dissenting.
The majority opinion treats Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, as though it authorized state courts to construe state statutes designed to regulate obscenity by simply rewriting them to comply with the state court’s interpretation of the requirements of Miller. That view not only transforms the court into a legislature, but also ignores the emphasis on specificity so frequently reiterated in Miller.
The Supreme Court stated in Miller: “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.”
In laying down the constitutional tests, the court specified: “(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and * * *. We *453emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. * * * 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.” (Emphasis ours.)
It must be obvious that the Nebraska statutes do not meet the guidelines and standards set forth in Miller v. California, supra. It is equally obvious that the majority opinion does not construe the Nebraska statute when it says the words of the Nebraska statute are now rewritten to say what Miller requires it to say. I respectfully dissent and suggest that the recent action of the Supreme Courts in Iowa and Louisiana upon the identical issues ought to point the course for this court also.
In State v. Wedelstedt, 213 N. W. 2d 652 (Iowa, Dec. 19, 1973), the Iowa court said: “It is urged we construe the statute to include perhaps the suggested specific examples stated in Miller to eliminate vagueness and to somehow adopt the average-person criterion.
“This would require adding to and striking legislative provisions of the statute. Well-established rules of. statutory construction prohibit our doing so. No court under the guise of construction may extend, enlarge, or otherwise change the' terms and meaning of a statute. * * *
“It is not our function to rewrite the statute. * * *’ If changes in the law are desirable from a policy, administrative, or practical standpoint, it is for the legislature to enact them, not for the court to incorporate them by interpretation.” ' "
In State v. Shreveport News Agency, Inc.; 287 So. 2d 464 (La., Dec. 3, 1973), the Louisiana Supreme Court *454said: “We are not of the opinion that we are endowed with the constitutional authority to re-draft Louisiana’s obscenity statute. Our Court may interpret a statute, but it cannot re-write a statute in order to hold it constitutional. * * * Our statute is totally lacking in specificity which would comply with the requirements of Miller v. California. * * * We reject any theory that we can authoritatively construe our criminal statute regulating obscenity so as to make it constitutional under the United States Supreme Court holding in Miller v. California. It is for the legislature to design a statute or statutes which meet the tests and formulations set forth by that court.”
It seems clear to me that the Nebraska statutes on obscenity, in the light of Miller v. California, supra, are vague and general, as well as overbroad, and lack the required specificity to withstand constitutional attack under the First and Fourteenth Amendments. It is an added source of difficulty that the “construction” of the Nebraska statutes now made by this court is simply applied retroactively to this case, where the challenged offense occurred long before the current “construction.” The fact that the films here might well have been obscene under virtually any valid statute cannot breathe constitutional life into an otherwise invalid statute. That fact only emphasizes the difficulties inherent in the judicial assumption of legislative responsibility in the difficult field of obscenity. In my opinion, section 28-921, R. S. Supp., 1972, is clearly unconstitutional in the light of Miller v. California, 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419.