dissenting.
There can be no doubt that our obscenity statute, OPS 167.150, as interpreted by the majority satisfies the requirements of the First and Fourteenth Amendments of the Constitution of the United States. On that point Roth v. United States, 354 US 476, 77 SC 1304, 1 L Ed2d 1498 (1957) is controlling. However, we have the additional responsibility of testing the statute against the requirements of our own Constitution. (Oregon Constitution, Article I, § 8.) In meeting that responsibility the Roth case is of value to us only to the extent that the reasons supporting that court’s interpretation of the Federal Constitution may be used by us as a guide in construing our own. I do *366not believe that the majority opinion in the Roth case affords such a guide because it evades the very problem which must be met in dealing with the constitutionality of this type of legislation. The court held, “obscenity is not within the area of constitutionally protected speech or press.” 354 US at 485. If, as Justice Harlan points out in his concurring and dissenting opinion, we could isolate “ ‘obscenity’ as a peculiar genus of ‘speech and press’, which is as distinct, recognizable and classifiable as poison ivy is among other plants” (354 US at 476), there would be no difficulty in separating obscene matter from constitutionally protected expressions and in sustaining a statute which suppresses “obscenity.” But in the process of determining whether a particular writing is obscene, it is necessary to decide whether that writing is entitled to the constitutional protection of freedom of speech or press. This is implicit in the definition of obscenity which the court adopts. According to that definition, a writing is not obscene if the prurient appeal does not predominate; to be constitutionally protected it must not be “utterly without redeeming social importance.” (354 US at 484.) Publications are deemed to be worth protecting under our notions of constitutional right, even though they may espouse the most unpopular and antisocial ideas, including ideas about sex.
The significant and difficult question which we must meet, and which the court in the Roth case evaded, is the extent to which the legislature may inhibit free speech and press. The problem here is basically the same as it is where legislation calls for the proscription of utterances relating to other ideas as, for example, those concerning economics, government, or religion. In these other areas the expression *367of ideas, good and bad, is protected unless the words used create a clear and present danger that they will bring about an evil which is within the legislative power to prevent. Thomas v. Collins, 323 US 516, 65 SC 335, 89 L ED 430 (1945) (soliciting union membership) ; Taylor v. Mississippi, 319 US 583, 63 SC 1200, 87 L Ed 1600 (1943) (advocating refusal to salute the flag by members of Jehovah’s Witnesses); Thornhill v. Alabama, 310 US 88, 60 SC 736, 84 L Ed 1093 (1940) (picketing); Herndon v. Lowry, 301 US 242, 57 SC 732, 81 L Ed 1066 (1937) (communist organizer attempting to incite to insurrection).
It is true that the clear and present danger doctrine has been criticized on various grounds (because it is overly restrictive, Meikeljohn, Free Speech and Its Relation to Self-Government, pp. 1-2 (1948)); or because it tends to be applied in a formulary way, Cor-win, Bowing Out Clear and Present Danger, 27 Notre Dame Lawyer 325, 356 (1956); or because it overemphasizes imminence in the weighing of competing social values, Judge Learned Hand in United States v. Dennis, 183 F2d 201 (2nd Cir 1950), but if we are to retain the doctrine, consistency would seem to demand that we apply it across the board to all utterances including those relating to sex.
It is probable that this respect for consistency prompted Judges Bok in Commonwealth v. Gordon, 66 Pa D & C 101 (1949), aff’d. sub nom Commonwealth v. Feigenbaum, 166 Pa Super 120, 70 A2d 389 (1950), and Frank, in United States v. Roth, 237 F2d 796, 801 (2nd Cir 1956) (concurring opinion), aff’d., 354 US 476 (1957) to premise their respective opinions on the doctrine. Perhaps they pressed the test too far in insisting that the publication of ideas about sex cannot be restricted constitutionally unless they incite overt *368anti-social acts. Am L Inst., Model Penal Code, §207.10 (Tent. Draft No. 6, p. 28, 1957).
But even if one does not wish to go this far with the clear and present danger doctrine, or even accept it at all, there still remains the task of weighing the public interest in free speech against the public interest in being free from demoralizing publications. The courts are forced to weigh these competing interests anytime the expression of an idea is contested by the State. Unless the evil sought to be curbed by the legislature is substantial, the right to express one’s ideas cannot constitutionally be restrained.
What then, are the evils involved in the publication of matters involving sex which call for such restraint? Our statute gives us no guide, unless we can find it in the definition of obscenity. The definition relied upon in the Both case, and by the majority in the case at bar, is that taken from the Model Penal Code: “A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.” § 207.10 (2) (Tent. Draft No. 6, p. 1, 1957).
What is a “shameful” or a “morbid” interest in nudity, sex or excretion? When does that interest assume the character of predominance? Predominance over what other interests ? The essay appended to the proposed model penal code on this subject attempts to explain obscenity in various terms, but these terms are equally obscure and afford no basis for making judicial choices. The problem which faces us here is well stated by Professor Kalven in 24 Chi L Bev 769 (1957) in a combined review of St. John-Stevas’ book, *369“Obscenity and the Law,” and Judge Frank’s concurring opinion in United States v. Roth, supra at p. 801.
Professor Kalven states, at pages 771-72:
“So viewed the law of obscenity immediately becomes curious and disturbing. Although the courts have not customarily been fully explicit about it, the law on obscenity appears aimed at a series of possible evils: the arousing of feelings of disgust and revulsion; the advocacy of improper sexual values; the exciting of the mind to sexual imagery; the incitement to anti-social sexual conduct. And it appears reasonably clear too that any of these standing alone has been sufficient to support a conviction. * * *
“Let us return for a moment now to the possible evils. Surely, the arousing of disgust or revulsion in an adult who is perfectly free to leave the material alone is a curious predicate for a crime. And surely too the advocacy of ideas about sexual conduct would seem entitled to the same protection as the advocacy of ideas about other issues in the public domain. We are left then with the evil of imagery so intense as to move one to improper sexual action or with the arousing of inner sexual excitement, short of action. The law has never required that overt action be the effect of obscenity and the evidence that it does have this effect on the adult is totally missing. We come then to the apparent chief target of the law of obscenity today: the arousing of sexual thoughts or desire in adults short of action.”
He goes on at page 773 to say that:
“* * [I]t is hard to see how language dealing with love, lust, and sex is any less entitled to First Amendment scrutiny when regulation is attempted than is the language of violence and revolution. And if obscenity is to be tested against customary clear and present danger notions, it is difficult to see that any specified evil as to adults *370can "be said to "be sufficiently clear or present, or, and this should he underscored, sufficiently substantial to resolve these difficulties by requiring that there be the threat of clear and present danger not of sexual fantasy merely but of criminal sexual conduct. This is perhaps a statesman-like way to leave the law intact, but in fact it is tantamount to repealing it.”
As indicated above, neither Roth v. United States, supra, nor the majority opinion in the case at bar faces up to the problem presented by the impact of obscenity legislation on the constitutional right of free speech. This is also the deficiency of the model penal code. It is framed and explained as though freedom of speech was irrelevant or, at least, very incidental. The breadth and vagueness which characterizes the definition of obscenity and the scope of the statute proposed as a model might be excused if the statutory proscription had no effect upon constitutional rights. As expressed in Winters v. New York, 333 US 507, 517, 68 SC 665, 92 L Ed 840 (1948), “This Court goes far to uphold * * * statutes that deal with offenses, difficult to define when they are not entwined with limitations on free expression.” But this statute does have such an effect on constitutional rights of free expression and it must, therefore, meet a higher standard of definiteness. The general principle is stated thus in Winters, supra at pp. 509-510:
“It is settled that a statute so vague and indefinite, in form and as interpreted, as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech is void, on its face, as contrary to the Fourteenth Amendment * * *. A failure of a statute limiting freedom of expression to give fair notice of what acts will be punished and such a statute’s inclusion of prohibitions against expres*371sions, protected by the principles of the First Amendment, violates an accused’s rights under procedural due process and freedom of speech or press.”
In accord: Stromberg v. California, 283 US 359, 369, 51 SC 532, 75 L Ed 1117 (1931); Herndon v. Lowry, supra at pp 258-59; Joseph Burstyn, Inc. v. Wilson, 343 US 495, 504-05, 72 SC 777, 96 L Ed 1098 (1952).
It is said in Roth that the standard set by the statute is sufficiently definite to “give adequate warning of conduct proscribed and mark "* * * boundaries sufficiently distinct for judges and juries to administer the law * * *’ ”, quoting from United States v. Petrillo, 332 US 1, 7-8, 67 SC 1538, 91 L Ed 1877 (1947). But the boundary between that which is permissible to utter (admittedly including the treatment of sexual matters capable of inciting lustful thoughts) and that which is proscribed, is not marked out and, consequently, neither the judge nor the jury have any way of deciding what the bounds may be.
No constitutional objection can be leveled at a statute which permits the jury to apply a standard of conduct in the community as the predicate of a crime where the community’s notions of what is right and wrong is determinable within some limits, even though those limits are broad. Omaechevarria v. Idaho, 246 US 343, 38 SC 323, 62 L Ed 763 (1918); United States v. Ragen, 314 US 513, 62 SC 374, 86 L Ed 383 (1942), rehearing denied, 315 US 826, 62 SC 620, 86 L Ed 1222 (1942); United States v. Petrillo, supra. But as Justice Douglas points out in his dissent in Roth, “the standard of what offends the common conscience of the community * * * is too loose, too capricious, too destructive of freedom of *372expression to be squared with the First Amendment.” 354 US at page 512.
I believe that Professor Kalven captured the truth on this point in the following passage from the book review referred to above:
“* * * I think there is much to the view that obscenity is not only intolerably vague as defined by the law today but that the vagueness cannot be cured. At least not without resorting to the absurd specificity of the Hollywood Movie Code. We can perhaps distinguish between degrees of explicitness in the discussion of sex, but among explicit discussions of sex it is a heroic venture to attempt to distinguish between the good and the bad. In any event, and this is the main point, the distinction is an extraordinarily subjective and subtle one upon which to base criminal guilt. Perhaps the difficulty arises because the law has been unable to define obscenity in terms of its content. It has rather always talked in terms of effects. And the effects in turn are hard to specify, partly because we know so little about them and partly because we seem anxious only to prohibit ‘impure’ responses. Hence, the law is always close to defining obscenity in terms of itself. Most people who have advocated some regulation of obscenity have had the French postcard or its equivalent in mind. The difficulty, however, is that there seems to be no way to phrase a formula that will reach the postcard and leave Molly Bloom’s soliloquy in Ulysses or the Song of Songs unscathed.” 24 Chi L Rev at 773.
If the standard were predicated upon moral considerations alone, the task of judging a publication would be difficult enough, but we are expected to test the author’s effort by aesthetic standards as well. Applying the definition accepted by the majority, a writing will pass the test of the criminal law and be *373constitutionally protected even though, it has a prurient appeal, if that appeal does not “predominate,” whatever that may mean. Since the defendant is brought to court under a criminal charge, the jury must pass upon his guilt judged by this so-called standard. The jury thus applies the Constitution, marking out the limits of free speech. With a standard as vague as “obscenity” our most precious freedom is left to a precarious fate. Apparently the authors of the model penal code saw this danger to the accused’s constitutional rights, because their report includes the unique proposal that the court should have the power to dismiss a prosecution for obscenity or acquit a defendant notwithstanding a verdict of guilty. This is a compliment to the judiciary, but I fear that in this area of aesthetics, psychiatry and morality most of us as judges must confess our inability to distinguish that which has a predominantly prurient appeal from that which does not.
As indicated above, we can intelligently make the choice of whether a publication is constitutionally protected only if we are in a position to weigh the evils involved in the dissemination of ideas relating to sex against the evils of restricting free speech. Since I do not know what are the evils (if any), nor their gravity (if such evils exist), presented by “obscene” publications, it is impossible for me to make this judgment upon the basis of the standard proposed in our statute. I believe the making of such a judgment is also impossible for members of a jury and for my brethren of the bench. Under these circumstances our statute must be declared unconstitutional on the ground that its enforcement involves too great a danger to the right of free expression guaranteed by our Constitution. Oregon Constitution, Article I, § 8.. The *374views expressed by Mr. Justice Douglas in Ms dissent in Roth v. United States, 354 US 508-514, should be adopted by this court. There, he says:
“When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment wMch by its terms is a restraint on Congress and which by the Fourteenth is a restraint on the States.
"* * * * *
“The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways
* * *
“The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and pumsh mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, ‘The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom.’ Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn L Rev 295, 387.”
*
“Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498; Labor Board v. Virginia Power Co., 314 U.S. 469, 477-478. As a people, we cannot afford to *375relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless.”
Since we must weigh the public interest in free expression against the public interest in preventing the stimulation of lustful thoughts (or as the model penal code puts it, the evocation of “repression — tensions” created by “the deliberate stimulation and exploitation of emotional tensions arising from the conflict between social convention and the individual’s sex drive,” § 207.10 (Tent, draft No. 6, p. 30, 1957) it is relevant to assess the respective benefits which accrue to society with and without obscenity legislation. In the first place it must be recognized that even if the courts, in the careful guardianship of free expression, limit the application of obscenity statutes to the hardest core of pornography, the mere presence of the statute and the threat it holds can be used (and has been used) to censor works which could pass the judicial test. Extralegal censorship can come from various sources and the pressures upon the district attorney’s office to prosecute is sometimes great. Extralegal Censorship of Literature, 33 N T U L Rev 989 (1958). When prosecution is imminent or threatened, the book dealer frequently (probably usually) prefers to withdraw the book under attack rather than endure the inconvenience and expense incident to such prosecution.① Thus the vagueness of the test for obscenity may become a weapon of censorship in the hands of *376those whose interest in free expression is overriden by an excess of zeal for virtue as they understand it. Inseparability in Application of Statutes Impairing Civil Liberties, 61 Harv L Rev 1208, 1209 (1948); Scope of Statutes Censoring Obscene Literature, 40 Ill L Rev 417 (1946); 33 N I U L Rev, supra at 1007-08. As a consequence, through this intervention of the censorious with easily offended sensibilities, we are deprived of reading much of which would clearly be acceptable under any reasonable application of the definition adopted by this court.
If we look at the matter from the standpoint of the harm that would be visited upon society by the unrestrained expression of sexual ideas, it is most difficult to find an evil great enough to warrant the sacrifice of constitutional rights in eradicating it.② I do not *377believe that it is realistic to assume that the enforcement of obscenity statutes will remove from circulation such books as Ulysses, Peyton Place, Lady Chatterly’s Lover, nor the titillating covers in which they are purveyed. And I assume -that the public will continue to be bombarded with sexual imagery in motion pictures, on the stage, in nightclubs, in private clubs, and from a multitude of other sources. Those who have an appetite for this fare now have and will continue to have all that they want to satisfy their hunger. Those who eschew it are not endangered. The absence of a restraining statute would, I believe, add little to the store of available stuff which the sexually inquisitive feed upon. We are, then, telling our citizens that the small prospect of this additional invitation to lust is of sufficient evil to warrant the sacrifice of a part of our rights to communicate our ideas. The cost is too great.
Judge Learned Hand attempts to justify Roth v. United States, supra, on the ground that “it is for the legislature to determine what are the not ‘impermissible limits’ by balancing the evil of those lustful emotions that the language may excite against depriving the author and his audience of the benefit of what he has to say.” Hand, The Bill of Rights (1958). But this misses the mark in two respects. First, it fails to recognize the fact that the courts have not left the balancing process or the limits solely to the legislative branch. The adjudicated cases in the field of civil liberties clearly demonstrate that the scope which is to be given to freedom of speech and press is for the most part marked out by the courts in the process of interpreting the constitutional provisions. Second, granting that the legislature is entitled to restrict freedom of expression when it de*378cides that competing social values predominate, the restraint is valid only if there is some ascertainable criteria by which the courts can, in specific cases, determine whether the statute is applicable. Judge Hand states that the legislature is restricted by no boundaries “other than that there shall have been an honest effort to weigh the values according to the prevalent mores.” That is not an accurate statement of our constitutional law. A host of cases can be marshalled to prove that honest legislative effort is not enough to save a statute which does not meet the minimum standard of certainty set by the courts. As I have already pointed out, this standard is peculiarly high in testing legislation restricting free expression. Illustrative cases are noted below.③
The position taken by the majority of the court in the case at bar leaves unanswered some very important procedural questions relating to constitutional rights. When this cause is presented to the jury, will the jury’s verdict conclude the matter? Will a verdict of guilty be accepted as a conclusive judgment that the constitutional guarantee of free expression does not extend to the writing under attack? If the jury *379is to have this function, must the jury he so instructed that it is made aware of its duty to consider not only the defendant’s violation of the statute but to consider as well the constitutional guarantee of free expression? Will the jury, in applying the definition of obscenity adopted by the court, read the work under attack to determine whether a prurient appeal is predominant? Will other works be admissible in evidence to permit a comparison? Will expert witnesses in the fields of psychiatry, aesthetics and literary criticism be permitted to testify as to the character of the work, i.e., the author’s design as manifested in the work? Will the trial judge have the right to re-examine the jury’s verdict of guilty and set it aside, if he is of the opinion that constitutional rights have been invaded? Upon appeal, will we have a similar right of review?
Since the effect of the majority opinion is to remand the cause for further proceedings, these questions should be answered so that both the defendant and the trial judge will know what procedures are available to guarantee the fullest possible protection of the defendant’s constitutional rights in the enforcement of the obscenity statute.
The judgment of the lower court should be affirmed.
Warner, J. and Sloan, J. join in this dissent.Threats of prosecution are often made by prosecuting attorneys at the behest of private censor organizations. Police or prosecuting attorneys give notice to distributors to withdraw publications appearing on blacklists prepared by these private censors. Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn L Rev 295, 311. The most elaborate blacklists are those of the National Organ*376ization for Decent Literature (NODL). Included on the NODL lists are William Faulkner’s Pylon, Sanctuary, and Soldier’s Pay; James M. Cain’s Mildred Pierce, The Postman Always Rings Twice; Erskine Caldwell’s God’s Little Acre, A House in the Uplands, Journeyman, Tobacco Road, Trouble in July, A Woman in the House; W. Somerset Maugham’s Fools and Their Folly, The Painted Veil, Up at the Villa; Nelson Algren’s The Man With the Golden Arm; Niven Busch’s Duel in the Sun; C. S. Forester’s The African Queen; Ernest Hemingway’s A Farewell to Arms; James A. Michener’s Tales of the South Pacific; Irwin Shaw’s The Young Lions; Boccaccio’s Decameron. Also included is nonfiction such as The Sexual Side of Marriage by M. J. Exner, M.D.; How Shall I Tell My Child by Belle S. Mooney, M.D., and The Story of My Psychoanalysis by John Knight. Ibid., pp. 317-318.
“As recent as 1905 the Brooklyn Library excluded from children’s rooms, The Adventures of Tom Sawyer and The Adventures of Huckleberry Finn, the latter having been banned from the public library in Concord, Massachusetts as ‘trash and only suitable for the slums.’ ” 60 W Va L Rev 89, 90 (1957).
"Unfortunately, both for those who seek to confine obscenity laws to an identifiable evil and for those who seek to expand controls with the hope of reducing juvenile delinquency, we know little or nothing about the consequences of reading obscene or shocking literature. The verdict of two eminent scholars on this point is as follows:
“ ‘Although the whole structure of obscenity censorship hinges upon the unproved assumption that “obscene” literature is a significant factor in causing sexual deviation from the community standard, no report can be found of a single effort at genuine research to test this assumption by singling out as factor for study the effect of sex literature upon sex conduct.’ (Lockhart & McClure, Literature, The Law of Obscenity and the Constitution, 38 Minn L Rev 295, 385.]
“Indeed, for an undetermined number of individuals, the writing or reading of obscenity may be a substitute for rather than a stimulus to physical sexuality.” Moral Penal Code, Tentative Draft No. 6, p. 24.
Joseph Burstyn, Inc. v. Wilson, 343 US 495, 72 SC 777, 96 L Ed 1098 (1952), (New York statute proscribing showing of “sacriligeous” films held unconstitutionally vague and broad); Thomas v. Collins, 323 US 516, 534-38, 65 SC 315, 89 L Ed 430 (1945), (Texas statute requiring labor organizers to obtain organizer’s card before "soliciting,” held unconstitutional as blanketing with uncertainty whatever might be said); Staub v. Baxley, 355 US 313, 321-25, 78 SC 277, 2 L Ed2d 302 (1958), (city ordinance requiring a solicitor’s permit which could be granted or denied by reason of “effects upon general welfare,” held invalid as prior restraint); Winters v. New York, 333 US 507, 68 SC 665, 92 L Ed 840 (1948), (statute held unconstitutionally vague which had been interpreted as proscribing stories of deeds of bloodshed so massed as to incite to violent crimes); Stromberg v. Carlson, 283 US 359, 369-370, 51 SC 532, 75 L Ed 1117 (1931), (statute proscribing display of red flag “as * * * symbol * * * of opposition to organized government,” held invalid as being broad enough by its terms to impinge on free expression); Herndon v. Lowry, 301 US 242, 258, 57 SC 732, 81 L Ed 1066 (1937), (statute proscribing inciting to insurrection held unconstitutionally vague and broad where “dangerous tendency” of words would be sufficient to convict).