¶1(dissenting).
¶2I dissent. The majority concludes that Section 5901 of the Crimes Code is not vague because, after diligent search, the majority has discovered a “core” within the statute which it says gives reasonable notice of the conduct proscribed by the statute. This “coré” the majority says is the common law definition, merely recodified by the Legislature in Section 5901. The problem with the majority’s analysis, however, results from its attempt to set up a standard by which the current statute can be held constitutional. The majority in effect creates a fiction. It discovers a standard which it says renders the current statute legitimate, but the standard is just as vague as the statute. “Gross and open indecency”? What is that? “Morals of the community”? Vaguer yet! The result of the majority’s analysis is that a vague statute, one which gives no reasonable notice of the prohibitive conduct, is held constitutional through the application of a vague common law standard, which gave no reasonable notice of the prohibitive conduct.
¶3Surely, if the word obscene is constitutionally vague the word lewd must be struck down for the same ¡reasons. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). A statute, vague when adopted may be upheld as constitutional when, between the time of its enactment and the time of a constitutional challenge for vagueness, the statute has acquired, as a result of judicial decisions, a well-settled construction which ha,s cured the defect of vagueness. See Miller v. California, supra; Colten v. Kentucky, 407 U.S. 104, 92 *11S.Ct. 1953, 32 L.Ed.2d 584 (1972). The majority in this case, however, has not construed the word lewd in the light of any past judicial decisions which can be said to have converted that which was vague in the beginning to that which is now clear.
¶4I dissent also from the majority’s notion that different considerations prevail in First Amendment cases as distinguished from other types of cases. Admittedly, this notion is not original with the majority, who point out that other courts have also so reasoned, but where in our State Constitution or in the Federal Constitution is there any basis for such a distinction? I have been unable to find any and, thus, cannot agree with a notion grounded in a loose construction of constitutional rights.
¶5One could say that the majority is “contemptuous” of a person’s constitutional rights. Such an accusation, however, would not be reasonable because the word “contemptuous” is void of meaning because of vagueness. See Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L. Ed.2d 605 (1974). According to the majority, however, lewd conduct has a clearer meaning than contemptuous conduct. I cannot agree.
¶6The issue in this case is not whether the Legislature could adopt a constitutionally valid criminal statute outlawing the conduct of which the appellee is accused. The issue is whether they have done so. Because they have not, I must dissent. The trial court properly granted the appellee’s motion to dismiss the indictment.