(dissenting).
In registering my dissent, I do so for the following reasons:
1. The contention is made that the Fourteenth Amendment to the Constitution of the United States is limited in its application to political and religious controversy. To acknowledge the Fourteenth Amendment for such narrow purposes, and deny it as to all others is, in my view, a strange and unsupportable position — in the law.
The failure to follow the constitutional limitations upon restrictions of First Amendment rights, as specifically set out in Miller v. California.1 Thus denying the Supreme Court of the United States its duty to interpret the Federal Constitution.
3. The failure to address the due process question, which is the sine qua non of this appeal.
It is important to know what the Fourteenth Amendment is:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The initial sentence of this section makes national citizenship primary and State citizenship derivative. Thus we are entitled to a dual citizenship; that arising from our status as citizens of the United States and that arising from our status as citizens of Utah. As such we are entitled to all the rights, privileges and immunities made available to us in both of the fundamental documents; and the due process of law available to us as citizens of the United States is identical to that due process of law made available to us by our State Constitution, which in Article I, Section 7, provides:
No person shall be deprived of life, liberty or property, without due process of law.
The history of the Fourteenth Amendment leaves little doubt that the intention of the framers of the clause was to convert all the ordinary rights of citizenship in a free government into rights of national citizenship, and thus, in effect, to accommodate their regulation by the national government. Thus the Fourteenth Amendment can protect the citizens against the State itself, and all of its agencies.
The Constitution of the State of Utah, Article I, Section 3, says:
The State of Utah is an inseparable part of the Federal Union and the Constitution of the United States is the supreme law of the land.
The Fourteenth Amendment is a part of the Constitution of the United States; it is directed specifically to the States, and thus prevents any State from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States”; and from depriving “any person of life, liberty, or property, without due process of law; . . .” It thus brings to bear upon the States all those rights, privileges and immunities, which are an inalienable part of citizenship. One of these inalienable rights is the right to *944due process of law. If a State law does not accord due process of law, a citizen is not without remedy, nor is any person within the State’s jurisdiction. A test of what rights, privileges, and immunities are impressed upon the States through the Fourteenth Amendment was succinctly stated in Twining v. New Jersey2 one of a long line of cases in the maturation process of that amendment; see also Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932); the concurring opinion of Mr. Justice Goldberg in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).
Is it a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government? If it is, and if it is of a nature that pertains to process of law, this court has declared it to be essential to due process of law.
These principles have been in operation for a long time, have been applied by the state courts, as well as the federal courts; and, it may be added, for the benefit of the country and its citizens. For a brief review see 16 Am.Jur.2d, Constitutional Law, Section 335. Thus, it can be seen that those fundamental principles of liberty and justice contained in the first ten amendments of the Constitution of the United States are made applicable to the States through the Fourteenth Amendment.
This court today states that the first ten amendments to the Constitution of the United States are solely limitations on the Congress and the federal government. This statement would seem unnecessary, for such is well known in the law, and elsewhere. Such was the law upon their adoption and such is the law now, but from what, has been said above it can be seen that those fundamental freedoms contained in the federal bill of rights are impressed upon the States through the Fourteenth Amendment.
This court states there is an “almost unbelievable arrogation of power by and to the federal government and its judiciary,” and goes on to say that “this thinking is represented, at least in some measure, by Chief Justice Burger in his statement in the recent decision of Miller v. California, with which we heartily agree and commend: ‘That such conduct must be specifically defined by the applicable state law, as written or authoritatively construed’ . . and further ‘ . . .we emphasize that it is not our function to propose regulatory schemes for the States.’ ” The next sentence, viz., “That must await their concrete legislative efforts/’, was deleted in the main opinion. How this shows that the Chief Justice joins in the thought that there has been an “almost unbelievable arrogation of power by and to the federal government and its judiciary,” is hard to tell. The main opinion says that this court heartily agrees with and commends the' Chief Justice’s statement that the prohibited conduct must be specifically defined by the applicable state law as written or authoritatively construed. Yet the statute on appeal does not specifically define the prohibited conduct, nor does the main opinion.
With reference to the appellants’ right to challenge the statute, it is stated that they are not entitled to do so because their own rights are not adversely affected.3 They *945have been arrested and convicted, the outcome of this appeal will determine whether the statute has an adverse effect upon them. To gloss over that with a general condemnation is tantamount to saying you are guilty, therefore you are not entitled to due process. It seems clear to me that due process of law is that method we employ to determine whether one is guilty under our law. This court misses the point on appeal, viz.: Does the statute define the crime with appropriate definiteness ?
With the foregoing background I can now proceed to the salient question presented on appeal, viz.: Can these defendants be convicted under a statute restricting First Amendment freedoms, which they claim to be vague, indefinite, and overbroad in its attempted description of the offense proscribed? If the subject statute is of that character, and the conviction is allowed to stand, appellants are denied their liberty without due process of law. If the statute is of such a nature it is unconstitutional, in violation not only of the Utah Constitution, but of the Fourteenth Amendment to the Constitution of the United States.
In three separate cases defendants were convicted and sentenced for distributing pornographic material contrary to the provisions of 76-10-1204, U.C.A.19S3, as amended. Upon stipulation of counsel, the cases were consolidated for decision, and an appeal taken from the city court judgments to the district court. The district court sustained the convictions. All trials were to the court.
The sole issue upon appeal to the district court was the constitutionality of 76-10-1203, and that is the sole issue presented to this court. We are not called upon to determine if the subject materials are, or are not, pornographic, although it appears they have been reviewed on appeal. We are called upon to determine the constitutionality of the statute under which the convictions were had.
Our statute 76-10-1204 “Distributing pornographic material,” sets out various ways of distributing pornographic material, which, if followed, would render one guilty of violation.
For definition we are necessarily directed to a companion statute, 76-10-1203:
Pornographic material or performance —Determination of predominant appeal to prurient interest — Expert testimony not required.
(1) Any material or performance is pornographic if, considered as a whole, applying contemporary community standards:
(a) Its predominant appeal is to prurient interest; and
(b) It goes substantially beyond customary limits of candor in the description or representation of nudity, sex, or excretion.
(2) In any prosecution dealing with an offense relating to pornographic material or performances, the question whether the predominant appeal of material or of a performance is to prurient interest shall be determined with reference to average adults.
(3) Neither the prosecution nor the defense shall be required to introduce expert witness testimony concerning the pornographic character of the material or performance which is the subject of a prosecution under this part.
Our attention is directed to Miller v. California.4 In that case Mr. Chief Justice Burger, writing the majority opinion, set down standards which determine the constitutionality of criminal laws seeking to *946regulate pornography. “Pornography” finds its roots in the Greek words, porne, which means harlot; and graphos, writing.
In that case the Chief Justice said:
We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs vs. Massachusetts, 383 U.S. [413], at 419, 86 S.Ct. [975], at 977 [16 L.Ed.2d 1]; that concept has never commanded the adherence of more than three justices at one time. . . . If a state law regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. .
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts.
* * ⅜ * * * Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. [All emphasis added.]
In Miller we have the first clear majority decision in some years, supporting a definite constitutional test for state criminal statutes regulating pornography. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200 Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500, and United States v. Orito, 413 U.S. 1399, 93 S.Ct. 2674, 37 L.Ed.2d 513, all decided June 21, 1973, as was Miller.
We are bound to recognize the decisions of the United States Supreme Court interpreting First Amendment protections and, in this matter, to apply the Miller limitations to our criminal statute enacted for the regulation of pornography.5
Appellants attack the statute as being unconstitutionally vague, indefinite, and overbroad. A criminal statute, in order to withstand a constitutional attack, must describe proscribed conduct with clarity sufficient to inform one of the kind of conduct which can result in a criminal charge. This vitally important due process requirement has been so often stated and adhered to that we need not particularize it here. *947The words of Miller, “specifically defined by the applicable state law,” are merely a restatement of that principle, which is universally applied in the United States, in relation to all criminal statutes.
A cogent statement illuminating here is:
The.objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchallenged delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.6
The statute is overbroad in its understatement.
In applying the Miller test to 76-10-1203 it is clear that subsection (a) is in consonance with (a) of the Miller standard. It is equally clear that subsection (b), of 76-10-1203, is not in consonance with (b) of the Miller standard. The words nudity, sex, or excretion do not specifically define the sexual conduct sought to be regulated, nor does the statute provide that a work complained of must depict or describe sexual conduct in a patently offensive way. In addition, 76-10-1203 does not provide for a determination of “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
One of many examples of the specificity required under Miller can be found in 76-6-404. There the elements of the crime of theft are specifically set forth, and the conduct of a person can be measured against the unvarnished words describing those elements to determine if one is a thief. One can tell if, and when, one is a thief. Two examples of sexual conduct “specifically defined by the applicable state law” can be found in the Hawaii Penal Code. Title 37, Part 2, Section 1210(7), 1972, Hawaii Session Laws, Art. 9, Part II, p. 126; and the Oregon Laws, 1971, Ch. 743, Art. 29, Sec. 255(10).
It is to be emphasized here that the subject statute treads in a delicate area. “All men have the inherent and inalienable right ... to communicate freely their thoughts and opinions . . ,”7 While it has been held that obscene material is unprotected by the First Amendment,8 nevertheless, caution and circumspection are mandatory guides in the construction of legislation designed to define proscribed conduct; where, in doing so, it necessarily tinkers in an area embracing an inherent and inalienable right.
Mr. Chief Justice Burger makes the point that the “conduct must be specifically defined by the applicable state law, as written or authoritatively construed.” The words written and construed can only be understood as being in the past tense. As employed in Miller, the word written refers to an applicable state law in esse, at the time of Miller. No one would seriously contend that the legislature could enact an ex post facto law. The words authoritatively construed can only refer to authoritative construction in esse at the time of Miller.9 Again, no one would seriously contend that this court could indulge in ex post facto construction. Ex post facto legislation is constitutionally impermissible; and ex post facto authoritative judicial construction is not only constitutionally impermissible for the same reason, but, in essence, it is also judicial legislation — an invasion of the legislative function — which again is constitutionally impermissible.10
*948This court, long ago, in State v. Johnson,11 correctly interpreted Article V, Section 1, and the effect it has on crimes and criminal statutes. The facts were that defendant was a fellator. The court held that “infamous crime against nature” was not descriptive of fellatio. At page 26, 137 P. at page 635, the court, speaking through Mr. Chief Justice McCarty, said:
There is no provision of the Constitution that either expressly or otherwise directs or permits the courts of this state to denounce and punish as crimes acts and omissions not made punishable by statute; hence to do what we are urged would be in violation of both the letter and the spirit of the Constitution.
And again, in Skaggs Drug Centers, Inc. v. Ashley,12 this court in dealing with a Sunday closing law said, at page 42, 484 P.2d at page 726:
However, any statute whose terms are so vague that a person of ordinary intelligence could only guess at its meaning and differ as to its application fails to meet the standard of due process.
In Skaggs, the unanimous court did not hinge the unconstitutionality of the statute upon whether it would be an imposition upon law abiding citizens — such is purely a subjective view, and not one which meets the test of due process for definiteness and clarity in describing the acts and conduct intended to be proscribed.
In this State, we have no prior authoritative judicial construction of 76-10-1203, upon which we could hinge constitutional acceptability. Yet, we are urged to construe authoritatively the subject statute in such a fashion as to make it acceptable to the Miller standard. In order to bring the statute into conformance with the Miller standard, we would have to rewrite it; and this no one will seriously advance as a function of this court. As was said in Miller, “We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts.” [Emphasis supplied.] A concrete legislative effort is not within the province of this court.
Contrary to the view expressed in the main opinion, “that because the subject is the intangible one of thought and expression, difficulty is encountered in drafting statutes with precision and definiteness.” Our legislature recognizing the infirmities of the statute here on appeal repealed it; and enacted another (Laws of Utah 1975, Chapter 49) specifically describing the conduct to be proscribed. This “concrete legislative effort” is not unlike that engaged in by Hawaii and Oregon.
Other courts dealing with statutes similar to our own, and having made no previous authoritative construction of such statutes, and finding that such statutes were not in consonance with the limitations of Miller, have declared their statutes unconstitutional. See State of Louisiana v. Shreveport News Agency, Inc., 287 So. 2d 464 (La.1973); State of Iowa v. Wedelstedt, 213 N.W.2d 652 (Iowa 1973); Stroud v. State of Indiana, 300 N.E.2d 100 (Ind.1973). The reasons for decision in these cases are sound.
The case of Jenkins v. Georgia13 was decided one year after Miller and is of interest here for the reason that it illustrates the application of the Miller standard to a conviction under an obscenity statute. There a Georgia jury had returned a general verdict of guilty against defendant for distributing obscene material. The Georgia Supreme Court affirmed the conviction. On appeal to the United States Su*949preme Court the conviction was overturned, and that court, speaking through Mr. Justice Rehnquist, held the film, Carnal Knowledge, to be protected by the First and Fourteenth Amendments, and further said:
Even though questions of appeal to the “prurient interest” or of patent offensiveness are “essentially questions of fact,” it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is “patently offensive.” Not only did we there say that “the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary,” [citation] but we made it plain that under that holding “no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct. . . .”
I am well aware of the rule that every presumption is in favor of the constitutionality of an act of the legislature, but for reasons stated above I cannot find the ground upon which that presumption can securely rest.
It is well to note that in the court below, the liberty was taken to infuse the provisions of 76-10-1202 into 76-10-1203. 76-10-1203 deals specifically with minors, and makes a specific reference to 76-10-1206, which also is specifically concerned with minors. This is judicial legislation and not permissible. The legislature did not enact these provisions for others than minors. Further, it is not permissible because of the large difference the law acknowledges as existing between minors and adults. See Interstate Circuit, Inc. v. Dallas,14 where it was said:
We have indicated . . . that because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults.
It is clear our legislature adopted a standard for minors different from the one for adults.
For reasons herein stated, 76-10-1203 should be declared unconstitutional, and the judgment below reversed.
TUCKETT, J., concurs in the dissenting opinion of MAUGHAN, J.. 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
. 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908).
. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), wherein it was held: It has long been recognized that the First Amendment needs breathing space and that the statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society, [citations omitted.] As a corollary, the Court has altered its traditional rules of standing to permit — in the First Amendment area— “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the *945requisite narrow specificity.” [citation omitted.] Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.
. Ibid.
. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 U.Ed. 1138 (1925).
. 83 Harvard L.Rev. 844, note 5.
. Constitution of Utah, Art. I, Sec. 1.
. Miller, Ibid.
. This is particularly true in view of the statement made by Mr. Chief Justice Burger, “Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.”
.Constitution of Utah, Article V, Section 1: “The powers of the government of the State of Utah shall be divided into three distinct *948departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”
. 44 Utah 18, 137 P. 632 (1913).
. 26 Utah 2d 38, 484 P.2d 723 (1971).
. 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974).
. 390 U.S. 676, 690, 88 S.Ct. 1298, 1306, 20 L.Ed.2d 225 (1968).