¶1The majority strikes down that portion of North Carolina General Statutes 14-193 which makes unlawful the exhibition of “obscene or immoral” films as being “both vague and overbroad” and violative of the free speech clause of the First Amendment. I must respectfully dissent from such decision.
¶2In nullifying this state statute the majority ignores the teachings of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), in which the court upheld the validity of a federal and a state statute using quite similar language which my brothers say is too vague and overbroad to withstand the constitutional test. Rothwas convicted by a jury in federal district court in New York of violating 18 U.S.C.A., 1461 (as it existed prior to its amendment), which made unlawful the mailing of “every obscene … or filthy book, pamphlet, picture … ”. One Alberts, whose appeal was considered along with Roth’s, was convicted by a California court of violating a state statute which declared every person who … exhibits any “obscene or indecent writing” to be guilty of a misdemeanor.
¶3Roth and Alberts argued, as does the plaintiff here, that the statutes did not provide reasonably ascertainable standards of guilt and therefore violated the constitutional requirements of due process. They contended that the words “obscene … or filthy” as used in the federal statute and the words “obscene or indecent” as used in the California statute “are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere”.
¶4The statutes in question in Roth, as General Statutes 14-193, do not define the terms obscene and the other words used, but the Supreme Court found that the trial courts below sufficiently followed the proper standard and used the proper definition of obscenity. The court said:
“In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.”
¶5The majority here finds the disjunctive use of the word “immoral” consti*242tutes a constitutional sin and wonders aloud whether the Legislature was referring to “sex, consumption of alcohol, tobacco, war, or the Christian sin of pride”. A suggestion by the State that the legislative intent and meaning was the conjunctive use of the word, that is, as if written “obscene and immoral”, is pronounced by the majority as being “even emptier of constitutional meaning” than another North Carolina statute recently held void by a three-judge court in Shinall v. Worrell, 319 F.Supp. 485 (E.D.N.C.1970).
¶6The Supreme Court in Rothfound no such difficulty with the disjunctive use of the words “filthy” in the federal statute and “indecent” in the California statute, and defined obscenity and set up a proper standard for judging it. The definition and standard declared in Rothand refined and elaborated upon in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) and in subsequent, cases, declare that:
“… three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive, because it affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value.”
¶7In Roththe court in speaking of the meaning of the terms “obscene, lewd, lascivious, or filthy”, and “obscene or indecent”, said:
“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ … [T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices … United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L. Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘ … boundaries sufficiently distinct for judges and juries fairly to administer the law # … > ”
¶8Nine years after Roththe court in upholding the validity of a state statute which did not contain a definition of the term “obscene”, said in Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 962, 16 L.Ed.2d 56 (1966), that:
“The contention that the term ‘obscene’ is also impermissibly vague fails under our Holding in Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498. Indeed, the definition of ‘obscene’ adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Rothdefinition. People v. Richmond County News, Inc., 9 N.Y.S.2d 578, 586-587, 216 N.Y.S.2d 369, 175 N.E.2d 681, 685-686 (1961), and thus § 1141, like the statutes in Roth, provides reasonably ascertainable standards of guilt.”
¶9The court further observed in Mishkin:
“States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Rothdefinition …
¶10A careful reading of the Supreme Court decisions leads to the conclusion that the states are free to adopt any definition of obscenity and a standard for judging it, either by legislative act or court decision, which is in keeping with that declared by the Supreme Court. A definition and standard can be more, but not less stringent than the Supreme Court criteria. Since the North Carolina statute contains no ex*243press definition of “obscene or immoral”, the definition prevailing in the Supreme Court of the United States is imposed upon the state and must be applied by it. There is no reason to believe that the appellate courts of North Carolina would fail to apply such definition and standard.
¶11Three-judge courts in Alabama, Georgia, Louisiana, and Kentucky have reached similar conclusions in recent decisions and have refused to strike down state obscenity statutes. Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802, 814-815 (M.D.Ala.1969); Great Speckled Bird of Atlanta Coop News Project v. Stynchcombe, 298 F.Supp. 1291 (N.D.Ga.1969); Delta Book Distributors, Inc. v. Cronvich, 304 F.Supp. 662 (E.D.La.1969); and Cambist Films, Inc. v. Tribell, 293 F.Supp. 407 (E.D.Ky. London Division, 1968).
¶12Federal courts should not strike down a state statute if any reasonable construction would save it. The Supreme Court in National Labor Relations Board v. Jones-Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893 (1937), held:
“The cardinal principle of statutory construction is to save and not to destroy. We have repeatedly held that as between two possible interpretations of a statute, by one of which it would be unconstitutional, and by the other valid, our plain duty is to adopt that which will save the act.”
¶13The plaintiff cites Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) in aid and comfort of his position. Stanleydid nothing more than strike down a state statute as being unconstitutional insofar as it made criminal the mere private possession of obscene materials in one’s own home. United States v. Melvin, 419 F.2d 136 (4th Cir.1969).
¶14I believe the statute is constitutional and should stand. I would dismiss this action and relegate the plaintiff to the state courts for the redress of his grievances. These courts are also interested in the constitutional rights of our people and there is no reason to believe these rights would not be protected there.