ROSSMAN, J.
This appeal tests the constitutionality of the Oregon obscenity statute, ORS 167.150. On March 31, 1958, the grand jury for Lane County returned an indictment charging the defendant with a violation of the act, reciting that he did “wilfully and unlawfully sell, distribute and possess with intent to sell and distribute” a book entitled “The Strange Three.” The indictment describes the book as follows:
“* * * said book as an entirety being indecent and obscene, tending to incite lascivious thoughts and tending to arouse lustful desires * * * ??
It will be noticed that the indictment charges that the defendant acted “wilfully.” Wong v. City of Astoria, 13 Or 538, 11 P 295, held that “wilfully” is equivalent in its connotation to knowingly. That definition has been adhered to ever since Falls v. Mortensen, 207 Or 130, 295 P2d 182.
At the trial, before evidence was taken, the defendant renewed a demurrer filed earlier, challenging the indictment on the ground that the act violates Article I, Sections 8 and 11, of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The trial judge sustained the demurrer, and from the resulting judgment the state appeals.
[341] ORS 167.150 is divided into five sections. Although the indictment charges a violation of only the first, the entire statute is set out below:
“Any person who:
“(1) Imports, designs, copies, draws, photographs, prepares, publishes, sells, lends, gives away, distributes, shows or exhibits or has in his possession with intent to publish, sell, lend, give away, distribute, show or exhibit, any article or instrument of indecent or immoral use, or any obscene or indecent book, paper, writing, printed matter, picture, drawing, photograph or engraving; or
“(2) Gives or publishes or causes to be given or published to any person, any written or printed notice or advertisement of or concerning any such article or instrument, or obscene or indecent article or thing; or
“(3) Hires, uses, employs, or permits any person to sell, give away or distribute any such article or instrument, or obscene or indecent article or thing; or
“(4) Prints, publishes, advertises, sells, lends, gives away or shows or has in his possession with intent to publish, advertise, sell, lend, give away or show, any book, paper or other publication that purports to relate or narrate the criminal exploits of any desperate or convicted felon, or any book, paper or other publication that contains accounts or stories of crime or lust or deeds of bloodshed; or
“(5) Presents or exhibits in any public place, by way of show or drama or play, what purports to be the criminal exploits of any desperado or convicted felon, shall be punished upon conviction by imprisonment in the county jail not more than six months or by a fine of not more than $500 or both.”
The trial judge supported his disposition of the case with an oral opinion delivered from the bench. [342] His statement, which, is preserved as a part of the record, condemns OES 167.150 as invalid for three reasons: (1) it imposes prior restraints upon publication contrary to the Oregon Constitution, Article I, Section 8; (2) it prohibits publication of crime news and deeds of lust and bloodshed thereby invading freedom of speech; (3) the word “obscene,” as used by the act, is unconstitutionally vague, measured by the requirements of the Oregon Constitution. Finally, the trial judge was of the opinion that the indictment, because drawn in the language of the statute, must fall for indefiniteness. “The very language of the statute forces the grand jury to draw the indictment in a language which is nothing but a conclusion of law.”
The trial judge gave consideration to the act as a whole, stating that he could save a part only by “taking an editorial shears and paste pot and rewriting the statute.” We think, however, that the first subsection, OES 167.150 (1) sets out a crime which is complete in itself and severable from the remaining activities proscribed by the act. Our legislature has declared by statute, OES 174.040, that if any part of an act is held unconstitutional the remaining part shall continue in force unless “so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part” or unless the remaining parts, standing alone, “are incomplete and incapable of being executed in accordance with the legislative intent.” OES 174.040, which became law in 1951, Or L 1951, ch 314, § 4, was in effect when the Oregon Eevised Statutes were enacted pursuant to Or L 1953, ch 3. Since the code is an independent enactment, and not merely a compilation of prior law, State v. Davis, 207 Or 525, 296 [343] P2d 240 (1956), State v. Holland, 202 Or 656, 277 P2d 386 (1954), we are under a duty to defer to the legislative rule of construction. Moreover, OES 174.040 does no more than to codify what has long been the common law rule of construction in this state. Dodd v. State Industrial Accident Commission, 211 Or 99, 112, 310 P2d 324, 311 P2d 458, 315 P2d 138 (1957).
It is apparent that OES 167.150 goes far toward exhausting the limits of constitutional power in dealing with obscene and other undesirable material, if in fact it does not go beyond such limits. While the act does not make criminal the mere possession of material declared to be unlawful, it does punish every act of creation, distribution or attempted distribution of such material. Moreover, the act sets up five categories of offenses, violation of any one of which would subject the offender to fine and imprisonment. Under these circumstances we believe that the act as a whole must be preserved even though some particular section should fall. Since, therefore, the validity of OES 167.150 (1) is not dependent upon the validity of the remaining four subsections of the statute, it is unnecessary to determine on this appeal whether or not the remaining subsections abridge any constitutionally guaranteed freedoms.
In support of the result reached below, the defendant points out that the statute, in terms, requires no element of scienter on the part of one who distributes obscene material. Prom this he claims that it was the intent of the authors to impose liability without mens rea. The briefs on this appeal were filed before the decision of the United States Supreme Court in Smith v. California, 361 US 147, 80 S Ct 215, 4 L Ed 2d 205 (1959), and, as respondent notes, that case is controlling here. Smith, a bookseller, was convicted in [344] California for the violation of an act which made it unlawful for any person:
“* * * to have in his possession any obscene or indecent writing, (or) book * * * in any place of business where * * * books * * * are sold or kept for sale.”
As construed by the courts of California, this statute imposed absolute criminal liability without the necessity of proving knowledge on the part of the bookseller of the obscene character of the book. The Supreme Court reversed the conviction, a majority holding that the statute, as so construed and applied, would place a serious restriction upon distribution of books not obscene. The outer limits of the rule adopted were not explored. In this regard the court said:
“We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. * * *”
From this it is apparent that ORS 167.150 is invalid unless knowledge is a necessary element of the offense. Generally, if an act is made criminal by statute but is not among those offenses deemed infamous at common law, omission of a requirement of knowledge from the statutory definition makes the act punishable without mens rea. State v. Brown, 73 Or 325, 144 P 444 (1914), State v. Wojahn, 204 Or 84, 282 P2d 675 (1955). We have held, however, that the appearance or non-appearance of the word “knowingly” in [345] the definition of a statutory offense is not conclusive, and that the requirement of scienter is “a matter of construction, to he determined by considering the subject-matter of the statute, the language of the act, the evil sought to be eradicated or prevented, and the consequences of the several constructions to which the statute may be susceptible.” State v. Laundy, 103 Or 443, 204 P 958, rehearing denied 103 Or 443, 206 P 290 (1922). Since we have a duty to give an act a constitutional construction if it can be done without wrenching the meaning of words, Wright v. Blue Mountain Hospital District, 214 Or 141, 328 P2d 314 (1958), we hold that ORS 167.150 (1) can be enforced against only those who “knowingly” violate its provisions. But we do not decide here what the substance of that knowledge must be. The language of Smith v. California hints that the federal constitution may impose a more restrictive standard of scienter than is necessary to convict of offenses where free speech is not involved.
A more troublesome question is posed by the trial judge’s finding that ORS 167.150 (1) imposes a prior restraint upon publication. Article I, Section 8, of the Oregon Constitution reads as follows:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever ; but every person shall be responsible for the abuse of this right.”
It will be noted that ORS 167.150 (1) imposes penalties not only upon the actual distribution of obscene material but also upon the act of creating it and upon possession “with intent to sell.” One may argue that by thus condemning the possession of such [346] material before it reaches the public an effective “prior restraint” is imposed contrary to the constitutional mandate. In such a view no penalty for abuse of speech may be imposed prior to a sale or other distribution by the defendant of the offending book. The constitutional guarantee extends, of course, not only to the original publisher but also to every intermediate distributor until the book comes finally into the hands of the public at large. Lovell v. City of Griffin, 303 US 444, 58 S Ct 666, 82 L Ed 949 (1938).
In the narrowest view “prior restraint” embraces only administrative censorship. This is historically sound and four dissenting justices in the leading ease to consider the subject, Near v. Minnesota, 283 US 697, 51 S Ct 625, 75 L Ed 1357 (1931), thought it should be so limited. On the other hand, taking the broadest possible view, prior restraint may be thought to signify any penalty inflicted before an actual dissemination of the challenged reading matter. That was the position taken by the trial judge in this case.
The legal boundaries of prior restraint lie between these extremes. The authors of the state and federal constitutions had before them the experience of the English Licensing Acts and a long history of repression of the press. Early English law attached no sanctity to free speech. The press had long been “regarded rather as an instrument of mischief, which required the restraining hand of government, than as a power for good, to be fostered and encouraged. Like a vicious beast it might be made useful if properly harnessed and restrained.” 2 Cooley, Constitutional Limitations (8th ed) p 880. See Patterson, Free Speech and a Free Press, p 37 et seq., Emerson, The Doctrine of Prior Bestraint, 20 Law and Contemporary Prob[347] lems 649 (1955). The Licensing Acts, however, were unpopular and after the demise of the last in 1694 freedom at least from administrative censorship began in England and later in the Colonies to assume the status of a “common law or natural right.” This sentiment was crystallized in a famous paragraph by Blackstone, whose “Commentaries,” first published between 1765 and 1769, were known to the founding fathers.
“In this, and other instances which we have lately considered, where blasphemous, immoral, treasonable, schismatieal, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. * * *” 4 Blackstone, Commentaries, ch 11, p 142, 151.
[348] Blaekstone’s analysis has been criticized not only as “inconsistent with eighteenth-century history” but as embodying an unreal and unworkable criterion. It is pointed out that Blackstone’s rule would “forbid the removal of an indecent poster from a billboard” but on the other hand would countenance a “death penalty for writing about socialism.” Convincing historical evidence indicates that the free speech provisions of the federal and state constitutions were intended to guarantee more than freedom from prior restraints. Chafee, Free Speech in the United States (1941) pp 9-22. Story expressed the view that freedom from prior restraint exhausted the guarantees of the state constitutions, but reserved judgment whether the federal constitution did not go beyond this. 2 Story, Commentaries on the Constitution of the United States (5th ed, 1891), §§ 1880-1889, 1891-1895, p 634 et seq. The United States Supreme Court decided in favor of the broader protection in a line of cases beginning with Schenck v. United States, 249 US 47, 63 L Ed 470, 39 S Ct 247 (1919). It had earlier stated that the “main purpose” of the First Amendment was to prohibit prior restraints. Patterson v. Colorado, 205 US 454, 27 S Ct 556, 51 L Ed 879 (1907).
Article I, Section 8, of the Oregon Constitution appears to adopt the formula of the Commentaries. A large majority of states now have constitutional provisions resembling that of Oregon in their wording. Legislative Drafting Research Fund of Columbia University, Index Digest of State Constitutions (2d ed) p 484; 2 Cooley, Constitutional Limitations (8th ed) 876 N.L.; Stimson, The Law of the Federal and State Constitutions of the United States (1908) 144. While the Bill of Rights of the Oregon Constitution is drawn immediately from that of Indiana, see Carey, [349] ed., The Oregon Constitution (1926) p 28, the prototype of all state freedom of speech provisions on the Oregon model appears to be that of the Pennsylvania Constitution of 1790 which provides (Article IX, Section 7):
“That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communications of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. * * *”
Earlier state constitutions, dating from the Revolutionary period, contained more general guarantees of free speech comparable to that of the First Amendment of the federal constitution. See Perry, ed., Sources of Our Liberties (1952) 301 et seq. The wording of the Pennsylvania model was quickly adopted by the Kentucky and Delaware constitutions of 1792, and since has found wide acceptance. Early state constitutions are collected in Thorpe, The Federal and State Constitutions, Colonial Charters and Other Organic Laws (59th Cong., 2d sess., HR Doc 357).
Whether obscenity is a kind of speech protected from “prior restraint” is a matter largely for the discretion of the states, for, given a proper definition of what is obscene, obscenity has been rejected by the United States Supreme Court as “utterly without redeeming social importance” and not within the protection of the Fourteenth Amendment. Roth v. United States, 354 US 476, 77 S Ct 1304, 1 L Ed 2d 1498 (1957). Thus, obscenity has been denied protection under federal law against judicially imposed prior [350] restraints. Kingsley Books v. Brown, 354 US 436, 77 S Ct 1325, 1 L Ed 2d 1469 (1957). It had been suggested in Near v. Minnesota, supra, 283 US 697, 51 S Ct 625, 75 L Ed 1357 (1931), that “primary requirements of decency” might justify the suppression of obscene publications, but not until the Kingsley case was the Supreme Court called upon to accept or reject the earlier dictum. The Kingsley decision upheld procedure under New York law by which sale of allegedly obscene publications could be enjoined. The New York statute provided for an equity hearing and final judgment within three days after joinder of issue, at which time, if judgment went against the publication, further sale might be prohibited and books in stock destroyed. This procedure was held not to violate due process.
Restraint by injunction has traditionally been thought to inhibit freedom of speech more seriously than restraint by penalties imposed after publication. Differences between the two modes of enforcement exist and in certain situations there may well be a difference in effectiveness between them. Freund, The Supreme Court and Civil Liberties, 4 V and L R 533, 537. As Professor Freund stated: “The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.” Op cit., p 539. Where obscenity is the object sought to be prohibited, it is unlikely that injunctive relief will more effectively accomplish suppression than a criminal statute selectively enforced against those known to be persistent offenders.
Assuming for the sake of argument that obscenity is protected from prior restraint by our state constitution, it nevertheless does not appear to us that ORS 167.150 (1) contains any sanction of a kind which [351] has traditionally been considered such a restraint. We must of course be careful not to limit the sweeping protection that our constitution has accorded to the unfettered distribution of ideas. In so far as parts of OB.S 167.150 (1) permit punishment of those creating or merely possessing obscene materials, we recognize that the act could be applied in such a way as to limit distribution severely. But any criminal act may have that effect. The gravamen of prior restraint is not the mere fact that punishment is imposed prior to distribution of allegedly offensive materials. It lies in the attempt to control distribution by means of what may be called the general injunction, whereby criminal penalties are assessed for breach of the injunction rather than for the criminality of the subject matter. Of course, the fact of violation upon which conviction must rest might well — under a constitution which protects free speech — demand the same proofs in either case. State ex rel Liversey v. Judge of Civil District Court, 34 La Ann 741 (1882). The injunctive power which Blackstone and other early authorities feared was that exercised by the administrative censor. The doctrine has been extended to acts of judicial officers, Near v. Minnesota, supra, 283 US 697, 51 S Ct 625, 75 L Ed 1357 (1931), and in a sense it applies also to penal acts of the legislature, which impose conditions that must be met before speech may be exercised and punish the failure to comply with such conditions. Examples are a non-diseriminatory registration requirement imposed on labor organizers, Thomas v. Collins, 323 US 516, 65 S Ct 315, 89 L Ed 430, (1945), a license tax upon newspapers, Grosjean v. American Press Co., 297 US 233, 56 S Ct 444, 80 L Ed 660 (1936), or a requirement that handbills contain names and addresses of the authors and dis[352] tributors, Talley v. California, 362 US 60, 80 S Ct 536, 4 L Ed 2d 559 (1960).
Although the mere authorship of obscenity was not an offense at common law, most state statutes today punish some acts of creation, “especially acts which, like printing, imply a prospective dissemination.” Even in the minority of states which restricts penalties to actual distribution, possession with intent to sell is generally indictable. American Law Institute, Model Penal Code, (Tentative Draft No. 6) p 18. So far as we have been able to determine, such acts have never been challenged on the ground that these penalties amount to prior restraints. Among the many cases which impliedly recognize that such prohibitions are not prior restraints are the following: Barton v. City of Bessemer, 234 Ala 20, 173 So 626 (1937); People v. Smith, 161 Cal App 2d Supp 860, 327 P2d 636 (1958); People v. Alberts, 138 Cal App 2d Supp 909, 292 P2d 90 (1957); State v. McKee, 73 Conn 18, 46 A 409 (1900); In re Banks, 56 Kan 242, 42 P 693 (1895); Commonwealth v. Isenstadt, 318 Mass 543, 62 NE2d 840 (1945); State v. Kohler, 40 NJ Super 600, 123 A2d 881 (1956); Commonwealth v. Donaducy, 167 Pa Super 611, 76 A2d 440 (1950); State v. Fox, 71 Wash 185, 127 P 1111 (1912).
So far as “prior restraint” is concerned, the significant thing about this statute is that it imposes no continuing restriction upon the dissemination of the obscene matter — even after the defendant has been found guilty of a violation. Every repeated offense involving the same book requires an independent jury trial in which the fundamental issue of obscenity must be relitigated de novo.
Our finding that the statute in question imposes no prior restraint makes it unnecessary to determine [353] whether obscene material enjoys a protection from such restraint under the Oregon Constitution, Article I, Section 8, that is not extended to it by the due process guarantees of the Fourteenth Amendment of the federal constitution. We may observe that the problem can by no means be considered settled. It has been held that obscene speech enjoys no protection under a state constitution. Brown v. Kingsley Books, 1 NY2d 177, 134 NE2d 461 (1956). On the other hand, one state, West Virginia, has thought it necessary to make a specific exemption of obscenity from the constitutional provision prohibiting prior restraints. Constitution of West Virginia, Article III, Section 7. And in the area of defamatory publications, which presents special though related problems, constitutional protection against prior restraint has often been successfully invoked even though the statements are ruinous and the defendant is not financially responsible. Kidd v. Horry, 28 F 773 (1886); State ex rel Liversay v. Judge of Civil District Court, supra, 34 La Ann 741 (1882); Lietzman v. Radio Broadcasting Station WCFL, 282 Ill App 203 (1935); Ex parte Tucker, 110 Tex 335, 220 SW 75 (1920); Marx S Haas Jeans Clothing Co. v. Watson, 168 Mo 133, 67 SW 391 (1902); Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, 400 Ill 38, 79 NE2d 46 (1948); Lindsay & Co. v. Montana Federation of Labor, 37 Mont 264, 276, 96 P 127 (1908); Empire Theater Co. v. Cloke, 53 Mont 183, 163 P 107 (1917); Montgomery Ward & Co. v. South Dakota Retail Merchants’ & Hardware Dealers’ Ass’n (CC, SD 1907) 150 F 413.
The final ground upon which the trial judge sustained the demurrer to the indictment is that of vagueness, in that the statute “contains no suggestion as to [354] what might be included within the broad range of the word ‘obscene.’ ” To withstand constitutional attack he thought that the statute should employ “words of ordinary common meaning and understanding. * * * In other words, the words should mean the same to everyone who reads them.”
Neither party to this appeal argues that obscenity falls within the free speech guarantees of the federal or state constitutions. We think that the authorities marshalled by the majority opinion in Roth v. United States, supra, 354 US 476, 1 L Ed 2d 1498, 77 S Ct 1304 (1957) convincingly demonstrate that obscene speech enjoys no such immunity as a matter of history, and we reject an interpretation of our constitution which would protect it in Oregon. The defendant argues here, following the view of the trial judge, that the words of the act “obscene and indecent,” standing alone and without statutory definition, are “too broad and indefinite at the present time” to satisfy constitutional requirements.
In the same connection the defendant raises a point of pleading which may be answered here. He contends that the indictment formulates its own definition of obscenity as that which tends “to incite lascivious thoughts and to arouse lustful desires,” and argues that upon this appeal from a demurrer, the statute must be read as construed by the indictment. Hence, he claims that if the definition of obscenity set forth in the indictment does not provide a constitutional test of what is obscene, the demurrer must be permitted to stand. This, of course, is not the law. OES 132.520 demands that there be set forth “a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understand[355] ing to know what is intended.” See also OES 132.530. It would have been enough in this case to have alleged that the book was obscene or indecent, without more. The use of additional “clarifying” language, setting forth legal conclusions of the prosecutor, was mere surplusage, and may be disregarded since it plainly did not mislead the defendant. State v. Du Bois, 175 Or 341, 153 P2d 521 (1944); State v. Dormitzer, 123 Or 165, 261 P 426 (1927); State v. Humphreys, 43 Or 44, 70 P 824 (1902).
"While OES 167.150 (1) makes use of the various descriptive terms “obscene,” “indecent” and “immoral,” we think that they express but a single attitude which may fairly be described by the one word “obscene.” Commonwealth v. Gordon, 66 D & C 101, 112 (1949) and cases cited. The impossibility of finding any popularly accepted definition for the word “obscene” must be recognized at the outset. Lockhart & McClure, “Literature, The Law of Obscenity, and the Constitution,” 38 Minn L E 295, 320 (1954); Symposium, “Obscenity and the Arts,” 20 Law and Contemporary Problems 531 (1955). In this, obscenity is like “negligence,” “reasonableness” or other terms that embody concepts from which important legal consequences flow. The legal meaning is artificial. If it is thought significant in constitutional terms to circumscribe the definition of obscenity more narrowly than that of other words, it is because speech at the present time occupies a preferred place among bill-of-rights freedoms.
Obscenity generally bears a connotation of sexual misconduct in the form of speech. Commonwealth v. Gordon, supra, 66 D & C 101, 112 (1949) and cases cited; American Law Institute, Model Penal Code [356] (Tentative Draft No. 6) p 19 (1957); Lockhart and McClure, “Literature, The Law of Obscenity, and the Constitution,” 38 Minn L R 295, 320 (1954). Although the growth of the English common law of obscenity was haphazard, the early cases dealt with conduct related in some way to sex. Sedley’s Case, 1 Sid 168, 1 Keble 620 (KB 1663); Regina v. Read, 11 Mod 205 (QB 1708); Rex v. Curl, 2 Str 789 (KB 1727); Rex v. Wilkes, 4 Burr 2527 (KB 1770); Alpert, Judicial Censorship of Obscene Literature, 52 Harv L R 40 (1938). As a matter of federal constitutional law it is now clear that obscenity is restricted to sexual matters. Roth v. United States, supra, 354 US 476, 1 L Ed 2d 1498, 77 S Ct 1304 (1957). Even in this area the states do not have a free choice to determine for themselves what is obscene. Thus, for example, what has been termed “critical obscenity,” the mere general advocacy, in a non-prurient manner, of ideas offensive to current standards of morality, has recently been held to be constitutionally protected speech and no longer within a lawful definition of obscenity. Kingsley International Pictures Corporation v. Regents of the University of the State of New York, 360 US 684, 79 S Ct 1362, 3 L Ed 2d 1512 (1959); Mounce v. United States, 355 US 180, 78 S Ct 267, 2 L Ed 2d 187 (1957), reversing 247 P2d 148 (9th cir, 1957).
In the past, obscenity has most often been defined by the courts in terms of its “tendency” to arouse sexual thoughts or to corrupt the morals of its readers. American Law Institute, Model Penal Code (Tentative Draft No. 6) p 19; Lockhart and McClure, Obscenity in the Courts, 20 Law and Contemporary Problems 587, 590. The test most widely used in this country in a former day was that which Lord Cock-[357] burn announced in Regina v. Hicklin, LR 2 QB 360 (1868):
a# * * I tbink the test of obscenity is this: whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”
The test was a failure since a book might be condemned for the chance effect of isolated passages upon the most susceptible, and thus applied would, in the words of Judge Learned Hand, “reduce our treatment of sex to the standard of a child’s library in the supposed interest of a salacious few.” United States v. Kennerley, 209 F 119 (DCSDNY 1913). Despite a strong undercurrent of judicial dissatisfaction, the Hicldin rule did not come to be generally rejected until the years following the decision in United States v. One Book Entitled Ulysses, 72 F2d 705 (2d cir 1934). In that case the court adopted a somewhat vague test based on the “dominant effect” of the book considered as a whole. The opinion had many loose ends and gave no satisfactory definition of obscenity. See United States v. Levine, 83 F2d 156 (2d cir 1936); Alpert, Judicial Censorship of Obscene Literature, 52 Harv L R 40, 69; Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn L R 295, 326. The Hicklin rule may fairly be said to have been laid to rest by the decision of the United States Supreme Court in Butler v. Michigan, 352 US 380, 77 S Ct 524, 1 L Ed 2d 412 (1957). A Michigan statute under which Butler was convicted made it a misdemeanor to sell any book “containing obscene, immoral, lewd or lascivious language * * * tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption.of the morals [358] of youth.” The court held that the statute violated due process, in that: “The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children.” If any doubt remained about the Hicldin rule, it was laid to rest a few months later when Roth v. United States, supra, 354 US 476, 77 S Ct 1304, 1 L Ed 2d 1498 (1957), expressly held it to be unconstitutional.
Although the Hicklin rule has fallen by the way, it remained common, at least before the decision in Roth v. United States, supra, to define obscenity in terms of “tendency” or “effect.” If the book, taken as a whole, had a tendency to corrupt the average reader it was obscene. A typical definition is that given by the court in People v. Isenstadt, 318 Mass 543, 62 NE2d 840 (1945):
“A book is ‘obscene, indecent or impure’ within the statutory prohibition if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire.”
See also, People v. Wepplo, 78 Cal App 2d Supp 1959, 178 P2d 853 (Super Ct, 1947); Commonwealth v. New, 142 Pa Super 358 (1940); People v. Wendling, 258 NY 451, 180 NE 169, 81 ALR 799 (1932).
Another test couched in terms of effect would import a “clear and present danger” rule into the law of obscenity and limit conviction to a case where the writing alleged to be obscene is shown to lead, in some perceptible way, to visibly manifested criminal conduct. This was the test used by Judge Curtis Bok in Commonwealth v. Gordon, 66 D & C 101 (1949) affirmed sub nom Commonwealth v. Feigenbaum, 166 Pa Super 120, 70 A2d 389 (1950). Judge Bok’s defi[359] nition has not won acceptance, even in Pennsylvania, where the Supreme Court of that state, in refusing to hear an appeal from the Grordon case, expressly disclaimed reliance upon the lower court’s opinion. Reporter’s Note, 166 Pa Super 120. American Law Institute, Model Penal Code (Tentative Draft No. 6) p 22; Note, 28 N Y U L R 876, 887 (1953). It has, however, attracted some favorable judicial comment. Bantam Books v. Melko, 25 NJ Super 292, 315, 96 A2d 47 (1953); United States v. Roth, 237 F2d 796, 806, 826 (Concurring opinion of Judge Frank).
Serious difficulties inhere in a definition of obscenity which is expressed in terms of effect upon the reader. First, the definition — if, for instance, similar to that quoted above from People v. Isenstadt — is too general in that many works of recognized literary merit may conceivably “incite lascivious thoughts or arouse lustful desire” and thus presumably “deprave and corrupt” the reader. Certainly this is true if “lascivious” and “lustful” are merely synonyms for “sexual.” Second, it has not been demonstrated to the satisfaction of all that obscene literature has a depraving or corrupting influence, or that it leads to overt criminal acts. Thus, two dissenting justices in Roth v. United States, supra, 354 US 476, 77 S Ct 1304, 1 L Ed 2d 1498 (1957) thought the connection was not proven and that this was a fatal defect. Apparently adopting Judge Bok’s “clear and present danger” test, Justice Douglas wrote:
“The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society’s interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control.”
[360] It has been noted that “on both sides there is much heat and little light on this critical question.” Lockhart & McClure, “Literature, The Law of Obscenity, and the Constitution,” 38 Minn L R 295, 383. As Justice Harlan observed in his separate opinion in the Roth case, the division of opinion on the subject cautions one to respect the legislative choice.
Shortly after oral argument in the Roth case, the American Law Institute published Tentative Draft No. 6 of its Model Penal Code, dealing with the law of obscenity. Recognizing the shortcomings of a definition based on “tendency” or “effect,” the Institute repudiated the usual test and substituted a test based upon “appeal.” It defined obscenity as follows:
“A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *”
The Institute appended this explanation of its position:
“We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehaviour, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which ‘tends to corrupt or debase.’ If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehaviour follows from contact with obscenity. Evidence of such consequences is lacking; if actual proof of tendency to corrupt [361] were required, prosecutors would have a difficult task. On the other hand, ‘appeal to prurient interest’ refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look behind the curtain of privacy which our customs draw about sexual matters.” (p 10).
Following publication of the Model Penal Code, the United States Supreme Court announced its decision in Roth v. United States, supra, 354 US 476, 77 S Ct 1304, 1 L Ed 2d 1498 (1957), and apparently adopted the Model Code definition as the broadest which might be applied by a state consistently with the Constitution. The opinion of the majority, written by Mr. Justice Brennan, defined the “proper standard” to be:
“* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
In a footnote, the court stated that it perceived “no significant difference between the meaning of obscenity developed in the case law and the definition of the ALI Model Penal Code.”
The Roth case combined two appeals, that of Roth who was convicted for violation of a federal obscenity statute, and that of Alberts, who was convicted for violation of a California statute. In the federal prosecution the trial judge had defined obscenity as “that form of immorality which has relation to sexual impurity and has a tendency to incite lustful thoughts.” In the California prosecution the trial judge applied the test used in People v. Wepplo, supra, 78 Cal App 2d Supp 959, 178 P2d 853 (Super Ct 1947), whether the material has “a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts [362] or arousing lustful desires.” The majority affirmed both convictions, stating that the trial courts “sufficiently followed the proper standard.”
A separate opinion by Justice Harlan criticized the majority for assimilating different tests of obscenity into “one indiscriminate potpourri.” If the Model Penal Code definition was in fact exclusive, then, Justice Harlan noted, the court had failed to follow its own rule, and rather than an affirmance, the convictions “should surely be reversed.”
It is difficult not to agree with the criticism. A test based upon “appeal” is certainly not conterminous with a test based upon “effect.” Yet there is a rough overlapping, and if this were the only difference between the Model Code and common law definitions, one questions whether the due process clause of the Fourteenth Amendment ought to be invoked to defeat the choice made by the State. A more significant difference between the traditional definition and that of the Model Code lies in the great emphasis with which the Code insists that to be obscene a book must be shocking. Under the usual test, it is enough that the material has a tendency to “deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire.” People v. Isenstadt, supra, 318 Mass 543, 62 NE2d 840 (1945). The words “deprave or corrupt” suggest, perhaps, sexual perversion or abnormality, but they need not be so interpreted. It has been pointed out that the cases offer no clear pattern and that “thoughts of sex in any form” have been included within the definition of what is obscene. Lockhart and McClure, “Literature, The Law of Obscenity, and the Constitution,” 38 Minn L R 295, 330. Moreover, only by indirection, if at all, do the words sug[363] gest that the manner of presentation of the material must itself be “depraved or corrupt.”
On the other hand, the Model Penal Code, by requiring that the material, to be obscene, must appeal to “prurient interest” and go “substantially beyond customary limits of candor in description or representation” emphasizes strongly that the manner of presentation must itself amount to shameful and disgusting conduct outside the pale of what is tolerable to the community at large. The majority opinion in the Roth case defines “prurient” as “having a tendency to excite lustful thoughts.” (354 US 476 at 486 n. 20). "We think, however, that the court had in mind the narrower meaning used by the Model Penal Code or means to use the narrower meaning in cases following Roth. See Times Film Corporation v. City of Chicago, 355 US 35, 2 L Ed 2d 72, 78 S Ct 115, reversing 244 F2d 432 (7 cir 1957).
We accept the American Law Institute’s definition of obscenity as a proper standard for Oregon courts to follow. In our opinion it is not necessary to prove that allegedly obscene matter has an effect upon the reader if its appeal is to prurient interest. While arguments favoring the suppression of obscenity are, as we have noted, commonly based on reasoning that such material corrupts its readers, probably an equally common but largely unexpressed rationale is that pandering to prurient taste is itself thought to be a marginal land of sexual crime. Like many forms of sexual aberration, it may fall short of an overt nuisance, but such is the abhorrence which society feels for the offense that legal sanctions are applied as a matter of course.
The authors of the Model Penal Code recognize, moreover, that obscenity must be defined by the com[364] munity standards of the generation which applies the test. No other rule would he tolerable in an age which endorses great sexual frankness in every means of expression.
Although material alleged to be obscene must generally be judged on the basis of its appeal to the average member of the community, we think it may be judged by its appeal to a special audience — for example, children — if it clearly is aimed at such an audience. American Law Institute, Model Penal Code (Tentative Draft No. 6) p 1. In such a case, the federal constitution would probably require a strong showing that the material is in fact directed solely or chiefly at a special group. Butler v. Michigan, supra, 352 US 380, 77 S Ct 524, 1 L Ed 2d 412 (1957).
In fairness, it should be noted that the trial judge also thought the American Law Institute test of obscenity was a proper one, but felt that the statute would not admit of such interpretation. However, this court has never hesitated to give criminal acts a limiting construction when to do otherwise would require a finding of unconstitutionality. State v. Hoover, 219 Or 288, 347 P2d 69 (1959) and cases therein cited. The proper test is, as we have stated, “whether we can properly limit the meaning of general words to cases reasonably within them and within the evil which the legislature intended to suppress.” State v. Anthony, 179 Or 282, 169 P2d 587 (1946).
Since this is an appeal from a demurrer, it would be premature to discuss here the interesting problems in the law of evidence that arise in the trial of obscenity cases, or to concern ourselves with the equally important problem of the respective functions which judge and jury perform in determining whether a work is obscene. We note on the latter point that the [365] United States Supreme Court has apparently decided to exercise only a limited review of jury verdicts, if the case is submitted under proper instructions. Roth v. United States, supra.
In an early federal prosecution for obscenity in New York City, Judge Learned Hand, then sitting as district judge, felt himself bound to apply the prevailing Hicklin rule, but in a brief and eloquent opinion he appealed for the adoption of a more liberal standard. United States v. Kennerley, 209 F 119 (DC SDNY 1913). The path which he suggested has, we think, become the law of obscenity today. The Kennerley decision need not be quoted here, but deserves to be engrafted as a gloss upon every statute which provides for the punishment of obscene publications. We note our approval.
The judgment is reversed.
McAllister, C. J., Perry, J., and Millard, J., concur in this opinion.