dissenting. It looks to me that Ark. Stat. Ann. § 41-2704 (Repl. 1964), is unconstitutionally vague. That which is prohibited is the sale or circulation of “any obscene, vulgar or indecent papers. . . in which is illustrated any indecent or vulgar pictures. . .” [emphasis mine]. The criterion for determining when a criminal statute is so vague that it cannot be enforced was stated in Smith v. Goguen, 415 U.S. 566, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974), in this language:
“We agree with the holdings of the District Court and the Court of Appeals on the due process doctrine of vagueness. The settled principles of that doctrine require no extensive restatement here. The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement.’ Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.”
In Jenkins v. Georgia, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974), the United States Supreme Court held that nudity alone was not enough to make material legally obscene under the Miller standards. In discussing the standards set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the opinion states:
.. Even though questions of appeal to the ‘prurient interest’ or of patent offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is ‘patently offensive.’ Not only did we there say that ‘the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,’ 413 U.S., at 25, but we made it plain that under that holding ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct... .’ 413 U.S. at 27.
We also took pains in Miller to ‘give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced,’ that is, the requirement of patent offensiveness, 413 U.S., at 25. These examples included ‘representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,’ and ‘representations or descriptions of masturbation, excretory functons, and lewd exhibition of the genitals. ’ While this did not purport to be an exhaustive catalog of what juries might find patently offensive, it was certainly intended to fix substantive constitutional limitations, deriving from the First Amendment, on the type of material subject to such a determination.”
Based upon the foregoing standards we then must look to see whether the statute here involved (“. . . any obscene, vulgar or indecent papers...in which is illustrated any indecent or vulgar pictures...”), sets any reasonably clear guidelines for law enforcement officials. The term “obscene” is defined in Webster’s International Dictionary 2nd Ed. as follows:
“Offensive to chasity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity, and decency forbid to be exposed; lewd ^indecent; as obscene language, dances, images.”
The term “vulgar” is defined in the same dictionary as follows:
“Belonging or relating to the common people as distinguished from the cultivated or educated; pertaining to common life; plebian. ‘Like the vulgar sort of market-man.-’ Shak. ‘Law and vulgar life.’ Addison."
The term “indecent” is defined in the same dictionary as follows:
“Unbecoming or unseemly; indecorous; as, indecent haste. . . uncomely ; ill-looking. Morally unfit to be seen or heard; offensive to modesty and delicacy; as indecent language.”
When the foregoing definitions are applied to the statute here involved it becomes obvious that no language therein gives a law enforcement officer any guide lines that would tell him the film “Carnal Knowledge” is not violative thereof. During my childhood the mothers of my community breastfed their babies not only at home but in the church house and other public meeting places such as political gatherings. These days breast-feeding of a baby in a public place is considered by many as being “offensive to...modesty,” vulgar and indecent. My Mother, an octogenarian, considers a bikini bathing suit as “offensive to...modesty,” vulgar and indecent not to say anything about nudity. Yet all of those examples could be classified as being prohibited by the statute here involved.
The majority, however, to get around the vagueness attack on the statute here involved, rely upon the statute involved in Hamling v. United States, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974). The statute there involved, prohibits “Every obscene, lewd, lascivious, indecent, filthy or vile article ... . ” Needless to say the term “lascivious” is defined in Webster’s, supra as follows:
“1. Wanton; lewd; lustful.
2. Tending to produce voluptuous or lewd emotions.”
The term “lewd” is defined by the same authority as follows;
“Lustful, libidinous; lascivious; unchaste; as a lewd man
When the terms “filthy” and “vile” are added to the terms obscene, lewd, lascivous and indecent it at once becomes obvious to me that which is prohibted in Hamling, supra, is something more than mere nude pictures for after all nude pictures are not lascivious, filthy or vile.
Our statute (Ark. Stat. Ann. § 41-2704, supra) does not contain any such limiting language.
It seems abhorrent to me to say that a statute can be applied with reasonably clear guidelines by law enforcement officials when by a literal reading a law enforcing officer can logically apply it equally to a person circulating a paper illustrating the virtues of breast-feeding a baby or sun bathing in a bikini (even though such conduct is constitutionally prohibited by Jenkins, supra, ) and to a person circulating the vile and filthy sexual debauchery illustrated in the magazine before us. Such decisions on our part place the law abiding citizen so much at the mercy and comprehension of an individual law enforcement official that the same conduct may be unlawful south of the Arkansas River and considered lawful north of the river or in the next county. That kind of vagueness should not exist in our criminal law enforcement.
For the reasons stated I respectfully dissent.