brockett spokane arcades argued february decided june washington statute declares moral nuisance place lewd films publicly exhibited regular course business lewd publications constitute principal part stock trade statute provides lewd matter synonymous obscene matter defines terms mean inter alia matter average person applying contemporary community standards find considered whole appeals prurient interest prurient defined mean incites lasciviousness lust appellees various individuals corporations purvey sexually oriented books movies challenged statute first amendment grounds federal district seeking injunctive declaratory relief district rejected appellees constitutional challenges appeals reversed invalidating statute entirety face ground definition prurient including lust unconstitutionally overbroad reached constitutionally protected material merely stimulated normal sexual responses held appeals erred facially invalidating statute entirety pp cases governed normal rule partial rather facial invalidation required course unless countervailing considerations washington statute invalidated insofar word lust understood reaching protected materials pp since prurience may constitutionally defined purposes identifying obscenity appeals shameful morbid interest sex roth washington statute invalidated insofar word lust taken include normal interest sex statute pass constitutional muster validly reach whole range obscene publications moreover appeals thought lust refers normal sexual appetites excised word statute since definition also refers lasciviousness pp even statute defined prurience satisfactory ground striking entirety statute contains severability clause evident statute invalidated insofar proscribes materials appeal normal sexual appetites remainder statute retain effectiveness regulation obscenity circumstances issue severability obstacle partial invalidation pp white delivered opinion burger blackmun rehnquist stevens joined filed concurring opinion burger rehnquist joined post brennan filed dissenting opinion marshall joined post powell took part decision cases together eikenberry attorney general washington et al distributors et also appeal christine gregoire deputy attorney general washington argued cause appellants cases briefs kenneth eikenberry attorney general pro se jeffrey sullivan richard robinson david saraceno filed brief appellant john weston argued cause appellees cases brief david brown randall garrou jack burns james lowe robert eugene smith charles fn briefs amici curiae urging reversal filed solicitor general lee assistant attorney general trott william bryson state arizona et al robert corbin attorney general arizona anthony ching solicitor general linley pearson attorney general indiana tom collins county attorney county maricopa arizona bruce taylor sandor shuch lawrence warren city attorney city renton washington james clancy lawrence warren pro se daniel kellogg citizens decency law et al paul mccommon iii concerned women america education legal defense foundation michael farris morality media john walsh briefs amici curiae filed mississippi citizens decency law jacqueline smith pierce american booksellers association et al michael bamberger justice white delivered opinion question cases whether appeals ninth circuit erred invalidating entirety washington statute aimed preventing punishing publication obscene materials april washington state moral nuisance law became effective rev code sets forth comprehensive scheme establishing criminal civil penalties deal obscenity prostitution statute declares moral nuisance place lewd films publicly exhibited regular course business place business lewd publications constitute principal part stock trade subsection definitions section statute provides lewd matter synonymous obscene matter defines terms mean matter average person applying contemporary community standards find considered whole appeals prurient interest explicitly depicts describes patently offensive representations descriptions ultimate sexual acts normal perverted actual simulated ii masturbation fellatio cunnilingus bestiality excretory functions lewd exhibition genitals genital area iii violent destructive sexual acts including limited human animal mutilation dismemberment rape torture considered whole context used lacks serious literary artistic political scientific value april four days effective date statute appellees various individuals corporations purvey sexually oriented books movies adult public challenged constitutionality statute federal district seeking injunctive declaratory relief one assertions statute definition prurient include incites lust unconstitutionally overbroad reached material aroused normal healthy interest sex statute therefore declared invalid face appellees alleged sexually oriented films books sold protected first amendment state authorities enforce new legislation unless restrained app april district eastern district washington issued preliminary injunction enforcement statute trial district rejected appellees constitutional challenges validity statute supp divided panel appeals ninth circuit reversed first held facial challenge allegedly overbroad statute appropriate despite fact law yet authoritatively interpreted enforced necessary first amendment rights stake lest existence statute chilling effect protected expression appeals acknowledged facial invalidation required substantial overbreadth broadrick oklahoma concluded requirement applies challenged statute regulates conduct opposed pure speech find appropriate case abstention see railroad pullman reaching merits appeals held including lust definition prurient washington state legislature intended statute reach material merely stimulated normal sexual responses material considered constitutionally protected view statute lend saving construction state application statute depend determination obscenity reference unconstitutionally overbroad definition appeals declared statute whole null void defendant state county officials separately appealed noted probable jurisdiction cases ii appeals view neither roth later cases read include within definition obscenity materials appeal normal sexual appetites roth held protection first amendment extend obscene speech identified inquiring whether average person applying contemporary community standards dominant theme material taken whole appeals prurient interest omitted earlier opinion defined material deals sex manner appealing prurient interest material tendency excite lustful thoughts webster new international dictionary unabridged defines prurient pertinent part follows itching longing uneasy desire longing persons itching morbid lascivious longings desire curiosity propensity lewd pruriency defined pertinent part follows quality prurient lascivious desire thought see also mutual film industrial said motion pictures take attraction general interest eager wholesome may subjects prurient interest may excited appealed emphasis added perceive significant difference meaning obscenity developed case law definition model penal code tent draft viz thing obscene considered whole predominant appeal prurient interest shameful morbid interest nudity sex excretion goes substantially beyond customary limits candor description representation matters see comment discussion page et seq whether average person applying contemporary community standards find work taken whole appeals prurient interest kois wisconsin quoting roth supra whether work depicts describes patently offensive way sexual conduct specifically defined applicable state law whether work taken whole lacks serious literary artistic political scientific value appeals aware roth indicated material appealing prurient interest material tendency excite lustful thoughts believe roth intended characterize obscene material provoked normal healthy sexual desires differ view already noted material appealing prurient interest definition obscenity announced roth quite sure using words lustful thoughts referring sexual responses beyond characterized normal end appeals observed roth opinion referred model penal code definition obscenity material whose predominate appeal shameful morbid interest nudity sex excretion indicated perceived significant difference definition meaning obscenity developed case law effectively negated inference lustful thoughts used earlier limited included normal sexual responses require possible ambiguity lead us believe intended characterize obscene exclude protection first amendment speech aroused sexual responses whether normal morbid appellants urge roth defined prurience terms lust washington obscenity statute faulted defining prurient incites lasciviousness lust whatever roth meant lustful thoughts state agrees intend include materials provoked normal sexual reactions meaning attributed term lust appearing state law basis state submits statute unconstitutional defining prurience manner appeals rejected view holding term lust acquired far broader meaning since roth decided word come understood referring healthy wholesome human reaction common millions persons society rather shameful morbid desire construed way statutory definition prurience include within first part miller definition obscenity material constitutionally protected first amendment material taken whole arouse good old fashioned healthy interest sex statute appeals held thus overbroad invalid face appellants fault appeals construing statute manner normally however defer construction state statute given lower federal courts chardon fumero soto haring prosise pierson ray general box render unnecessary review decisions respect cort ash also reflect belief district courts courts appeals better schooled able interpret laws respective see bishop wood gooding wilson rule ironclad however surely authority differ lower federal courts meaning state statute may also things equal case deferring appeals pretermit issue appeals fell another error invalidated statute face unconstitutionally overbroad definition obscenity iii appellants insist error finding invalidity statute even accepting construction word lust obscene miller publication must taken whole appeal prurient interest must contain patently offensive depictions descriptions specified sexual conduct whole serious literary artistic political scientific value appellants submit latter two miller guidelines washington statute faithfully follows completely cure overbreadth may inhere statute definition prurience construed appeals confident always case publication whole arouses normal sexual responses declared obscene contains isolated example conduct required second guideline also fails redeeming value required third existing case law material kind without constitutional protection facial invalidation statute nevertheless improvident call mind two cardinal rules governing federal courts ne never anticipate question constitutional law advance necessity deciding never formulate rule constitutional law broader required precise facts applied raines quoting liverpool new york philadelphia commissioners emigration citing long line cases raines also held indred rules rule one application statute constitutional heard attack statute ground impliedly might also taken applying persons situations application might unconstitutional guideposts bottom elementary principle statute may part constitutional part unconstitutional parts wholly independent constitutional may stand unconstitutional rejected allen louisiana quoted approval field clark absent weighty countervailing circumstances raines supra course adhered reagan farmers loan trust champlin refining corporation watson buck buckley valeo term tennessee garner held unconstitutional state statute authorizing use deadly force fleeing suspects face insofar authorized use lethal force unarmed nondangerous suspects first amendment involvement case render inapplicable rule federal extend invalidation statute necessary dispose case buckley valeo supra illustrates much cantwell connecticut invalidate state offense breach peace face extent construed applied prevent peaceful distribution religious literature streets marsh alabama struck state trespass law nsofar state attempted impose criminal punishment distributing literature streets company town naacp button facially invalidate state rules solicitation attorneys sought applied activities naacp involved case recently grace declined invalidate face federal statute prohibiting demonstrations grounds confined holding invalidity statute applied picketing public sidewalks surrounding building holding first amendment cases overbroad statute must stricken face appeals relied line cases exemplified thornhill alabama recently village schaumburg citizens better environment cases individual whose speech expressive conduct may validly prohibited sanctioned permitted challenge statute face also threatens others desire engage legally protected expression may refrain rather risk prosecution undertake law declared partially invalid overbreadth substantial law may enforced anyone including party narrowed reach unprotected activity whether legislative action judicial construction partial invalidation broadrick oklahoma otherwise parties challenging statute desire engage protected speech overbroad statute purports punish seek publish protected unprotected material want proper party challenge statute concern attack statute unduly delayed protected speech discouraged statute may forthwith declared invalid extent reaches far otherwise left intact cases us ones governed normal rule partial rather facial invalidation required course washington statute faulted appeals reached material incited normal well unhealthy interest sex appellees desiring publish sort material claimed faced punishment unless countervailing considerations washington law invalidated insofar word lust understood reaching protected materials appeals view term lust lend limiting construction feasible separate valid invalid applications even accepting appeals construction lust however unconvinced identified overbreadth incurable taint possible applications statute case secretary state maryland joseph munson see also city council los angeles taxpayers vincent nn held prurience may constitutionally defined purposes identifying obscenity appeals shameful morbid interest sex roth equally certain statute issue invalidated insofar word lust taken include normal interest sex statute pass constitutional muster validly reach whole range obscene publications furthermore appeals thought lust refers normal sexual appetites excised word statute entirely since statutory definition prurience referred lasciviousness well lust even statute defined prurience satisfactory ground striking statute entirety invalidity applications partial invalidation improper contrary legislative intent sense legislature passed inseverable act passed known challenged provision invalid statute contains severability clause washington law statute declared unconstitutional entirety unless invalid provisions unseverable reasonably believed legislature passed one without unless elimination invalid part render remainder act incapable accomplishing legislative purposes state anderson frivolous suggest one washington legislature proscribe materials appealed normal well abnormal sexual appetites refrained passing moral nuisance statute quite evident remainder statute retains effectiveness regulation obscenity circumstances issue severability obstacle partial invalidation course appeals pursued judgment appeals accordingly reversed case remanded proceedings consistent opinion ordered footnotes seven separate suits originally filed district eastern district washington consolidated appellees also challenged washington statute paraphrasing second third parts test set forth miller california see infra district rejected attacks appeals address appellees renewed claims district stayed judgment allow appellees seek stay pending appeal appeals appeals subsequently granted thus statute enforced pending appeal struck statute toto overbreadth grounds appeals nevertheless went conclude statute civil fine provisions constitutionally invalid theory legislature undoubtedly try part opinion obviously unnecessary appeals holding view disposition case require reconsideration remand significant differences two cases distinguish discussion basic difference memoirs test miller test memoirs requirement order judged obscene work must utterly without redeeming social value miller settled formulation whether work taken whole lacks serious literary artistic political scientific value conclusion bolstered subsequent referring number cases defining obscenity terms lust lustful see parmelee app material protected erotic matter introduced promote lust dennett sex education pamphlet obscene tendency rationalize dignify sex emotions rather arouse lust one book called ulysses supp sdny aff meaning word obscene ending stir sex impulses lead sexually impure lustful thoughts commonwealth isenstadt mass material obscene substantial tendency deprave corrupt readers inciting lascivious thoughts arousing lustful desire missouri becker mo materials obscene incite lascivious thoughts arouse lustful desire adams theatre keenan brennan question whether dominant note presentation erotic allurement tending excite lustful lecherous desire stated defer lower courts issues unless plain error palmer hoffman view lower clearly wrong tungus skovgaard construction clearly erroneous durham lumber unreasonable propper clark occasion refused follow views lower federal issue state law cole richardson refused accept district construction single statutory word based dictionary definition language reliable indicia legislative intent available appellants make strong argument appeals erred construing washington statute appeals relied dictionary definitions prurient lust saying recent edition webster third new international dictionary unabridged ed include word lust definition prurient neither edition webster cited roth webster second edition defined lust excluding obsolete meanings sensuous desire bodily appetite specif commonly sexual desire violent degrading passion webster new international dictionary unabridged obs pleasure gratification delight personal inclination wish whim vigor fertility sexual desire esp violent character lechery lasciviousness intense longing craving eagerness enthusiasm roth specifically rejected standard obscenity allowed material judged merely effect isolated excerpt upon particularly susceptible persons discussing queen hicklin appeals erred holding broadrick oklahoma substantial overbreadth requirement inapplicable pure speech rather conduct issue new york ferber specifically held contrary disposition cases address issue whether overbreadth washington statute relation legitimate reach substantial warrants declaration facial invalidity see secretary state maryland joseph munson csc letter carriers according appellees vast majority state statutes either leave word prurient undefined adopt definition using words shameful morbid brief appellees one state new hampshire defines prurient interest interest lewdness lascivious thoughts rev stat ann iv supp mississippi apparently state washington use word lust definition prurient miss code ann supp lustful erotic shameful morbid interest nudity sex excretion district northern district mississippi issued preliminary injunction enforcement statute partly ground inclusion terms lustful erotic definition prurient permit application statute arguably protected materials goldstein allain supp appeal stayed pending trial merits case june lower courts considering issue used words shameful morbid describing prurient interest distinguishes obscene materials see red bluff vance cert denied sub nom theatres west holmes leach american booksellers others however used lust connection definitions prurient reading word connoting sense shame debasement relying use roth see mm motion picture film entitled language love childs oregon flying eagle publications obscenity statute leaves word prurient undefined rather defined case law sustained see red bluff vance supra see also ward illinois state obscenity statute overbroad failure expressly describe kinds sexual conduct intended referred part miller guidelines state construed statute incorporate examples sexual conduct mentioned miller predecessor washington statute issue similarly used word prurient without defining rev code et seq appeals ninth circuit struck statute grounds apparently use word prurient challenged see spokane arcades brockett earlier predecessor statute used word obscene without definition whatsoever washington construed statute incorporate test saving unconstitutional vagueness see state distributors evident likelihood washington courts construe instant statute conform miller standards also counsels facial invalidation case cf time hill provision act application person circumstance held invalid remainder act application provision persons circumstances affected rev code standard similar apply determining severability federal statute unless evident legislature enacted provisions within power independently invalid part may dropped left fully operative law see buckley valeo quoting champlin refining corporation justice chief justice justice rehnquist join concurring days state washington adopted moral nuisance law issue appellees launched constitutional attack federal district although statute never enforced authoritatively interpreted state appellees allege applies constitutionally protected expression facially invalid believe federal courts abstained allowed washington courts opportunity construe state law first instance think proper disposition cases vacate judgment appeals ground however rejects course reaches merits controversy join opinion agree appeals erred declaring statute invalid face although federal courts generally duty adjudicate federal questions properly long recognized concerns comity federalism may require federal courts abstain deciding federal constitutional issues entwined interpretation state law railroad pullman held uncertain questions state law must resolved federal constitutional question decided federal courts abstain state addressed state questions see also hawaii housing authority midkiff doctrine abstention acknowledges federal courts avoid unnecessary resolution federal constitutional issues state courts provide authoritative adjudication questions state law attention policies underlying abstention makes clear circumstances cases federal await definitive construction state rather precipitously indulging facial challenge constitutional validity state statute doubt state obscenity statute concerns important state interests statutes implicate quality life total community environment tone commerce great city centers possibly public safety paris adult theatre slaton nature overbreadth claim advanced appellees suggests abstention required washington statute fairly subject interpretation render unnecessary substantially modify federal constitutional question harman forssenius first amendment overbreadth doctrine allows challenge validity statute face law substantially overbroad city council los angeles taxpayers vincent new york ferber thus analysis constitutional claims advanced appellees necessarily requires construction washington statute assess scope broadrick oklahoma federal must determine state statute means judge facial constitutionality furthermore narrowing construction statute might obviate challenge overbreadth grounds relying interpretation state personnel board attorney general reject overbreadth claim state statute never construed applied seems rather obvious interpretation statute state substantially alter resolution claim statute facially invalid federal constitution appeals opined washington statute susceptible limiting construction therefore interpretation state neither eliminate materially change constitutional issues presented assertion simply implausible noted opinion conclusion state statute reaches expression protected first amendment rests dubious interpretation word lust used statute ante text background washington statute indicate state legislature sought conform moral nuisance law constitutional standards outlined miller california moreover state courts demonstrated willingness construe state obscenity laws accord miller see state distributors cert denied apart unwarranted belief statute fairly subject limiting construction appeals asserted pullman abstention almost never apply state statute challenged first amendment grounds constitutional guarantee free expression quite properly always area particular federal concern never endorsed proposition see babbitt farm workers contrary even cases involving first amendment challenges state statute absention may required order avoid unnecessary friction relations interference important state functions tentative decisions questions state law premature constitutional adjudication quoting harman forssenius supra see also harrison naacp decision appeals represents premature avoidable interference enforcement state law area special concern speculation federal meaning state statute absence prior state adjudication particularly gratuitous case state courts stand willing address questions state law certification federal rev code rule app proc cf bellotti baird view state courts afforded opportunity construe washington moral nuisance law first instance justice brennan justice marshall joins dissenting granted certiorari consider holding appeals ninth circuit washington state obscenity law rev code substantially overbroad therefore invalid face first amendment defines prurient way reach constitutionally protected material stimulates healthy interest sex statute view unconstitutionally overbroad therefore invalid face reasons given dissent paris adult theatre slaton therefore affirm judgment appeals