(dissenting):
If the majority decision is correct then Judges Rives, Grooms and Johnson erred in deciding Entertainment Ventures, Inc., et al. v. Brewer, et al., (M.D. Ala.1969), 306 F.Supp. 802. I adhere to the views expressed in Entertainment Ventures, a few of which I briefly restate as applied to the present litigation.
I.
I think that the applicable Mississippi obscenity statute1 fails to meet the constitutional requirements of the first and fourteenth amendments guaranteeing freedom of expression. The statute was enacted in 1920,2 long before the decision in Roth.3 In upholding the validity of a related statute,4 the Mississippi Supreme Court adopted a much broader definition of obscenity than that promulgated in Roth:
“It is * * * necessary to notice the contention of appellant to the effect that this statute charges no crime, because the word ‘obscene’ has no specif - *767ic definite meaning. We must, however, differ with counsel upon this question. Quoting from 3 Words and Phrases, Second Series, p. 672:
“ ‘The word “obscene,” when used, as in the statute, to describe the character of a book, pamphlet, or paper, means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall, whose minds are open to such immoral influences’— citing United States v. Moore (D.C. Mo.) 129 Fed. 159, 161; United States v. Clarke (D.C.Mo.) 38 Fed. 732.
“Again:
“ ‘The word “obscene” means offensive to senses; repulsive; disgusting ; foul; filthy; offensive to modesty or decency; impure; unchaste ; indecent; lewd’ — citing Holcombe v. State, 5 Ga.App. 47, 62 S.E. 647.
“See other definitions of like character therein contained.”
Williams v. State, Miss.1923, 94 So. 882, 883, 884.
The phrase used in the statute,5 “any obscene, indecent, or immoral picture * * can be construed to mean any frame or scene in a motion picture film or print instead of, as the Roth test requires, “the dominant theme of the material taken as a whole.” 354 U.S. at 489, 77 S.Ct. at 1311. Indeed that was the position taken by the prosecuting attorneys and the trial court in the criminal case against the present plaintiffs. In the trial of that case the expert witnesses on the question of obscenity were restricted to the three isolated scenes which the City contended were obscene, and the jury was instructed as follows:
“INSTRUCTION NO. 3
“The Court instructs the jury for the State that this case is . not one involving freedom of speech or expression; therefore, the test of obscenity is not whether to the average person, applying contemporary community standards, the dominant theme of the film, taken as a whole, appeals to the prurient interests or is patently offensive and utterly without redeeming social importance or value, but is one involving the portrayal on the screen of conduct; and, if you believe beyond a reasonable doubt and to a moral certainty, that certain portrayals of conduct contained in this film would be obscene if performed in public or on the public streets, then you will find the Defendant guilty as charged.”
In the light of the definition of “obscene” already adopted by the Mississippi Supreme Court, and of the construction of the State statute by the Mississippi trial court in the criminal case against the present plaintiffs, I cannot agree with the majority that the obscenity test stated in Roth will or can be applied so as to make the State statute constitutional. When those Mississippi cases are considered, the statute is even more clearly unconstitutional than the 1909 Alabama statute held unconstitutional in Entertainment Ventures, Inc., et al. v. Brewer, et al., supra, or the Louisiana statute declared unconstitutional in Delta Book Dist., Inc. v. Cronvich, E.D.La.1969, 304 F.Supp. 662, 669.6
II.
Assuming arguendo that, despite the earlier State court holdings, the majority can breathe life into the pertinent *768Mississippi obscenity statute, it nonetheless seems entirely clear that the arrests of the plaintiffs and the seizure of the film were unconstitutional. Lee Art Theatre, Inc. v. Virginia, 1968, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313; Metzger v. Pearcy, 7 Cir. 1968, 393 F.2d 202; Central Agency, Inc. v. Brown, N. D.Ga.1969, 306 F.Supp. 502 [Aug. 26, 1969]; Fontaine v. Dial, W.D.Tex.1969, 303 F.Supp. 436; Delta Book Dist., Inc. v. Cronvich, E.D.La.1969, 304 F.Supp. 662; Tyrone, Inc. v. Wilkinson, E.D.Va. 1969, 294 F.Supp. 1330, aff’d, 410 F.2d 639, cert. denied 12/15/69, 396 U.S. 985, 90 S.Ct. 478, 24 L.Ed.2d 449; Cambist Films, Inc. v. Tribell, E.D.Ky.1968, 293 F.Supp. 407; Cambist Films, Inc. v. Illinois, N.D.Ill.1968, 292 F.Supp. 185; United States v. Brown, S.D.N.Y.1967, 274 F.Supp. 561; Entertainment Ventures, Inc., et al. v. Brewer, et al., supra, Henry C. Morrison and Peachtree News, Inc., Ray Wilson, et al., N.D.Fla.1969 (Carswell, Cir.J. and Krentzman and Arnow, Dist.J.), 307 F.Supp. 196 [Dec. 8, 1969].
III.
Following the precedent set in Entertainment Ventures, Inc., et al. v. Brewer, et al., supra, I would have preferred simply to rule on the constitutionality of the pertinent state statute and the constitutionality of the arrests of the plaintiffs and of the seizure of the film. We might then have foregone viewing the movie. However, since we have now witnessed the showing of the film, I would express my agreement with the declaration of Chief Judge William C. Ready
“That the motion picture ‘The Fox’ is hereby declared not to be obscene, in fact or in law, in accordance with controlling decisions, particularly Roth v. United States of America, 354 U.S. 476, [77 S.Ct. 1304] 1 L.Ed. 1498, and Jacobellis v. Ohio, 378 U.S. 184, [84 S.Ct. 1676]. 12 L.Ed.2d 793 * * * "
J. A. Camise and C. J. Collier v. P. Lanier Douglas, N.D.Miss., Dec. 3, 1968, No. EC 6872-K.
For the foregoing reasons, I respectfully dissent.
. Section 2286, Mississippi Code 1942, quoted in footnote 1 to the majority opinion.
. Mississippi Laws 1920, ch. 213.
. Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. A later Mississippi statute follows the Roth definition of obscenity. Section 2674-21, Mississippi Code Annotated, Recompiled (1968 supp.).
. Section 2288 Mississippi Code Annotated, recompiled.
. Quoted in footnote 1 to majority opinion.
. Indeed, on November 28, 1969 a three-judge district court, basing its decision on Stanley v. Georgia, 1969, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, held that the first amendment forbids prosecution for showing an admittedly obscene film in a public threatre to a paying adult audience which had been warned of the film’s nature. Karalexis v. Byrne, U.S. D.C.Mass., 306 F.Supp. 1363; temporary injunction stayed pending appeal, Byrne v. Karalexis, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (Dec. 15, 1969).