dissenting.
I agree with District Judges Manos and Aldrich that the Ohio obscenity statute is unconstitutional. Our Court treats this as *496just another criminal statutory construction case and tries to perform radical surgery on the statute in order to save it and the state convictions based on it. But this is a statute outlawing speech and artistic expression; it requires a more sensitive reading of the First Amendment than our Court has given. Unlike the relatively healthy state statute saved in Ward v. Illinois by insertion of a Miller pacemaker, the heart of the Ohio statute in question here is malignant. A Miller pacemaker will not regulate it. If our Court’s opinion stands as the law of obscenity, then all state obscenity statutes will be upheld as valid, no matter how broadly or specifically they censor protected speech, so long as the Miller standards are repeated to the jurors after they are instructed to apply the unconstitutional statute.
The Illinois statute in Ward was a general, single-shot provision outlawing material when “its predominant appeal is to prurient interest.” The Ohio statute has more than thirty specific sections and subsections that cover the waterfront. The heart of the statute is section E with seven subsections and section F with five. Section E, relating to juvenile material, covers everything from “bizarre violence,” “foul language,” “physical torture” and “death” to “nudity” and “sexual excitement.” Under Section F, and the jury instructions approved by our Court today, a defendant can be convicted of pandering adult obscenity and go to jail, for displaying or depicting “[1] sexual excitement or [2] nudity in a way which tends to represent human beings as mere objects of sexual appetite ... [or 8] bestiality or [4] extreme or bizarre violence, cruelty or brutality ... or [5] depicting human bodily functions of elimination in a way which inspires disgust or revulsion in persons with ordinary sensibilities .... ” Ohio Rev.Code § 2907.01(F). “Bestiality” and other similar ideas are not defined but obscene “nudity” consists of “showing ... [1] male or female genitals, [2] pubic area, or [3] buttocks with less than a full, opaque covering or, [4] of a female breast with less than a full opaque covering of any portion thereof below the top of the nipple . . .. ” Ohio Rev.Code § 2907.01(H). These provisions are the heart of the statute.
Under the statutory scheme and jury instructions approved by us today, Phidias and Praxiteles would be condemned not to a cup of hemlock, along with Socrates, but to languish in an Ohio jail along with the creators of most Greek statues of Aphrodite, Hermes, Apollo and the Satyrs. For these sculptors “displayed” genitals, buttocks and female breasts “below the top of the nipple” “with less than a full, opaque covering.” The Parthenon frieze of Phidias has for over 2500 years withstood wind and storm and bombings and invasions by Persians, Spartans, Romans, Ottoman Turks and German artillery, but its marble nudity and magnificent depiction of “bizarre violence” could not withstand the onslaught of the righteous of Ohio. Michelangelo’s ceiling twenty centuries later in the Sistine Chapel would now have to come down for the larger-than-life genitals and buttocks of Adam are clearly “displayed” as God reaches out his finger to instill life in the first man. The creation could not have taken place in Ohio.
Moreover, since relieving oneself of body fluid is also “obscene” in Ohio, the creator of the famous sculpture of the little boy in Brussels, who performs for all to see function # 1 in a pond, would unfortunately have to go to jail, and the little boy of bronze, in order to escape the sledge- hammer of the godly, would have to place over his genital region not merely a fig leaf but nothing less than a “full opaque covering.” The Pope would even have to remove from Ohio the Vatican Museum with its many fearsome statues, friezes and pictures showing “bestial” and “bizarre” battles of an extremely violent nature between animals and animal-like humans.
If you believe that all this is a dissenter’s exaggeration and that the authorities in Ohio would not really countenance under this statute the suppression of such works of art, I admonish you to read State of Ohio ex rel. Keating v. “Vixen,” 35 Ohio St.2d 215, 301 N.E.2d 880 (1973), the response of the Ohio Supreme Court to the action of the *497United States Supreme Court, 413 U.S. 905, 93 S.Ct. 3033, 37 L.Ed.2d 1016 (1973), vacating the state court’s earlier decision in 27 Ohio St.2d 278, 272 N.E.2d 137 (1971), in light of Miller. The state court, purporting to apply post-Miller standards, finds the film in question obscene under the statute after describing it as follows: ■
The principal character, Vixen, is a buxom young wife, whose ‘square’ husband is a combination pilot and fishing guide in the wilderness of British Columbia. His work keeps him away from their home for extended periods of time. Among the other characters are Vixen’s motorcycle hood brother, a Canadian Mountie, with whom Vixen passes the first few minutes of the film, a vacationing couple who are guest-clients of the husband, a black American whom Vixen despises and who has fled the country to avoid the draft, and an Irish communist who attempts at gun-point to force Vixen’s husband to fly him to Cuba. The first four are objects of Vixen’s lechery.
The movie is approximately 70 minutes long, out of which approximately one-half deals with incest, adultery, and lesbianism, which are graphically portrayed through facial and bodily expressions indicative of orgasmic reaction. The remaining one-half of the movie leads the viewer through such contemporary issues as racism, anti-militarism, communism and airplane hijacking. It should be noted that, although the players are frequently shown nude and at full length, at no place are their genital parts exposed to the leering lens of the camera. (Emphasis added.)
272 N.E.2d at 139. Although this movie may not be a work of art, it is far from hard core pornography.1 On the next page of the opinion, the Ohio Supreme Court explains that just one sex scene would make even “The Sound of Music” obscene and subject to prior injunctive restraint:
Assume, hypothetically that the main character in ‘The Sound of Music’ performs during one scene, an act of sexual lewdness, could we permit that part of the film to go unregulated merely because the producer had an ‘eye on the recent Supreme Court rulings?’ The question supplies its own answer.
In the end, however, the'situation is not touched with much humor. Books are being confiscated and people going to jail for speech under a statutory scheme that clearly and patently contravenes the First Amendment. As District Judges Manos and Aldrich state so cogently, all the Supreme Court of Ohio has done is simply add the Miller standards as a new, alternative method of sending people to prison while leaving in effect alongside it the old unconstitutional method outlawing graphic expression of “sexual excitement,” “nudity,” “bizarre violence” and “human bodily functions.” It is impossible to tell in these cases whether the jury convicted and the Ohio courts imprisoned the defendants because they violated the old unconstitutional statutory provisions or the new Miller standards. The juries in these cases were given all of the alternatives in the disjunctive and were not required to state which of the several standards they applied.
Our system of criminal justice cannot live with the underlying principle enunciated today in this case by our Court: a man’s conviction for speech is valid under a patently unconstitutional law so long as the state could, theoretically, have repealed the old law and drafted another, more narrow, valid statute that .proscribes the same speech. Our system cannot live with this principle because it violates due process and creates the offense ex post facto. The opinion of the court also violates principles of federalism. We have the authority to review and declare invalid state laws which abridge the First Amendment, but we are not authorized to repeal their statutes and reenact them to suit ourselves. And even more to the point, if we are going to presume to enact new laws for the states rath*498er than simply review judicially the ones they have, we should at least enact valid laws for them. The one we have pieced together here still outlaws nudity, bizarre violence, foul language, torture, death and the “glorification” of sex and many other materials protected by the First Amendment. It violates the basic principle laid down in Cohen v. California, 403 U.S. 15,26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) that the First Amendment protects the “emotive function” as well as “cognitive content” and the principle that First Amendment protection of artistic materials is “not lessened by the fact that they are designed to entertain as well as inform.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).
. In Miller, the court said: “Under the holdings announced today, no one will be subject to prosecution for ... obscene materials unless these materials depict or describe patently offensive ‘hardcore’ sexual conduct specifically defined....” 413 U.S. at 27, 93 S.Ct. at 2616.