(concurring) — I concur with the reasoning and result of the majority, and would add only the following admonition.
Although we may, as we did in State v. J-R Distribs., Inc., 82 Wn.2d 584, 512 P.2d 1049 (1973), and have done in this case, authoritatively construe RCW 9.68.010 to provide meaning to what is obscene, I do not believe this is the appropriate role of this court in what is admittedly a very difficult arena of regulation. In Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), the United States Supreme Court set forth guidelines for regulating obscenity. Miller and its progeny (see, e.g., Pinkus v. United States, 436 U.S. 293, 56 L. Ed. 2d 293, 98 S. Ct. 1808 (1978); Smith v. United States, 431 U.S. 291, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977); Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974)) delineate the proper roles of legislature, trier of fact, and appellate court.
Although Miller stated that the sexual conduct depicted *56or described in regulated works "must be specifically defined by the applicable state law, as written or authoritatively construed", Miller, at 24, the case did not mandate that courts would assume the legislative role of cataloging, modifying, and updating the type of conduct regulated under obscenity laws. In the second prong of Miller's 3-part guidelines, the court referred to "sexual conduct specifically defined by the applicable state law," and in providing examples of such specific definition the court looked only to state statutes. (Italics mine.) Miller, at 24 & n.6. While the Miller court did discuss the types of sexual conduct that might be so regulated, its discussion was limited to what a "state statute could define". (Italics mine.) Miller, at 25.
In J-R Distributors, we provided the necessary constitutional specificity to Washington's very general obscenity law. In doing so, we were guided by "common sense", not legislative edict or public hearings. In the 8 years since J-R Distributors, we have been given no indication — save legislative silence — that our intuition in that case reflected what the Legislature intended to prohibit through enactment of RCW 9.68.010. As we have stated before,
the failure of the legislature to act following judicial construction of a statute does not forever bind the court to perpetuate either a poorly reasoned judicial conclusion or an error.
Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 406, 573 P.2d 10, 17 (1977).
Although our saving construction in this case is constitutional, see Ward v. Illinois, 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085 (1977), I believe our continued shepherdship of Washington's obscenity law in this manner lies beyond the pale of our proper judicial function, and that further changes in definition should be by the Legislature.
This would not dictate that judicial responsibility is ended in the obscenity arena. Cf. State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 292 N.W.2d 807 (1980) (court refused to make saving construction of Wisconsin's *57obscenity law despite its constitutional capacity to do so). This court's role in obscenity should be limited to its responsibility to preserve the proper functions of legislature, trier of fact, and reviewing court. The trier of fact must be permitted to apply contemporary community standards to Miller's first and second prongs to determine if the work taken as a whole appeals to the prurient interest and if the work depicts or describes in a patently offensive way certain specified sexual conduct. Smith v. United States, supra at 301. While the Legislature may not define what contemporary community standards are, it may circumscribe the standard's geographical terms. Smith, at 303. Jenkins v. Georgia, 418 U.S. 153, 156, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974). Above all, the Legislature should take responsibility for specifically defining the types of sexual conduct it seeks to regulate pursuant to the second prong of the Miller test. Miller, at 24, 25, and 27.
At the same time, neither trier of fact nor the Legislature should be permitted to proceed with unbridled discretion. We must ensure that regulation is limited to depictions or descriptions of sexual conduct, Miller, at 24, of the "hard core" variety.3 Smith, at 301; Hamling, at 114; Jenkins, at 160-61; Miller, at 27. In addition, Miller's third prong— whether taken as a whole the work lacks serious literary, artistic, political or scientific value — is an objective criterion by which we may review the trier of fact's discretion in *58finding a work obscene. Smith, at 301.
I would submit that the task of regulating in this area will become less difficult if each branch in our system of justice maintains its appropriate role. Our appropriate role in this area is to interpret the laws, not to legislate them. See Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 405, 573 P.2d 10, 15 (1977).
Miller's 3-prong test for obscenity regulation was intended as a guideline to the states and not as a substitute for comprehensive legislation. Although RCW 9.68.010 is constitutional as presently construed, in the future I would not construe the statute if such saving construction would require us to continue to conjecture about the kinds of sexual conduct the statute seeks to regulate under the second prong of the Miller test. "State legislation must still define the kinds of conduct that will be regulated by the State." Smith v. United States, 431 U.S. 291, 302, 52 L. Ed. 2d 324, 97 S. Ct. 1756 (1977). The Legislature is the proper body to define the intended scope of its obscenity statute.
Dolliver, J., concurs with Utter, J.
Although one might complain that restriction of legislative prerogative to regulation of depictions or descriptions of "hard core" sexual conduct itself partakes of a legislative intrusion on our part, such a criticism would be misconceived. The limitation as to "hard core" sexual conduct is a constitutional limitation. Where legislative regulation is not limited to "the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain," Miller, at 35, our constitutional scrutiny is required. Regulation of simple nudity, for example, would implicate First Amendment concerns, and it remains our responsibility to undertake "independent review of constitutional claims." Miller, at 25. Notwithstanding the above discussion, the Legislature may still choose not to regulate certain types of hard core activity or limit its regulation of hard core material to children or to terms of accessibility. See Smith, at 303. Without a specific pronouncement by the Legislature, this court is left in a quandary as to the scope of RCW 9.68.010.