(dissenting).
I do not agree with the majority. I believe, in view of the recent trend toward nudity and performance of sexual acts on stage, that an occasion may arise in which a prosecution under Mass.G.L. c. 272, § 16,1 may be warranted and brought without conflicting with the First and Fourteenth Amendments to the Constitution of the United States. Whether the Boston production of “Hair” presents such an occasion is not a controlling issue. Under the specific jurisdiction granted a three-judge district court by 28 U.S.C. § 2281, the court has ruled on the constitutionality of the statute as applied to theatrical productions generally and not on the merits or demerits of “Hair” (accordingly at the hearing the court declined plaintiffs’ invitation to see the show). In my opinion, the statute proscribing open and gross lewdness is susceptible to a construction by the Massachusetts courts which would save it from overbroadness as applied to the theatre, Karalexis v. *769Byrne, D.Mass., 1969, 306 F.Supp. 1363, 1367, and the court should therefore abstain from ruling on its constitutionality. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 162-165, 63 S.Ct. 877, 87 L.Ed. 1324.
It is, of course, indisputable that live theatrical productions are protected by the First and Fourteenth Amendments, Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 502-503, 72 S.Ct. 777, 96 L.Ed. 1098, and for purposes of this opinion I shall assume that the scope of this protection may ordinarily be determined only by application of the three-part obscenity test stated in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, 1966, 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1, as qualified by Ginzburg v. United States, 1966, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31. It is clear that the particular method of expression is highly relevant. As stated by Lumbard, C. J., dissenting in United States v. A Motion Picture Film Entitled “I Am Curious-Yellow”, 2 Cir., 1968, 404 F.2d 196, 203, “Because of the nature of this medium, sexual scenes in a motion picture may transcend the bounds of constitutional protection long before a frank description of the same scenes in a book or magazine. Cf. Landau v. Fording, 245 Cal.App.2d 820, 54 Cal.Rptr. 177 (1966), aff’d per curiam, 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317 (1967).” Specific if cursory consideration must therefore be given to certain aspects of the theatre.
Live theatre is a unique medium of expression, quite different from literature, painting, music, movies and television. As stated by Elmer Rice, The Nature of Theatre in The Living Theatre, 27-28 (1959),
“Books, pictures, statutes are addressed to the solitary reader or viewer; music may be performed and enjoyed by one or two individuals. But plays are written to be communicated to a numerous group gathered in one place at one time. The organization and assemblage of the group call for a special set of procedures, and the difference between a collective response and an individual response is not only one of degree, but one of kind.
******
“These two collective characteristics of the theatre — the audience and the executants — produce a third: its public nature. Other works of art may be enjoyed not only by individuals, but in private. Failing a publisher or an exhibitor, a poem or a painting may be passed from hand to hand. Or, if it is considered subversive or indelicate, and hence socially unacceptable, it may be read or displayed in a locked room behind drawn blinds. But the essence of a dramatic performance is that it is public.”
A theatrical production has a special impact upon the audience. J. B. Priestley, The Art of the Dramatist, 5, 10 (1957), described it as follows:
“We are looking at and listening to people who are known to us as actors and actresses, staying at the Midland, but who are also farmers’ beautiful innocent daughters and rich glossy scoundrels from the big city. Everybody and everything on the stage have this double character; they are seen in the strange light and shadow of belief and disbelief; they belong to a heightened reality that we know to be unreal. It is this experience, unlike any other, that I call dramatic experience, and that the Theatre exists to provide for us.
******
“Anybody in search of pure thought will be well advised not to sit in a building with a thousand other people, a large company of actors, and an orchestra; better find a quiet corner at home and read a few books. Even a Marxist playwright catering for a Marxist audience is not dealing in thought — and, indeed, why should he when they are all in agreement and he cannot tell them anything they did not know before? Nobody in his senses *770goes to the theatre to be told what to think. What we enjoy in the theatre is that particular kind of experience I call dramatic experience, to which we contribute by allowing our minds to function on two different levels at the same time.”
The theatre’s proximity and access to the audience and its immediacy and unpredictability have been noted in the majority opinion. These features are enhanced in some modern productions, of which “Hair” is a good example. At times the cast comes into the audience.2 During curtain calls at the end of the play the audience is encouraged to come onto the stage to dance with the cast. The action is often improvised. There is no indication in the script of “Hair”, which contains numerous stage directions, that the cast will disrobe and stand facing the audience at the end of the first act; in this scene, which did not appear in the original or so-called “Cheetah” production of the show, each member of the cast decides for himself or herself at each performance whether or not to disrobe and face the audience.3 The immediacy of stage presentations obviously distinguishes the theatre from other media of communication which convey only “the description or representation of sexual matters,” A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, supra 383 U.S. at 418, 86 S.Ct. at 977.
Theatre patrons form a captive audience to an extent not comparable to readers who may put aside a book or magazine or even to moviegoers who usually come and go freely in the relative privacy and semidarkness of the movie playhouse. The typical theatre patron, perhaps influenced by the price he has paid for his ticket and reluctant to disturb persons next to and behind him, will normally stay at least to the end of any act in progress.
Young people are seldom if ever excluded from theatre audiences, as they are from seeing movies rated “X” or “R” by an association of motion picture producers. The producers of the Boston production of “Hair” made a faint effort to discourage attendance by children but none at all to exclude them. I doubt very much that the average patron of “Hair” is as forewarned of the content of the show and as willing to witness it as plaintiffs assume — the only evidence on this point was a collection of critical reviews phrased in generalities. He probably is aware of the nudity at the end of the first act, but not of the scene in the second act in which a nude male is bathed and fondled nor of the several simulated sex and unnatural acts.4 There is reason to believe that many customers are drawn by the music. As alleged in paragraph 5 of the complaint, “Two of the songs from the production have become contemporary classics, ‘The Age of Aquarius’ having been utilized as a key theme by the Peace Corps in its public relations activities, and the song ‘Let the Sunshine In’ having been adopted as the theme for The Summerthing Festival 1970 for the City of Boston. Both of these songs are repeatedly played over the air, used as production numbers on television and are on *771various best seller lists of current records.” The critical review in Newsweek magazine stated,
“Coupled with the large doses of advance publicity, it is the music, Galt McDermot’s amalgam of pounding rock and Broadway melody, that has propelled ‘Hair’ into its wide preaceeptance. There are already nine ‘Hair’ LP’s and 60 groups have recorded songs from the show that are broadcast round the world.”
The issue of the applicability to stage productions of statutes punishing open and gross lewdness is of more moment than it would have been a few years ago or even before the current “off-Broadway” season in New York City when a group of plays led David Merrick, the renowned producer, to write an article for the March, 1970 edition of The Reader’s Digest entitled, “Must Smut Smother the Stage?” stating in part:
“In Oh! Calcutta! ten men and women stripped naked and acted out sexual perversions. And Puppy Dog Tails, a play about homosexuals, had a vapid story line used only as an excuse to have men go to bed together, giving the audience a brief view of their genitals. When the curtain went up on Fortune and Men’s Eyes on opening night, the audience was treated to the sight of a man defecating. This was followed by a scene in which one nude boy rapes another in a shower, and then by a scene in which a boy masturbates while listening to the sounds of a boy he loves being whipped.
“Since the days when Romans were entertained by hired actors performing scenes of sodomy, rape and incest, the theater has labored to shed the ancient stigma of immorality. Only within the past few decades has that battle been won. And now, this!
“Alert to the possibility of public outrage, producers of the dirty shows generally attempt to dress their pornography in sociological or philosophical garments. Thus Fortune and Men’s Eyes is set in a prison, and its scenes of homosexuality and masochism are presented as a plea for prison reform.”
Whether theatrical producers and actors can be charged constitutionally with “open and gross lewdness and lascivious behavior” under Mass.G.L. c. 272, § 16, should take into account whether the show involved is obscene under the Memoirs-Ginzhurg test. If it is, then the conduct on stage, even if expression, is not protected by the First and Fourteenth Amendments and I see no sufficient reason why the defendants should not be charged with lewdness in addition to or alternatively to obscenity. This is not to deny that a cogent reason may be advanced for barring lewdness prosecutions even in cases of obscenity, viz., that the mere availability of the statute in some case will have a “chilling effect”, Note, The Chilling Effect in Constitutional Law, 69 Colum.L.R. 808 (1969), upon freedom of expression in the theatre. But I am not persuaded. After all, the lewdness proscribed by § 16 does not mean dirty words or suggestive gestures. It means exposing the genital parts without necessary or reasonable excuse. Commonwealth v. Wardell, 1880, 128 Mass. 52, 53. Any playwrights desiring to convey their ideas by means of such exposure and any actors and actresses willing to undress completely in a public place as drafty as a theatre stage will not be easily chilled.
The writer, producer, actors and set designer of the “off-Broadway” play “Che” were, in People v. Bercowitz, supra (308 N.Y.S.2d p. 12), convicted of violating a lewdness statute5 substantially the same as the Massachusetts law, having also been convicted of violating Penal Law, McKinney’s Consol.Laws, c. 40, § 235.05, the obscenity statute. *772The New York statutes are helpful in a broader respect in that their location among the numerous criminal statutes enacted by that state indicates a distinction between the public interests protected by the two laws. The obscenity section appears in Article 235 entitled “Obscenity and Related Offenses” which is part of “Title M — Offenses Against Public Health and Morals.” The lewdness section appears in Article 245 entitled “Offenses Against Public Sensibilities” which is part of “Title N — Offenses Against Public Order, Public Sensibilities and the Right to Privacy.” This distinction, in my view, may under some circumstance, given a prior or contemporaneous finding of obscenity, warrant distinct public vindication.
The particular public interest in restricting lewdness in the theatre as distinguished from controlling obscenity in literature and other art forms has not been analyzed in judicial opinions. It has been by R. Schechner, Pornography and the New Expression, in Public Domain, Essays on the Theatre, 140, 141 (1969) stating in part:
“In our culture we bring the family6 with us to the movies or theatre, and even our wildest dramas, say Lear and The Balcony, are essentially reassuring and passive as we produce them. Were we to go to the movies or theatre without depositing ourselves in the protective envelope of the family, our drama would rapidly become sexualized and orgiastic. A play like Peter Weiss’ Mamt/Sade, as it was produced by the Royal Shakespeare Company, is moving in this direction. But scenic taboos continue in the theatre (less in film) because letting go would be too dangerous; the performance which has traditionally included actors and audience would soon become, as in a tribal dance, one unified activity.
“The unique thing about theatre, of course, is that the actors are there. They never vanish into their characters. Like the Christian God who is three-in-one, every actor is two-in-one. It is this double existence that gives him his authenticity as actor. His role in our theatre is not very different from that of his primitive counterpart, who is at once dancer and god. Little overt sexuality is permitted onstage because the audience knows that what happens to the character also háppens to the actor. One can understand why physical violence is feigned on stage: there are obligations to tomorrow’s performance. But why not have nudity and lovemaking? It cannot simply be that human sexual response is an undependable mechanism. The Greeks, who accepted both sexuality and nudity in public life, maintained a strict decorum in their tragedies. It is that stage performance is always on the verge of tumbling from art back into life.”
Assuming that a theatre production is not obscene, the problem is obviously more complex and is treated specifically in the majority opinion. Is an isolated (i. e., “separable from and wholly unnecessary to the theme or themes of the performance”) lewd act in an otherwise non-obscene play necessarily protected expression under the First and Fourteenth Amendments? It is assumed that the production as a whole is not “utterly without redeeming social value” or that “the dominant theme of the material taken as a whole” appeals to some interest other than a prurient interest in sex. The majority answers the question affirmatively. I would not. On the assumptions stated, the act would not be “protected” because not an integral part of the production as a whole; nor “expression” because not communicative. “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. *773O’Brien, 1968, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672.
But, one might object, everything done on stage during a theatrical performance is part of an artistic whole and judges are not qualified to overrule playwrights and producers as to what is an integral part of a production and whether conduct is communicative. I suggest that such decisions are no more difficult than those required of courts under existing obscenity tests as to “dominant theme”, “community standards” and “social value.” Whether existing standards permit the excision of nudity and overt sexuality added to a production for no purpose except to shock and offend, is another question. United States v. A Motion Picture Film Entitled “I Am Curious-Yellow”, supra, 404 F.2d at 199, says that they do but it does not say how, short of applying the three-pronged Memoirs test to the balance of the production from which the irrelevant nudity is presumably isolated,
“The exhibition in a motion picture of an isolated instance of sexual intercourse or of irrelevant nudity, which would indeed be equivalent to public display, could be halted under the established standards, just as could similar material if it appeared in print.”
No precedent or other authority is cited by the court for the proposition stated. Other courts seem unaware of any authority under existing standards to treat isolated conduct differently from the whole production. On the contrary, in applying the existing standards the tendency seems to be that a finding of a nonprurient dominant theme or any redeeming social value in a play as a whole must end inquiry into the offensiveness of any particular act during the presentation, whether or not isolated from the remainder of the performance. See, e. g., In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 661, 446 P.2d 535 (1968), Dixon v. Municipal Court of City & County of San Francisco, 267 Cal.App.2d 789, 73 Cal.Rptr. 587 (Cal.App.1968).
One obvious source of difficulty in deciding the questions raised in this case is that the existing standards have evolved in cases dealing with books and magazines and, to a limited extent, movies. The fixed forms of these media of expression necessitate their being appraised in their entirety. No such necessity exists with respect to theatrical productions, which are given trial runs and frequently revised by the addition or excision of lines, actions or even entire scenes. This feature of the changeability and separability of the parts of a theatrical production may serve to shield it against censorship. Indeed, the availability of criminal prosecution for lewdness in the theatre was mentioned in this connection by George Bernard Shaw, who in the preface to his play, “The Shewing-up of Blanco Posnet” (1909), discussed at length an inquiry into censorship by a Select Committee of both Houses of Parliament. In Shaw, Ten Short Plays 227 (1960), the noted playwright commented as follows about evidence given before the committee by Sir William Gilbert when asked whether a law sufficient to restrain impropriety in books would also restrain impropriety in plays:
“Sir William replied: T should say there is a very wide distinction between what is read and what is seen. In a novel one my read that “Eliza stripped off her dressing-gown and stepped into her bath” without any harm; but I think if that were presented on the stage it would be shocking.’ All the stupid and inconsiderate people seized eagerly on this illustration as if it were a successful attempt to prove that without a censorship we should be unable to prevent actresses from appearing naked on the stage. As a matter of fact, if an actress could be persuaded to do such a thing (and it would be about as easy to persuade a bishop’s wife to appear in church in the same condition) the police would simply arrest her on a charge of indecent exposure. The extent to which this obvious safe*774guard was overlooked may be taken as a measure of the thoughtlessness and frivolity of the excuses made for the censorship.” (Emphasis added.)
Finally, there has been no indication that the Massachusetts courts will apply Mass.G.L. c. 272, § 16, automatically and blindly to every episode of nudity on the Boston stage. The rescript opinion of the Supreme Judicial Court in the “Hair” case recognized explicitly the relevant constitutional issues and segregated for special consideration incidents “separable from and wholly unnecessary to” the theme of the performance. It is well settled that a state statute must be construed consistently with state court decisions which have interpreted it. Musser v. Utah, 1948, 333 U.S. 95, 97, 68 S.Ct. 397, 92 L.Ed. 562. According to Commonwealth v.’ Wardell, supra, a violation of § 16 does not occur unless the exposure be “without necessary or reasonable excuse.”
There is then sound basis in the Massachusetts law for anticipating that the Supreme Judicial Court will construe § 16 so that its applicability will depend on the relationship of the alleged violation to the theme or themes of the whole performance. If an integral part of the whole, a violation could occur only if the whole should be obscene under existing standards. If not an integral part, a violation would depend simply upon proof of the essential elements of the offense. This determination of the relationship of the alleged violation to the whole production would involve a test closely analogous to the first or “dominant theme” part of the three-pronged test for obscenity under existing standards. But if determined by this test to be isolated from the balance of the production, the court’s inquiry into the essential elements of the offense would proceed without any need to explore and evaluate such considerations as “contemporary community standards” and “redeeming social value.” Even as to an isolated alleged violation, surely there is room for distinctions to be drawn between scenes of naked forms merely silhouetted and unnatural acts executed in plain view. Its setting, duration, lighting on stage and other attendant circumstances, as well as consideration of any claimed expressive elements, might all combine to furnish a “necessary or reasonable excuse.” In my understanding this is not a constitutionally over-broad standard when considered in terms of the very limited range of its applicability. As noted above, we are talking only about that wee area of possible First Amendment protection which finds its alleged expressive outlet in the exposition on a theatre stage of a person’s private parts.
. No purpose will be served by discussing separately in this opinion the common law crime of indecent exposure, which dates back at least to 1663 when a defendant was indicted at common lav/ for showing Ids nude body in a balcony in Covent Garden before a number of people. LeRoy v. Sidley, 1 Sid. 168, 82 Eng.Reprint 1036. The controlling considerations seem to be the same.
. E. g., an actor clad in a tank type bathing suit climbs over persons in the audience and stops in front of a woman patron, spreading his legs and half sitting in her lap.
. The ultimate in improvisation appears to have been authorized by the producers of “Che”, People v. Bercowitz, 308 N.Y.S.2d 1, p. 7, NYC Crim.Ct., Feb. 25, 1970, in which a stage direction permitted the cast “to perform any sex act on stage at any time, if they felt spontaneously that actual sex would enhance the realism of their performance.”
. The same may almost certainly be said of much of the language, e. g., the song: “Sodomy Fallatio Cunnilingus Pederasty Father AVhy do these words Sound so Nasty? Masturbation Can be fun Join the holy orgy Kama sutra everyone” and the conversation about the weather in which the word “fuck” appears six times in six lines.
. New York Penal Law, “§ 245.00 Public Lewdness. A person is guilty of public lewdness when, in a public place, he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act.”
. In this context, “family” lias been defined by tlie author as “a few others who are emotionally close to us.”