OPINION OF THE COURT
COFFIN, Circuit Judge.On February 22, 1970, the live theater production “Hair” opened at the Wilbur Theater in Boston, Massachusetts for an indefinite run. A few days later, the District Attorney of Suffolk County advised various persons responsible for *760and engaged in the Boston production that the performers and the producers would be prosecuted under sections 16 1 and 322 of Chapter 272 of the Massachusetts General Laws if certain conduct occurring in the play was not discontinued. Plaintiffs 3 immediately sought injunctive and declaratory relief from a single Justice of the Massachusetts Supreme Judicial Court. Hearing was promptly held, at which time evidence was taken which included the script of “Hair”, the favorable testimony of two drama critics concerning the importance and artistic merit of the play, and three generally non-condemnatory reports of a police officer who had observed both the New York and Boston productions. The case was reserved to the full court.
The court’s decision was rendered on April 9 1970, after each participating Justice had observed the Boston production as a member of the regular nightly audience. Their decision, set forth in toto in the appendix to our opinion, decreed that injunctive relief against prosecution under the aforementioned statutory provisions would only be ordered if certain portions of the play were modified or excised.4 The rationale for such decision seems to have been that the acts in question were “lewd and lascivious” and that persons who perform such acts are not entitled to equitable relief under Massachusetts law, notwithstanding the fact that such acts are performed as a part of a play which is not otherwise “lewd and lascivious”, let alone constitu*761tionally “obscene”. Plaintiffs’ Motion for Clarification of the court’s opinion was denied without comment by the court on the same day. On April 10, 1970, the cast and producers chose to close the show rather than make the modifications indicated' by the court’s opinion or risk criminal prosecution by continuing to present the production without modification.
On April 13, the plaintiffs filed suit in the federal district court, seeking injunctive relief pursuant to 42 U.S.C. § 1983 against the promised state prosecution by defendant District Attorney of Suffolk County if the play continues unexpurgated, and a declaratory judgment pursuant to 28 U.S.C. § 2201 that the statutes herein involved are unconstitutional on their face or as applied. Pursuant to 28 U.S.C. § 2281 et seq., this three-judge court was convened to consider the issues presented by plaintiffs’ suit. We find, on the basis of our discussion infra, that we have jurisdiction because of the substantial federal question here presented. 28 U.S.C. §§ 1331, 1343(3).
The hearing before us revealed, inter alia, that the defendant promises to prosecute if the show reopens without meeting the conditions in the Supreme Judicial Court’s opinion; he will not limit himself to one test case and can give no assurance as to the number of prosecutions. Of critical importance, however, defendant now assures us that the promised prosecutions will not be founded on section 32 but rather on section 16 and the common law of indecent exposure. For their part, the performers do not wish to risk repeated fines and jail sentences, nor do they wish to make the required alterations, for they view their so doing as compromising the integrity of the production. In the meantime,, the production is losing weekly box office gross receipts of about $70,-000, is making refunds or exchanges for tickets already sold, and is no longer making advance sales. They had anticipated a lengthy run in Boston, having at the time of filing this suit advance ticket sales of approximately $600,000.
We are urged not to proceed to the merits of this dispute on the grounds that such consideration is prevented by the principles of res judicata, the Supreme Judicial Court having already decided the critical issues here presented. We disagree. The only issue clearly resolved by the court involved the availability of injunctive relief under Massachusetts law; any finding with regard to the severability of the acts in question relates only to the practical feasibility of the relief ordered. We admit to considerable uncertainty whether the court also determined that section 16 applies to live theater productions and should be interpreted to proscribe “lewd and lascivious” acts performed in such productions. Suffice it to say that there is no indication whatever that the Supreme Judicial Court held that section 16 is constitutional as applied to live theater productions. We therefore are not barred by res judicata from considering that question.5
The Constitutional Issue
This brings us to a consideration of the basic constitutional issue presented by plaintiffs’ request for declaratory relief: whether a “lewd and lascivious” statute and the common law crime of indecent exposure may be used as weapons to root out of a live theater production some allegedly objectionable conduct. We begin with the proposition that live theater productions, like *762movies,6 are within the ambit of protection of the First Amendment. People v. Bercowitz, 308 N.Y.S.2d 1 (N.Y.C.Crim.Ct., Feb. 25, 1970); Barrows v. Municipal Court of Los Angeles Jud. Dist., 1 Cal.3d 821, 83 Cal.Rptr. 819, 821, 464 P.2d 483 (1970); Dixon v. Municipal Court of City & County of San Francisco, 267 Cal.App.2d 789, 73 Cal.Rptr. 587, 589 (1968). That the Supreme Court has not recently had occasion to so hold cannot alter the unassailable fact that the stage has been a traditional and important medium for the presentation and expression of ideas. Our problem is to determine the extent of the protection afforded by the First Amendment. Roth v. United States, 354 U.S. 476, 481-485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), established the basic doctrine that “obscenity is not within the area of constitutionally protected speech or press”, but that which falls short of it is.7 The years since Roth have witnessed sporadic efforts to obtain a consensus on what is “obscene”.8
More recently, however, the Court has held that the mere private possession of obscene matter cannot constitutionally be made a crime, Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), thus establishing — contrary to Roth — that obscenity in some contexts is protected by the First Amendment. A three-judge court in Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969) (Julian, J. dissenting), temporary injunction stayed pending disposition of appeal, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (1969), prob. juris, noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (March 23, 1970), read Stanley to suggest that a state may not proscribe “obscenity” in a movie theater, if the public is forewarned of the character of the presentation in a manner which does not constitute pandering, if adolescents are excluded, and if such obscene presentation does not generate a clear and present danger of illegal anti-social conduct.
Plaintiffs argue that Karalexis applies a fortiori to our case. However, adolescents were not excluded here; rather, persons who inquired concerning the admissibility of minors were advised to acquaint themselves with the play’s content and nature before bringing the child. Secondly, plaintiff’s “a fortiori” argument relies on the premise that movies and live plays are indistinguishable for purpose of the “obscenity” issues presented here, which premise we do not feel compelled to accept as a matter of law. The impact on the theater patron may well differ depending on whether the acts being viewed are presented on a film screen or are performed or simulated by live persons a few rows in front of him. The immediacy of the live theater, its easy access to the audience, its newly rediscovered capacity for improvisation, and its consequent unpredictability even to an adult and sophisticated play-goer distinguish it from a film production where the possibilities of sexual exhortation and of giving offense are fixed in celluloid.
We therefore resist the temptation to treat Karalexis as dispositive of *763the constitutional issues here presented. Rather than attempting ourselves to discern what the Stanley decision has to say with regard to live theater productions, we conclude that the instant controversy may be resolved within the post -Roth, pre-Stanley principle that “obscenity” in a First Amendment context is not protected from state regulation but that which falls short of it is.
The Court’s efforts to establish a constitutional definition for “obscenity” have, understandably, failed to generate a doctrinal consensus. However, the commonly applied test involves a three-pronged analysis, most clearly articulated in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966):
“[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”
To this analysis was added a fourth consideration, that in close cases evidence of pandering may be probative with respect to the nature of the material in question, Ginzburg v. United States, 383 U.S. 463, 474, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966).
These enunciations of the relevant constitutional standard were set forth in cases involving printed material. It appears that that same standard also applies to the determination of whether a movie is “obscene”,9 although we agree with the recent decision of the Second Circuit that the application of the test to different media should take account of the differences inherent in those media. United States v. A Motion Picture Film Entitled “I am Curious-Yellow”, 404 F.2d 196, 198, 203 (2d Cir. 1968).
We conclude that this same “obscenity” standard also applies to the regulation of live theater productions — accord: Barrows v. Municipal Court, supra; People v. Bercowitz, supra; Dixon v. Municipal Court, supra—again with the understanding that the four factors must be assessed in light of the particular impact made by a live theater production. Confining state interference with the live theater to that which is “obscene” reflects the fundamental importance which the First Amendment attaches to the unencumbered expression of ideas. We recognize that our analysis involves a delicate judgment, and *764that a story may be protected in book form but not in movie form, or in movie form but not in the live theater. An application of the Memoirs analysis without regard to the obvious differences among the various media could result in all media being confined to the limitations imposed on the medium in which the particular presentation is most offensive. On the other hand, the enunciation of a different standard for every conceivable medium would only compound the confusion without ameliorating the delicacy of the basic judgments required by any standard.
Having concluded that the Constitution prevents a state from regulating a live theater production unless it is constitutionally “obscene”, we now ask whether either section 16 or the “closely similar”10 common law crime of indecent exposure can be applied to the live theater without offending that Constitutional limitation.11 Since we are dealing with a medium protected by the First Amendment, we keep in mind that “precision of regulation must be the touchstone.” Interstate Circuit v. Dallas, 390 U.S. at 682, 88 S.Ct. at 1302.
The kind of activity obviously within the purview of section 16 is the imposition of lewdness or nudity on an unsuspecting or unwilling person, e. g., Commonwealth v. Dickinson, 348 Mass. 767, 202 N.E.2d 240 (1964), and Commonwealth v. Cummings, 273 Mass. 229, 231, 173 N.E. 506 (1930). The crime of indecent exposure is “offensively exposing [oneself] * * * without necessity or reasonable excuse, and in such a way as to produce alarm,” Commonwealth v. Warded, 128 Mass. 52, 53 (1880); but see Commonwealth v. Bishop, 296 Mass. 459, 462, 6 N.E.2d 369, 370 (1937): “It is enough if it be an intentional act of lewd exposure, offensive to one or more persons.” These proscriptions obviously apply to a broad range of lewd conduct. See generally 94 A.L.R.2d 1348 (1964) (Indecent Exposure). They have not been and need not be limited to constitutional “obscenity” when the activity is imposed on the unsuspecting public. To say that the common law crime and the statute apply to all nudity on the stage, however, would ignore both the fact that the audience is willing and forewarned,12 and such other factors as pose, lighting, angle of audience vision, mobility, and dramatic context. See United States v. A Motion Picture Film, 404 F.2d at 199. A dim silhouette of a naked form would be as punishable as the most blatant eroticism. Similarly, the vulnerability to a “lewd and lascivious behavior” statute of all simulations of sexual deviation would be equally indiscriminate, barring even the muted portrayal of a deviate when such might be essential to a drama. We cannot escape the conclusion that to apply the standards of the street and marketplace to the world behind the *765footlights would be to sanction a censorship dragnet of unconstitutional proportions.13
This problem was recognized by the California Supreme Court in construing a “lewd and dissolute” conduct statute as inapplicable to live theater:
“acts which are unlawful in a different context, circumstance, or place, may be depicted or incorporated in a stage or screen presentation and come within the protection of the First Amendment, losing that protection only if found to be obscene.” 14
Nor could the promised prosecution of live theater under section 16 and the crime of indecent exposure pass constitutional muster by envisaging a double standard for those provisions, i. e., proscribing a broad range of public nudity when applied outside the First Amendment context and at the same time making operative the much narrower “obscenity” proscription of conduct performed in the theater. If Massachusetts were allowed to attribute such distinctly different interpretations to the same words in the same statute, there would be little sense in having the statute at all. This, however, is precisely what our dissenting brother anticipates — that the Massachusetts courts would take into account the dramatic context to determine whether there is a “necessary or reasonable excuse” for an incident which would otherwise be “lewd, lascivious” behaviour. The short answer is that such interpretation would still allow the state to interfere with non-obscene presentations, contrary to Roth and its progeny. Moreover, the present judgments which courts are called upon to make in applying the “obscenity” principle to works of artistic expression are difficult enough without conditioning criminal convictions on further judgments by courts as to dramatic relevance. Were culpability to depend on a defendant’s ability to convince a court that there was a “reasonable excuse” for every scene which might be questioned, the chilling effect on theater generally would be of ice age proportions. We conclude that Massachusetts’ “lewd and lascivious” proscription cannot be given a constitutionally permissible interpretation in the live theater context while retaining its much broader proscription for non-speech forms of lewd conduct, without running afoul of the constitutional requirement that limitations on speech-related activities must be narrowly drawn so as not to chill legitimate expression. Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), and cases cited.
Lest we be understood as saying that a state is helpless to protect itself against obscene portions of a live theater production, we point out that pandering can provide a basis for state intervention and that the admission of minors can be regulated. Beyond that, isolated acts in a play may be so dominant or offensive as to pervade or distort the production as a whole, thereby bringing the play within the state’s power to proscribe “obscenity,” as was held in Bercowitz, supra.15 In such a case, *766however, the offensive portions would not be viewed in isolation — as section 16 would permit — but only as part of the production as a whole, in accordance with the prevailing “obscenity” standards.
Injunctive Relief
Since section 16 and the common law of indecent exposure employ “means which sweep unnecessarily broadly and thereby invade the area of protected freedoms,” NAACP v. Alabama, 377 U.S. 288, 307, 84 S.Ct. 1302, 1314, 12 L.Ed.2d 325 (1964), abstention would be inappropriate. Zwickler v. Koota, supra; Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The more difficult question is whether plaintiffs have shown those “special circumstances” which justify federal interference with a state’s good faith enforcement of its criminal laws. Dombrowski v. Pfister, supra; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943).16 We recognize that comity restrains the exercise of federal equitable power, Dombrowski v. Pfister, supra 380 U.S. at 484, 85 S.Ct. 1116, and that injunctive relief should be granted only on a showing of harm “both great and immediate,” Douglas v. City of Jeannette, supra 319 U.S. at 164, 63 S.Ct. at 881, but we conclude that the requisite showing has been made in this case.
Two factors influence our decision. First, the District Attorney has declared that he feels duty bound to prosecute if and when “Hair” is presented without making the deletions indicated by the Massachusetts court. See n. 4. Thus we cannot reasonably expect a single test case to settle the contours of the law. Compare Beale v. Missouri Pacific RR, 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577 (1941). On the contrary, each night’s performance will offer the District Attorney new opportunities to carry out his declared intent. Moreover, there are a variety of conceivably lewd scenes in this play, some solemn, some bumptious, some open, some covert. To date, the District Attorney has identified seven acts which in his mind violate the statute. Acquittal for participation in one of these acts does not bar prosecution for different conduct in another scene. We may therefore expect multiple prosecutions against members of the cast. See Byrne v. Karalexis, 396 U.S. 976, 983, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (1969) (Opinion of Stewart, J.).
In light of the uncertain implications of the Supreme Judicial Court’s opinion as the District Attorney might interpret it, the threat of multiple prosecutions alone might justify federal intervention to vindicate constitutional rights. Cf. Ex parte Young, 209 U.S. 123, 147, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Oklahoma Operating Co. v. Love, 252 U.S. 331, 336-337, 40 S.Ct. 338, 64 L.Ed. 596 (1920). In our case we have an additional factor, a chilling effect on the First Amendment right of plaintiffs, others engaged in the theater in Massachusetts, and the theater going public in the New England area. The actors in “Hair” must face either sentences of up to three years for sex offenses or, if the show closes, loss of their livelihood. Plaintiffs’ dilemma cannot fail to influence other actors and producers, espe*767cially since theater patrons may take offense from a variety of scenes, thus providing the prosecutor with a long shopping list. When faced with a prosecutor intent on extirpating lewdness in accordance with the mandate of the Supreme Judicial Court as he sees it, actors and producers will either avoid Boston altogether or will steer clear of the forbidden zone by excising constitutionally protected material in order to avoid the risk of a three year prison term. Either result is offensive to the First Amendment.
While these factors themselves constitute “irreparable injury”, Dombrowski v. Pfister, supra 380 U.S. at 486, 85 S.Ct. 1116, we note also that plaintiffs face a substantial financial loss even if they persist in the face of multiple prosecutions and prevail. At present, the majority of advance ticket holders are willing to forego refunds in the hope that “Hair” will show again in Boston. But we agree with the court in Karalexis v. Byrne, 306 F.Supp. at 1367, that box office receipts can be expected to be smaller in the event of substantial delay, or, we may add, substantial disruption of scheduled performances. We therefore conclude that plaintiffs have demonstrated the kind of grave threat to protected expression which justifies federal equitable intervention as an alternative to repeated prosecutions.
We reach this conclusion despite the fact that the prosecutor in this case has shown no subjective bad faith. In Robinson v. Bradley, 300 F.Supp. 665 (D.Mass.1969), the author of this opinion commented in dicta that Dombrowski and its offspring, Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1965), could be read as requiring both a facially invalid statute and bad faith in order to justify federal intervention. On further consideration, the better view seems to be that either is sufficient. Cameron does emphasize the elements of bad faith in Dombrowski, but only in discussing whether bad faith enforcement of an admittedly valid statute would justify an injunction. Cameron v. Johnson, supra 390 U.S. at 618-619, 88 S.Ct. 1335. Moreover, the issue which both Cameron and Dombrowski address is whether constitutional rights are threatened with irreparable injury. We see little difference between the injury inflicted by multiple prosecutions brought to harass and the injury caused by multiple prosecutions motivated by a sincere desire to enforce the law. The chilling effect on protected expression is the same in either ease. We therefore conclude that the threat of multiple prosecutions under an overly broad statute regulating speech is sufficient to justify federal equitable relief. Accord: Cambist Films, Inc. v. Illinois, 292 F.Supp. 185, 189 (N.D.Ill.1968); Harris v. Younger, 281 F.Supp. 507, 510 (C.D.Cal.1968), restored to calendar, 395 U.S. 955, 89 S.Ct. 2095, 23 L.Ed.2d 744 (1969); Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Texas L.Rev. 535, 583 n. 234 (Feb.1970).
In sum, live theater productions are not insulated from good faith prosecution under a statute which passes constitutional muster. But at the m'oment the people of Boston and much of New England are being denied the opportunity to judge the merits of “Hair” for themselves, not because it may be obscene but because of the promise of prosecution under section 16 and the common law crime of indecent exposure. All we hold is that those laws authorize greater state interference with the live theater than the First Amendment allows.
< Defendant and his agents are enjoined from prosecuting “Hair” under either section 16 or the common law of indecent exposure, such injunction to issue in one week to give defendant, should he desire, the opportunity to apply to the Circuit Justice for a stay.
*768APPENDIX
Opinion of Supreme Judicial Court of Massachusetts, P. B. I. C., Inc. et al v. District Attorney of Suffolk County, April 9, 1970
In this case, reserved and reported without decision by a single justice, injunctive relief is sought against prosecution of the producers and members of the cast of a performance called “Hair,” for violation of G.L. c. 272, §§ 16 and 32. Declaration is sought that prosecution would contravene various constitutional provisions. Each justice participating has seen the performance at the request of the parties. One scene shows members of the cast in the nude facing the audience. One nude male performer is bathed on stage. There is incidental stage action which a jury could conclude was clowning intended to simulate sexual intercourse or deviation. This appears to be less realistic than the conduct discussed in People v. Bercowitz, 308 N.Y.S.2d 1 (Cr.Ct.N.Y.). The play in various respects will be offensive to some persons. It constitutes, however, in some degree, an obscure form of protest protected under the First Amendment. Viewed apart from the specific incidents mentioned above, it is not lewd and lascivious, whatever other objections there may be to it. The incidents, already mentioned are separable from, and wholly unnecessary to, whatever theme this noisy, disorganized performance may have. Discretionary equitable jurisdiction, infrequently exercised, exists to restrain enforcement of an unconstitutional criminal statute or unconstitutional application of a valid statute. See Slome v. Chief of Police of Fitchburg, 304 Mass. 187, 188, 23 N.E.2d 133; Kenyon v. Chicopee, 320 Mass. 528, 531, 535, 70 N.E.2d 241. Reasonable doubts are asserted whether the statutes cited have application to dramatic performances (cf. Re Giannini, 69 Cal.2d 563, 570-577, 72 Cal.Rptr. 655, 446 P.2d 535), and whether, if so applied, these statutes may be unconstitutionally vague. See Alegata v. Commonwealth, 353 Mass. 287, 293, 231 N.E.2d 201. Injunctive relief will be given, but, by analogy to the principle that he who seeks equity must do equity, the injunction, to be framed in the county court, shall be conditioned upon excision forthwith of the specified lewd features so as (a) to have each member of the cast clothed to a reasonable extent at all times, and (b) to eliminate completely all simulation of sexual intercourse or deviation. Nothing in this opinion or any injunction is to preclude prosecution for any misuse of the national flag, a matter not argued to us.
. Mass.Gen.Laws Ann. c. 272 § 16
“A man and woman who, not being married to each other, lewdly and lasciviously associate and cohabit together, or a man or woman, married or unmarried, who is guilty of open and gross lewdness and lascivious behavior, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than two years or by a fine of not more than three hundred dollars.”
. Mass.Gen.Laws Ann. c. 272 § 32 (Supp. 1969)
“Whoever, as owner, manager, director, agent or in any other capacity, prepares, advertises, gives, presents or participates in any lewd, obscene, indecent, immoral or impure show or entertainment. or in any show or entertainment suggestive of lewdness, obscenity, indecency, immorality or impurity, or in any show or entertainment manifestly tending to corrupt the morals of youth, shall be punished by imprisonment for not more than two years or by a fine of not more than five thousand dollars, or both. The provisions of this section shall not apply to a motion picture operator, or assistant operator, licensed under sections seventy-five and seventy-six of chapter one hundred and forty-throe, respectively, who is employed in a motion picture theatre licensed under section one hundred and eighty-one of chapter one hundred and forty and section thirty-four of chapter one hundred and forty-three, in connection with a motion picture show exhibited in said theatre, provided that such operator, or assistant operator, has no financial interest in the motion picture theatre wherein he is so employed.”
. P.B.I.C., Inc., and Xatoma Productions, Inc., both corporations duly organized under the laws of the State of Illinois, Frank Butler, Jory Richardson, Marjorie Dunaway, Brooke Lappin, and Morton L. Leavy, are all partners associated in a limited partnership operating under the name and stylo of “The NTew 1-Iair Company”, of which Xatoma Productions, Inc., is the general partner. Plaintiff Donald Francis Tirabassi is presently employed by the above partnership and is acting as assistant manager of the musical stage production “Hair”. Plaintiff Marlena Langston is a member of the cast of “Hair” ; she sues on behalf ■of herself and all members of the cast.
. Specifically, the injunctive relief was “conditioned upon excision forthwith of the specified lewd features so as (a) to have each member of the cast clothed to a reasonable extent at all times, and (b) to eliminate completely all simulation of sexual intercourse or deviation.”
The “specified lewd features” referred to two scenes involving nudity and “incidental stage action which a jury could conclude was clowning intended to simulate sexual intercourse or deviation.” The District Attorney has interpreted this as a mandate to prosecute if any one of seven specific scenes is played.
. Indeed, the opinion reflects the fact that constitutional issues were briefed and argued to the extent of asserting “reasonable doubts” as to the applicability of section 16 and its constitutionality if applicable. To draw the inference that the court, in the light of this background, ruled on either point by implication is, to our mind, less reasonable than tlmt it merely (lid what it said it did, i. e., required the plaintiffs to wash their hands before invoking the office of the Chancellor. lVc feel no compulsion to read into this opinion the adjudication of an important constitutional question.
. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968).
. It has been settled that a state may regulate the distribution or presentation of offensive material to adolescents even though such material may fall short of being “obscene”. Ginsberg v. New York, 390 U.S. 629, 634-643, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). However, it is equally well settled that a state may not confine its adult population to only those books, movies, and plays which are permissible for adolescent consumption. E. g., Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957).
. Interstate Circuit, Inc. v. Dallas, 390 U.S. at 704-707, 88 S.Ct. 1298 (opinion of Harlan, J., collecting prior Court decisions).
. The question was not reached in Interstate Circuit Inc. v. Dallas, 390 U.S. at 686-687, n. 15, 88 S.Ct. 1298. However, numerous recent lower court decisions have focused on the Memoira analysis in assessing the “obscenity” of a motion picture. E. g., Commonwealth v. State Amusement Corp., 248 N.E.2d 497 (Mass.1969); United States v. One Carton Positive Motion Picture Film Entitled “491”, 367 F.2d 889 (2d Cir. 1966); United States v. A Motion Picture Film Entitled “I am Curious-Yellow”, 404 F.2d 196, 199, 203 (2d Cir. 1968); Schackman v. Arnebergh, 258 F.Supp. 983, 991-992, 995 (C.D.Cal.1966), appeal dismissed, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967), reh'g denied, 389 U.S. 893, 88 S.Ct. 16, 19 L.Ed.2d 204 (1967); Pinkus v. Arnebergh, 258 F.Supp. 996, 1001, 1002, 1005 (C.D. Cal.1966); Cambist Films, Inc. v. Tribell, 293 F.Supp. 407, 410 (E.D.Ky.1968); 208 Cinema, Inc. v. Vergari, 298 F.Supp. 1175, 1179 (S.D.N.Y.1969); United States v. A Motion Picture Film Entitled “Pattern of Evil”, 304 F.Supp. 197, 201 (S.D.N.Y.1969); United States v. Apple, 305 F.Supp. 330, 331-332 (D.Md.1968), aff’d, 417 F.2d 1070 (4th Cir. 1969); Ratner v. Weddle, 307 F.Supp. 471, 472 (C.D.Cal.1968); McGrew v. City of Jackson, Miss., 307 F.Supp. 754 (S.D.Miss.1969).
The Memoir» standards have been applied to protect other forms of entertainment. E. g., Hudson v. United States, 234 A.2d 903 (Dist.Col.App.1967) (burlesque show); In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968) (“topless” dance).
. Commonwealth v. Broadland, 315 Mass. 20, 22, 51 N.E.2d 961 (1943). More recently, the Supreme Judicial Court relied in part on a case involving a conviction for the common law offense to sustain a conviction for a violation of section 16, indicating the interchangeability with which the Supreme Judicial Court views the two offenses. Commonwealth v. Dickinson, 348 Mass. 767, 202 N.E.2d 240 (1964).
. Tlie fact that all fifty states have statutes similar and often identical to section 16, and that these have almost entirely escaped challenge loses force when we are told that they have not been applied to theatrical performances. See specifically Barrows v. Municipal Court of Los Angeles, supra. The ancestor of section 16 was first enacted in 1784 and, so far as we know, has not until now been used to i>olice a dramatic performance.
. In overturning three lower court determinations of “obscenity”, the Court in Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 1415, 18 L.Ed.2d 515 (1967), attached significance to the fact that
“In none [of the three cases] was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.”
. Our concern can bo illustrated by section 53 of Chapter 272 of the Massachusetts General Laws, which, inter alia, prohibits lewd, wanton and lascivious speech or behavior. Defendant promises not to prosecute under this section, although he suspects that the first act of “Hair” contains • much that is indictable under it. He does not fear “the application of free speech tests”, but he believes — sensibly, we might add — that rational communication can survive resort to epithet and invective. Legally, however. “Hair” and not a few other plays are, on this theory, subject to being closed down if the offending language is not excised. See also section 30 of Chapter 272, surely of dubious constitutionality if applied to the live theater.
. In re Giannini, 72 Cal.Rptr. at 661, followed in Barrows v. Municipal Court, 83 Cal.Rptr. at 825.
. "While discussing Bereowitg, our dissenting brother attaches significance to the fact that the performers there were found guilty of violating a “lewdness” statute similar to section 16. However, such finding was made, without discussion, only after the court had concluded that the play as a whole was obscene *766and thus unprotected. Whatever may be said for the view that “lewdness” statutes can be applied to live theater productions which are first judged “obscene” as a whole, it seems clear that those statutes without such prerequisite specifically incorporated are overbroad as applied to the live theater. See Zwickler v. Koota, supra 389 U.S. at 250, 88 S.Ct. 391 and cases cited therein.
. Defendant has alluded to the Anti-Injunction statute, 28 U.S.O. § 2283. This statute does not apply in this case. Only one state court proceeding, the action for an injunction, is still pending, no final order having yet been entered by the Supreme Judicial Court. Our order will not stay those proceedings in any way. The prosecutions with which we are concerned have not yet been instituted.