Per Curiam.
Appellate review.
While Miller v. California, supra, and following cases expressly stated
“. . . [t]he First Amendment values applicable to the States through the Fourteenth Amendment are adequately [573]*573protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Id. at page 25.
Miller failed to expressly state the nature and scope of such an independent review. As a result of this void in Miller, two theories have arisen as to the nature and scope of the independent review. One theory holds that the independent appellate review must he directed toward each of the three basic guidelines involved in the determination of obscenity. In support of this theory it is contended that the determination of obscenity involves factual matters entangled in a constitutional claim— constitutional facts. Appellate courts are required to exercise their independent judgment as to each element involved in a constitutional question. The other theory holds that an independent appellate review is limited solely to the issue of serious social expression. Under this theory the issues of prurient appeal and patent sexual offensiveness are questions of fact for the exclusive determination of the trier of fact subject to appellate review applying the usual substantial evidence test.
Serious social value.
It is the contention of the state that any independent appellate review must be limited solely to a determination of the social value of the works adjudged.
Any independent determination as to the issues of prurient appeal and patent sexual offensiveness — such being essentially questions of fact, Miller at page 27— would in our opinion constitute an unwarranted and illegal usurpation of that which is in the sole province of the jury.
In Miller the United States Supreme Court stressed the importance of the jury system in the determination of obscenity.
[574]*574“In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, . . .” Miller at page 26.
The fact that juries may reach contrary conclusions in the determination of obscenity requires no contrary result. Juries have historically determined questions of fact in murder, rape and a host of other crimes without a trial de novo of such issues by the judiciary. All that is required is that their determinations be supported by sufficient evidence. To require in obscenity questions an initial determination of factual issue and later a trial de novo upon those exact factual issues is without logic or jurisprudential precedent and in conflict with Miller’s holding that individual juries may reach contrary results as to the same material.
It is argued by defendant in opposition of this theory of independent review that a determination of obscenity involves questions of constitutional fact and that judicial expertise is required in making determinations thereof. We fail to see the merit of this contention. What individual expertise do appellate judges have as to the prurient interest of the average man? Have appellate judges any special knowledge of patent offensiveness such that they can individually determine what affronts the sensibilities of the average man? The answer is undoubtedly no.
Rather, any special expertise that an individual judge may possess in an independent judicial review of the work alleged to be obscene is in the determination of serious social value. His determination of the presence vel non of serious literary, artistic, political or scientific value of work is grounded upon an individual expertise and is the sole criterion of constitutional protection to be applied by the judiciary.
We think the court in Miller intended the independent review to be limited solely to the third element of the test for obscenity because of the juxtaposition of the [575]*575requirement of independent review with the overruling of the utterly without redeeming social value test.
“We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U. S., at 419 [16 L. Ed. 2d 1 (1966)]; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller at page 24.
In fact, the only permissible inference that can be drawn from the juxtaposition described above is that the court in Miller intended the independent appellate trier of “serious social value” to replace that void previously served by the “utterly without redeeming social value” test — i.e., the protection of serious social works from constitutional impairment.
The first amendment was originally promulgated only so as to protect the dissemination of significant issues of the time:
“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times" (Emphasis supplied.) Thornhill v. Alabama (1940), 310 U. S. 88, 101, 102, 60 Sup. Ct. 736, 84 L. Ed. 1093.
As such, only such material that attempts to disseminate serious social expressions is constitutionally pro[576]*576tected. Material that constitutes libel, slander, fighting words or appeals to the prurient interests and is patently offensive has never been protected. Roth v. United States (1957), 354 U. S. 476, 77 Sup. Ct. 1304, 1 L. Ed. 2d 1498; New York Times v. Sullivan (1964), 376 U. S. 254, 84 Sup. Ct. 710, 11 L. Ed. 2d 686, 95 A. L. R. 2d 1412. Thus, the question for determination in each situation is whether the “quality” of the work is sufficient to require constitutional protection. That question — serious social expression vel non — is controlling and the only factor which the court must independently review in light of state proscription of material which treats “sex in a fundamentally offensive manner under rationally established criteria for judging such material.” Jacobellis v. Ohio (1964), 378 U. S. 184, 204, 84 Sup. Ct. 1676, 12 L. Ed. 2d 793.
Finally, Miller states that what appeals to the “prurient interest” or is “patently offensive” are essentially questions of fact.
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Per Curiam.
Appellate review.
While Miller v. California, supra, and following cases expressly stated
“. . . [t]he First Amendment values applicable to the States through the Fourteenth Amendment are adequately [573]*573protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Id. at page 25.
Miller failed to expressly state the nature and scope of such an independent review. As a result of this void in Miller, two theories have arisen as to the nature and scope of the independent review. One theory holds that the independent appellate review must he directed toward each of the three basic guidelines involved in the determination of obscenity. In support of this theory it is contended that the determination of obscenity involves factual matters entangled in a constitutional claim— constitutional facts. Appellate courts are required to exercise their independent judgment as to each element involved in a constitutional question. The other theory holds that an independent appellate review is limited solely to the issue of serious social expression. Under this theory the issues of prurient appeal and patent sexual offensiveness are questions of fact for the exclusive determination of the trier of fact subject to appellate review applying the usual substantial evidence test.
Serious social value.
It is the contention of the state that any independent appellate review must be limited solely to a determination of the social value of the works adjudged.
Any independent determination as to the issues of prurient appeal and patent sexual offensiveness — such being essentially questions of fact, Miller at page 27— would in our opinion constitute an unwarranted and illegal usurpation of that which is in the sole province of the jury.
In Miller the United States Supreme Court stressed the importance of the jury system in the determination of obscenity.
[574]*574“In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, . . .” Miller at page 26.
The fact that juries may reach contrary conclusions in the determination of obscenity requires no contrary result. Juries have historically determined questions of fact in murder, rape and a host of other crimes without a trial de novo of such issues by the judiciary. All that is required is that their determinations be supported by sufficient evidence. To require in obscenity questions an initial determination of factual issue and later a trial de novo upon those exact factual issues is without logic or jurisprudential precedent and in conflict with Miller’s holding that individual juries may reach contrary results as to the same material.
It is argued by defendant in opposition of this theory of independent review that a determination of obscenity involves questions of constitutional fact and that judicial expertise is required in making determinations thereof. We fail to see the merit of this contention. What individual expertise do appellate judges have as to the prurient interest of the average man? Have appellate judges any special knowledge of patent offensiveness such that they can individually determine what affronts the sensibilities of the average man? The answer is undoubtedly no.
Rather, any special expertise that an individual judge may possess in an independent judicial review of the work alleged to be obscene is in the determination of serious social value. His determination of the presence vel non of serious literary, artistic, political or scientific value of work is grounded upon an individual expertise and is the sole criterion of constitutional protection to be applied by the judiciary.
We think the court in Miller intended the independent review to be limited solely to the third element of the test for obscenity because of the juxtaposition of the [575]*575requirement of independent review with the overruling of the utterly without redeeming social value test.
“We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, 383 U. S., at 419 [16 L. Ed. 2d 1 (1966)]; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Miller at page 24.
In fact, the only permissible inference that can be drawn from the juxtaposition described above is that the court in Miller intended the independent appellate trier of “serious social value” to replace that void previously served by the “utterly without redeeming social value” test — i.e., the protection of serious social works from constitutional impairment.
The first amendment was originally promulgated only so as to protect the dissemination of significant issues of the time:
“The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times" (Emphasis supplied.) Thornhill v. Alabama (1940), 310 U. S. 88, 101, 102, 60 Sup. Ct. 736, 84 L. Ed. 1093.
As such, only such material that attempts to disseminate serious social expressions is constitutionally pro[576]*576tected. Material that constitutes libel, slander, fighting words or appeals to the prurient interests and is patently offensive has never been protected. Roth v. United States (1957), 354 U. S. 476, 77 Sup. Ct. 1304, 1 L. Ed. 2d 1498; New York Times v. Sullivan (1964), 376 U. S. 254, 84 Sup. Ct. 710, 11 L. Ed. 2d 686, 95 A. L. R. 2d 1412. Thus, the question for determination in each situation is whether the “quality” of the work is sufficient to require constitutional protection. That question — serious social expression vel non — is controlling and the only factor which the court must independently review in light of state proscription of material which treats “sex in a fundamentally offensive manner under rationally established criteria for judging such material.” Jacobellis v. Ohio (1964), 378 U. S. 184, 204, 84 Sup. Ct. 1676, 12 L. Ed. 2d 793.
Finally, Miller states that what appeals to the “prurient interest” or is “patently offensive” are essentially questions of fact. This being so defendants have a constitutional right to a jury trial of these factual issues.
Only the last element of the obscenity formula is a conclusion, requiring the exercise of judgment, which is decisive of constitutional rights and only the issue of serious social value, therefore, may be determined independently by the appellate court.
Community standards.
The second issue for determination is whether community standards are to be expressed on a statewide or less than a statewide basis.
On appeal neither party contests the fact that the community standards to be applied are state standards. Several reasons for such a rare agreement between the state and the defendant exist. Initially it is contended that standards of less than statewide effect would be unworkable. Such is undoubtedly true. City, village or [577]*577town boundaries are unworkable since juries are drawn from the entire county and could not be expected to apply standards of a municipality in which they do not reside. Likewise, it is contended that since the court in Miller and Kaplan v. California (1973), 413 U. S. 115, 93 Sup. Ct. 2680, 37 L. Ed. 2d 492, accepted the use of statewide standards in California, such a scope of community standards has been jurisprudently required. This contention has merit.
The fact that statewide community standards constitutes the better rule has previously been accepted in Wisconsin—McCauley v. Tropic of Cancer (1963), 20 Wis. 2d 134, 121 N. W. 2d 545; Court v. State, supra; State v. Kois (1971), 51 Wis. 2d 668, 188 N. W. 2d 467 and in post-Miller decisions in foreign jurisdictions. State v. J-R Distributors, Inc. (1973), 82 Wash. 2d 584, 512 Pac. 2d 1049; United States v. One Reel of Film (1st Cir. 1973), 481 Fed. 2d 206.
We find merit in the contention that any criminal statute of less than statewide effect may not be promulgated by the legislature. Such would be the case if less than state standards were applied. Since obscenity and first amendment rights are matters of statewide concern, one community may not deem noncriminal that which is criminal in another community.
A compelling reason for rejecting any standard more localized than statewide is the impossibility of determining the boundaries of the local “community.” It is nearly impossible to determine with precision the extent of a metropolitan area. Many such areas in this state extend beyond the boundaries of the larger central cities.
County standards would present a problem since some communities cut across county lines. The Appleton area where this case originated as well as the obvious example of Milwaukee are areas where portions of what clearly are recognizable as integrated local communities would [578]*578be governed by different standards. What would not be obscene on one side of the street might be obscene on the other.
We recognize that since Miller did not expressly limit community standards to a statewide approach and because of the following language in Miller at page 32:
“It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”
that inferentially standards of less than statewide effect may be permissible. However, drawing such an inference is too literal a reading of Miller. The above quote was nothing more than an attempt to accent the impossibility of nationwide standards as a controlling rule of law.
While there is precedent for the theory that less than statewide standards may be applied—Brazelton v. State (1973), 50 Ala. App. 723, 282 So. 2d 342; Jenkins v. State (1973), 230 Ga. 726, 199 S. E. 2d 183; United States v. Groner (5th Cir. 1973), 479 Fed. 2d 577, such precedent is not totally convincing. While each of the above-mentioned cases stands for the rule that the standard of the area from which the jury is drawn — i.e., county or federal district — is to be applied, such an approach would be unworkable in specific areas. Juries for both circuit and county courts are drawn from the county venue —sec. 255.04, Stats. In so drawing juries, areas such as Appleton or Greater Milwaukee would have different standards of obscenity depending upon which side of the county line you are standing on. While juries naturally reflect the standards of their local community to carry such reflection to such a degree as requiring local community standards is of questionable merit. We think state standards should be applicable in obscenity cases.
We have independently reviewed the record in this case in the light of the mandate of the United States [579]*579Supreme Court and have determined that the material herein is without serious social expression. We conclude that the judgment of conviction and sentence must be affirmed.
The judgment of the circuit court for Outagamie county entered on October 29, 1969, adjudging the defendant guilty and imposing a fine of $500 plus costs or forty-five days in the county jail is reinstated and affirmed.