The opinion
On Petitions for Rehearing
PER CURIAM:
In original and supplemental petitions for rehearing appellants have urged us to reconsider, in light of Burgin v. South Carolina, 404 U.S. 806 , 92 S.Ct. 46 , 30 L.Ed.2d 39 (1971) and Wiener and Dulin v. California, 404 U.S. 988 , 92 S.Ct. 534 , 30 L.Ed.2d 539 (1971), our ruling of October 7, 1971. 1 We stated the view that in addition to hard-core pornography, there was photographic material that was not constitutionally protected, if there were (a) expert testimony that the material satisfies the tripartite Roth-Memoirs formulation 2 and (b) in the case of “duals” — pictures of two or more models — photographs portraying ongoing or imminent sexual activity.
Appellants point to Burgin and to Wiener and Dulin as confirming their submission to us that, in the cases involving photographs, what the Supreme Court has been doing in fact is applying a Redrup rule, 3 that except for hardcore pornography, the obscenity exception to the First Amendment is not applicable unless the magazines are (a) sold to juveniles, or (b) advertised in such wise as to expose unwilling adults to the material, or (c) pandered.
In our opinion we noted (152 U.S. App.D.C. at ---, 470 F.2d at 394-395), that this possibility had force, and was supported by expressions in other judicial opinions. 4 We concluded, however, particularly in view of the passage in United States v. Reidel, 402 U.S. 351, 357 , 91 S.Ct. 1410 , 28 L.Ed.2d 813 (1971), that the Roth-Memoirs standard still survived for material other than hard-core pornography, and we undertook to state an analysis consistent with this approach, notwithstanding the difficulties presented by the cryptic pronouncements of the Supreme Court, and the uncertainties inherent in reliance on orders, denying certiorari, entered without explanation.
We are now confronted with the fact that in Burgin and in Wiener and Dulin, the petitioners based their appeal to the Supreme Court in significant measure on a construction of Redrup like that advanced to us by appellants. The Supreme Court’s reversals, *405 citing Redrup, did not necessarily accept those contentions. But they gave no other indication why the judgments were reversed by the Supreme Court. The Burgin reversal was susceptible of explanation on the basis of the state’s position, identified in the state supreme court’s opinion, 5 that photographs of single females focusing on genitalia are obscene; that this view is constitutionally inadequate is noted in our prior opinion (152 U.S.App.D.C. at -, 470 F.2d at 401). 6 However, in Wiener and Dulin the exhibits were not photographs of single nudes but involved at least “simulated sexual activity.” 7 This left us groping for a possible basis for the Supreme Court’s opinion, 8 if Redrup were limited in the way we had supposed, and for possible reconciliation with our prior opinion.
On June 26, 1972, as one of its final actions of the term, the Supreme Court ordered reargument in various cases involving obscenity issues that had already been argued. It. also granted certiorari in other obscenity eases. In Alexander v. Virginia, 408 U.S. 921 , 92 S.Ct. 2490 , 33 L.Ed.2d 332 the Supreme Coui’t requested the parties to brief and argue, in addition to the questions presented in the petition for certiorari, the following question :
Whether the display of any sexually oriented pictorial magazines for commercial sale, when surrounded by notice to the public of their nature and by reasonable protection against exposure of the magazines to juveniles, is constitutionally protected?
If we understand this aright, it appears that the Court will be reconsidering the passage in United States v. Reidel, 402 U.S. 351, 357 , 91 S.Ct. 1410 , 28 L.Ed.2d 813 (1971), relied on in our former opinion, — that under Roth the Constitution leaves it to the legislature to determine whether the law’s involvement with obscenity should be limited to situations involving children or imposition on unwilling recipients.
Secondarily, the Court may come to consider whether, in the absence of juveniles or unwilling adults, the obscenity that may be constitutionally prohibited is limited to hard-core pornography, whether — in the words of Redrup — a “not dissimilar standard” is the consequence of superimposing on the “prurient” test of Roth the “patent offensiveness” test articulated in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482 , 82 S.Ct. 1432 , 8 L.Ed.2d 639 (1962).
Further, even assuming that the Court would not hold the States limited to hard-core pornography it might hold the Federal statutes so limited, for the reasons stated by Justice Harlan, in Roth, supra, 354 U.S. at 496, 77 S.Ct. 1304 . (Harlan, J., concurring in part, dissent *406 ing in part). Compare United States v. 4,400 Copies of Magazines, supra, note 4. If so, there would be at least a question whether the content of “obscene” is different when used by Congress in 22 D.C. Code § 2001 .
The case before us is at the crux of the issues. There is no hard-core pornography. 9 There is no claim that appellants engaged in offers or sales to juveniles. As noted in our prior opinion (note 18) the sign on the door and window indicated this bookstore was only for adults, and the only customers in the store at the time of the police officer’s purchase were two men in their 30’s and two or three in their 50’s. There was no advertising or merchandising that exposed unconsenting adults to the material the Government deems objectionable.
At this juncture of jurisprudence, we think it appropriate to grant the petitions for rehearing, to the extent of deferring the issuance of our mandate in this case, and to await guidance from the Supreme Court in Alexander v. Virginia and the other cases scheduled for reargument.
So ordered.
. 152 U.S.App.D.C. -, 470 F.2d 386 .
. That it is utterly without redeeming social value, appeals to a prurient interest in sex, and is patently offensive in light of community standards. Roth v. United States, 354 U.S. 476 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 (1957); and Memoirs v. Massachusetts, 383 U.S. 413 , 86 S.Ct. 975 , 16 L.Ed.2d 1 (1966).
. Redrup v. United States, 386 U.S. 767 , 87 S.Ct. 1414 , 18 L.Ed.2d 515 (1967).
. See our 152 U.S.App.D.C. at pp. -- -, 470 F.2d at pp. 394-395, and cases cited in fn. 11, particularly United States v. 4,400 Copies of Magazines 276 F.Supp. 902 (D.Md. en banc 1967) (arising under 19 U.S.C.D. § 1305). Compare Hayse v. Van Hoomissen, 321 F.Supp. 642 (D.C.Or.1970).
. State v. Burgin, 255 S.C. 237 , 178 S.E.2d 325 (1970).
. This approach would clearly account for Hartstein v. Missouri, 404 U.S. 988 , 92 S.Ct. 531 , 30 L.Ed.2d 539 (1971), where the Court, citing Redrup, summarily reversed a conviction, 469 S.W.2d 329 (Mo.1971), based on the film “Night of Lust,” which the state court deemed obscene because of close-up portrayals of “gyrating naked breasts” and “nude body gyrations and undulations,” which led the court to conclude that “the motion picture suggests promiscuous sexual intercourse and homosexual activity which is totally unrelated to any plot.” (emphasis added)
. See Petition for Rehearing of Order on Petition for Certiorari, p. 8, opposing the claim of petitioner “that simulated sexual activity is not obscene.”
. Conceivably the simulation was so obvious that it palpably lacked prurience. But magazine photographs, as contrasted with movies, are likely to represent simulated activity. The possibility that the reversals in Wiener, DuUn and Ha/i'tstein were based in part on the problem that the activity depicted was recognizably “simulated” would be congruent with a definition of obscenity, for cases not involving children and unwilling recipients, applicable only in cases of “hard-core pornography, see note 9 in our previous opinion.
We might also speculate that the difficulty with the state court’s action was that it failed to set forth explicitly what was deemed to be the offensive material. But there is no opinion delineating such a requirement.
. Under either test noted in fn. 9 of our prior opinion.