(dissenting).
I respectfully dissent. I believe Judge Edenfield correctly stated the test to be applied in determining whether a play is obscene in his opinion in Southeastern Promotions, Ltd. v. City of Atlanta, 334 F.Supp. 634, 639 (N.D.Ga.1971), in which an official of the Atlanta Civic Center refused to lease the auditorium for the exhibition of “Hair”:
The court cannot accept the proposition that stage productions may be dissected into ‘speech’ and ‘non-speech’ components as those terms have been used by the Supreme Court. The nonverbal elements in a theatrical production are the very ones which distinguish this form of art from literature. It may foe true that First Amendment protections vary in different media, but a musical play must be deemed a unitary form of constitutionally protected expression. The court concludes that the entire musical play ‘Hair’ is speech and entitled to First Amendment protection.
The District Judge in our case sought unsuccessfully to distinguish Judge Ed-enfield’s opinion by stating :
The fallacy of that position is readily apparent, however, if any crime other than the crime of obscenity were committed in the course of a live state production. That Court would doubtless have no difficulty in disecting [sic] speech and nonspeech components if the crime committed on the stage were the crime of rape or homicide, even though called for in the script. It is a false and dangerous doctrine that the First" Amendment forbids all regulation of conduct so long as that conduct masquerades under the guise of the theatrical.
Southeastern Promotions, Ltd. v. Conrad, 341 F.Supp. 465, 476 (E.D.Tenn. 1972). It begs the question to call an act viewed in isolation as criminal when the constitutional test of criminality vel non requires it to foe examined in context. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1956); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).
As Mr. Justice Marshall stated in his dissent in California v. LaRue, 409 U.S. 109, 130, 93 S.Ct. 390, 402, 34 L.Ed.2d 342 (1972):
If, as these many cases hold, movies, plays and dance enjoy constitutional protection, it follows, ineluctably I think, that their component parts are protected as well. It is senseless to say that a play is ‘speech’ within the meaning of the First Amendment, but that the individual gestures of the actors are ‘conduct’ which the State may prohibit.
The majority opinion in LaRue implicitly rejected the technique of excerpting and censoring specific conduct from - a protected vehicle. In observing that “[t]he state regulations here challenged come to us, not in the context of censoring a dramatic performance in a theater, but rather in the context of licensing bars and nightclubs to sell liquor by the drink,” 409 U.S. at 114, 93 S.Ct. at 395, the Court acknowledged that some of the performances banned by the regulations *900from presentation in establishments licensed to sell liquor by the drink would have been protected if offered in a theater :
We do not disagree with the District Court’s determination that these regulations on their face would proscribe some forms of visual presentation that would not be found obscene under Roth and subsequent decisions of this Court. See, e. g., Sunshine Book Co. v. Summerfield, 355 U.S. 372 [78 S.Ct. 365, 2 L.Ed.2d 352] (1958) rev’g per curiam, 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do not believe that the state regulatory authority in this ease was limited to either dealing with the problem it confronted within the limits of our decisions as to obscenity, or in accordance with the limits prescribed for dealing with some forms of communicative conduct in O’Brien (United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672) supra.
The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, “performances” that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.
Viewed in this light, we conceive the State’s authority in this area to be somewhat broader than did the District Court. This is not to say that all such conduct and performance is without the protection of the First and Fourteenth Amendments. But we would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of Bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater. 409 U.S. at 116, 118, 93 S.Ct. at 396, 397.
Nevertheless, and perhaps because of reluctance to rely solely on the theory of the District Court, my brothers in this appeal make their own additional finding (consistent with that of the advisory jury) that the play “Hair,” viewed as a whole, is obscene. With this determination I also disagree. However, instead of contributing further to the already too extensive and inelegant legal literature recounting tawdry details of challenged works, I observe merely that I know an obscene play when I see one and upon autoptic view “Hair” is not that. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring).
I would reverse and remand with instructions to grant the relief prayed for.