dissenting.
Petitioners were convicted of selling obscene motion picture films in violation of the recently enacted provisions of Oregon Laws 1973, c. 699, § 4, now codified as Ore. Rev. Stat. § 167.087 (1975). Section 4 provides in pertinent part:
“(1) A person commits the crime of disseminating obscene material if he knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.
“(2) As used in subsection (1) of this section, matter is obscene if:
*965“(a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;
“(b) The average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex; and
“(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value.”
The judgments of conviction were affirmed by the Oregon Court of Appeals, 22 Ore. App. 132, 537 P. 2d 1182, and a timely petition for review was subsequently denied by the Oregon Supreme Court.
It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, Oregon Laws 1973, c. 699, § 4, is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari and, since the judgment of the Oregon Court of Appeals was rendered after Miller, reverse. In that circumstance, I have no occasion to consider whether the other question presented by petitioners merits plenary review. See Heller v. New York, 413 U. S. 483, 495 (1973) (Brennan, J., dissenting).
I note that this case particularly exemplifies the difficulty and arbitrariness inherent in any attempt to articulate a standard of obscenity. I need only quote the standard as applied by the judge before whom petitioners’ case was tried:
“ ‘Well, what is patently offensive?
*966“ 'And, frankly, I had to kind of apply my own standard, which, I believe, corresponds with the standards of the community. And the standard probably, simply stated and boiled down, is the same one that was taught to me by my mother from the day I was a small child. If there was something of which I would not want her to know, then don’t do it. Pretty simple.
“ 'Applying that standard I would think that I wouldn’t get any quarrel out of anyone in this room, that they wouldn’t want their mothers sitting next to them while they looked at either one of those movies. They are patently offensive.’ ” Pet. for Cert. 8-9.