DISSENTING OPINION OF
KOBAYASHI, J., WITH WHOM LEVINSON, J., JOINSI dissent.
Appellant challenges the constitutionality of Section 727-1, Hawaii Revised Statutes, which provides:
The offense of common nuisance is the endangering of the public personal safety or health, or doing, causing or promoting, maintaining or continuing what is offensive, or annoying and vexatious, or plainly hurtful to the public; or is a public outrage against common decency or common morality; or tends plainly and directly to the corruption of the morals, honesty, and good habits of the people; the same *6being without authority or justification by law: As, for example: . . . ;
Open lewdness or lascivious behavior, or indecent exposure;
The facts of this case are nearly identical to those that confronted this court in State v. Rocker, 52 Haw. 336, 475 P.2d 684 (1970). In that case the issue was whether the defendant’s activity — sunbathing in the nude on a public beach — created a common nuisance under the same statutory provision as is applicable here, § 727-1. The court in Rocker recognized that the elements necessary for a conviction for indecent exposure could not be determined from the face of the statute. “HRS § 727-1, unlike statutes of most states, incorporates indecent exposure as an example of what the legislature has defined to constitute common nuisances. The statute does not specifically delineate the elements of the crime of indecent exposure . . . .” 52 Haw. at 338, 475 P.2d at 687. In construing the statute the court held that “the elements of the crime of indecent exposure that the prosecution must prove in order to establish a prima facie case against the defendants are that (1) the defendants expose themselves, (2) in a public place where it may be seen by others and (3) under circumstances that a trier of fact could infer a general intent of the defendants to offend the community’s common sense of decency, propriety, and morality.” Rocker, supra, 52 Haw. at 346, 475 P.2d at 690-91.
Unlike the instant case, the constitutionality of § 727-1 was not challenged in Rocker. I find the statute to be in direct violation of due process of law. It is unconstitutionally vague on its face because it provides no notice as to what conduct is prohibited and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct.
*7VAGUENESS
This court stated in State v. Grahovac, 52 Haw. 527, 535, 480 P.2d 148, 153 (1971), that “Tal law of vague meaning falls short of ‘due process’ demands when it neither gives fair notice to a person what conduct is prohibited nor prescribes fixed standards for adjudging guilt when that person stands accused.” As to what constitutes adequate notice the United States Supreme Court has directed that a criminal statute is unconstitutional if it is not “sufficiently explicit to inform those who are subject to it what, conduct on their part will render them liable to its penalties . . . .” Connolly v. General Const. Co., 269 U.S. 385, 391 (1926).
There are, in the operative words of the statute, no adequate guidelines set forth. More precisely, Section 727-1 is devoid of any ascertainable standards. It is clear that conduct regarded by some people as “offensive or plainly hurtful to the public,”1 as set forth in the statute and as charged in the complaint, is not so regarded by others. The totality of the verbiage contained in the statute effectively “licenses the jury to create its own standard in each case.” Herndon v. Lowry, 301 U.S. 242, 263 (1937) . Thus, the statute is impermissibly vague, “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. As a result, ‘men of common intelligence must necessarily guess at its meaning.’ Connally v. General Construction Co., 269 U.S. 385, 391.” Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).
No meaningful attempt has been made by this court to limit or properly define Section 727-1. This court’s construction in Rocker of the elements necessary to prove the crime of indecent exposure2 is subject to the same infirmi*8ties as the language of the statute itself as discussed above. Without adequate standards set forth, who can say what would “offend the community’s common sense of decency, propriety, and morality”? Rocker, supra, 52 Haw. at 346, 475 P.2d at 691. I adhere to the position that such vague and broad language not only denies the accused violator of adequate notice such as to comply with due process, but leaves “to the executive and judicial branches too wide a discretion in its application.”3
OVERBREADTH
The activity proscribed by Section 727-1 is not limited to that activity enumerated in the examples. The multiplicity of meanings contained in the operative words of the statute could well be construed so as to encompass all the activity proscribed by the entire Hawaii criminal code. We are not today faced with a “carefully drawn statute not also susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 523 (1972). Clearly, activity protected by the First Amendment that could be considered “offensive”, “annoying” or “vexatious”, comes within the purview of Section 727-1. A statute from which such a resultant chilling effect on protected activity inures cannot be upheld. See Dombrowski v. Pfister, 380 U.S. 479 (1965).
The fact that I believe the statute is unconstitutional does not mean that I sanction such activity as sunbathing *9in the nude on Hawaii’s public beaches. However, the statute utilized to proscribe such activity was not written with the requisite specificity needed to satisfy due process requirements.
I would reverse the judgment.
The state admittedly argues that the "defendant is restricted in attacking the constitutionality of Section 727-1, HRS, as to the vaguity [sic] of the words ‘offensive or plainly hurtful to the public’ ” because the statute “is set forth in the disjunctive.”
It should be pointed out that neither the defendant in Rocker, nor appellant Miller in this case, was charged with "the crime of indecent exposure.” Rocker was charged that he “did openly sunbathe in the nude, which was offensive or plainly hurtful to the public, thereby committing the offense of common nuisance.” The state has not argued, and rightfully so, that enumerated within HRS § 727-1 is the individual specific crime of indecent exposure. It is the state’s position that indecent exposure, as set forth in the statute, is an example of common nuisance and is to be used by the court as a “tool” or “guideline” in construing the intent of the legislature.
Taylor v. City of Selma, Alabama, 327 F. Supp. 1191, 1193 (S. D. Ala. 1971) . The language of the statute in that case (“outrage the sense of decency and morals”) is similar to the language in HRS § 727-1 and the language of the court in Rocker, supra, in construing that statute.