(concurring). The sole issue before this Court is how the words " 'open’ and 'indecent exposure’ ” as used in the Michigan indecent exposure statute, MCL 750.335a; MSA 28.567(1), should be defined in light of claims raised in federal court that the statute is unconstitutionally vague and overbroad.
The Michigan indecent exposure statute, MCL 750.335a; MSA 28.567(1) reads in relevant part:
"Any person who shall knowingly make any open or indecent exposure of his or her person or of the person of another shall be guilty of a misdemeanor, punishable by imprisonment in the county jail for not more than 1 year, or by a fine of not more than $500.00 * * *.”
The substance of the challenges are, that the statute is unconstitutionally overbroad, because it can be interpreted to prohibit conduct protected by *61the First Amendment’s guarantee of freedom of expression, Schad v Borough of Mount Ephraim, 452 US 61; 101 S Ct 2176; 68 L Ed 2d 671 (1981), and unconstitutionally vague, because it does not give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See Grayned v City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
The First Amendment to the United States Constitution provides in pertinent part:
"Congress shall make no law * * * abridging the freedom of speech * * *.”
The First Amendment right to freedom of speech is guaranteed to citizens of the states by the Fourteenth Amendment. Book Tower Garage, Inc v Local No 415, International Union UAWA (CIO), 295 Mich 580, 586; 295 NW 320 (1940).
In Schad v Borough of Mount Ephraim, supra, pp 65-66, the United States Supreme Court recognized that dancing may be a form of expression protected by the freedom of speech guarantees of the First Amendment. Although " 'nudity alone’ does not place otherwise protected material outside the mantle of the First Amendment,” Schad, supra, p 66, obscene expression is not entitled to protection under either the United States Constitution, Miller v California, 413 US 15; 93 S Ct 2607; 37 L Ed 2d 419 (1973), or the Michigan Constitution, People v Neumayer, 405 Mich 341, 365; 275 NW2d 230 (1979). Moreover, when dealing with "lewd public conduct itself,” the United States Supreme Court has expressly recognized that "the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior.” Miller, supra, p 26, fn 8.
*62Furthermore, in Paris Adult Theatre I v Slaton, 413 US 49; 93 S Ct 2628; 37 L Ed 2d 446 (1973), the Supreme Court also unequivocally rejected the argument that state police powers could not regulate obscenity when displayed only to consenting adults. This Court implicitly accepted that determination in its decision in People v Neumayer, supra, pp 365-368.
In Neumayer, supra, this Court was faced with similar vagueness and overbreadth challenges to the Michigan criminal obscenity statute, MCL 750.343a; MSA 28.575(1), which prohibited the knowing dissemination of obscene materials, without specifically defining the meaning of the term "obscene.” Although we found the statute both unconstitutionally vague and overbroad as written, we were unwilling to leave Michigan without a valid criminal obscenity statute. We recognized that this section of the Penal Code represented a legislative determination of a strong public policy in this state to proscribe the dissemination of materials falling within the United States Supreme Court’s definition of obscenity. Therefore, we specifically incorporated the standards and definitions set forth in Miller, supra, in construing obscenity under the statute in question.
In deciding as a matter of public policy to proscribe the unrestricted display of obscene conduct, under the indecent exposure statute, our Legislature has also determined that such activity within this state is injurious to society. "The public policy of this state is a mandate upon us.” Neumayer, supra, p 365.
In view of the expressed legislative public policy, we also refuse to leave Michigan without a valid criminal indecent exposure statute. Therefore we announce, today, that prospectively from the date of this opinion, MCL 750.335a; MSA 28.567(1), *63should be construed in conformity with the minimum standards set forth in Miller v California, supra, and the term "indecent exposure,” shall incorporate the Miller definitions to proscribe the following types of conduct only:
patently offensive exhibition of ultimate sex acts, normal or perverted, actual or simulated; or,
patently offensive exhibitions of masturbation or excretory functions, and lewd exhibition of the genitals.
Although nudity and sexual expression have made their way onto the television and movie screen, no one has ever seriously suggested that we are ready to accept such displays in the village square. See Paris Adult Theatre I v Slaton, supra, p 67. Privacy with respect to certain parts of the human anatomy and in sexual conduct is still expected, and we believe the Legislature recognized that it is still necessary to look to the criminal sanction to help assure it.
We conclude that use of the disjunctive "or” in the statute suggests strongly that open exposure and indecent exposure are distinctly different kinds of behavior and that the Michigan Legislature understood each to define different conduct. Therefore, we define the statutory proscription against "open” exposure, to prohibit any conduct consisting of display of any part of the human anatomy under circumstances which create a substantial risk that someone might be offended. This standard would require evaluation of the setting in which the exposure took place in order to determine whether anyone might reasonably have been expected to observe it and, if so, whether the person might reasonably have been expected to have been offended by what was seen.
This test is suggested as a less misleading way of *64saying what is meant by "in private.” See Packer, The Limits of the Criminal Sanction (Stanford, California: Stanford University Press, 1968), p 311. It should not generally include exposure under conditions in which someone reasonably thought they were alone and unobserved when they were not, who selected a place where others likely to be offended by their exposure were unlikely to come, but where prurient interest attracted voyeurs, or the interest of law enforcement attracted the police. The relevant criterion would thus be what effect the actor or actors should reasonably have expected under all of the circumstances.
In conclusion, we would like to make clear that under the above test, exposure that was not "open,” because it did not take place under circumstances that created a substantial risk that someone might be offended, could still be proscribed under the statute as "indecent” if it violated the minimum standards of Miller v California, supra, as hereinbefore set forth. We do not suggest that other conduct may not constitutionally be prohibited if specifically addressed by our Legislature, and wish to emphasize, as we did in Neumayer, supra, p 366, that we take this action today reluctantly, because we are again faced with one of two options: either 'Millerize” the existing statute or have it declared unconstitutional. Again, we perceive the Miller approach to be the less offensive option because it does not leave this state without a valid criminal indecent exposure statute. However, we would have preferred, and indeed encourage the Legislature to address this issue directly.
Williams, C.J., concurred with Boyle, J. Brickley, J.I fully concur in the result of Justice *65Ryan’s opinion and also with the vast majority of the reasoning therein. However, I cannot agree that the certified question procedure has not been used to obtain an opinion on Michgan law "at all.”
Interpretation of a Michigan statute in light of Miller v California, 413 US 15; 93 S Ct 2607; 37 L Ed 2d 419 (1973), does in part present a question of Michigan law. Nevertheless, interpreting a statute to avoid constitutional difficulties also risks violating the will of the Legislature. When and if such interpretation is proper, it can best be done in the context of a lawsuit, when a full record is available for review.