributors and publishers as to what material may be outside constitutional protection.10
One of the problems is that state efforts to ban obscenity have rested upon an unproven premise. The premise is that viewing sexually oriented material contributes to an increase in crime. This has not been established. Indeed, the opposite conclusion was reached in 1970 by the Commission on Obscenity and Pornography, which was established by Congress to study and determine the actual effects of pornography upon persons exposed to it. The commission stated:
“In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency.” (Footnote omitted.) Report of the Commission on Obscenity and Pornography (1970) 27 (hereinafter “Report of the Commission”); see, also, R. Holmes, The Sex Offender and the Criminal Justice System (1983) 118-120.
The commission further noted that: “On the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage. The most frequent purchaser of explicit sexual materials is a college-educated, married male, in his thirties or forties, who is of above average socio-economic status. Even where materials are legally available to them, young adults and older adolescents do not constitute an important portion of the purchasers of such materials.” Report of the Commission at 53. Other possible positive effects of pornography are that it may have therapeutic and educational value and that it may, for certain individuals, have a cathartic effect. Downs, The Attorney General’s Commission and the New Politics of Pornography, 1987 American Bar Found. Research J. 641, 671-674.
Another difficulty in the obscenity case law lies with the application of terms such as “prurient interest,” “patently offensive,” “contemporary community standards,” “serious literary, artistic, political, or scientific value,” and the ultimate in colorful nonsense, “I know it when I see it.”11 How can what lies inexpressibly buried within the subjective eye of one supreme court justice guide any court or legislature where a determination of First Amendment limits must be made?
*121In the present case, the majority has fastened its analysis to another of these meaningless phrases. “For purposes of the Miller test,” the majority says, “the average person is one with average sex instincts.” How, one wonders, does the majority, or any judge, identify this mythical person of “average sex instincts”? If the majority really means “average,” what is the universe of instincts to be averaged and what is the process by which that can be accomplished? To look critically at the language used in this and other obscenity cases is to see absurdity.
What appeals to one person may offend another. Each individual’s experiences and values will shape his opinion of what has merit, is patently offensive or is simply worthless but not obscene. This inherent subjectivity makes uniform analysis and application of the obscenity standard impossible. The commission recognized the subjective nature of the inquiry when it described responses to sexually oriented materials and whether the material was likely to be labeled obscene or pornographic:
“Extremely varied responses to erotic stimuli occur in the judgmental realm, as, for example, in the labeling of material as obscene or pornographic. Characteristics of both the viewer and the stimulus influence the response: For any given stimulus, some persons are more likely to judge it ‘obscene’ than are others; and for persons of a given psychological or social type, some erotic themes are more likely to be judged ‘obscene’ than are others. In general, persons who are older, less educated, religiously active, less experienced with erotic materials, or feel sexually guilty are most likely to judge a given erotic stimulus ‘obscene.’ There is some indication that stimuli may have to evoke both positive responses (interesting or stimulating), and negative responses (offensive or unpleasant) before they are judged obscene or pornographic.” Report of the Commission at 26.
The commission noted also that individuals who want the most restriction on the availability of sexually oriented material tend to believe that others in the community agree, whether or not this is true. Id. at 33. Thus, the finding that certain material is obscene, based upon the testimony of a handful of community residents who testified that, in their opinion, the material is obscene and that others in the community hold this view, is without a solid base.
A further problem is presented by the Urbana ordinance and other similar attempts to codify a definition of obscenity. Sexual conduct, under the Urbana ordinance, is broadly defined to include ordinary intercourse and even “touching of an erogenous zone of another.” If such material arouses lust or appeals to the prurient interest, it may be banned. The problem is this. Sexual depiction which arouses lust is not necessarily obscene — even if obscenity is measured by an aesthetic or a dictionary definition. A statute does violence to the right of free expression under the Ohio Constitution and under the First Amendment when that statute is so murky that it operates to indiscriminately ban sexual depiction which arouses lust.
It is time to re-examine the application of the First Amendment and Section 11, Article I of the Ohio Constitution to obscenity cases. The harm caused by the expression under consideration should be the focus. Such a focus fits into a long-standing approach to First Amendment problems. One enjoys free speech, yes, but one *122may not shout “fire” in a crowded theater (unless, of course, there is a fire).12
There are types of sexually explicit material which cause harm. Two examples are publications which utilize minors and publications which require the commission of a crime in order to produce them.13
Unlike the unproven effect of viewing pornography on the crime rate, there is evidence that the use of children in pornographic films and magazines injures their physical and psychological well-being. It has been determined that sexually exploited children are unable to develop healthy relationships in later life and that such children also tend to become sexual abusers as adults. New York v. Ferber (1982), 458 U.S. 747, 757-764. Thus, the state has a legitimate compelling interest in protecting children from sexual exploitation. The state may prevent the distribution and possession of child pornography as well as its production, because it is extremely difficult to stop child pornography at the production stage. Ferber at 759-761; cf. State v. Young (1988), 37 Ohio St. 3d 249, 525 N.E. 2d 1363; State v. Meadows (1986), 28 Ohio St. 3d 43, 28 OBR 146, 503 N.E. 2d 697.
Another potential exception to the First Amendment is extremely violent sexually oriented material. Studies performed since 1970 indicate that material which combines sexually explicit depictions with extreme violence is correlated with aggressive attitudes and aggressive behavior against women, in a laboratory setting. Downs, supra, at 658, 677-679, and studies cited therein. Thus, the state could, based upon sufficient evidence, regulate sexually oriented material which contains graphic violence.14
Restricting the audience for certain kinds of material may also be defensible. It is not my purpose to catalog the types of “harm” that would take a publication out from under constitutional protection. Moreover, those determinations should first be made by the legislature. Such determinations may change and evolve in relation to the study and knowledge of the relationship between suspect material and harm. My point is that the law should be looking for the existence of “harm,” not trying to define “obscenity.”
If viewing sexually oriented materials does not cause criminal behavior or harm and if criminal behavior is not required to produce the material, what is left? The residue are materials which offend some people — people who can choose to avoid them.
In the case before us, no pernicious effect has been established with regard to the material. What has been shown is that the material is tasteless, designed to stimulate prurient interest, and, in a dictionary sense, is obscene. It is, in short, garbage. But, as Justice William 0. Douglas has observed:
“* * * The First Amendment was designed to ‘invite dispute,’ to induce ‘a condition of unrest,’ to ‘create dissatisfaction with conditions as they *123are,’ and even to stir ‘people to anger.’ Terminiello v. Chicago [1949], 337 U.S. 1, 4. The idea that the First Amendment permits punishment for ideas that are ‘offensive’ to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to ‘offensive’ as well as to ‘staid’ people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard ‘offensive’ gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court’s opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV. or over the radio. By reason of the First Amendment — and solely because of it — speakers and publishers have not been threatened or subdued because their thoughts and ideas may be ‘offensive’ to some.” (Emphasis added; footnote omitted.) Miller v. California (1973), 413 U.S. 15, 44-45 (Douglas, J., dissenting).
The rights afforded by the Ohio Constitution are more specific and plainly authorize the expression of any sentiment on any subject so long as the expression does not cause harm. Section 11, Article I of the Ohio Constitution of 1851 provides in part:
“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”15 (Emphasis added.)
I am disappointed that this court, which has almost without exception championed the press in First Amendment cases involving defamation and in cases involving access to public records, fails to recognize that constitutional rights are not solely for the protection of the popular and the influential. Accordingly, I dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.Appendix
The Urbana ordinances are, with a few exceptions, nearly identical to Ohio statutes: The definitions set forth in U.C.C. Section 133.01 parallel those in R.C. 2907.01, except that the definitions of “prostitute,” “spouse” and “minor” are not found. U.C.C. Section 133.01 provides (Revised Code language is in brackets):
“As used in sections 133.011 [2907.01] through 133.015 [2907.37] of the Code of Ordinances of the City of Urbana [Revised Code]:
“(A) ‘Sexual Conduct’ means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal and [or] anal intercourse.
“(B) ‘Sexual Contact’ means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a *124breast, for the purpose of sexually arousing or gratifying either person.
“(C) ‘Sexual Activity’ means sexual conduct or sexual contact, or both.
“[(D) ‘Prostitute’ means * * *.]
“(D) [(E)] Any material or performance is ‘harmful to juveniles,’ if it is offensive to prevailing standards in the adult community with respect to what is suitable for juveniles, and if any of the following apply:
“(1) It tends to appeal to the prurient interest of juveniles;
“(2) It contains a display, description, or representation of sexual activity, masterbation [masturbation], sexual excitement, or nudity;
“(3) It contains a display, description, or representation of bestiality or extreme or bizarre violence, cruelty, or brutality;
“(4) It contains a display, description, or representation of human bodily functions of elimination;
“(5) It makes repeated use of foul language;
“(6) It contains a display, description, or representation in lurid detail of the violent physical torture, dismemberment, destruction, or death of a human being.[;]
“(7) It contains a display, description, or representation of criminal activity that tends to glorify or glamorize the activity, and that, with respect to juveniles, has a dominant tendency to corrupt.
“(E) [(F)] When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is ‘obscene’ if any of the following apply:
“(1) Its dominant appeal is [to] prurient interest;
“(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masterbation [masturbation], sexual excitement[,] or nudity in a way that tends to represent human beings as mere objects of sexual appetite;
“(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
“(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral[,] or artistic purpose;
“(5) It contains a series of displays or descriptions of sexual activity, masterbation [masturbation], sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily of its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral or artistic purpose.
“(F) [(G)] ‘Sexual excitement’ means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
“(G) [(H)] ‘Nudity’ means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.
“(H) [(I)] ‘Juvenile’ means an unmarried person under the age of eighteen.
*125“(I) [(J)] ‘Material’ means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record or tape, or other tangible thing capable of arousing interest through sight, sound, or touch.
“(J) [(K)] ‘Performance’ means any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed before an audience.
“[(L) ‘Spouse’ means * * *.]
“[(M) ‘Minor’ means * * *.]”
U.C.C. Section 133.011 [R.C. 2907.31] is omitted because it is not relevant to this decision. U.C.C. Section 133.012, pandering obscenity, parallels R.C. 2907.32 and provides:
“(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
“(1) Create, reproduce, or publish any obscene material, when the offender knows that such material is to be used for commercial exploitation or will be publicly disseminated or displayed, or when he is reckless in that regard;
“(2) Exhibit or advertise for sale or dissemination, or sell or publicly disseminate or display any obscene material;
“[(2) Promote or advertise for sale, delivery, or dissemination; sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide; or offer or agree to sell, deliver, publicly disseminate, publicly display, exhibit, present, rent, or provide, any obscene material;]
“(3) Create, direct, or produce an obscene performance, when the offender knows that it is to be used for commercial exploitation or will be publicly presented, or when he is reckless in that regard;
“(4) Advertise [or promote] an obscene performance for presentation, or present or participate in presenting an obscene performance^] when such performance is presented publicly, or when admission is charged;
“(5) [Buy, procure,] Possess[,] or control any obscene material with the purpose to violate division (A)(2) or (4) of this section.
“(B) It is an affirmative defense to a charge under this section, that the material or performance involved was disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergymán, prosecutor, judge, or other person having a proper interest in such material or performance.
“(C) Whoever violates this section is guilty of pandering obscenity, a misdemeanor of the first degree. Persons convicted under this section may not be prosecuted for a second violation under this section. Also persons previously convicted of a violation of Section 133.011 may not be prosecuted under this section.
“[(C) Whoever violates this section is guilty of pandering obscenity, a misdemeanor of the first degree. If the offender previously has been convicted of a violation of this section or of section 2907.31 of the Revised Code, then pandering obscenity is a felony of the fourth degree.]”
U.C.C. Section 133.013, presumptions; notice; defense, parallels R.C. 2907.35. It provides:
“(A) An owner or manager, or his agent or employee, of a bookstore, newsstand, theater, or other commercial establishment engaged in selling materials or exhibiting performances, who, in the course of business:
“(1) Possesses five or more identical or substantially similar obscene articles, having knowledge of their character, is presumed to possess them *126in violation of division (A)(5) of section 133.012 [2907.32 of the Revised Code];
“(2) Does any of the acts prohibited by sections 133.011 or 133.012 [2907.31 or 2907.32 of the Revised Code,] is presumed to have knowledge of the character of the material or performance involved, if he has actual notice of the nature of such material or performance, whether or not he has precise knowledge of its contends.];
“(B) Without limitation on the manner in which such notice may be given, actual notice of the character of material or [a] performance may be given in writing by the chief legal office of the City [chief legal officer of the jurisdiction in which the person to whom the notice is directed does business]. Such notice, regardless of the manner in which it is given, shall identify the sender, identify the material of [or] performance involved, state whether it is obscene or harmful to juveniles, and bear the date of such notice.
“[(C) Sections 2907.31 and 2907. 32 of the Revised Code do not apply to a motion picture operator or projectionist acting within the scope of his employment as an employee of the owner or manager of a theater or other place for the showing of motion pictures to the general public, and having no managerial responsibility or financial interest in his place of employment, other than wages.]”
U.C.C. Section 133.014, declaratory judgment, parallels R.C. 2907.36. It provides:
“(A) Without limitation on the persons otherwise entitled to bring an action for declaratory judgment pursuant to sections 2721.01 to 2721.15 of the Ohio Revised Code, involving the same issue, the following persons have standing to bring such an action to determine whether particular materials or performances are obscene or harmful to juveniles:
“(1) The chief legal officer of the City if [jurisdiction in which] there is reasonable cause to believe that sections 133.011 or 133.012 [section 2907.31 or 2907.32 of the Revised Code] are being violated or are about to be violated [is being or is about to be violated;].
“(2) Any person, who pursuant to division (B) of section 133.013 [2907.35 of the Revised Code], has received notice in writing from a chief legal officer of the City stating that particular materials or performances are obscene or harmful to juveniles.
“(B) Any party to an action for a declaratory judgment pursuant to division (A) of this section is entitled, upon his request, to trial on the merits within five days after joinder of the issues, and the court shall render judgment within five days after trial is concluded.
“(C) An action for a declaratory judgment pursuant to division (A) of this section shall not be brought during the pendency of any civil action or criminal prosecution, when the character of the particular materials or performances involved is at issue in the pending case, and either of the following apply:
“(1) Either of the parties to the action for a declaratory judgment is a party to the pending case;
“(2) A judgment in the pending case will necessarily constitute res judicata as to the character of the materials or performances involved.
“(D) A civil action or criminal prosecution in which the character of particular materials or performances is at issue, brought during the pendency of the action for a declaratory judgment involving the same issue[,] shall be stayed during the pendency of the action for a declaratory judgment.
“(E) The fact that a violation of sections [section] 133.011 or 133.012 [2907.31 or 2907.32 of the Revised *127Code] occurs prior to a judicial determination of the character of the material or performance involved in the violation, does not relieve the offender of criminal liability for the violation, even though prosecution may be stayed pending the judicial determination.”
Justice Brennan has reached a similar conclusion. He stated that “the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a by-product of the attempt to suppress unprotected speech, and to avoid very costly institutional harms.” Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49, 103 (Brennan, J., dissenting). He observed that the members of the court had been unable to reach a consensus concerning obscenity and had been reduced to performing a case-by-case analysis. Id. at 84-85.
Jacobellis v. Ohio (1964), 378 U.S. 184, 197 (Stewart, J., concurring).
Schenck v. United States (1919), 249 U.S. 47, 52.
The most blatant example is the so-called “snuff” movie in which one or more of the actors are actually killed.
Conceivably, a carefully crafted regulation could also encompass so-called “slasher films” (which frequently are “R” rated) so long as they contain the elements of patent violence and sexual explicitness, in addition to extremely violent hard core pornography. See Downs, supra, at 677; see, also, footnote 168 for a suggested definition of this exception.
The majority dismisses the Ohio Constitution with the observation, “This court does not see any impediment in the Ohio Constitution to regulating communication that meets the legal definition of obscenity.”