(dissenting).
Whatever else may be said of the motion picture “The Art of Marriage,” it certainly does not, in my opinion, appeal to the average person’s prurient interest. On the contrary, it is a tedious and uninspired portrayal of sexual activity which is quite obviously simulated. If there is anything remotely romantic or erotic about it, I confess it has eluded me. It is about as sexually provocative as a documentary on techniques for artificially inseminating cattle. To classify the film as hard-core pornography is to ascribe to it a salacious appeal which is wholly undeserved.
In any case, if the film were to be shown only to bona fide clients for marriage counseling, it quite obviously would not be obscene but might well be of substantial benefit to couples with marriage problems.1 Because it was not privately shown for this purpose but publicly exhibited in a theater, the majority now seeks to carve out an exception to the rule adopted in Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. ed. 2d 515 (1967), by holding that the Redrup case does not apply to motion pictures, notwithstanding that the material was neither pandered, obtrusive, nor exhibited to juveniles. No authority is cited by the majority for the conclusion that motion pictures are an exception to the Redrup rule. Until and unless the United States Supreme Court overrules that decision or holds that it does not apply to photographic material, it is not our prerogative to ignore that court’s interpretation of what material enjoys First Amendment protection, whether we agree with the court or not.
The Supreme Court has repeatedly applied Redrup to hardcore pornography. Cain v. Commonwealth, 437 S. W. 2d 769 (Ky. 1969), reversed, 397 U. S. 319, 90 S. Ct. 1110, 25 L. ed. 2d *432334 (1970); People v. Bloss, 18 Mich. App. 410, 171 N. W. 2d 455 (1969), reversed, 402 U. S. 938, 91 S. Ct. 1615, 29 L. ed. 2d 106 (1971); State v. Hartstein, 469 S. W. 2d 329 (Mo. 1971), reversed, 404 U. S. 988, 92 S. Ct. 531, 30 L. ed. 2d 539 (1971); Robert-Arthur Management Corp. v. State, 220 Tenn. 101, 414 S. W. 2d 638 (1967), reversed, 389 U. S. 578, 88 S. Ct. 691, 19 L. ed. 2d 777 (1968); United States v. West Coast News Co. 357 F. 2d 855 (6 Cir. 1966), reversed sub nom. Aday v. United States, 388 U. S. 447, 87 S. Ct. 2095, 18 L. ed. 2d 1309 (1967); Books, Inc. v. United States, 358 F. 2d 935 (1 Cir. 1966), reversed, 388 U. S. 449, 87 S. Ct. 2098, 18 L. ed. 2d 1311 (1967); State ex rel. Londerholm v. A Quantity of Copies of Books, 197 Kan. 306, 416 P. 2d 703 (1966), reversed, 388 U. S. 452, 87 S. Ct. 2104, 18 L. ed. 2d 1314 (1967); State v. Hoyt, 286 Minn. 92, 174 N. W. 2d 700 (1970), reversed, 399 U. S. 524, 90 S. Ct. 2241, 26 L. ed. 2d 782 (1970). Although I do not concede that the film “The Art of Marriage” is hard-core pornography, in my opinion whether it is or not, it cannot constitutionally be the subject of this prosecution.
I would reverse.
While the narrator’s discussion was explicit, it was, nevertheless, presented with clinical detachment.