community standards, could reasonably believe that their dominant theme appeals to a.lascivious, shameful, and morbid interest in sex and that they are totally lacking in redeeming value, literary or otherwise. (Emphasis added.)

This would, incidentally, appear to conflict with a contemporaneously expressed lower court view that "The fact that a book has literary merit does not prevent it from being obscene, if otherwise it, has that character" (People v. Harris, 192 A.C.A. 103 (1961)).

The interpretation that matter, though predominantly appealing to prurient interest, must be completely without redeeming social value to be obscene, has startling possibilities. There is substantial basis for contending that all material predominantly appealing to prurient interest has redeeming social importance. For example, it can be contended that such matter serves as a safety valve for some persons; that in practice such matter is a principal effective means of sex education; and that obscene motion pictures and exhibitions are a financial mainstay of numerous veterans', service, and fraternal organizations. It is unlikely, however, that the language in question will be so interpreted that the new law is a nullity.

Political and religious tracts have social importance. Assuming again that "and is matter which is utterly without redeeming social importance" states a distinct, additional requirement, would an otherwise obscene writing be beyond the scope of the new law if its creator has 'a character interject, in a bedroom scene, a speech on behalf of the Republican Party or Moral Rearmament? Again it seems unlikely that the courts will sanction such a strategem, with the result of virtual nullification of the new law, A court could well take the position that the test is that appeal to pruriency must so predominate as to submerge any ideas of redeeming social importance (see Grove Press, Inc. v. Christenberry, supra) and by this test such material is nonetheless obscene. In other words, what the matter must be "utterly" or "totally" without is not merely any passage or picture which, considered in isolation, has social importance, but rather socially important expression of such consequence as to redeem the matter, and the lone political or religious interjection isn't enough to redeem it.

Considering the apparent source of the "without social

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importance" language, it is possible that this language will eventually be construed not as an additional requirement at all but as a codification of the finding of the United States Supreme Court that matter appealing predominantly to prurient interest necessarily does not have redeeming social importance. Even if so construed, the language is not without a function in the new law. It can serve as a reminder of the conclusion of the United States Supreme Court that sex and obscenity are not synonymous (Roth, at p. 487) and perhaps also of the court's earlier conclusion that material is not the less within the scope of constitutional protections because some might consider it merely entertaining rather than' uplifting or even informative (see Burstyn v. Wilson, 343 U. S. 495, 96 L.Ed: 1098 (1952)).

The term "indecent," which appeared in the old law, does not appear in the new. Gone is the problem whether that term is synonymous with "obscene," or means something else, and, if something else, what. Otherwise, there does not appear to be any basis for concluding that the new law is broader than the old with respect to the qualities of material to which it applies. Much of the public indignation about the quality of magazines on the stands is concerned with publications that are merely in bad taste. It would not seem that the new law, any more than the old, applies to such material.

The definition of obscene refers to the appeal of the matter to the "average person." What of matter that is designed to please sadists or others with off-beat interests, but which presumably leaves the average man cold (or so we like to think)? It would not appear to be covered by this statute. It might be contended that the average man language in the new law means not that the matter must arouse prurience. in the average man, but that the average man would consider the matter to be such as to arouse prurience (though not necessarily in himself). But it appears from the Roth case that the United States Supreme Court, when it imposed an average man standard, was referring to the effect of the matter on the average man, as distinguished from its effect on especially susceptible persons (354 U. S. at pp. 488-490). It should be noted, however, that one United States. Court of Appeals, concerned with the mailability of a magazine aimed at homosexuals, has concluded that the "average man" language in the Roth case referred to the average member of the class for whom the magazine was intended (Manual

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