OPINION ON PETITION TO REHEAR
W. M. LEECH, Special Justice.The State filed an earnest and forceful petition to rehear in these cases, presenting additional authorities not previously cited to this Court. Several of these decisions have been made subsequent to our original research. From a careful perusal of these cases, it is evident that a state of confusion exists as to Miller's effect on obscenity statutes similar to ours.
There is however no confusion or question in our minds that the specificity required by Miller is not written into T. C. A. 39-3007. Moreover, this conclusion is conceded by the State and by the courts of other jurisdictions wherein similar questions have been considered. The question then is what can this Court do about the lack of specificity.
In Miller, the United States Supreme Court said:
“We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts.” (Emphasis added).
Thus, do we have the power to say that overbroad language is in fact specific, or that which is vague and uncertain is in fact clear and definite? We think not.
*262If these two cases were all that were involved herein we might be inclined to accept the State’s theory and write the Miller language into our statute because it is our ppinion that these films are obscene. However, we cannot so act because the legal precedent would in the future create confusion and uncertainty in other fields of legislation, and would therefore do more harm than good. This is especially true here because the legislature can easily supply the necessary language to satisfy the specificity requirement of Miller. Thus, we reaffirm all that we said in our original opinion as to the constitutionality of our statute since Miller and refer the matter to the legislature for appropriate action.
Since the filing of our original opinion in these cases, we have considered a number of new cases. It is impossible to reconcile all of these decisions, thus we have approached the problem carefully and with the following statement made in Roth v. United States, and quoted in Miller in mind:
“Our duty admits of no substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.”
Having approached the State’s petition to rehear in this manner, we think that we originally overlooked the fact that when this Court originally decided Art Theater Guild, Inc. v. State ex rel. Rhodes, 469 S. W.2d 669 (Tenn.1971), the plurality holding in Memoirs was all that this Court had upon which to base its opinion.
We might add that in all of the cases from other affected states the courts, while recognizing the well established principle that obscene materials when specifically defined by statute can be prohibited, the required specificity is the subject of a wide range of dispute, and there is much confusion among the courts as to the effect of Miller on existing statutes. Some states have held that Miller was both prospective and retrospective in its application, while others have held that specificity can be read into a statute and its constitutionality upheld, both prospectively and retroactively-
In our original opinion we made no distinction between the prospective and retrospective effect of Miller on our statute. We think we should now do so.
In the cases before us the only question we deem material is the constitutionality of T.C.A. § 39-3007. All other questions addressed to us at this time were correctly decided in the opinion of this Court prior to the remand, and on those questions we could not add anything new. Everyone agrees that now more specificity is required.
The Louisiana Supreme Court, in the case of State v. Shreveport News Agency, Inc., 287 So.2d 464 (1973), held Miller to apply both prospectively and retroactively, and in the majority opinion stated, “We have properly concluded that it is not in this Court’s province to write an obscenity law for the State of Louisiana but rather the State Legislature.” To the same effect is the opinion of the Indiana Supreme Court.
The right to prohibit the distribution of obscene materials is clear, however, as stated by Mr. Justice Frankfurter, in Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469: “To be sure, the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship.” If our statute after Miller, without the addition of specificity and the elimination of “utterly without social importance”, did not meet the requirements necessary to prevent otherwise constitutionally protected materials from being subject to prosecution, then it lacked the necessary elements prior to Miller, and we do not think that we have the right to write into a statute a definition that is not included in the statute. If the language were ambiguous and susceptible of two meanings, certainly, we *263would construe the statute so as to uphold its constitutionality, but where language is omitted that is necessary to protect the rights of constitutionally protected materials, we do not have the right to add the language. The petition to rehear is denied.
DYER, C. J., and CHATTIN, Mc-CANLESS and FONES, JJ., concur.