Judge BECTON concurring in part and dissenting in part.

Judge COZORT concurs.

This is a civil action wherein plaintiffs seek a declaratory judgment with respect to the constitutionality of the following statutes: G.S. 14-190.1, entitled "Obscene literature and exhibitions"; G.S. 14-190.13, entitled "Definitions for certain offenses concerning minors"; G.S. 14-190.16, entitled "First degree sexual exploitation of a minor"; and G.S. 14-190.17, entitled "Second degree sexual exploitation of a minor." On 11 July 1985, in the first session of 1985, the North Carolina General Assembly enacted House Bill 1171 entitled "AN ACT TO STRENGTHEN THE OBSCENITY LAWS OF THIS STATE AND THE ENFORCEMENT OF THESE LAWS, TO PROTECT MINORS FROM HARMFUL MATERIAL THAT DOES NOT RISE TO THE LEVEL OF OBSCENITY, AND TO STOP THE SEXUAL EXPLOITATION AND PROSTITUTION OF MINORS." House Bill 1171 amended, inter alia, G.S. 14-190.1, -190.13, -190.16, and -190.17 and repealed G.S. 14-190.2. The effective date of the amendments was 1 October 1985. On 30 September 1985, plaintiffs in case number 85CVS6750 (Cinema I Video) filed their complaint and motions for injunctive relief from the enforcement of the aforementioned statutes as amended by House Bill 1171. Plaintiffs alleged that because they "are in the business of selling and renting video tapes, including video tapes which are sexually explicit, they will be the target of defendants' intended enforcement of N.C.G.S. secs. 14-190.1, 14-190.13, 14-190.16 and 14-190.17." Plaintiffs claimed that said statutes abridged their rights as protected by the First, Fifth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution and Article I, sec. 27 of the Constitution of North Carolina. The Attorney General of the State of North Carolina, along with district attorneys for each judicial district of the State, were named as defendants in plaintiffs' complaint. Plaintiffs alleged, inter alia, that the amended statutes were vague in their terms, substantially overbroad, and that the impending enforcement of the statutes deprived them of their due process rights and deprived them and their customers of the free exercise of their rights as protected by the United States Constitution as well as the Constitution of North Carolina. Plaintiffs also averred, as irreparable injury, the severe financial loss or ruin and possible criminal prosecution of them pending a determination of the case on its merits.

On 2 October 1985, plaintiffs in case number 85CVS1796 (Parker News) filed a similar complaint in Wayne County Superior Court. On 3 October 1985, plaintiffs in case number 85CVS6850 (North American Video) filed their complaint in Wake County Superior Court also challenging the constitutionality of the statutes sub judice. Superior Court Judge Henry Barnette, Jr., of Wake County, in an order filed 3 October 1985, issued temporary restraining orders prayed for in case numbers 85CVS6750 and 85CVS6850, pending a hearing on plaintiffs' motions for preliminary injunctions. On 4 October 1985, Judge Barnette denied plaintiffs' motions for preliminary injunctions in case numbers 85CVS6750 and 85CVS6850. On 4 October 1985, plaintiffs filed with this Court petitions for a writ of certiorari, a writ of supersedeas, and a temporary stay. This Court denied plaintiffs' petitions.

On 23 October 1985, defendants filed their answers and motions for summary judgment in case numbers 85CVS6750 and 85CVS6850. On 1 November 1985, defendants filed their answer and motion for summary judgment in case number 85CVS1796. Plaintiffs in case number 85CVS1796, on 5 November 1985, filed a motion for summary judgment on their prayer for a permanent injunction. On 5 November 1985, plaintiffs' motion for summary judgment was denied. (85CVS1796).

On 15 November 1985, plaintiffs (North Carolina Family Entertainment Center, Inc.) in 85CVS8071 filed their complaint in Wake County Superior Court. By consent of the parties case numbers 85CVS1796 and 85CVS8071 were consolidated and on 5 December 1985 plaintiffs in case number 85CVS1796 made motions to remove and continue the case in Wake County. Also, on 5 December 1985, a motion was made pursuant to Rule 42, N.C. Rules Civ. P., to consolidate case numbers 85CVS1796, 85CVS6750 and 85CVS6850. On 20 December 1985, transfer of 85CVS1796 to Wake County was allowed; on 13 January 1986 the motion for consolidation was allowed. In an order filed 13 January 1986, defendants' motion for summary judgment was granted and plaintiffs' complaints were dismissed. Plaintiffs appeal.

JOHNSON, Judge.

The North Carolina General Assembly recently legislated extensive amendments to the North Carolina General Statutes pertaining to obscenity and child pornography. Many of plaintiffs' questions presented for our review pertain to those amendments aimed at preventing child pornography and are typical of what was once described as "a new phase of the intractable obscenity problem." Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704, 20 L.Ed.2d 225, 243, 88 S.Ct. 1298, 1313 (1968) (Harlan, J., concurring in part and dissenting in part). Plaintiffs question virtually every amendment to the statutory scheme in question as well as many provisions that were in effect prior to amendment of the statutory scheme. The extensiveness of plaintiffs' appeal is without parallel in the relevant case law on this subject. Plaintiffs' zealous attack on the constitutionality of the statutes enacted is replete with serious questions which give us great cause for concern; however, in light of the State's compelling interest in the protection of society as a willing or unwilling audience from the corrupting effects of obscenity and the State's interest of surpassing importance in the protection of minors from the physiological and psychological injuries resulting from sexual exploitation and abuse, we affirm the trial court's judgment that the statutes in the case sub judice are permissible under the North Carolina Constitution and the United States Constitution.

Due to the nature of plaintiffs' claim that the statutes under consideration are unconstitutional as written, to the extent possible, we have endeavored to set forth the statutes as amended with relevant comparisons of the statutes prior to amendment. We are constrained by traditional rules of constitutional interpretation and note that in the context of this declaratory judgment action our opinion is limited to the constitutionality of the statutes as drawn and we have no basis for deciding the constitutionality of the present applications of the statutes in pending cases.

The first question presented for our review is whether G.S. 14-190.1 is substantially overbroad in its coverage such that enforcement of it would violate the First and Fourteenth Amendments to the United States Constitution as well as Article I, sec. 14 of the North Carolina Constitution. Obscenity is not a constitutionally protected form of expression. See Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957). In Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973), a five justice majority opinion stated a constitutional test to identify obscene material. The three-pronged Miller test to identify obscene material that a state may regulate without violating the protections of the First Amendment, as made applicable to the states through the Fourteenth Amendment, establishes the following guidelines:

The basic guidelines for the trier of fact must be: (a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, 33 L.Ed.2d 312, quoting, Roth v. United States, supra, at 489, 1 L.Ed.2d 1498; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller, supra, at 24, 37 L.Ed.2d at 431, 93 S.Ct. at 2615. It is worthy of noting that the Court in Miller, supra, further stated:

If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.

Miller, supra, at 25, 37 L.Ed.2d at 431, 93 S.Ct. at 2615 (emphasis supplied).

The linchpin of plaintiffs' argument is that G.S. 14-190.1 is unconstitutional because the language "taken as a whole" does not appear in every instance as it does in the Miller test. We disagree. G.S. 14-190.1 (b) defines obscene materials as follows:

(b) For purposes of this Article any material is obscene if:

(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, or scientific value; and

(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.

G.S. 190.1 (b) (emphasis supplied). Although the language "taken as a whole" appearing in subsection (b)(2) corresponds to the second prong of the Miller test, that language does not appear in subsection (b)(3). In Hamling v. United States, 418 U.S. 87, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974), the Court offered its perspective of Miller, supra, as follows:

The Miller cases, important as they were in enunciating a constitutional test for obscenity to which a majority of the Court subscribed for the first time in a number of years, were intended neither as legislative drafting handbooks nor as manuals of jury instructions.

Hamling, supra, at 115, 41 L.Ed.2d at 619, 94 S.Ct. at 2906. Plaintiffs' contention is that G.S. 14-190.1 allows a trier of fact to determine the obscenity of material under judicial consideration on the basis of isolated depictions contained therein. There are no reported decisions wherein there is such a construction of the statute. We unequivocably reject such an unreasonable construction of G.S. 14-190.1. The only amendment to G.S. 14-190.1 (b) was the deletion of the word "educational" in subsection (b)(3).

The second prong of G.S. 14-190.1 (b), when considered in pari materia with the third prong, of which plaintiffs complain, precludes such an unconstitutional interpretation; subsection (b)(4) evidences the General Assembly's intent to exclude any constitutionally protected expressions from the proscriptions of the statute. Moreover, the North Carolina Supreme Court passed on the constitutionality of the same codification of the Miller test, with the exception as noted hereinabove, as follows:

It appears that the definition of `obscenity' in our former statute under which these defendants are charged placed a heavier burden on the State to convict than the definition prescribed in Miller v. California, supra. Since the latest amendment to G.S. 14-190.1 through G.S. 14-190.11 (a codification of Chapter 1434 of the 1973 Session Laws) makes it easier for the State to convict violators, the amendment affords these defendants no grounds on which to contend that their convictions are now illegal and must abate.

State v. Hart, 287 N.C. 76, 81, 213 S.E.2d 291, 295 (1975). The Supreme Court of the United States has acknowledged that this state through G.S. 14-190.1 has codified the Miller test. See New York v. Ferber, 458 U.S. 747, 755-56, 73 L.Ed.2d 1113, 1122, 102 S.Ct. 3348, 3354, n. 7 (1982). Accordingly, we hold plaintiffs' claim that G.S. 14-190.1 (b) is unconstitutional on its face is without merit.

We next consider plaintiffs' argument that the proscription in G.S. 14-190.1 (a)(3) is substantially overbroad in its coverage. The issue raised by plaintiffs' argument is whether the First, Fourth and Fourteenth Amendments as applicable to the states and Article I, sec. 14 of the North Carolina State Constitution protects the dissemination of obscene materials.

Before we address the issue raised by plaintiffs' argument, we first address defendants' assertion and the trial court's judgment that plaintiffs lack standing to claim that the statute unconstitutionally prohibits dissemination of obscene materials in the home. Defendants argue that: (1) plaintiffs have no standing to enjoin the enforcement of G.S. 14-190.1 because plaintiffs have not shown that their rights have been infringed upon, see High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892 (1965); and (2) that plaintiffs have not sufficiently demonstrated a justiciable controversy to invoke the jurisdiction of the Declaratory Judgment Act, see State ex rel. Edmisten v. Tucker, 312 N.C. 326, 323 S.E.2d 294 (1984).

The authority relied upon by defendants for both their contentions is distinguishable because the rules for standing have been altered for those engaged in litigation involving First Amendment protections. See Broadrick v. Oklahoma, 413 U.S. 601, 37 L.Ed.2d 830, 93 S.Ct. 2908 (1973). In Broadrick supra, the Court enunciated its basis for altering the traditional rules of standing as follows:

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represents a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. As a corollary, the Court has altered its traditional rules of standing to permit — in the First Amendment area — `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

Broadrick, supra, at 611-12, 37 L.Ed.2d at 839-40, 93 S.Ct. at 2915-16 (citations omitted). Also, the Court in Carey v. Population Services International, 431 U.S. 678, 52 L.Ed.2d 675, 97 S.Ct. 2010 (1977) (citing Craig v. Boren, 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451 (1976)), recognized that vendors are uniformly permitted to act as advocates for the rights of third parties who seek access to their market or function. We hold that plaintiffs do have standing to challenge the constitutionality of G.S. 14-190.1 (a)(3). Contrary to the lower court's judgment, we also hold that plaintiffs have standing to challenge G.S. 14-190.16 (creating the offense of First degree sexual exploitation of a minor), and we shall address their challenge hereinbelow.

Plaintiffs primarily rely upon Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243 (1969), for the main point of their argument that there is a right to possess obscene material in the privacy of one's home. The argument posited by plaintiffs is that in amending G.S. 14-190.1, the General Assembly's deletion of the phrase "in any public place" infringes on one's zone of privacy wherein one may lawfully possess obscenity in the privacy of one's home. Plaintiffs' argument is misplaced. The Court in Stanley, supra, stated the following:

[W]e think that mere categorization of these films as `obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one's own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his home, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.

Stanley, supra, at 565-66, 22 L.Ed.2d at 549-50, 89 S.Ct. at 1248. Plaintiffs, in their brief, correctly interpret the amendment of G.S. 14-190.1 as follows:

By deleting the `public place' requirement from N.C.G.S. sec. 14-190.1, the North Carolina Legislature has promulgated a regulatory scheme which proscribes not only dissemination of materials in places of public accommodation, but also in the realm of private and personal transactions which could conceivably take place in the privacy of one's home.

(Emphasis supplied.) G.S. 14-190.1 is aimed at the dissemination of obscenity which is not protected by any constitutional guarantees. See Miller, supra. The statute is not aimed at mere possession of obscenity in the privacy of one's own home. In United States v. Reidel, 402 U.S. 351, 28 L.Ed.2d 813, 91 S.Ct. 1410 (1971), the Court expressly limited the holding in Stanley, supra. The Court in Reidel, supra, enunciated the limits to be placed on the holding in Stanley, supra, as follows:

The District Court gave Stanley too wide a sweep. To extrapolate from Stanley's right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result abjured. Whatever the scope of the `right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here — dealings that Roth held unprotected by the First Amendment.

The right Stanley asserted was `the right to read or observe what he pleases — the right to satisfy his intellectual and emotional needs in the privacy of his own home.' The Court's response was that `a state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.' The focus of this language was on freedom of mind and thought and on the privacy of one's home. It does not require that we fashion or recognize a constitutional right in people like Reidel to distribute or sell obscene materials. The personal constitutional rights of those like Stanley to possess and read obscenity in their homes and their freedom of mind and thought do not depend on whether the materials are obscene or whether obscenity is constitutionally protected. Their rights to have and view that material in private are independently saved by the Constitution.

Reidel, supra, at 355-56, 28 L.Ed.2d at 817-18, 91 S.Ct. at 1412-13. We hold that the proscription in G.S. 14-190.1 against dissemination of obscenity is not substantially overbroad. It is our considered opinion that G.S. 14-190.1 does not authorize the issuance of criminal process for mere possession of obscenity in the privacy of one's own home. We note that the General Assembly expressly excluded from the reach of G.S. 14-190.1 any use of materials protected by the guarantees of the Constitution of the United States and of the North Carolina Constitution. See G.S. 14-190.1 (b)(4) (emphasis supplied).

Plaintiffs' next argument is that G.S. 14-190.1 does not include scienter as an essential element of the offense of disseminating obscenity. Plaintiffs contend that G.S. 14-190.1 imposes a strict liability standard whereby a conviction for disseminating obscenity may be had regardless of the nature of a defendant's knowledge of the material upon which that defendant's conviction would be based. After careful consideration of the argument advanced by plaintiffs, we disagree.

Plaintiffs contend in support of their argument that Smith v. California, 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct. 215 (1959), held that a person may not be held strictly liable for the contents of the materials which he or she disseminated; and that Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d 56, 86 S.Ct. 958 (1966), reaffirmed the Court's interpretation of the Constitution to require proof of scienter to avoid the inherent problems with self-censorship and the difficulties in establishing what may legally be considered obscene.

G.S. 14-190.1 in pertinent part states the following:

(a) It shall be unlawful for any person, firm or corporation to intentionally disseminate obscenity.

G.S. 14-190.1 (a) (emphasis supplied). Defendants cite State v. Bryant and State v. Floyd, 16 N.C. App. 456, 192 S.E.2d 693 (1972), appeal dismissed and cert. denied, 282 N.C. 583, 193 S.E.2d 747, vacated and remanded, 413 U.S. 913, 37 L.Ed.2d 1036, 93 S.Ct. 3065, reaffirmed, 20 N.C. App. 223, 201 S.E.2d 211 (1973), affirmed, 285 N.C. 27, 203 S.E.2d 27 (1974), wherein this Court rejected an identical argument against G.S. 14-190.1 as that advanced by plaintiffs in the case sub judice. There has been no change in the mens rea requirement stated in G.S. 14-190.1 since the filing of that opinion. This Court held the following:

We hold that any citizen who desires to obey the law will have no difficulty in understanding the conduct proscribed by this statute. The dissemination of obscenity is not protected by the Constitutions; thus, this statute by its terms does not infringe upon the rights to disseminate protected material. In the statute it is required that one must `intentionally disseminate obscenity.' We hold that therefore this statute does require a finding of intent and guilty knowledge before a defendant may be convicted thereunder. We reject defendants' contention that the statute is vague, overbroad, or does not require an intent and guilty knowledge. We hold that the statute is not unconstitutional. . . .

Bryant and Floyd, supra, 16 N.C. App. at 461, 192 S.E.2d at 696. Upon the Supreme Court's remand of the case in light of the Miller cases, both this Court and the North Carolina Supreme Court upheld the constitutionality of G.S. 14-190.1. We are not aware of any recent Supreme Court rulings that require a different result from that reached in Bryant and Floyd, supra. During oral arguments plaintiffs strenuously argued that Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d 56, 86 S.Ct. 958 (1966), and Smith v. California, 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct. 215 (1959), mandates that we hold there is not a constitutionally sufficient scienter requirement codified in G.S. 14-190.1. Our tripartite response to plaintiffs' argument is that (1) in Smith, supra, the Court merely held that it must be shown that a distributor must have knowledge of the contents of the material being disseminated, id. at 153, 4 L.Ed.2d at 211, 80 S.Ct. at 218-19; (2) upon reconsideration by this Court in light of, inter alia, Miller, supra, as directed by the United States Supreme Court, see State v. Bryant and State v. Floyd, 413 U.S. 913, 37 L.Ed.2d 1036, 93 S.Ct. 3065 (1973), this Court and the North Carolina Supreme Court upheld the scienter requirement of G.S. 14-190.1, see State v. Bryant and State v. Floyd, 20 N.C. App. 223, 201 S.E.2d 211, affirmed, 285 N.C. 27, 203 S.E.2d 27 (1974), which therefore, remains sound precedent; and (3) the Court in Hamling v. United States, 418 U.S. 87, 41 L.Ed.2d 590, 94 S.Ct. 2887 (1974), reviewed its prior decisions on the constitutional requirement that the State must prove scienter to sustain a conviction. In doing so the Court in Hamling, supra, at 124, 41 L.Ed.2d at 624, 94 S.Ct. at 2911 (quoting United States v. Wurzbach, 280 U.S. 396, 399, 74 L.Ed. 508, 510, 50 S.Ct. 167, 169 (1930)), reaffirmed the following familiar precept of criminal law:

`Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing so, it is familiar to the criminal law to make him take the risk.'

Id. It is not innocence but calculated dissemination of obscene material which is exorcised by G.S. 14-190.1 and accordingly, we hold that the scienter requirement therein is constitutionally sufficient.

Plaintiffs next argue that G.S. 14-190.1 (d) is substantially overbroad and vague. Plaintiffs contend that G.S. 14-190.1 (d) departs from the Miller test by allowing obscenity to be judged with reference to especially susceptible audiences.

The Court in Miller, supra, only required that material be judged according to the average contemporary community standards when the material is not aimed at a "deviant group." See Miller, supra, at 33, 37 L.Ed.2d at 436, 93 S.Ct. at 2620. See also Mishkin, supra, at 508-509, 16 L.Ed.2d at 62, 86 S.Ct. at 963. G.S. 14-190.1 (d) states the following:

Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences.

G.S. 14-190.1 (d). Although the Court in Mishkin, supra, relied upon its holding in Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957), we find as persuasive the following:

Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. . . . We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group and since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons [footnote omitted], it also avoids the inadequacy of the most-susceptible-person facet of the Hicklin test.

Mishkin, supra, at 508-09, 16 L.Ed.2d at 62, 86 S.Ct. at 963-64. We find nothing in the aforementioned cases controlling on this question that would require the General Assembly to include a detailed list of each and every pertinent type of deviant sexual group. We hold that G.S. 14-190.1 is not substantially overbroad and gives sufficiently definite warning of the proscriptions therein.

Plaintiffs next argue that G.S. 14-190.1 (c) is unconstitutionally vague under the North Carolina Constitution and the Constitution of the United States because its terms and coverages are such that a reasonable person would not reasonably know the conduct proscribed by said statute's terms. We disagree.

The principle dispositive of the question presented by plaintiff was stated by Justice Brennan in Roth, supra (quoting United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877, 1883 (1946)), as follows:

Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] 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. . . .'

Roth, supra at 491, 1 L.Ed.2d at 1510-11, 77 S.Ct. at 1312. In Miller, supra, the Court outlined a "few plain examples" of statutes that could pass constitutional muster, as follows:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibition of the genitals.

Miller, supra, at 25, 37 L.Ed.2d at 431, 93 S.Ct. at 2615 (emphasis supplied). Considering the inclusion of the emphasized portion of the excerpt, quoted hereinabove, we do not find as persuasive plaintiffs' argument that "inclusion of such activities [excretory functions] makes the statute vague when considered in the context of the Miller decision." Another aspect of plaintiffs' argument is that "torture, physical restraint by being fettered or bound, or flagellation by a person clad in undergarments or bizarre costume have no sexual connotation whatsoever." It is paradoxical that these plaintiffs complain that many portions of the statute are vague, but when the State definitively gives notice of the conduct to be proscribed, plaintiffs attack the proscription of the specific conduct as stated by the General Assembly. As we have discussed, supra, it is constitutionally permissible to draft an obscenity statute that will take into account the dominant theme of material which is aimed at an especially susceptible audience. See Miller, supra. Moreover, since the trier of fact evaluates the material in a manner substantially mandated by G.S. 14-190.1 (a) and G.S. 14-190.1 (d), we read subsections (a) and (d) of G.S. 14-190.1 in pari materia with G.S. 14-190.1 (c) and thereby find plaintiffs' Assignment of Error is without merit.

Plaintiffs' next issue to be addressed is, whether the absence of a statutory right in G.S. 14-190.1 to an adversarial hearing or a judicial determination of the obscenity of materials held as evidence constitutes a prior restraint on plaintiffs' First Amendment rights. We hold, for reasons to follow, that it is not constitutionally mandated for a state to statutorily create a right to a prompt adversary proceeding on the obscenity of material seized and retained as evidence pending a trial wherein said evidence will be introduced.

In our research we find no reported opinions by the United States Supreme Court wherein a statutory scheme defining obscenity has been held invalid due to the absence of a statutorily specified procedure to a prompt adversary proceeding on the obscenity of seized evidence that is held pending trial. The Supreme Court of the United States has stated that there is no First or Fourteenth Amendment right to an adversary hearing prior to the seizure of allegedly obscene material. Heller v. New York, 413 U.S. 483, 488, 37 L.Ed.2d 745, 751, 93 S.Ct. 2789, 2792 (1973). In Heller, supra, the Court distinguished the cases of large scale seizure of books for their destruction, see A Quantity of Books v. Kansas, 378 U.S. 205, 12 L.Ed.2d 809, 84 S.Ct. 1723 (1964); see also Marcus v. Search Warrant, 367 U.S. 717, 6 L.Ed.2d 1127, 81 S.Ct. 1708 (1961), from cases where there is seizure of a single item seized as evidence for the bona fide purpose of preserving evidence in a criminal proceeding. The Court articulated its approach to the latter case as follows:

If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and following the seizure a prompt [footnote omitted] judicial determination of the obscenity issue in an adversary proceeding is available at the request of an interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding [footnote omitted] otherwise the film must be returned.

Neller, supra, at 492-93, 37 L.Ed.2d at 754, 93 S.Ct. at 2795 (emphasis supplied). The Court in Heller, supra, went on to hold as constitutional the New York Penal Laws dealing with obscenity and the procedures involved with the prosecution of the obscenity charges based on New York Penal Laws even though there were no statutory provisions for a prompt adversary hearing. We note that the defendant in Heller, supra, received his trial forty-seven (47) days after his arrest. The Court, in a footnote, defined "prompt" as "the shortest period compatible with sound judicial resolution." Heller, supra, at 492, 37 L.Ed.2d at 754, 93 S.Ct. at 2795, n. 9 (emphasis supplied).

In the more recent case of New York v. P. J. Video, Inc., ___ U.S. ___, 89 L.Ed.2d 871, 106 S.Ct. 1610 (1986), the Court explained its reasoning in the Heller opinion, as follows:

In Heller v. New York, 413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789 (1973), we emphasized that, even where a seizure of allegedly obscene materials would not constitute a `prior restraint,' but instead would merely preserve evidence for trial, the seizure must be made pursuant to a warrant and there must be an opportunity for a prompt post seizure judicial determination of obscenity.

New York v. P. J. Video, Inc., supra, at ___, 89 L.Ed.2d at 879, 106 S.Ct. at 1614 (emphasis supplied). Although there is no statutory right to a prompt post-seizure adversary hearing, our understanding of Heller, supra, and P. J. Video, Inc., supra, is that the Constitution requires that there must be an opportunity for a prompt post-seizure adversary hearing on the obscenity of the evidence being held pending trial and the burden is on the person seeking the return of the material to request such a hearing. The Court in Heller, supra, noted that defendant had not made a motion to suppress the evidence. In North Carolina a defendant may make a motion to suppress the evidence, see G.S. 15A-977, and although a probable cause hearing is not required for a felony charge in Superior Court, upon request a court could conceivably grant such a request to provide an adversary hearing as mandated by Heller, supra. Accordingly, we hold that the statutory scheme does not constitute a prior restraint merely because there is no provision for an adversary hearing which a defendant bears the burden of requesting. We note that any complaint or criminal process issued pursuant to G.S. 14-190.1 et seq., must be requested by a prosecutor. G.S. 14-190.20. Plaintiffs in their brief illustrate many "fictitious-worst case-scenarios" wherein impermissible applications of the statute may infringe upon the right to a prompt adversary hearing. However, these scenarios are not justiciable controversies and do not pertain to the facial validity of the statutes. If these fears are realized and a defendant is deprived of his right to a prompt adversary hearing, then if called upon our courts will rule accordingly. See generally Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 86 L.Ed.2d 394, 105 S.Ct. 2794 (1985) (the evident likelihood that Washington Courts would construe a state statute aimed at preventing and punishing the publication of obscene materials to conform with the Miller standards counseled against facial invalidation of that statute).

Next, plaintiffs argue that G.S. 14-190.16 and G.S. 14-190.17 are substantially overbroad and vague in violation of the First and Fourteenth Amendment of the United States Constitution and Article I, sec. 19 of the Constitution of North Carolina. It is contended by plaintiffs that G.S. 14-190.16 and G.S. 14-190.17 prohibit the dissemination of material that is not related to the exploitation of minors.

Our discussion of the statute sub judice began with the principle that obscenity is not protected expression within the meaning of the First Amendment. See Roth, supra. The Supreme Court of the United States has ruled that it is constitutionally permissible to consider as without the protections of the First Amendment those materials classified as child pornography. Ferber, supra, at 764, 73 L.Ed.2d at 1127, 102 S.Ct. at 3358. The Court went on to articulate a test for child pornography and distinguish that test from the Miller test for obscenity:

The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.

Id.

Our line of inquiry now turns to those questions presented by plaintiffs with respect to the facial validity of those subsections of G.S. 14-190 pertaining to the criminal offense of sexual exploitation of minors. The first question presented by plaintiffs is, whether, in violation of the First and Fourteenth Amendments to the United States Constitution, G.S. 14-190.16 and G.S. 14-190.17 authorize the State to prosecute a charge of dissemination of materials harmful to minors when the production of said material does not require the use of a live minor. Plaintiffs complain that G.S. 14-190.13 (2) states, inter alia, that for purposes of G.S. 14-190.16 and G.S. 14-190.17, "material" is defined as follows:

Pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words.

G.S. 14-190.13 (2) (emphasis supplied). Thus, plaintiffs argue, "Despite the clear admonition of the Supreme Court, North Carolina General Statute 14-190.17 prohibits the dissemination of drawings or `representations' that depict minors engaged in sexual activity. However, neither a drawing nor a representation would require the use of an actual person in their production." We agree with plaintiffs' assertion that the Court in Ferber v. New York, 458 U.S. 747, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982), noted that "depictions of sexual conduct otherwise not obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection." Id. at 764-65, 73 L.Ed.2d at 1127, 102 S.Ct. at 3358. However, plaintiffs' argument that G.S. 14-190.16 and G.S. 14-190.17 do not require a live minor as an essential element is without merit. Clearly, G.S. 14-190.16 repeatedly refers to live performances, which in turn would require a live minor. Moreover, immediately following the definition of "material" we find the definition of a "minor" in G.S. 14-190.13 (3), as follows:

(3) Minor. — An individual who is less than 18 years old and is not married or judicially emancipated.

G.S. 14-190.13 (3) (emphasis supplied). Therefore, when G.S. 14-190.16 and G.S. 14-190.17 refer to a visual representation of a minor, they are referring to a representation of a live person under 18 years of age. We hold that the State has an interest of surpassing importance in the health, safety and welfare of minors; G.S. 14-190.16 and G.S. 14-190.17 are sufficiently narrowly tailored toward said interests and do require the exploitation of a live minor to sustain convictions thereunder.

We now address plaintiffs' argument that the statutes in question impermissibly ban all depictions of persons portrayed as minors in a romantic encounter that involves an apparent sexual touching. G.S. 14-190.13 (5)(c) defines sexual activity as follows:

c. Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.

G.S. 14-190.13 (5)(c). Plaintiffs in support of their argument contend that there are films with a "P.G." rating or an "R" rating which are "accepted entertainment," but would fall within the ambit of the statute. We express no opinion on the artistic value of the films mentioned by plaintiffs, nor do we attempt to refute the acceptance of these types of films as entertainment. We do recognize that whatever value those mentioned films may have, such value is overwhelmingly outweighed by the State's compelling interest in protecting its youth from the debilitating psychological and emotional trauma that are attendant with child pornography and bear so heavily and pervasively upon the welfare of children. See Ferber, supra. Our sentiment in this regard was aptly expressed by the Court in Ferber, supra, as follows:

We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications.

Id. at 773, 73 L.Ed.2d at 1133, 102 S.Ct. at 3363. The Court in Ferber, supra, before adjusting the Miller test, stated the following:

As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here, the nature or the harm to be combatted requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. [Footnote omitted.] The category of sexual conduct must also be suitably limited and described.

Id. at 764, 73 L.Ed.2d at 1127, 102 S.Ct. at 3358. We hold that G.S. 14-190.13 (5)(c) is not substantially overbroad and comports with the requirement stated in Ferber, supra, that there must be limits placed on the category of sexual conduct. G.S. 14-190.13 (5)(c) proscribes apparent sexual stimulation. G.S. 14-190.13 (5)(c) (emphasis supplied). We further hold that whatever overbreadth may exist should be cured through a case-by-case analysis of fact situations to which its sanctions assertedly may not be applied. See Ferber, supra, at 773-74, 73 L.Ed.2d at 1133, 102 S.Ct. at 3363. See also Broadrick supra, at 615-16, 37 L.Ed.2d at 842, 93 S.Ct. at 2918.

Plaintiffs next present a multi-faceted argument that G.S. 14-190.16 and G.S. 14-190.17 do not require scienter as an essential element thereunder and therefore violate their rights under the First and Fourteenth Amendments of the United States Constitution. We disagree. As a prelude, plaintiffs fashion a strained and difficult to follow argument that, in essence, G.S. 14-190.16 and G.S. 14-190.17 constitute prior restraints upon video dealers because under said statutes there is no mistake of age defense to prosecutions and the trier of fact may infer from, inter alia, the title and text of the material viewed that the person depicted as a minor engaged in sexual activity is a minor. Plaintiffs contend that the reasoning in Ginsberg v. New York, 390 U.S. 629, 20 L.Ed.2d 195, 88 S.Ct. 1274 (1968), and Smith, supra (wherein the Court discussed the dangers of self-censorship in connection with the states' power to restrict the dissemination of obscenity) is applicable and urge us to hold that these statutes creating the offenses of the sexual exploitation of minors are unconstitutional. We do not find plaintiffs' analogy appropriate for the State is entitled to "a greater leeway in the regulation of pornographic depictions of children." Ferber, supra, at 756, 73 L.Ed.2d at 1122, 102 S.Ct. at 3354. As the Court noted in Ferber, supra, "[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways." Id. at 759, 73 L.Ed.2d at 1124, 102 S.Ct. at 3355. The Court, in a footnote, has found and we likewise find the following explanation persuasive:

[P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who was posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.

Id. n. 10 (quoting Shouvlin, Preventing the Sexual Exploitation of Children. A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)). Bearing in mind such somber reasoning, we find as persuasive defendants' argument that mistake of age is not a defense to prosecution for first degree rape, G.S. 14-27.2 (a)(1), nor to first-degree sexual offense, G.S. 14-27 (a)(1). See State v. Wade, 224 N.C. 760, 32 S.E.2d 314 (1944). Moreover, mistake of age is not a defense to the offense of taking indecent liberties with a minor. G.S. 14-202.1. We are cognizant of the fact that "criminal responsibility may not be imposed without some element of scienter on the part of the defendant." Ferber, supra, at 765, 73 L.Ed.2d at 1127, 102 S.Ct. at 3358. Both G.S. 14-190.16 and G.S. 14-190.17 require that a defendant must "[know] the character or content of the material" in question. A reasonable construction of the statute would be that in order to sustain a conviction, the State would have to prove that a defendant knew that the material in question contained depictions of persons appearing to be minors engaged in sexual activity as defined by G.S. 14-190.13 (5). See Andrews v. Chateau X, 296 N.C. 251, 250 S.E.2d 603 (1979), vacated and remanded on other grounds, 445 U.S. 947, 63 L.Ed.2d 782, 100 S.Ct. 1593 (1980), affirmed, 302 N.C. 321, 275 S.E.2d 443 (1981). See also Martin v. North Carolina Housing Corp., 277 N.C. 29, 175 S.E.2d 665 (1970) (when the constitutionality of a statute is challenged every presumption is to be indulged in favor of its validity). Accordingly, we hold that there is a scienter requirement in G.S. 14-190.16 and G.S. 14-190.17. We further hold that the proscriptions contained in said statutes do not constitute prior restraints.

Plaintiffs also argue that the statutory inference of minority permitted by G.S. 14-190.16 (b) and G.S. 14-190.17 (b) violates the due process clause of the Fourteenth Amendment to the United States Constitution and Article I, sec. 19 of the North Carolina Constitution. G.S. 14-190.16 (b) and G.S. 14-190.17 (b) are identical and they state the following:

(b) Inference. In a prosecution under this section, the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations, or otherwise represents or depicts as a minor is a minor.

In Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357 (1973), the Court summarized its holdings from prior cases dealing with statutory inferences as follows:

[I]f a statutory inference submitted to the jury as sufficient to support conviction satisfies the reasonable-doubt standard (that is, the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt) as well as the more-likely-than-not standard, then it clearly accords with due process.

Id. at 843, 37 L.Ed.2d at 386, 93 S.Ct. at 2361-62. Bearing these principles in mind, we turn to the statutory inference in the case sub judice to determine if it meets the reasonable doubt standard.

The statutory inference of minority permits, but does not mandate that the trier of fact consider as sufficient the circumstantial evidence from which it may be concluded beyond a reasonable doubt that an actor is still of the age of minority. The actor's appearance and growth are competent evidence for the jury to look upon and draw reasonable inferences as to the age of the actor. See State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980). In Hunter, supra, the State, in order to obtain a first-degree kidnapping conviction of the defendant, had to prove beyond a reasonable doubt that the victim was 16 years of age or older. The Court stated the following:

She was before the jury and it was competent for the jury to look upon her and draw reasonable inferences as to her age from her appearance and growth.

Id. at 40, 261 S.E.2d at 196. G.S. 14-190.16 (b) and G.S. 14-190.17 (b) do not relieve the State of its burden of proving an essential element of the offense. The inference section merely states what is already recognized by common law and evidentiary rules in North Carolina, to wit: the jury may be convinced beyond a reasonable doubt by the State's presentation of circumstantial evidence. The trier of fact may choose to accept the evidence as convincing or reject the evidence as unconvincing. We note that in Ferber, supra, the Court upheld New York Penal Law, sec. 263.25 (McKinney 1980), which embodies the same type of inference as that permitted by G.S. 14-190.16 (b) and G.S. 14-190.17 (b). We hold that G.S. 14-190.16 (b) and G.S. 14-190.17 (b) do not relieve the State of its burden of proving beyond a reasonable doubt every essential element of the heinous offenses of first and second degree sexual exploitation of a minor.

Plaintiffs further argue that the inference of minority pursuant to G.S. 14-190.16 (b) and G.S. 14-190.17 (b) is a violation of the protections guaranteed by the First Amendment of the United States Constitution. The basic argument forwarded by plaintiffs is that the inference permitted by the aforementioned statutes does not meet the Ferber test. We disagree.

Plaintiffs begin their argument with the following statement by the Court in Ferber, supra: "if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized [footnote omitted]." Id. at 763, 73 L.Ed.2d at 1126, 102 S.Ct. at 3357. The inference allowed does not prevent the dissemination of films that utilize actors who have reached the age of majority. We hold, consistent with our reasoning supra, with respect to the subject statutory inference, that this is a paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. Ferber, supra, at 773, 73 L.Ed.2d at 1133, 102 S.Ct. at 3363.

Plaintiffs' last argument is that G.S. 14-190.17 and G.S. 14-190.13 are unconstitutionally vague and do not provide fair notice of their prohibitions. G.S. 14-190.17 makes it unlawful to disseminate material that contains a "visual representation" of a minor engaged in sexual activity. G.S. 14-190.17 (b) as quoted supra also refers to "visual representations." In G.S. 14-190.13 (2), "material" is defined as "pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words." Plaintiffs opine that the use of such language as "representations" forces the plaintiffs to guess at what activity and material is prohibited and therefore has a chilling effect on the exercise of their right to free speech as guaranteed by the First Amendment of the Constitution of the United States and Article I, sec. 19 of the North Carolina Constitution. Our first response to plaintiffs is that a careful reading of the Court's opinion in Ferber, supra, reveals that New York Penal Law sec. 263.00 (4) (McKinney 1980) was drafted with the very same language as that complained of by plaintiffs. The Court in Ferber, supra, construed the aforementioned statute as follows:

A performance is defined only to include live or visual depections: `any play, motion picture, photograph or dance . . . [or] other visual representation before an audience.' sec. 263.00 (4).

Ferber, supra, at 765, 73 L.Ed.2d at 1128, 102 S.Ct. at 3359 (emphasis supplied). The Court in Ferber, supra, upheld the constitutionality of the New York laws addressing child pornography. We hold that G.S. 14-190.17 (b) and G.S. 14-190.13 comport with the constitutional principles articulated in Ferber, supra. In support of our holding we note that all that is required to pass constitutional muster is that a statute's language "convey 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, 91 L.Ed. at 1877, 1883, 67 S.Ct. at 1538, 1542 (1947). For reasons stated hereinabove, the judgment is

Affirmed.

Judge COZORT concurs.

Judge BECTON dissents.