(concurring). As I did not participate in the decisions in District Attorney for the N. Dist. v. Three Way Theatres Corp., 371 Mass. 391 (1976), Commonwealth v. Thureson, 371 Mass. 387 (1976), and Commonwealth v. 707 Main Corp., 371 Mass. 374 (1976), I have not yet had an opportunity to express my views on the extent of permissible State regulation of that which is denominated obscenity. While the issue appears foreclosed under the Federal Constitution, see Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), the position taken by my brother Kaplan, in 707, supra at 386, that the issue must be explored under the Massachusetts Constitution has substantial merit. “To allow the State to step in and punish mere speech or publication that the judge or the jury think has an undesirable impact on thoughts but that is not shown to be a part of unlawful action is drastically to curtail... [freedom of expression].” “The legality of a publication in this country should never be allowed to turn either on the *374purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted and society’s values in literary freedom are sacrificed.” Roth v. United States, 354 U.S. 476, 509, 513 (1957) (Douglas, J., dissenting) „
A constitutional system of limited government, where ultimate sovereignty and wisdom rest in the citizenry and not in the government, and which derives its wisdom from the citizens and not from itself, cannot coexist with legally sanctioned censorship or laws which place criminal penalties on freedom of expression. A government based on the premise of individual freedom cannot dictate what its citizens read or publish, however offensive those holding power may deem such materials to be. This is not to deny that government may protect juveniles and unconsenting adults from obtrusive exposure to otherwise protected speech as long as the protection reasonably regulates the manner and not the content. Compare Kovacs v. Cooper, 336 U.S. 77 (1949), with Saia v. New York, 334 U.S. 558 (1948). In short, we should consider the strong possibility that the Massachusetts Constitution would embrace the viewpoint espoused by Mr. Justice Brennan dissenting in Paris Adult Theatre I v. Slaton, supra, that “in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults... [the Massachusetts Constitution] prohibit [s] the State... [government from attempting wholly to suppress sexually oriented materials on the basis of their allegedly obscene contents.” 413 U.S. at 113.
1. The issues raised in these cases, however, must be addressed on the basis that 707 states the governing law. While that case held that the Legislature could regulate the dissemination of obscenity, it did not sanction procedures for doing so which are constitutionally defective. McKinney v. Alabama, 424 U.S. 669 (1976). Freedman v. Maryland, 380 U.S. 51 (1965). While the definition of “books” and “magazines” posited in the opinion of the court is based on reasonable plausibility and probably is *375consistent with the intent of the Legislature, the majority opinion, in dictum, without the issue having been either briefed or argued gives the imprimatur of constitutional validity to the disparity of procedural protection afforded to sellers of books and denied to sellers of other printed matter. The dictum in these cases appears based on dicta in 707, a decision which also did not reach this issue as between various types of printed matter, but dealt only with the distinction between moving picture film and printed matter.1 For this reason and the fact that the dictum in these cases is given the force of law in Commonwealth v. Ferro, post, 379, 381-382 (1977), where the issue is summarily disposed of in mistaken reliance on 707, a fuller discussion must be accorded the issue.2
Even if it is assumed that neither the Federal nor the State Constitution requires a civil proceeding as a condition precedent for the initiation of a criminal proceeding where printed matter is involved, but cf. Miller v. California, 413 U.S. at 41 (Douglas, J., dissenting), there can be no doubt that such proceedings do serve a salutary purpose. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55 (1973). The majority opinion apparently concedes this point. It is unreasonable to expect a seller of either books or magazines to be familiar with every item in his inventory given the inherent vagueness of obscenity standards in general, see Miller v. California, supra. The initiation of a prior civil proceeding puts a seller on notice that he is engaging in conduct which may be unlawful and thus gives him the opportunity to conform his conduct to the law. In essence, as noted by the majority, such a procedure protects those who possess a good faith belief that they are *376not violating the law. This, it seems to me, is more consistent with the idea behind the obscenity laws which are aimed primarily not at punishing sellers of allegedly obscene material but at protecting society from the supposedly harmful effects that flow from the free distribution of such matter. While the benefit of this procedure is obvious from the point of view of the alleged societal interest involved as well as notions of fundamental fairness, it is not, as has been noted, constitutionally required. That does not mean, however, that once having afforded the benefits of such a proceeding to a particular class the State can unreasonably withhold these benefits from members of another class similarly situated. Douglas v. California, 372 U.S. 353 (1963). Griffin v. Illinois, 351 U.S. 12 (1956). See Warren v. Michigan Parole Bd., 23 Mich. App. 754 (1970). This is what the State has done here, and what the court by its decision implicitly approves of today.
There is, in short, no rational basis for discriminating in the extent of procedural protection available, between sellers of books and sellers of magazines.3 While there are arguably three bases on which the Legislature might have made the discrimination, none of them has a sufficient factual basis to overcome the denial of the equal protection of the law which the disparity effectuates.
It might be argued that books, more so than magazines, have a longer life and thus there is a greater probability that over the course of that longer life they will find their way into the hands of more of those who fall within the class protected by G. L. c. 272, § 28 et seq. Kaplan v. California, 413 U.S. 115, 120 (1973). However, not only does this rationale not fit within the definitional criteria *377posited by the court, it negates the fact that possibilities of recirculation as well as the retention of back issues of magazines means that the time period over which each is likely to do harm must be considered to be virtually identical.
It could also be argued that book sellers tend to have larger inventories than magazine sellers and thus it is more difficult for the former as opposed to the latter to have the constitutionally required scienter, Smith v. California, 361 U.S. 147 (1959), in the absence of prior notice. However, it is entirely conceivable that both obscene books and magazines may be sold by the same vendors in the same location and in equal quantities. Under the statute, a seller may possess substantially the same material in two forms, one “book” and one “magazine.” While he would have the protection of the in rem proceeding before criminal charges could be brought in respect to the former, he could be brought up on criminal charges immediately for disseminating the same material in different form in regard to the latter. In the absence of any evidence that books tend to be possessed in larger quantities than magazines, this rationale simply is not sufficient to overcome the constitutional limitations on State power. To the extent periodicity is an element of what constitutes a magazine, it is conceivable that any seller would at any given time have greater quantities of magazines than books since the former will, by definition, be published in greater number. Thus, instead of relieving the seller of being familiar with the greater portion of his inventory, the statute puts greater burdens on him by requiring him to be familiar with that which well may be the greater part of his inventory when the opposite rationale is used to justify the distinction.
Finally, it might be argued that obscenity is more apparent in a magazine than in a book because the former is more likely to be in photographic rather than in textual form. However, the court’s opinion draws no such distinction, nor is any such distinction possible. Either a book or a magazine is as likely as not to contain its objection*378able quality in printed as opposed to photographic form. Additionally, books composed primarily of photographic material come within the court’s definitions as is illustrated by the court’s decision today. No rational distinction can be made on this basis because it is not supported in fact. In no way can this classification be said to bear a reasonable relationship to the purposes of the in rem proceeding.
Since there is no rational basis for discriminating in the degree of procedural protection afforded books and magazines, my view is that so much of the statute as denies magazines and other printed matter that protection is invalid. I reach this point in response to the majority’s expressed view to the contrary in these cases and in Commonwealth v. Ferro, post, at 381-382. There may be other constitutional infirmities in this statutory scheme open to further consideration by the court.4 Such considerations are better left for another day.
2. I have no quarrel with the court’s conclusion either here or in Commonwealth v. Ferro, supra, that the issue whether an item of printed matter is a book or magazine is a question of law to be decided by the court and not by the jury. The use of the term “condition precedent” in G. L. c. 272, § 281, clearly implies that much. The court also holds that the failure to have an in rem proceeding in a case where such a proceeding is required defeats the jurisdiction of the criminal court. I have no quarrel with that. However, the court both here and in Ferro places the burden of defeating jurisdiction on the defendant. This clearly is not sound. As it is the prosecution which invokes the jurisdiction of the criminal court, the only obligation on the defendant is to raise the lack of jurisdiction, although the court may do so on its own motion. Commonwealth v. Andler, 247 Mass. 580 (1924). See G. L. c. 277, § 47A. Once the issue is raised the prosecution must *379produce sufficient facts and carry the burden of proof on the issue, not the defendant. Cf. 13 C.A. Wright & A.R. Miller, Federal Practice and Procedure §3611 (1975).
There may be factors which permit differentiation between films and printed matter, Freedman v. Maryland, 380 U.S. 51, 59 (1965), but these same factors do not necessarily render permissible any distinction between forms of printed matter.
“These decisions do not justify today’s decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.” United States v. Rabinowitz, 339 U.S. 56,75 (1950) (Frankfurter, J., dissenting).
To the extent the opinion of the majority seeks to justify the discrimination between these two classes on the basis that in rem proceedings are expensive, such a view is not justifiable as to a class similarly situated. Such a denial “may save the State some dollars and cents, but only at the substantial risk of generating frustration and hostility toward its courts among ... consumers of justice.” Mayer v. Chicago, 404 U.S. 189, 197-198 (1971). “An affluent society ought not [to] be miserly in support of justice, for economy is not an objective of the system .. ..” Id. at 201 (Burger, C.J., concurring).
See, e.g., the court’s comment in 707 at 382 n.5, and my further comments in a separate opinion filed with Ferro.