People Ex Rel. Tooley v. Seven Thirty-Five East Colfax, Inc.

Colorado, The PEOPLE of the State of TOOLEY,

ex rel. Dale District

Attorney, Plaintiff-Appellee, COLFAX,

SEVEN THIRTY-FIVE EAST INC., corporation, a Colorado d/b/a Palace,

Kitty’s Defendant-Ap- Pleasure

pellant. Colorado, PEOPLE State of

Plaintiff-Appellant, MIZELL, Leatherwood, Lloyd

Gordon Kelloff, Lange,

Mark Mitchell Louis

Lawver, Douglas McClure, Marquis

Ford, Colorado, Inc., Modern Books of

Patty Deighton Deighton, and Darrell

Defendants-Appellees. INC., GUILD,

ADULT LITERARY a Col- corporation, Washington

orado d/b/a Bookstore; Guild, Literary Inc., Adult corporation, Katy’s a Colorado d/b/a Pleasure; Sales, Inc.,

House of Santana corporation,

a Colorado Adult d/b/a World; Inc., Co., Record Land a Colo- corporation,

rado Friends and d/b/a Motel; Story, Lovers Cliff Cour- d/b/a tesy Motel, Plaintiffs-Appellees, Q. BEACOM, capacity

Paul in his official Attorney County

as District for the

Adams; Johnson, Bert in his official

capacity County for the Sheriff

Adams; Blake, Ben ca- his official

pacity City of Police Chief for the

Aurora, Defendants-Appellants. 82SA212,

Nos. 83SA83 and 83SA99. Colorado,

Supreme Court of

En Banc.

Feb. 1985.

Rehearing April Denied Jr., Early, Atty.,

Norman Mi- S. Dist. Kane, Denver, Deputy Atty., chael Dist. for plaintiff-appellee. Schwartz, P.C.,

Arthur M. Arthur M. Schwartz, Borenstein, Denver, Irvin for de- fendant-appellant. II, Woodard, Gen., Constitution,2 Duane section 10 of the Atty.

L. article Charles Howe, Gen., Constitution,3 Deputy Atty. process B. Joel W. Can- the due Colorado Gen., trick, Hutchins, Sol. Milton John We hold that clauses of each constitution.4 Gen., Atty. Denver, Asst. for amicus curi- the word used in section 18-7- “accredited” ae, Atty. Colorado Gen. unconstitutionally vague is it because “pat- that the definition of undefined and Russel, Atty., L. Robert Dist. Daniel C. 18-7-101(4) ently in section offensive” Zook, Deputy Atty., Springs, Colorado Dist. those unconstitutionally because overbroad plaintiff-appellant. for community terms of words defined Schwartz, P.C., Arthur M. M. Arthur decency. conclude standards of We also Schwartz, Denver, Borenstein, Irvin for de- knowledge presumption con- fendants-appellees. 18-7-102(3) tained due violates Schwartz, P.C., Arthur M. Arthur M. process statuto- requirements that the Schwartz, Denver, plaintiffs-appellees. ry proscribing scheme devices” “obscene Lind, City Atty., M. Christian Asst. impermissibly right privacy. burdens Douglas, Brighton, Claybourne M. Asst. statutes, reject attacks the other on the Aurora, Bernard, Atty., L. City Steven offending provisions -that find are sev- Deputy, Brighton, Trial for defend- Chief uphold erable the remainder of the ants-appellants. Act. NEIGHBORS, Justice. I. appeals These concern constitu Thirty-Five In People v. East Col- Seven tionality of the Colorado statutes Inc., People instituted a civil action fax, (the Act), -105, sections 18-7-101 to seeking injunctive relief to have certain (1984 Supp.).1 Although еach C.R.S. pursuant items to section declared obscene pat- cases arises from a distinct fact three (1984 18-7-103, Supp.). The de- posture, procedural in a different

tern and Colfax, fendant, Thirty-Five East elected them for one we have to consolidate Seven Inc.,5 alleged filed an answer which appeal involves chal- opinion because each that the is unconstitutional on numer- validity upon Act based Act lenges to the grounds, facially applied.6 and as first to the United States ous both the amendment press. speech and No law shall was Freedom The full text of the Act which in effect 1. speech; passed impairing the be the freedom of these cases filed in district courts when were every speak, person in the Session Laws Colorado be free write or is found 1981 shall to beginning page being chapter publish any subject, on With at 223 998. he onwill whatever here, exceptions, liberty; the statutes responsible not material three all and for abuse of that supplement to Re- in the 1984 1978 prosecutions contained libel the truth in all and suits evidence, identical to Act placement Volume 8 are the given in and the thereof be adopted bill enacted the court, in 1981. A revisor’s jury, shall the direction of the under Assembly amended word in 1983 the General the the law and fact. determine "proscribed" in sections "prescribed” to 18-7- Const, Const, XIV; II, 4, 18-7-102, 511, (6). 102(5) U.S. art. 4. amend. Colo. § and Ch. sec. 2047, addition, In 2048. 25. § Colo.Sess.Laws 18-7-106, expedited requiring resolution section repealed by challenges, operates was known constitutional 5. The retail store defendant January Kitty’s Ch. sec. Kitty’s terms on 1983. own Palace and Bookstore Pleasure 18-7-106, 1002. 1981 Colo.Sess.Laws in § Colfax Denver. 727-735 East Appendix A. 1981 Act attached The challenged the fol- The the Act on defendant “Congress guarantee that first amendment 2. The (1) grounds; lowing Section 18- constitutional abridging the freedom of make no law ... shall speech,” defining 101(2)(b)(II) fails to meet "obscene” 7— applicable the to the states under (b) California, part test. the Miller Miller v. Douglas E.g., City amendment. fourteenth S.Ct. 413 U.S. Jeannette, L.Ed. (1973). (2) "prurient interest” in The words York, (1943); Gitlow v. New 18-7-101(2)(a), "patently in section offensive” L.Ed. 18-7-101(2)(b), and in sec- section "accredited” Const, (b) 18-7-104(l)(a) (3) vague. II, and tion provides; § art. 3. Colo. case, offensive,” purposes stipu- “patently For the defi- parties the definition of “promote,” presumptions lated that the the items would if the nition of be obscene 18-7-102(3) Act is and constitutional. The trial court found found section (1984 Supp.), the word and the term “accredit- “accredited” contained section C.R.S. 18-7-104, (1984 However, not dis- Supp.), un- ed.” the trial court did defendants; constitutionally vague.7 against upheld charges The court miss the the remaining rather, ruling provisions stayed in the Act and it the effect of its People appeal court. request denied the defendant’s to dismiss allow the to this complaint. appealed The defendant af- Beacom, Literary Adult Guild v. In ter its motion a new trial was also al., Guild, plaintiffs, Literary Adult et However, People denied. have sought preliminary permanent and in- cross-appealed the trial court’s determina- junction against Act the enforcement of the tion that used in word “accredited” as attorney police the district and certain unconstitutionally vague.8 the Act is agencies County. in Adams After several Mizell, People hearings, ten defendants the trial court entered its final were charged ruling plaintiffs separately promotion pos- and order that had stand- promote ing challenge declaring ma- session with intent Act and and obscene devices in violation of Act unconstitutional. The court found that terials 18-7-102(2)(a)(I) exception vague section of the Act. The the “accredited” was and equal protection guarantees consolidated in the district violated and cases were prohibition against рromotion court. Each defendant filed a motion to that right it was claimed that of obscene devices violated the dismiss which grounds privacy. Act was unconstitutional on simi- The court also held the words and Thirty-Five alleged Seven phrases lar to those enumerated in section VII of this Colfax, Inc. The trial court held that East opinion unconstitutional. The trial court permanently enjoined Act four entire was invalid because enforcement provisions constitutionally were infirm: the Act. 18-7-101(1), severability provision, "pro- words “material” in section includes a 18-7-105. 18-7-101(6), part mote" in section The Court finds that this of the law is not and "resale” 18-7-101(8) (4) inseparably so essential and connected are overbroad. The cul- [sic] with, dependent upon, part pable requirements and this voided mental state or "scienter" presumed general permit cannot per- section 18-7-102 the conviction of a assembly would have enacted the law without innocently, unknowingly, son who and uninten- provision, material, are, the voided and the Court finds that tionally disseminates obscene provisions standing the valid plete alone are com- therefore, (5) overbroad. The definition of “ob- capable being executed in accord- 18-7-101(3) scene device” in section and the legislative excising ance with intent. The [sic] provisions proscribing possession pro- their part of this of the statute also does not consti- 18-7-102(3) in section motion are inval- any way rewriting tute in the wholesale injunctive provisions id. in section 18- supreme statute which the court eschewed impermissibly prior 7-103 authorize the re- Tabron I. (7) speech. of free The "accredited” ex- straint We are unable to determine whether the trial emption equal protection denies the defendant court intended to sever all of section 18-7-104 the law. of only from the Act or to excise the word “accre- (a) (b) dited” from subsections and of thаt sec- issue, ruling on the “accredited” In written People only tion. The claim that the term "ac- the trial court stated: credited” was stricken from the statute while is not defined the act. This term within argues the defendant that the entire section was Although frequently this term is mentioned in disposition severed. In of view our ultimate conjunction is a com- with “schools” it not case, interpreta- this we need not decide which mon, appropriate term in connection or even ruling tion of the court's is accurate. museums, and theaters. libraries Since with museum, library, school or the- an accredited Attorney 8. The Office of the Denver District provisions the of this appearance is immune from People ater act, entered its on behalf of the importance paramount appellee to know attorney is of gener- "it as the in this case. The fact, if, granted appear it is accredited.” al was leave to as amicus curiae. part attorney general the act is finds that this The The Court has asserted that the word however, unconstitutionally vague. unconstitutionally vague. The act “accredited" is not

355 graphic The II. because their nature.” officials, government who are the defend- pass again requested are We once ants-appellants, allegation characterize this constitutionality regu- upon the of statutes plaintiffs’ the as a concession that materi- -105, obscenity, lating sections 18-7-101 to als are obscene.10 The officials conclude (1984 majority Supp.). pro- since materials that are not legis- provisions by enacted these were guarantees by the tected constitutional 1981, represent the General lature and speech, plaintiffs standing free lack Assembly’s effort to control obsceni- latest attack Act on “facial §§ overbreadth -105, 223, 1, ty. Ch. sec. 18-7-101 to grounds vagueness since materials also, 1981 Colo.Sess.Laws 998-1002. See they рurvey clearly fall within the statuto- supra statutory note 1. Earlier enact- ry proscriptions.” by unconstitutional ments were declared Inc., Horizons, court in New People rule, general questions As a 377, (1980), 106 P.2d 200 Colo. 616 standing present two-pronged inquiry: Tabron, People 190 Colo. 544 P.2d plaintiff has Whether suffered actual (1976).9 Har- appreciate, as Justice injury challenged government from the ac noted, that is an intractable lan tion; injury whether the is to a Circuit, City problem. Inc. v. Interstate protected legally cognizable interest. Dallas, 88 S.Ct. Wimberly v. Ettenberg, 194 Colo. J., (1968) (Harlan, 20 L.Ed.2d 225 (1977). Beginning P.2d 535 with Bolles Moreover, concurring dissenting). we People, 189 Colo. P.2d 80 recognize experienced the frustration however, recognized we that the limitations Assembly discharging the General party standing third have on been substan “trying task of difficult define what tially relaxed in the context of first amend Ohio, indefinable.” be Jacobellis v. claims. ment We stated: 1676, 1683, 12 U.S. gov Embedded in the traditional rules (1964) (Stewart, J., L.Ed.2d concur- erning adjudication constitutional is ring). That these observations are accu- principle person that a to whom a statute amply diverse rate demonstrated may constitutionally applied will not given by respective reasons district challenge that on the be heard statute judges declaring part all may conceivably ap that ground present statutory scheme unconstitutional unconstitutionally to plied others situa as a result of the on the broad-based attack so, how tions before the Court. Not addressing Before Act. merits of where, ever, here, dealing we are overbreadth, vagueness, process and due protections. First Broad Amendment issues, necessary briefly it is consider Oklahoma, rick v. question standing general [2914], S.Ct. obscenity legislation. principles governing (1973)]; Virginia, 421 U.S. Bigelow v. [ A. L.Ed.2d [(1975)]. standing only question raised Broadrick, supra, In noted Literary their amended the Court Adult Guild. seeking only alleged regulate their that in statutes complaint, рlaintiffs words, “sexually speech or of facial written claims sell materials businesses as an depict physi- overbreadth should be entertained in nature and various explicit anatomy exception general This is sexual rule. displays cal society in conceivably possible harm to come under because “the which conduct unprotected speech to challenged permitting herein some of the statute purview Richardson, standing as it "obscene 10. issue relates to Obscenity Colorado: 9. See Law in VILA., Statute, 60 devices" is resolved in section Struggle to Pass a Constitutional infra. (1982). Den.L.J. 49 356

go unpunished outweighed by pos- standing analysis vagueness to the chal sibility protected speech of others Englewood City v. lenges well. of may be perceived grievances muted and Hammes, Kolender (citing 671 P.2d at 951 left possible fester because of the Lawson, v. 352, 1855, 461 U.S. 103 S.Ct. inhibitory overly effects of broad stat- 8, (1983)). See also 1859 n. 75 L.Ed.2d 903 Id. 413 612; utes.” Bigelow v. at U.S. Beacom, High Shop Gear & Toke v. 689 Virginia, supra. (Colo.1984); Board P.2d 624 State Colo, Bolles, 396, Community Olson, at 541 Colleges v. P.2d at 82. 687 P.2d pronouncement Our most succinct (Colo.1984). on the conclude, therefore, party standing issue of third and over- plaintiffs that the standing have to attack City Englewood v. breadth is found in Ko ground vagueness, the Act on the of Hammes, 947, (Colo.1983), 671 P.2d Lawson, lender v. 352, 8, 461 U.S. 358 n. where we said: 1855, 8, 103 S.Ct. 1859 n. 75 L.Ed.2d 903 cases, however, In First Amendment Hammes, (1983); City Englewood v. standing per- rules of are broadened to (Colo.1983), P.2d standing to assert party mit a to assert the facial over- the unconstitutionality of the Act on the breadth of statutes or ordinances which ground of City overbreadth. Erznoznik v. may constitutionally protected chill the Jacksonville, 205, 2268, 422 U.S. 95 S.Ct. expression parties, regardless of third (1975); Marco Lounge, Inc. 45 L.Ed.2d 125 whether the statute or ordinance could City v. Heights, Federal 625 P.2d 982 applied constitutionally be to the conduct (Colo.1981).11 May party v. before the court. People, (Colo.1981); 636 P.2d B. Lounge, Marco City Inc. v. Fеderal II, Article section 10 of the Colo Heights, supra 982], P.2d at 985 [625 provides protec rado Constitution broader (Colo.1981) purports Where statute [ ]. tion speech for freedom of than does the regulate conduct, pure rather than first amendment to the United States Con however, speech, the facial overbreadth People Berger, v. stitution. 185 Colo. exception standing to traditional rules of (1974); In re 521 P.2d 1244 Canon applied only will when the over- (1955). Therefore, breadth is real and Colo. 296 P.2d “judged substantial plainly relation to the legitimate statute’s statutes must be drafted so that Oklahoma, Broadrick v. sweep.” they compatible with the United States 2908, 2918, 93 S.Ct. and Colorado interpreted Constitutions as (1973); May People, v. su- Supreme court, Court and this re pra, Moreover, at 676. facial over- spectively. People Horizons, Inc., v. New rarely breadth will be found when a stat- (1980). 200 Colo. 616 P.2d 106 More susceptible suitably limiting ute is to a over, being to avoid declared invalid on May People, supra, v. construction. grounds vagueness, such statutes must 675-76; Lounge, Marco Inc. City requirement meet the specificity neces Heights, supra, Federal at 986. sary apprise person of what conduct subject penalties. In ‍​‌​‌‌‌‌‌​​‌‌‌​​​​‌​‌​​‌‌​​​‌​​‌‌​‌​​​‌‌​​​​​‌‌‌​‍the context of first to criminal amendment claims Nor where, here, challenged provision such statutes violate the constitutional arguably infringes upon proscription against by chilling “a substantial overbreadth Tabron, constitutionally protected protected amount of con- the exercise of speech. duct,” may apply we the overbreadth 190 Colo. at 544 P.2d at 374. Weeks, People limiting party standing reliance on 11. The defendants' third in Weeks and (1979), People Bridges may fully P.2d 91 197 Colo. not be consistent with the (Colo.1980), Bridges, misplaced. holdings Oklahoma, 620 P.2d 1 in Broadrick v. Lounge, City Heights, In Marco Inc. v. Federal (Colo.1981), recog- People, 625 P.2d 986 n. 5 we Bolles v. 189 Colo. 541 P.2d 80 nized that the court’s formulations of rule exclusively brary” III. or “museum” which items of displayed loaned or an obscene parties The challenging Act con exceptions. fits nature within provisions that the exemption tend in the are statute invalid because “ac the word Hammes, City In v. Englewood of is unconstitutionally vague.12 credited” (Colo.1983), P.2d we summarized 18-7-104, (1984 Supp.), Section applicable when or standard a statute provides: vague. ordinance is claimed to be stat-We part Applicability 1. of ed: Nothing part in this contained shall challenge vagueness The essence a is of construed to apply to: reasonably that the law “fails to fore- (a) possession, purchase, The distribu- persons ordinary of intelligence warn of tion, exhibition, any or loan of work of prohibited and itself to what ... lends book, art, magazine, printed or other arbitrary discriminatory and enforcement manuscript by any material accredited provide it stan- explicit because fails to museum, school, library, institution apply City dards for those who it.” higher education; Unlimited, Lakewood v. 634 P.2d Colfax (b) performance The exhibition (Colo.1981);People Interest tableau, any play, drama, pic- or motion C.M., (Colo.1981). 630 P.2d 594-95 museum, theater, by any ture accredited vague provide A and law does not courts library, school, higher or institution of juries “adequate standards to enable education. apply consistently them to the law (Emphasis added.) legislative People accord with intent.” is the “accredit- Nowhere the Act term Smith, (Colo.1981). 638 P.2d possi- ed” defined. In this context it is not or a definition “accre- Absent standards legislature to ascertain intend- ble what 18-7-104, (1984 dited,” section C.R.S. by very use ed its of that term. At the danger arbitrary creates en- Supp.),. least, implies “accredited” word by “allowing the un- exercise of forcement reasonably fixed certain existence by police, judge, discretion bridled with which the enumerated facil- standards Beruman, jury.” People 638 P.2d must in order comply ities to reach (Colo.1982). However, being “accredited.” status applying these standards to defined, term since the “accredited” 18-7-104, “ac- we that the word conclude no prescribed there are standards that persons of ordi- vague credited” is so museum, school, library, or institution intelligence necessarily guess as nary must possess higher learning must in order meaning applica- to its and differ purview exception. come within the Indeed, any “li- argued Connally it tion.13 v. General Construction could be supreme exhibiting Wheeler have obscene materials. At least three state courts tion 12. exceptions Maryland, unconsti- Md. 380 A.2d 1052 statutes found penal- exemption The from criminal tutional. hearing during following The discussion persons the agents Act to under Tennessee "natural ties Affairs the Act the House State on held entity” acting was of a non-taxable legislators’ rec- some Committee demonstrates ognition vagueness process grounds and due voided on clarity ambiguity lack Association, Leech v. American Booksellers in Inc., regard Unfortu- word “accredited.” (Tenn.1979). exception An S.W.2d 738 however, nately, problem was not resolved. organizations exempt granted tax which Repre- participants were to the discussion one- supported or receive at least tax funds Lee, (then Weld James Robert Miller sentative publicly support from donated their third of County Attorney and a drafter of District protection equal to violate was found funds Strickland, legislation), Ted one of and Senator Sarette, City principles in Duluth v. sponsors be- senate of S.B. 38 which later 1979). (Minn. Maryland ob- N.W.2d 533 scenity came the Act. Ch. sec. 18-7-101 §§ on declared unconstitutional grounds law was -105, 1981 Colo.Sess.Laws 998-1002. excepted protection equal employees because Lee) (By Q. an ac- What's the definition of picture but not theaters of motion credited theater? prosecu- employees from criminal of bookstorеs Co., statutes, ity has declared L.Ed. 322 this court twice (1926); People City obscenity provisions ex rel. unconstitutional. Arvada state Nissen, (Colo.1982). Horizons, Inc., 650 P.2d People v. New 616 P.2d thereby vague word “accredited” is (Colo.1980); Tabron, People 190 Colo. process guarantees violates the due response, In 544 P.2d 372 fourteenth amendment to the States United legislature adopted Senate Bill 38 II, Constitution and article 25 of the §§ -105, sec. 18-7-101 to Ch. Colorado Constitution. 18-7- Colo.Sess.Laws 998-1002. Section (1984 Supp.), defines the of- IV. promotion promo- and wholesale fenses We next address the overbreadth obscenity. tion of concerning “patently issue the definition of (l)(a) Obscenity. person A commits California, offensive.” In Miller v. if, promotion obscenity wholesale 2607, 37 L.Ed.2d 419 character, knowing its content and he Supreme prescribed Court promotes possesses or in- wholesale following determining if test to be used in any promote tent to wholesale obscene material or conduct is obscene and there or device. material obscene protection fore not entitled to under the (b) obscenity promotion Wholesale first amendment: is a class 1 misdemeanor. (a) average person, ap- “the [WJhether (2)(a) person promotion A commits community plying contemporary stan- if, obscenity knowing its content and work, find that the taken dards” would character, he: whole, prurient appeals as a to the inter- (I) possesses Promotes or with intent est, ...; (b) depicts whether work promote any obscene material or ob- describes, way, patently in a offensive device; scene specifically by the sexual conduct defined Produces, (II) presents, law; or directs an (c) applicable state and whether the performance participates in a

work, whole, taken as a obscene lacks serious artistic, portion or that literary, politicаl, thereof that or scientific obscenity. to its contributes value. (b) apply- Promotion of is a class

413 U.S. at 93 S.Ct. at 2615. ing standard misdemeanor. the Miller to Colorado obscen- Miller) things, (By kind of ex- A. Pardon? libraries those Q. An accredited theater? What is that? tended to the theater at those institutions. so, A. I do not know what an accredited theater talking what we were about theaters And is. why setting, in that that's the reason that was Q. How would one know which theater— included. showing place of accredited or not? talking Q. —was You’re not about commercial the- A. I don’t know the answer to that. Q. aters? Ted, Lee) (By you do want to answer A. No sir. that? Strickland) carefully (By word A. That was only other from evidence available because of the reference to institutions chosen hearing before the House State Affairs Commit- higher artistic material education tee is this statement Senator Strickland: displayed is used and at those institu- provide exemption pub- for the We further institution is accredited—the the- An tions. libraries, institutions, public lic libraries in part there are of that institution —are aters exempt and other kinds of libraries. We also process

part and that’s of the accreditation provisions any journals kind of medical why word was selected. any literary publications. kind of or artistic allegations alleged So the that have been Ted, Lee) you say (By Q. that the theater saying trying people this bill that we’re to tell contained within institution? must be they can what do or can’t do in confines Strickland) question (By But the No. A. libraries, of their own home or in or in works meeting committee as to whether arose in our things totally those of art or kinds of bookseller, legitimate legitimate or not the untrue. material, by exemption literary artistic or (b) person promotes Depicts A who or whole- or describes: promotes sale obscene material or an ob- (I) representations Patently offensive possesses sсene device or the same with acts, nor- descriptions or of ultimate sex promote promote intent to or wholesale it simulated, perverted, mal or actual or presumed in the course of his is business intercourse, including sodomy, sexual knowledge to do so with of its content bestiality; and sexual or and character. (II) representations Patently offensive (4) possesses person A who six or masturbation, descriptions or excreto- identical or six or more obscene devices functions, sadism, masochism, ry lewd pre- more identical obscene materials is genitals, exhibition of the male or possess them intent to sumed genitals in female a state of sexual sti- promote the same. arousal, geni- mulation or male covered (5) apply a This section does not discernibly turgid tals a state or device person possesses or ob- who distributes designed primari- and marketed as useful par- scene material or obscene devices or ly genital for stimulation of the human ticipates proscribed in conduct otherwise organs; and possession, par- by this section when (c) whole, Taken as a lit- lacks serious ticipation, or occurs in the course conduct artistic, erary, political, or scientific val- of law enforcement activities. ue. apply to a This section does not added.) (Emphasis “Patently offensive” is person’s proscribed by conduct otherwise 18-7-101(4), defined in section 8 C.R.S. person’s this section which occurs that (1984Supp.), on as “so offensive its face as long person as that not residence as does community to affront current standards of engage promotion in the or wholesale added.) decency.” (Emphasis promotion of material in his resi- obscene dence. adopts test Although the Act the Miller 18-7-103, (1984 Supp.), verbatim, Section C.R.S. “patently almost it defines offen- provides injunctive against relief “decency.” sive” in terms of standards of promotion display of wholesale or obscene challenging validity of parties devices. The critical materials “patently Act that the definition of contend “obscene,” term in sections is which is both integral part of the defini- offensive” is an 18-7-101(2), in section defined “decency” is an tion of obscene and (1984 Supp.), as follows: overly by to measure standard which broad per- Thus, or a “Obscene” means material whether material is obscene. formance that: presented issue is whether the assessment “patently offensive”

(a)The material as average person, applying con- standards, constitutionally against a commu- be made temporary community would decency nity standard of under the United appeals that taken a whole to the find sex; States and Colorado Constitutions.14 prurient interest say unnecessary val- for us to decide we there that “the First Amendment In this case it is through "patently applicable the Four- words offensive” must be de- ues to the States if the authoritatively adequately protected in an statute or fined Amendment are teenth analysis Our power appellate the courts. construed Supreme the ultimate courts to yield a de- Court’s decisions does independent conduct an review of constitu- question U.S., answer to the of whether finitive necessary," tional claims when at 25 requirement. imposed S.Ct., a In Jen- 2615], has such plain Court at but we made [93 Georgia, 418 U.S. holding subject kins v. under that "no one will be (1974), Court stated: 41 L.Ed.2d 642 exposure prosecution of ob- for the sale or depict appeal "pru- though questions scene materials unless these matters Even patently sexual patent describe conduct_” offensive ‘hard core’ or of offensiveness rient interest" S.Ct., fact,” "essentially questions 2616]. be a Id. at 27 [93 it would States, Later, misreading in Smith v. United Miller to conclude that serious juries in determin- have unbridled discretion only "patently the Court stated: ing offensive." Not did what is Supreme Court directly Dictionary has never Third New International (1969). Tolerance, hand, addressed the issue of whether the other material or on performance alleged patently permissive to be offen defined as “a or liberal attitude sive is to judged against community practices differing toward beliefs or from decency standard of conflicting sympathy or of tolerance. with one’s own: Miller, Supreme spoke indulgence thought diversity Court of “com or con- munity question standards” with no further A elabora duct.” Id. at 2505. asked However, tion. attorney by judge stated: “It district Court the trial neither realistic constitutionally cogently nor sound Mizell summarizes the distinction to read the requiring “Why First Amendment between two words: isn’t decen- people that Mississippi cy prefer, of Maine or we would what what we would accept public depiction like, willing of conduct found while tolerance is what we are Vegas, City.” with, tolerable in Las put up though or New York to even not we 413 (emphasis U.S. at 93 S.Ct. at 2619 like it?” omitted). added and footnote In Smith v. The “tolerance” versus “decen States, 291, 305, United 431 U.S. 97 S.Ct. cy” controversy has by been considered a 1756, 1766, (1977), 52 L.Ed.2d 324 the Court majority number of other courts. The have “contemporary community held that stan “decency” concluded that a standard of applied juries dards must be in accord “indecency” violates federal state and/or understanding ance with their own of the speech guarantees constitutional free be average person tolerance of the in their cause a required. test of “tolerance” is community_” (Emphasis added.) Fi Drive-In, Vance, Red Inc. v. 648 Bluff nally, Ferber, in New York v. 458 U.S. (5th Cir.1981), denied, F.2d cert. 761 n. 102 S.Ct. 3357 n. 913, 102 455 U.S. S.Ct. (1982), L.Ed.2d 1113 the Court observed: (1982) (“[T]he protected line between ex equally “It would equate unrealistic to a pression punishable obscenity and must be community’s sexually toleration for orient community’s drawn at the limits of a toler ed permissible scope material with the ance, rather than in accordance legislation protecting aimed at children dangerous propriety standards of exploitation.” from sexual The fact that taste.”); Office, Home Box Inc. v. Wilkin consistently has Court used the word son, (D.Utah 1982) F.Supp. importance “tolerance” is a fact of critical (“To extend the reach of the criminal sanc analysis. to our beyond sphere tion described Miller Moreover, the distinction “de- hopes effectively between corral California cency” ling making and “tolerance” is a difference of only ‘right’, individuals into significance. ‘proper’ Decency

constitutional is de- or ‘decent’ choices runs counter to “suitability fined as or fitness to circum- the settled constitutional rule that proper power stances ... whatever is or becom- States have no to control the moral ing: propriety.” person’s thoughts.”); standards of content of a Webster’s Commu- (Footnote omitted.) However, jury patent The fact that the must measure Court against Smith, 291, 302, 1756, 1764, contemporary offensiveness commu- 431 U.S. mean, however, nity standards does not that just inappropriate also stated: “It would be go

juror discretion in this area is to un- legislature attempt jury for a to freeze a to States, Hamling Both in United [v. checked. one definition of reasonableness as it would be 2887, 2900, S.Ct. legislature try contempo- for a to define the Georgia, and in Jenkins v. ] rary community appeal prurient standard of 41 L.Ed.2d [94 642] 418 U.S. 153 offensiveness, patent interest or if it were even (b) part the Court noted that possible for such a definition to be formulated.” component a substantive test contained Miller The cases enumerated and discussed in this sec- jury kinds of conduct that a as well. The tion demonstrate that a number of courts and "patently permitted offen- to label as would be legislative apparently presume "pat- bodies prosecution are the "hard § sive" in ently offensive” must be defined or construed. suggested types the exam- of conduct core" ples given in Miller. Utah, have Roy City, Inc. over technicalities definitions nity Television of (D.Utah 1982) fluently, to write result- F.Supp. 1171-72 lured the courts (The ing, overdefining obscenity.”). is based on the tolerance standard ofttimes that, diversity adopt majority of ideas We and hold need for “survival view case, toler- points of view. We tolerate the ideas the circumstances of this first required and the communications which is under the of others ance standard frame those ideas because we want others amendment United States Constitu- us, ideas, points provides our our Because our constitution tolerate tion.15 approve, speech protection, we toler- We need but broader free view.... minimum, community required, the line of standards ance test at a tolerate to Miller_”); v. Al perform- Goldstein material or a drawn determine whether lain, (N.D.Miss.1983) (the Accordingly, F.Supp. patently offensive. ance patently defining “patently offensive we hold that definition of definition 18-7-101(4) community phrase in terms of stan offensive” in section is uncon- upon speech decency infringes stitutionally dards overbroad.

protected by the first amendment because expression protected line between V. punishable obscenity must at the be drawn The defendants Mizell contend tolerance); Leech community’s limits of a presumption the contained section that Association, v. American Booksellers 18-7-102(4), (1984 Supp.), is uncon Inc., 582 738, (Tenn.1979) (The 748 S.W.2d provides That stitutional. section that: acceptable” impermis- “personally standard person possesses six or more iden- A who speech sibly encroaches on the freedom of or six or more iden- tical obscene devices I, press under article section 19 of the presumed to obscene materials is tical “It is that Tеnnessee Constitution. obvious promote the possess them with intent to acceptance to test would lead the indis the same. pro branding obscene much of criminate as presumption comports We hold that speech pass that would otherwise tected and, process requirements of due with the see Andrews v. test.”). But the tolerance thus, is constitutional.16 State, (Tex.Crim.App.1983) 652 S.W.2d 370 (the passes Initially, note that is settled con we “patently term offensive” unprotected by materials are with that obscene muster because context stitutional the “decency” the first amendment of United the states a either in the statute word 10 of arti meaning ‍​‌​‌‌‌‌‌​​‌‌‌​​​​‌​‌​​‌‌​​​‌​​‌‌​‌​​​‌‌​​​​​‌‌‌​‍governs current States Constitution of what common Roth standards, i.e., cle II of Constitution. whether to the the Colorado community States, 476, v. 77 S.Ct. United 354 U.S. average person the material is so offensive (1957); People v. Ta- 1304, community 1 L.Ed.2d 1498 to current on its face as affront (1976). Barrett, bron, 149, 544 P.2d 372 190 Colo. propriety); State standards of presumption con (1982) (the Thus, challenged if the 592 S.C. 292 S.E.2d pro cerning obscenity not offend due argument does defendants’ dismissed the court no guarantees unjustified and if it has decency as cess tolerance and fol regarding protected on “Here, inhibitory collateral effect typical as is lows: constitutionality. speech, uphold its ‘picketh Squabbles nit.’ we will cases, the counsel Moreover, extent, any, if the toler- interpreted to what be tion. should not Our decision constitutionally definitively the standard. deficient approving tolerance standard be ance only arguments parties’ focused on the have The us. is not an issue before "decency” and "tolerance.” between contrast Thus, holding issue. if a is limited that Our legislative that sec- 16. Because of our determination those “patently body to define offen- elects prohibiting promotion Act tions terms, it choose using two must one sive” unconstitutional, refer- obscene devices However, supra we stated "tolerance." 18-7-102(4) in section ence such devices patently offen- question of whether note superfluous and should be severed. rendered open ques- defined is an sive should process requires (1970); due People clause 24 L.Ed.2d 610 S.Ct. that a only defendant be convicted after McClendon, 533 P.2d 923 Colo. proof beyond a every reasonable doubt of courts, conclude, as have other charged. element the crime In re Win- presumption here that issue com- ship, 397 U.S. 25 ports requirements process. with the of due (1970); Maltas, L.Ed.2d 368 People v. Barry, Co. See Overstock Book (Colo.1982). P.2d 254 Well-established (E.D.N.Y.1969), F.Supp. 842 436 F.2d affd principles proscribe law use crimi (2d Cir.1970); Books, Rage Inc. v. statutory nal presumptions cases F.Supp. (S.D.N.Y.1969). Leary, 301 improperly proof, shift the burden of Mul- Assuming jury properly in- Wilbur, laney v. S.Ct. operation permissive structed as to of a or that conclu presumption, sufficiently there is a rational sively presume an element of the offense. possession connection between the of six or Montana, Sandstrom v. 99 more identical obscene materials and (1979). Thus, it is promote intent to justify them to the use of presumption challenged clear that the here statutory presumption challenged permissive must comply be classified as here.17 requirements. with constitutional It must challenge The same defendants also allow, require, construed to but constitutionality statutory presump- presumed trier of fact to infer the fact permitting tion the fact finder to infer (intent promote) proven from the fact knowledge of the mate- contents (possession of six more identical obscene materials) and, promo- rial from the fact of course, the materials’ jury must be properly agree tion. We with their instructed as to this effect. contention that presumption process prin- violates due power legislature сiples provi- the of because overbreadth the statutory create presumptions is limited chilling protected sion has a' effect on free- the process due clause. Brown v. District expression. dom of Court, 219, (1979). 197 Colo. 591 P.2d 99 validity permissive The constitutional of a 18-7-102(l)(a), (1984 Section presumption depends upon the existence of Supp.), provides: a rational connection between the fact to be person promotion A commits wholesale proven inferred the fact. v. Tot Unit if, obscenity knowing of its content and States, ed 319 63 U.S. S.Ct. 87 character, promotes he or pos- wholesale (1943). process requires, L.Ed. 1519 Due promote with intent to sesses wholesale minimum, at a presumption that a criminal any obscene material or obscene device. satisfy following the test: criminal “[A] 18-7-102(3) challenged Section contains the statutory presumption regarded must be presumption: ‘arbitrary’ 'irrational’ hence uncon person promotes A pro- who or wholesale stitutional, unless can be said with sub motes or an obscene material obscene presumed stantial assurance that the fact possesses device or the with same intent likely is to from more than not flow the promote promote proved to or wholesale it in the depend.” on it made fact which is to States, presumed course of his Leary business is to do v. United U.S. 1532, 1548, (1969). knowledge so with of its S.Ct. L.Ed.2d See content and States, also Turner v. United character. 102(6), protects susceptible proper

17. We that the first note amendment to construction to private possession the of obscene materials prevent impermissible infringement an the on regulation. Stanley state one’s home from right privately possess to such material. a Such Georgia, 394 U.S. 89 S.Ct. 22 L.Ed.2d however, construction, narrowing should best here, (1969). presumption the 542 conjunction We view accomplished appro- within the context of an exemption with for conduct oc- priate case. curring person’s in a residence in section 18-7- printed California, In word which Smith U.S. access forms of sup- constitutionally 80 S.Ct. State could Supreme pro Court held that an ordinance Smith, 153-54, directly.” 361 U.S. at press scribing possession by a of bookseller Mishkin v. New 80 S.Ct. at See also constitutionally material could not 502, 511, 958, 965, York, 383 U.S. dispense requirement with of scienter (1966)(“The Constitution re- part holding on the of the defendant. proof of the hazard quires scienter avoid liability possession for that strict of pro- self-censorship constitutionally constitutionally such material could not material_”). tected bookseller, imposed upon a the Court em Moreover, Supreme Court has em- phasized special appropri is solicitude apparatus phasized procedural rights: ate in the area of first amendment is within which matter determined sub- examples legal furnish “Our decisions special scrutiny right when the ject to doctrines, applications devices and in most speech implicated: free Constitution, with the which consistent can [Sjince only great- of the considerations settings they applied not be where have urgency justify est can restrictions on inhibiting the free the collateral effect speech, validity of a and since re- making expression by dom of the individual speech depends on on straint each case Smith, the more reluctant to exercise it.” particular analysis of the circum- careful 150-51, 80 361 U.S. at S.Ct. at 217. procedures by stances ... which the requirement that statutes or ordinances adjudicated facts the case are regulating obscenity element of contain an special validity grounded upon importance and the potential scienter is liability provision safeguards to inhib turn on the a strict restraint protected speech: they it the exercise of which afford. By dispensing any requirement Randall, Speiser knowledge the contents of the on book L.Ed.2d seller, part the ordinance tends Thus, Speiser, exemp- denial of tax pub- impose a limitation on the severe loyalty to a tion for refusal subscribe constitutionally protected lic’s access to procedural oath was unconstitutional if is criminal- matter. For the bookseller taxpayer prove requiring context ly knowledge liable without of the con- person qualify proper that he was a tents, pur- and the ordinance fulfills exemption: the pose, to he he will tend restrict the books that, present procedure The vice inspected; he has and thus sells to those particular speech falls close the where imposed a the State will have restriction unlawful, separating the lawful and line constitutionally of upon the distribution factfinding— possibility of mistaken protected well as obscene literature. litigation in all create the inherent —will (footnote 153, at 218 omit

Id. at 80 S.Ct. legitimate will danger that the utterance ted). Updegraff, v. 344 See also Wieman man knows that penalized. who 215, 183, 216 73 97 L.Ed. S.Ct. proof persuade bring he forth must (oath non-membership in or subversive of his conduct another of the lawfulness because it ganizations is unconstitutional necessarily far wider of the must steer knowing distinguish between did not if than the State must unlawful zone association). Thus, end result innocent bear these burdens. liability obscenity enactment is a strict of a 526, at The “tran- Id. at 78 S.Ct. 1342. system administered censor privately speech” in value involved in scendent bookseller’s limitation ship: “The Speiser required the invalidation reading he material with which amount proof the burden of himself, timidity statutes that shifted his familiarize could provisions taxpayer because liability, criminal his absolute face of procedure short-cut which public’s amounted to “a to restrict thus would tend 364 § inevitably scienter);

must pro- 251.4(2), result suppressing Model Pеnal Code 528, speech.” 526, tected Id. at 78 at (1980) (“A presumption comment 11 that 1342, 1343. possesses one disseminates or who Presumptions material in the course of his does similar or business identical to the one at issue here have been knowingly recklessly places invalidated as so a severe unconstitutional various In courts. of prior screening burden examination and Bumanglag, 596, State v. 63 634 Hawaii legitimate unlikely on business. It seems (1981), P.2d example, held court today presumption pass that such a would presumption18 such a impermissibly Note, scrutiny.”); constitutional The Scien expression: inhibited free application “Its ter Requirement Obscenity in Criminal public would tend to limit protect- access to Prosecutions, 41 N.Y.U.L.Rev. 797-99 ed material because booksellers then (1966) (evidentiary presumptions similar to they restrict what offer to they works the one at after issue here are invalid familiar with and consider ‘safe.’ The dis- California). v. Smith protected, obscene, tribution as well as has, Supreme occasion, Court on one matter be affected this self-censor- expressly declined to reach the issue of the ship.” 634 P.2d at 96. constitutionality presumptions. of such State, In (Tex. v. Davis 658 S.W.2d 572 Ginsberg York, v. New 390 U.S. 632 n. Crim.App.1983), perceived the court a simi 88 S.Ct. 1276 n. danger guarantees lar to the of the first (1968). however, recently, More in a case amendment, that, noting especially in the raised, which the same issue was large establishment, case of a risk of “[t]he Supreme appeal Court dismissed an suppressing expression freedom of want a question substantial federal negligible; pro ... it rises to astronomical People v. Kirkpatrick, 32 N.Y.2d portions.” 658 In S.W.2d 579. addition (1973), N.Y.S.2d appeal N.E.2d 753 observing presumption that the cannot dismissed, process analysis, survive due Leary see Kirkpatrick, L.Ed.2d States, United 395 U.S. 89 S.Ct. upheld constitutionality state courts L.Ed.2d the Texas court conclud statutory presumption that the expression ed that seller of is toо “[freedom important right obscene materials knows seriously allow to be the contents of impeded impaired by material, a presumption such and also held that there was implicated one in this case.” 658 independent sufficient evidence scienter Press, at 580. S.W.2d See also Grove Inc. support the conviction. Evans, F.Supp. (E.D.Va.1969); State, dismissal, procedural This (Tex.App. Skinner S.W.2d 686 1982) context, (presumption impermissibly equivalent was adjudication shifts an proof and burden of eliminates element of of the federal issue on its merits.20 Hicks provided Additionally, § 18.HRS 712-1214 Bumanglag implied that: court challenged presumption that the violated due person pro- A commits offense of process. agreed salespeople gen- The court that if, moting pornography knowing its content erally likely were less than not the know character, he: of contents their entire stock: "We find this (a) monetary Disseminates consideration discount, difficult for a conclusion that.a any pornographic material.... person who a sold book also was familiar with issue, presumption The contained in HRS comport character and content does not with 712-1216, provided that: § experience what common sense and tell us person engaged fact that a in the booksellers, about salesclerks and their knowl- by specified sections or conduct 712-1214 edge the of contents of books.” 634 P.2d at 96. prima 712-1215 is facie evidence that he en- gaged knowledge in that conduct with of the summary 20. We aware that affirmances and content of the material character dissemi- have sometimes been accorded less full than produced, performance present- nated or the ed, directed, precedential weight by Supreme the Court. See in, exhibited, participated or to Jordan, 651, 671, v. Edelman 415 U.S. S.Ct. 94 be exhibited.... 1347, 1359, (1974); 39 L.Ed.2d 662 Richardson

365 Miranda, 332, 2281, v. 422 95 45 VI. U.S. S.Ct. (1975); generally see R. Stern Literary The trial court Adult Guild in Gressman, Supreme Court Practice & E. following v. Beacom found that the terms § (1978). However, agree 5.18 we with 18-7-101(2)(b) were un- contained in have found the those courts that dismissal “sadism,” constitutionally “ma- overbroad: appeal Kirkpatrick ambiguous of the in or sochism,” “sodomy,” “bestiality,” “mastur- of inconclusive on the issue the constitu bation,” genitals,” of the “lewd exhibition tionality presumption challenged genitals male female in state “the or Drive-In, Inc. E.g., Red v. here.21 Bluff arousal,” “device de- sexual stimulation Vance, Cir.1981) 1020, (5th 1031 648 F.2d signed primarily and marketed as useful guidance” (discerning no from “definitive genital the human or- stimulation of dismissal); State v. Supreme

the Court’s gans,” “perverted.” agree We Bumanglag, 63 Hawaii 634 P.2d 80 contention that this deter- defendants’ (1981). mination erroneous. was Bumanglag, Supreme In Court of the sum- of Hawaii considered the effect finding constitutionally In these terms Kirkpatrick uncertain in mary dismissal in defective, opin- court relied on our trial difficulty discerning light of the Tabron, People v. ion in 544 Colo. precise challenges raised constitutional Tabron, (1976). P.2d In we held that presumption question. in against We then in ef- the Colorado statute that, agree with the Hawaii court because specificity fect did conform to stan- not analysis present- of the inexactness United States Su- dards articulated Kirkpatrick, we are not ed foreclosed California, Court Miller v. preme considering the first amendment over- from 2607, 37 93 S.Ct. L.Ed.2d U.S. ambiguity Given the breadth issue. in Beacom relied (1973). judge The trial Kirkpatrick, Supreme Court’s decision in of Tabron holding particular aspect that on summary we hesitate read the affirm- proscriptions of the stat- that the Colorado Appeals’ York ance the New Court by Mil- required specificity ute lacked the opinion Supreme “as renunciation [the ler: previously an- doctrines Court] nounced_” meaning, plain ordinary Given their Steinberg, Fusari sex, conduct, “nudity, sexual L.Ed.2d words concurring). C.J., excitement, sadism, (Burger, ... maso- sexual chism, abuse,” are sado-masochistic view, presumption our representative specificity con- 18-7-102(3), in section scienter contained Supreme Court in Mil- templated by unjustified (1984 Supp.), creates an C.R.S. ler_ statutory definition of “ob- protected by the expression on constraint overly is drawn broad scene” Colorado States Con of the United first amendment obviously includes activities and, by section 10 especially, more stitution depicted in which could be described Colorado Constitution.22 of article II Ramirez, presumption Kirkpatrick at issue n. 94 S.Ct. the identical 418 U.S. J„ (1974) (Marshall, error where there n. did not constitute reversible 2685 dissenting). infer, however, do not scienter. was sufficient evidence of The court courts are free to and lower federal rely Kirkpatrick state courts ignore in Abrams did not on author- by summary precedent represented reaching presumption, ity validity for the Miranda, Hicks See affirmances. through independent its own that conclusion analysis. See 45 L.Ed.2d Gressman, Supreme & generally E. R. Stern (1978). 4.31 § Court Practice II, II.B., we stated that article 22. In section provides Constitution section 10 of Colorado apparently drawn no one court has 21. At least speech protections than does its broader free Kirk- the dismissal in from inference whatever counterpart. Abrams, (2d federal Young 698 F.2d 131 patrick. In application Cir.1983), held that court some context law, other than an regulating erotic one. state or as written con- opinion, In our the statute strued.” Id. fails to de- act,” scribe an “ultimate sug- sexual specificity requirement imposed Miller, gested by speci- and this lack of upon has re- state statutes been ficity renders the Colorado definition of and, extent, by affirmed to some clarified obscenity constitutionally defective as Supreme subsequent Court decisions to by part (b) measured of the Miller stan- Georgia, Miller. Jenkins U.S. dards. 94 S.Ct. 41 L.Ed.2d 642 that, example, the Court made clear Colo, Tabron, at 544 P.2d at 379 examples given while the in Miller of mate- (citations omitted). properly subject by regulation rial to guidelines, The Miller under which exhaustive, state were not meant to be material must evaluated be to determine they intended to indicate were the “sub- constitutionally unprotected whether it is limitations, deriving stantive constitutional obscenity, following compo included the Amendment, type from the First on the depicts nent: the work or de “[W]hether proscribed. material” that could be Jen- scribes, patently way, in a offensive sexual kins, 418 at 94 S.Ct. U.S. at 2755. specifically by applica conduct defined given specific examples That the in Mil- Miller, ble state law.” at U.S. were illustrative ler boundaries del- Although, at S.Ct. 2615. we noted ‍​‌​‌‌‌‌‌​​‌‌‌​​​​‌​‌​​‌‌​​​‌​​‌‌​‌​​​‌‌​​​​​‌‌‌​‍imiting the class obscene materials has Tabron, the Court was “less than munifi by the been reiterated Court: guidance regarding cent” bound particular descriptions While there Tabron, requirement, aries the above contained were not intended be ex- Colo, at at P.2d Court haustive, they clearly indicate that there clear did make the sexual conduct beyond legislative is a limit which neither regulated depicted in material “must juries go nor draftsmen in conclud- specifically applicable defined state ing particular is “patently material law, as or authoritatively written con meaning offensive” within the of the ob- Miller, strued.” at S.Ct. scenity test set forth the Miller cases. States, Hamling v. United declining propose While states precise regulatory schemes,

detailed or plain Court in Miller enumerated “a few legislative We hold that the enactment examples” properly subject of material presently complies under consideration “(a) regulation by Patently a state: offen- specificity requirement enunciated representations descriptions sive or of ulti- Miller and refined later cases.' The acts, perverted, sexual normal or ac- mate Assembly’s General to specifically efforts simulatеd, (b) Patently or tual offensive define the sexual conduct which descriptions of representations or mastur- legitimately portrayed is contained in bation, functions, excretory 18-7-101(2)(b). and lewd exhi- That section de- genitals.” Id. at bition S.Ct. fines “obscene” as or perform- material expressed depicts at 2615. The Court Miller ance that or describes: that the standards confidence set out there (I) Patently representations offensive possible provide “fair notice” of would descriptions acts, of ultimate sex nor- purvey obscenity. who prosecution perverted, those mal or or simulated, actual 27, at 2616. including intercourse, The Court Id. at sexual sodomy, bestiality; that “no one will be sub- and sexual further affirmed ject prosecution exposure the sale or (II) Patently representations offensive unless these materials of obscene materials descriptions masturbation, excreto- patently functions, depict ry sadism, or describe offensive ‘hard masochism, lewd specifically core’ sexual conduct defined genitals, exhibition of the the male or patently offen- conduct the genitals in a state of sexual sti- of the sexual female arousal, geni- may be held ob- description mulation or covered male of which sive discernibly turgid Ward, or device at tals in a state 431 U.S. scene....” primari- as designed and marketed useful in inclusion sec- at 2091. Given the S.Ct. genital ly of the human for stimulation 18-7-101(2)(b) examples set out tion organs.... subsequent clarifications in and the Miller by Ward, we conclude (1984 § offered 18-7-101(2)(b)(I), (II), 8 C.R.S. Act at issue here are suffi- sections Supp.). specific satisfy re- ciently constitutional statutory these de note that We quirements.23 precise scriptions contain within them the Thirty-Five examples view these The set out Miller. We defendants Seven courts, being examples, Colfax, other also assert as have East Inc. and Mizell sufficiently require specific satisfy following defects render the that various explication further ments of Miller without statutory constitutionally defective: terms See, e.g., United interest,” “material,” the state. States “pro- “prurient Merchandise, Obscene Articles arguments. Various reject mote.” these We (2d 1769, 600 F.2d 394 Cir. No. Schedule defendants’ contention that 1979) must a (patently offensive conduct at fur “prurient the term interest” must be depiction of be a the activities minimum mer ther defined the statute is without activities); listed in Miller or similar agree Appeals it. We with the Court of Reinhard, Books, F.Supp. Eagle Inc. v. that, although “[m]any Fifth Circuit (N.D.Ill.1976)(examples given in Miller helpful find it to learn that jurors specif sufficiently of “what would be are ‘prurient interest’ means shameful ic”). morbid,” require a constitutional is not Nor do view addition to we definition included ment that such a be 18-7-101(2)(b) spe- not types of conduct Drive-In, Act.24 Red Inc. Bluff fatal to the cifically listed Miller be Cir.1981). (5th Vance, 648 F.2d Although we indicated in Tabron statute. State, 638 S.W.2d also Stonelake See of the terms “sadism” that the inclusion (Tex.App.1982). rendered that “masochism” the defend also conclude that overbroad, subsequent Supreme a statute their failed to sustain burden ants have suggested that we relied decision Court terms demonstrating statutory reading of on too literal Miller. Tabron “promote” are constitu “materials” Illinois, 431 U.S. In Ward v. § 18-7-101(1), (6), 8 tionally defective. ex- Court (1984 Supp.). The defendants have C.R.S. recognized that sado-masochistic pressly unconstitu terms are asserted that these type intended were materials however, overbroad; persuasive no tionally protection of the constitutional denied sug infirmity have examples such been test. under the Miller amendment first statutory scheme gested. that the York, Given 383 U.S. v. New also Mishkin See 'only apply to requires that these words 18- as defined in section “obscene” matter held not to was statute Ward The state appli 7-101(2), perceive fail to how the overbroad, we notwithstand- substantially in an result of the terms issue will “an exhaustive list cation provide ing failure Drive-In, vague See Red remaining de- overbroad. additions to the statute 23. Bluff (5th Cir.1981). Vance, sexual conduct 648 F.2d 1020 of hardcore Inc. v. scribe the sort Further, as exemplified in Miller. meant to be noted, depictions the reference with, reach, one court has presented we nor do 24. We turgid genitals was contained of stimulated in be over- the issue whether conviction acceptable Miller cited in state statutes instruct a for the trial court's failure to turned Miller, at 24 n. statutory enactments. meaning jury prurient interest. on the Further, the inclusion n. S.Ct. at 2615 masturbatory the statute does not render aids infringement Further, proscribed rights.25 legal constitutional articles. “[t]he Moreover, in our statutory view these the terms are sub- duties created sections ject proper narrowing challenge directly construction under are addressed danger the should plaintiff. appear Craig overbreadth in vendors” such as the v. subsequent cases. Boren, 429 U.S. 97 S.Ct. Craig,

50 L.Ed.2d As in the VII. plaintiff obliged here is to choose between statute, consequent conformance to the A parties number of the challenge who injury, possi- economic or disobedience and the provisions regulat- Act contend that the prosecution. ble criminal This es- status ing promotion the of obscene devices un- requisite tablishes the in in injury fact or- constitutionally infringe on their free der to insure “concrete speech adverseness vis-a- rights rights and on process the due vis the defendants sufficient assure the purchasers of those devices. We hold ” presentation of effective the issues.... statutory the impermissibly scheme Olson, 687 P.2d at 440. right privacy. burdens the Moreover, Olson, as in the con A. privacy right sumers’ in the use of the Preliminarily, we consider proscribed “inextricably articles is bound standing question. Applying principles up” activity prohibited by with the the stat standing relevant to third-party enunciated рromotion ute—the of these articles. Id. at in Community State Board Colleges v. for case, 440. purposes We view this Olson, (Colo.1984), 687 P.2d 429 con we standing analysis, analogous to Car Literary clude that Adult Guild has stand ey Population International, Services ing process to assert the due rights of 431 U.S. 97 S.Ct. purchasers of these In articles. Olson we Supreme which Court held stated that: contraceptive that a retailer of had devices plaintiff who demonstrates an actual [A] standing rights to assert the constitutional injury guarantee sufficient to concrete case, of its customers. as in Carey, permitted adverseness to assert danger that the rights constitutional rights parties of third not before the parties third or adversely would be diluted court when at least one of following affected Literary should Adult chal Guild’s present: presence factors is of a lenge fail is standing sufficient confer relationship substantial between the upon plaintiff rights to assert the of its plaintiff party; and the third the difficul- Carey, customers. at ty improbability parties of these third Olson, S.Ct. at 2015. See 687 P.2d at 440. asserting alleged deprivation an Literary Guild, plaintiff Adult like the rights; their own or the existence of “among Carey, is the ‘vendors and those in need avoid party some dilution of third positions like have uniformly been [who] rights standing per- event is not permitted to resist restricting efforts at mitted. operations by acting their as advocates for at P.2d rights parties of third seek who access market_’” sufficiently This test satisfied to their Carey, 431 U.S. at accept Literary here. as true (quoting Adult 97 S.Ct. at Craig allegation injured Boren, Guild’s that it will through prosecution selling (1976)).26

fact 50 examples possible hypothetical analogous over- Obscenity 25. The section of Colorado unconstitutional, application "pro- Act is we in the of the term need not address the breadth Drive-In, Vance, concerns raised in given Red Drive-In. Inc. mote” in Red Bluff Bluff Cir.1981), (5th apply to the sec- F.2d understood, hоwever, 26. We do not wish to be proscribing promotion tion of the statute implying that distributors of obscene materi- Given our obscene devices. determination standing rights purchas- als have assert the id., ]; 463-465 S.Ct. at B. [92 (White, J., concurring 1041, 1043-1044] 18-7-102(2)(a)(I) provides Section that a family relationships, Prince v. result); guilty is of a 2 if person class misdemeanor Massachusetts, 158, 166 321 U.S. [64 possesses to “[pjromotes he with intent (1944); 438, 442, device_” 88 L.Ed. S.Ct. 645] An promote any ... obscene v. education, Pierce rearing child is as device in- obscene device defined “a Sisters, 510, Society 268 U.S. 535 [45 vagina, de- of cluding a dildo or artificial (1925); 571, 573, 69 L.Ed. S.Ct. 1070] signed primarily as useful for marketed Nebraska, 390, 399, Meyer v. U.S. [262 genital organs.” the stimulation of human 625, 626, L.Ed. 1042 43 S.Ct. 67 ].” § 18-7-101(3), (1984 Supp.). Wade, supra, v. Roe U.S. [410 113] firmly It is established that 705, 726-727, 35 152-153 S.Ct. [93 protected by pro liberty interest the due See also Cleveland 147 L.Ed.2d ]. United States Constitu cess clause of the LaFleur, v. Board Education 414 of right personal pri of encompasses tion "a 796, 632, 791, 639-640 S.Ct. 39 U.S. [94 vacy, guarantee a of certain areas or (1974). L.Ed.2d 52] Wade, privacy.” Roe v. 410 U.S. zones of Population Carey Services Interna- v. 113, 705, 726, 152, 35 S.Ct. L.Ed.2d 147 93 tional, 684, 2010, 678, 431 97 S.Ct. U.S. (1973). Supreme has stated The Court 2016, (1977). privacy 52 L.Ed.2d 675 This privacy this interest that: protecting right has been characterized aspect this While the outer limits of home,” Par- personal “the intimacies privacy have not been marked Slaton, 49, is Theatre I v. Adult 413 U.S. Court, among clear that the deci- is n 2628, 2639, 65, 446 93 37 L.Ed.2d S.Ct. an make with sions that individual Supreme and the Court has stressed government unjustified interference out to right is the that “also fundamental “relating mar personal to decisions circumstances, free, very except limited 1, Virginia, riage, Loving v. 12 388 U.S. governmental intrusions unwanted from 1817, 1823, 18 L.Ed.2d S.Ct. 1010] [87 Georgia, v. privacy.” Stanley into one’s v. Okla (1967); Skinner procreation, 1243, 1247, 22 394 U.S. 89 S.Ct. Williamson, 535, ex rel. homa 316 U.S. (1969). L.Ed.2d 542 1110, 1113-1114, 86 S.Ct. 541-542 [62 need not decide whether the Eisen (1942); contraception, L.Ed. 1655] Baird, properly regulate the kinds of v. state stadt 405 at 453-454 U.S. [438] prohibited by 1029, 1038-1039, sought to 31 L.Ed.2d 349 devices S.Ct. [92 Film, 413 buy States v. 12 200-Ft.Reels use in their homes. also United ers materials for such 557, 2665, (1973); 123, Stanley Georgia, v. U.S. 89 S.Ct. S.Ct. 37 L.Ed.2d 500 See 394 U.S. 93 1243, (1969). right 139, Orito, We view the 22 L.Ed.2d 542 93 S.Ct. v. 413 U.S. United States pro- broadly implicated scribing worded statute 2674, (1973); United States v. 37 L.Ed.2d 513 sphere within the 363, sexual devices as Photographs, Thirty-Seven 402 U.S. 91 S.Ct. constitutionally protected privacy which encom- Thus, (1971). 1400, a distributor 28 L.Ed.2d 822 problems passes medical associated the intimate purporting to assert the of obscene material activity. v. See United States 12 sexual purchaser generally rights be un- would 123, 4, Film, 413 U.S. 127 n. 93 Reels 200-Ft. particular constitutional to show that "the able 4, 2665, (1973). L.Ed.2d 500 2668 n. 37 S.Ct. Standing by underlying provision the claim creates ... assert the derivative distributors to arguably right ... that has been or interest purchasers has rights in these circumstances challenged governmental abridged by ac- E.g., Carey Population granted. often been Community Colleges v. State Board tion.” Int'l, 52 U.S. 97 S.Ct. 431 Services (Colo.1984). Olson, More- P.2d Baird, (1977); Eisenstadt over, possess right privately we note that (1972). 31 L.Ed.2d 349 92 S.Ct. protected by section 18-7- materials such contrast, Supreme explicitly held Court has 102(6) application exempts of the Act which Stanley right established limited that the occurring person’s residence. This conduct possess does not ex- privately obscene materials however, sufficiently exemption, is not broad acquisition and distri- of their to the means tend purchase prohibit- person permit a one Slaton, U.S. I v. Adult Theatre bution. Paris 49, ed devices. (1973). See 37 L.Ed.2d 446 S.Ct. 18-7-101(3) statute. Sections U.S. L.Ed.2d 102(2)(a)(I),however, (1965). sweep broadly too proscription their blanket of all devices “de- prior Any system of restraint signed or primarily marketed useful against subject heavy presumption ato genital organs.” stimulation of human Books, validity. constitutional Bantam scheme, form, statutory present in its Sullivan, 372 Inc. v. impermissibly right privacy burdens the Supreme Court seeking legitimate of those to make medi- prior has declined to hold the restraints of therapeutic cal or use such devices.27 per expression unconstitutional se. Times

The effect of the statute as now writtеn is Corp. Chicago, Film U.S. obscenity.28 to equate sex with The state (1961). L.Ed.2d 403 South has demonstrated no interest in the broad Promotions, Conrad, eastern Ltd. prohibition sufficiently of these articles 546, 560, compelling justify infringement to the on the stated: Court privacy right the seeking of those to use Freedman, held we reaffirm Thus, in legitimate ways. them we hold here, prior that a system of restraint statutory prohibition against the pro- the runs afoul of the First Amendment if it motion of devices to be unconstitu- safeguards: First, lacks certain the bur- tional. instituting judicial den of proceedings, proving

and of that the is unpro- material tected, Second, must on rest the censor. VIII. any prior judicial restraint can review Thirty-Five challenges East Seven Colfax only imposed specified be for a brief (1984 18-7-103, Supp.), section 8 C.R.S. period for only purpose pre- the which authorizes the district courts “to en- serving quo. Third, prompt the status join promotion, promotion, the wholesale judicial final must as- determination be materials_” § display of obscene 18-7- sured. (1984 103(1), Supp.). Thirty- C.R.S. Seven (Emphasis in original.) People See also proce- Five East Colfax claims that the (1971). Harvey, 176 Colo. 491 P.2d 563 provided by dures section 18-7-103 do not requirements satisfy by announced argument The essence of the made Supreme Court in Maryland, by Thirty-Five Freedman v. Seven East Colfax is that Drug pro- adjunct Kegel's (tightening 27. The Food has an Administration exercise ‍​‌​‌‌‌‌‌​​‌‌‌​​​​‌​‌​​‌‌​​​‌​​‌‌​‌​​​‌‌​​​​​‌‌‌​‍following mulgated regulations concerning pelvic muscles of the floor increase tone). powered vaginal genital muscle muscle stimulators and (b) (performance Class II vibrators: Classification. standards). vaginal 884.5940 Powered muscle § stimu- (1984). 21 C.F.R. & §§ 884.5940 884.5960 therapeutic use. lator for (a) powered vaginal A mus- Identification. legislature 28. The all has labeled devices "useful electrically powered cle stimulator is an de- primarily genital for the stimulation human designed directly vice stimulate the muscles However, organs” as obscene. the definition of vagina pulsating with electrical current. 18-7-101(1) (2) specif- “obscene” in sections device is intended and labeled This for thera- ically Therefore, excludes obscene devices. it is increasing peutic use in muscular tone and “obscene,” uncertain whether such devices are for as we observe strength dysfunc- treatment of sexual supra note at least some generic type tion. This of device does not proscribed apparently the peutic devices have a thera- urinary used to treat include devices inconti- Any statutory adopted by use. scheme nence. legislature compatible be must with the (b) (premarket ap- Class III Classification. right person engage of a in sexual activities proval). right encompassed the extent that is within the therapeutic Genital vibrator § 884.5960 Therefore, right privacy. constitutional use. questions of whether such sexual be devices can (a) genital A vibrator for defined in Identification. accordance with re- constitutional electrically therapeutic operated use is an de- quirements and whether their sale and use therapeutic vice intended and labeled use regulated be are issues which we leave for an- dysfunction of sexual or as day. treatment other another, require specific provision may section 18-7-103 fails to the constitutional period hearings time within which must be sustained and the unconstitutional reject argument. Prompt held. We stricken.... Whether unconstitutional only judicial involvement and review not provisions are excised from an otherwise contemplated required but the statute. depends law on sound two factors: First, 18-7-103(4) requires that no- autonomy portion remaining of the temporary given tice be before a restrain- provisions after defective have been ing affecting temporary injunction order or enacting deleted and the intent of the any Second, materials be issued. legislative body. party sought may request to be restrained omitted.) (Citations qualified A severabili- that the of the on the merits be trial action judiciary ty clause will be used as an hearing on the re- consolidated with the determining legislative aid intent. quest temporary injunction or re- for a Dyers Smith Brothers Cleaners Peo- & § 18-7-103(5), straining order. rel. ple Rogers, ex Colo. P.2d Third, (1984 Supp.). request if no for con- pre- Such a clause creates a made, hearing final shall solidation sumption legislature that the would have joinder day held one after “within portions satisfied been stat- Fourth, trial issues in the case.” Id. the offending provi- ute that remain after the make two court must a decision within being are sions stricken unconstitution- days of the trial or the after the conclusion al. Lakewood v. Unlimited Associ- Colfax Fifth, injunction must be dissolved. Id. ation, (Colo.1981). 634 52 Act P.2d injunction restraining or or- temporary no qualified severability provision a contains attor- der issued until the district be states: which ney showing probable has a of cause made any Severability. provision If of this display the is believe that material by competent part 1 is found a court of satisfactory obscene and has made a show- unconstitutional, re- jurisdiction to be the ing probable of on the Id. success merits. maining provisions part of this 1 are procedures We conclude that the estab- valid, appears the that unless it court do not afoul by lished section 18-7-103 run 1 provisions part are so the valid by requirements promulgated essentially inseparably and connected Maryland, Court in Freedman v. 380 U.S. with, upon, the dependent and so void 734, (1965).29 51, 85 13 L.Ed.2d 649 S.Ct. provision presumed it cannot that that Books, Brown, 354 Kingsley Inc. See general assembly have enacted would 1 1469 L.Ed.2d U.S. pro- provisions the valid without void providing (a statutory less scheme the court determines vision unless not to was found protection exhibitors alone, standing provisions, that the valid clause). process due violate the incapable being are incomplete are legisla- executed in accordance with IX. tive intent. Finally, we the severabili examine holdings § in these ty questions by 18-7-105, (1984 raised our Supp.). It is Un City In Lakewood backdrop cases. against this of the statute and Colfax (Colo. Association, P.2d 70 634 principles limited that we now focus on the general general con 1981), rule provisions we summarized particular which we words severability cerning as follows: violate constitutional re- have determined if Act quirements and decide is constitution- a or ordinance statute [I]f unconstitutional saved. part al one irrational, 7-103(3) suggested by Maryland, Freedman v. We no basis in find Thirty-Five East Colfax. To the extent L.Ed.2d Seven S.Ct. 380 U.S. protection argument equal raises an ob- that the distinction between that conclude statute, challenge devices, to the we save that issue for pictures, and other mate- motion scene day. 18- another sections performances created rials and A. a “clarify structions of statutes which add ing gloss” permissible, but a retroac III, In section we held that the word judicial expansion application tive “accredited” as used isAct unconsti- statutory See language is forbidden. tutionally vague. The presented issue thus States, Hamling v. United whether the appropriate remedy is to (1974); Bouie v. S.Ct. declare invalid section 18-7-104 in its en- Columbia, City tirety,- or to strike the word “accredited” People exemption provision. (1964); from the v. Ta bron, (1976). 190 Colo. P.2d reject We the first alternative. Striking recognize striking that word “ac the entire section would make the ap- Act credited” from arguably may the statute plicable persons to classes of and facilities permit exhibition obscene movies legislature which clearly intended to be commercial theaters. Given the choice be exempt and nothing would be leg- short of regulation tween no per Hanly, islation. Mаrsh v. 111 Cal. mitting showing movies, of obscene we P. 975 legislature believe would have chosen Assembly the General enacts a [WJhen the second alternative. Accordingly, we prohibition excepted with an class that is strike the word “accredited” from section subsequently found to be constitutionally 18-7-104. infirm, ordinarily presumed will not be Assembly General would have B. prohibition enacted the without the ex- IV, ception. presumption Such we would determined ex- prohibition tend persons defining “patently to a class offensive” in terms of whom the General Assembly clearly community in- decency standards of violated tended should not be reached. prohibition the constitutional against over- Application breadth. general princi the State, v. Turner 299 Md. 474 A.2d ples qualified the severability statute 1303 to this determination leads us to conclude Moreover, striking the entire that the “patently definition of offensive” might section declaring well necessitate the is severable from the remainder of the Act. toto, leaving Act in unconstitutional the remaining The sections of the Act are not regulation any state without obscenity. inapplicable rendered defective or if the legislature’s Such not was the intent. In addition, definition is In stricken. we be State, Lynden Transport, Inc. v. 532 P.2d legislature lieve the would have enacted (Alaska 1975), the court stated: the Act even if the “patently definition of cognizant While of this other con- had not offensive” been included Senate trary authority, opinion we the are of Therefore, Bill 18-7-101(4) section general ruling that a which states that from severed the remainder the Act. exception the invalidation of an automati- cally precludes severability is overbroad. C. question legislative

It remains intent concerning and the rule invalidated ex- We reach a similar conclusion with ceptions just another aid in determin- regard severability portions of those ing that intent. prohibiting Act promоtion promotion wholesale (Footnote Here, obscene omitted.) primary goal devices. provisions regarding Assembly regulate invalid was to General purported regulate devices purpose sepa and this articles should not be independent rate of an from disturbed because unconstitutional the obscene ma Id. regulated terial exception statute. In addi- elsewhere in flaw the the Act. Sev tion, striking exemption provision ering provisions the void from leaves the remain specter post ing would of ex Act raise statute autonomous and coherent and application presume facto Act. Judicial con- we legislature would Thus, have intended provi- wrapped magazines justifies this result. adult infer Kramer v. United sions of prohibiting scienter); the Act promotion ence of States, promotion (seller (D.C.1972) wholesale of obscene devices 293 A.2d 272 rec others); severed. ommended some material over Williamson, People Cal.App.2d D. (1962) 24 Cal.Rptr. (complaints about Cercone, State “filthy” material); V, In section we concluded that the (adult presumption provided Conn.Cir. 196 A.2d 439 by section 18-7- Sikora, People 102(3) segregated); kept books process was inconsistent with due (defend requirements. However, Ill.2d 204 N.E.2d 768 we conclude that specialized selling ant books of that safely severed from the type); City Coy, Cincinnati v. Act. 115 Ohio App. 478, (1962) (titles 182 N.E.2d 628 A number of courts and commentators “lurid”); the books are “vile and morbid” or prosecution’s have noted that the burden Hull, State v. 86 Wash.2d 546 P.2d proving requisite element of scienter (1976) (seller examined cover and one presumption without the benefit of the has page). inside proven overly to be onerous. Su- California, Smith v. case, preme one Court which the defendant sold film, pic- on the canister of which were people addressed this tures of engaged concern: in various sexual acts, rejected the court the defendant’s al- might observe that it has been some legation that scienter had not been shown time now since the law viewed itself as with the observation that: impotent explore the actual of a state Eyewitness testimony question by appellant man’s mind.... This [concern- perusal hardly ing of a bookseller’s of a book borders on the ludicrous. scienter] necessary proving Any need be a element being pick adult human who could described, his up packages, awareness of its contents. The cir- above store, cumstances warrant inference sell them to a customer in a described, that he was aware of what a book con- above would indeed out of tained, despite reality his denial. touch with if he did not know and object understand the nature of the he Id. 80 S.Ct. at 219. See also Ham selling. was States, ling v. United State, Sedelbauer v. (1974) 428 N.E.2d generally See The Scien- (Ind.1981). Note, (prosecution only need that a defend show Requirement ter in Obscenity Criminal knowledge ant had of the contents of mate Prosecutions, knowledge (1966) require rial. To that it was N.Y.U.L.Rev. (“[Ajside permit would the defendant to es an from occasional aberrational case, cape liability by “simply claiming prosecutors absolutely that he have had no law.”). up difficulty proving requisite had not on the in brushed scien- ter.”). Smith subsequent have demon- Cases accuracy anticipate prosecutors of this

strated observation. will not great difficulty establishing It is clear that the element of scienter encounter in showing necessary knowledge, in especially established a of constructive Georgia, Ballew v. knowledge. largely case of an adult bookstore stocked exclusively sexually or with hardcore ori- view, knowledge danger has been ented material. In our Such constructive presumption courts to exist in a wide the absence of the of found various E.g., Lakin v. range prose- circumstances. scienter will disable the state from States, (D.C.1976) cuting United promotion A.2d is insuffi- (machine magazines justify presumption’s inhibiting in cello- cient to wrapping for presence provision effect on of the phane conjunction speech in the free Therefore, (II) Patently representations Colorado Constitution. section offensive or 18-7-102(3) masturbation, is severed descriptions excretory from Act. sadism,

functions, masochism, lewd exhibi- X. genitals, or tion of the the male female genitals in a state of or sexual stimulation judgment The district court in arousal, genitals in a covered male discerni- People Thirty-Five Colfax, v. Seven East bly turgid designed or and state device Inc., 82SA212, part No. is affirmed primarily useful for marketed as stimula- part. reversed The case remanded to organs; genital tion of the human proceedings the trial court for further con- opinion. sistent with this (c)Taken whole, liter- lacks serious artistic, ary, political, or scientific value. judgment district court in Mizell, 83SA83, People No. is affirmed (3) “Obscene device” a device in- means part part. and reversed in The case is cluding vagina, a dildo or artificial de- remanded to the trial court further signed primarily or marketed as useful proceedings opinion. consistent with this genital organs. stimulation of human judgment of the district court in (4) “Patently offensive” so offen- means Guild, Beacom, Literary Adult Inc. v. No. sive on its face as to affront current com- 83SA99, part affirmed reversed in munity of decency. standards part. The case is remanded the trial (5) play, “Performance” means a motion proceedings court for further consistent dance, picture, per- or other exhibition opinion. with this an formed before audience. (6) manufacture, “Promote” means to is- ERICKSON, C.J., part concurs sue, sell, provide, lend, mail, deliver, give, part. dissents in transmit, transfer, distribute, publish, cir- culate, disseminate, exhibit, present, or A ad- APPENDIX vertise, agree or to offer or do the same. PART 1 (7) explicit “Simulated” means the de- OBSCENITY—OFFENSES piction description any types or As used in 18-7-101. this Definitions. (b) paragraph conduct set forth in of sub- part 1, unless the context otherwise re- (2) section, of this creates which quires: appearance such conduct. (1) anything tangible “Material” means promote” “Wholesale means to manu- being capable adapted that is used issue, facture, sell, mail, provide, deliver, interest, through arouse whether the medi- transmit, transfer, distribute, publish, cir- observation, sound, reading, um of or in culate, disseminate, agree or to offer manner, any but does not include an other purpose do the same for of resale. actual dimensional obscene three device. (9) If any depictions descrip- per- material or “Obscene” means tions of sexual conduct described that: formance compe- section are declared a court (a) average person, applying contem- jurisdiction tent unlawfully to be included standards, community porary would find herein, this declaration shall not invalidate appeals pru- as a whole that taken this patently section as other offensive sex; rient interest sexual conduct included herein. (b) or describes: Depicts (l)(a) person A Obscenity. 18-7-102. (I) representations Patently offensive promotion or commits wholesale of obscenity acts, if, of ultimate normal descriptions knowing character, sex or its content and he simulated, perverted, including actual or promotes possesses wholesale or with in- intercourse, sodomy, and sexual tent promote sexual bes- to wholesale any obscene ma- tiality; terial or or obscene device.

in connection therewith not inconsistent (b) with this article. promotion obscenity Wholesale is a class misdemeanor. (2) attorney county The district firm, person, corporation which a or whole- (2)(a) person promotion A commits of ob- promotes, promotes, sale displays, or or is if, scenity knowing content and charac- promote, promote, about to wholesale or ter, he: display, his, her, possession or has in or its (I) possesses Promotes or with intent to promote, promote, with intent to wholesale promote any obscene material or obscene display, acquire possession or or is about to device; or with promote, promote, intent to wholesale (II) Produces, presents, or an directs ob- display, any or obscene material or obscene performance participates por- scene or in a device, may injunc- maintain an action for tion thereof that is or that contrib- against firm, tion person, such corpora- or obscenity. utes to its prevent tion to promotion, wholesale (b) Promotion of is a class 2 promotion, display or or further wholesale misdemeanor. promotion, promotion, display or of said (3) person promotes A material who or wholesale or device or described identified in promotes injunction. said suit obscene material or an obscene possesses device or the same with intent to (3) This article shall not authorize the promote promote or it in the wholesale temporary issuance of restraining orders presumed course of his business is to do so except restraining for such orders issued in knowledge of its content and charac- promotion, relation to the promo- wholesale ter. tion, display or of obscene devices or where (4) person A possesses who six or more exigent require circumstances the same. identical obscene devices or six or more circumstances, exigent matters of identical presumed obscene materials is restraining provide order shall that the ac- possess promote them with intent to tion must be commenced on the earliest same. possible temporary restraining date. No (5) order This be issued to restrain the contin- apply per- section does not to a picture ued exhibitions of a possesses being son who motion or distributes obscene commercially public, shown material before not- participates or obscene devices or withstanding exigent the existence of cir- proscribed conduct otherwise this sec- cumstances. possession, tion when the participation, or conduct occurs the course of en- law (4) temporary restraining No order or

forcement activities. temporary injunction other than those is-

(6) This apply per- section does not to a sued as to obscene devices be issued proscribed by firm, son’s conduct except person, otherwise after notice to the or person’s corporation sought section which occurs in that enjoined only resi- and long person parties dence after all as that does not en- have been or offered af- gage promotion promo- opportunity per- in the wholesale forded an A be heard. son, firm, corporation tion of obscene material in shall be deemed to his residence. have opportu- been offered or afforded an Injunctions 18-7-1 OS. to restrain the nity given to be heard if notice has been promotion obscene materials ob- he, she, appear. or it fails to At such scene devices. The district courts of hearing, presented evidence shall be judges this state and the thereof shall have witnesses examined. power, authority, jurisdiction full enjoin promotion, promotion, the wholesale Before or after the commencement of display of obscene materials and obscene hearing application tempo- an a for specified (othеr devices rary injunction this section and to sought than those necessary proper restraining issue all and be issued connection with obscene de- orders, vices), injunctions, processes may, and writs and the court and on motion of the days after the conclusion of the

within two hearing. party sought shall, to be restrained order the trial on the action on the merits to be (8) event that a final order In the or hearing advanced and with the consolidated injunction against entered judgment of on the application. such hearings Where firm, sought person, corporation or the consolidated, temporary not so a judgment or enjoined, such final order be injunction (other or restraining order than provision directing per- a shall contain devices) those as to issued obscene is is- son, firm, corporation surrender or sued, hearing the court shall a final hold county in which the ac- the sheriff of day a trial within one issues brought any of matter tion was describ- joinder issue, after of decision shall (2) section, ed in of this subsection be days rendered within two of the conclu- such shall be directed to seize and sheriff sion hearing of the trial. If a final is not same six after destroy the months the en- joinder day held within one of after issue try of the final order unless criminal said or a not within days decision rendered two proceedings brought or an indictment is trial, injunction of the conclusion of the time in before that which event said materi- shall temporary injunc- be dissolved. No al used as evidence in such criminal restraining tion or order shall issue until proceeding. showing probable after a of cause to be- (9) any action brought as herein pro- material, device, display lieve that the or vided, attorney the district shall not be showing probable obscene and a of success required any file undertaking, bond, or on Any temporary injunc- the merits. such security any before the injunc- issuance restraining (other tion оr order than those above, tion provided order for shall not be devices) provide issued as shall costs, liable for and shall not be liable for punished that the defendant for damages by sustained injunc- reason of the contempt if the material is found not to be tion judgment order in cases where is ren- issue, joinder obscene after final hear- firm, dered in person, favor corpo- or ing, and trial. sought ration enjoined. to be (6) Nothing contained in this article shall prevent issuing temporary the court from (10) person, Every firm, corporation or forbidding restraining removing, order who promotes, promotes, wholesale dis- destroying, deleting, splicing, or otherwise plays, acquires possession or with intent to altering any picture alleged motion to be promote, promote, wholesale or display any obscene. of the matters described in subsection section, of this after upon the service him firm, person, corporation or Any of a complaint summons and in an action enjoined sought permanently to be shall be brought pursuant article, to this is chargea- adversary a full trial of entitled to knowledge ble with of the contents. day joinder issues within one after issue, by decision shall be rendered and a Applicability part 18-7-10^. days the court two conclusion within (1) Nothing part contained in this 1 shall be in any If the defendant the trial. suit apply construed to to: filed permanent injunction for a under the (a) possession, purchase, distribu- article shall fail to answer or terms of this tion, exhibition, or any loan art, work of join issue within time re- otherwise book, magazine, or printed other or manu- his, her, answer, its quired or to file script by any material museum, accredited court, party applying on motion school, library, of higher institution edu- general enter a injunction, shall denial cation; date for for the and set a hear- defendant (b) The question in the suit exhibition ing performance raised on the аny play, drama, tableau, following injunction days ten picture within motion any theater, general museum, entered accredited entry of denial library, school, or institution court. court shall render decision of higher education. statute rendering without the balance of the Act 18-7-105. unconstitutional. Severability. any provi- If part sions of this by is found a court of first amend have held that where competent jurisdiction to be unconstitution- stake, precision ment freedoms are in al, remaining provisions part this drafting clarity purpose priority are valid, appears unless it to the court Tabron, People considerations. provisions part that the valid of this 1 are 149, (1976); Colo. 544 P.2d 372 see Erznoz essentially so inseparably connected Jacksonville, nik City 422 U.S. with, dependent and so upon, pro- the void (1975). 95 S.Ct. 45 L.Ed.2d 125 presumed vision that it cannot be that the “obscene,” term as defined section 18- general assembly would have enacted the 7-101(2), (1984Supp.), is central provisions valid provision without the void legislative scheme of Colorado’s ob or unless the court determines that statute, scenity validity depend and its is alone, provisions, standing valid are incom- upon ent the constitutional standard of plete incapable being and are executed “patently offensive.” See Miller v. Cali legislative in accordance with the intent. fornia, 413 U.S. 93 S.Ct. (1973). questions “pat 18-7-106. Constitutional Inasmuch as the ex- pedited. ently prescribed Any action in offensive” standard as which con- Assembly unconstitutionally the ‍​‌​‌‌‌‌‌​​‌‌‌​​​​‌​‌​​‌‌​​​‌​​‌‌​‌​​​‌‌​​​​​‌‌‌​‍General stitutionality part is challenged overbroad, I would precedence shall take conclude that the statu over all other busi- tory definition of “obscene” must pending also fall appeal ness before the court. An being unconstitutionally infirm. judgment from the or final order of the may supreme court, court be taken to the recognize While I that the General As- cases; in except same as other that the sembly may prohibited adopting be from supreme court shall advance the case to the specific defining community criteria stan- head of the calendar and hear and deter- patent offensiveness, dard of see Smith v. dispatch. mine the same with reasonable States, United 431 U.S. repealed, This section shall be Janu- (1977); 52 L.Ed.2d 324 Op. at 359- cf. ary 1, 1983. 360, n. I guide- do not read our federal precluding lines as the state from establish- Section 2. applicabili- Effective date — ing substantive permis- rules to define the ty. This act shall July take effect parameters sible community stan- apply alleged and shall to offenses to have dard. Compare States, Smith v. United been committed on or after said date. 431 U.S. at 97 S.Ct. at 1764 with general Section 3. Safety clause. The 153, 160, Georgia, Jenkins finds, assembly determines, hereby and de- necessary clares that this act is for the view, my sighted attempt it is short preservation public peace, immediate surgically excise “patently offensive” health, safety. provision from the statute in an effort to Approved: June uphold Act, particularly balance of the light in centrality provision legislative scheme. Absent the statuto- ERICKSON, Justice, concurring Chief ry guidance 18-7-101(4), of section the sub- part dissenting part: stantive delineation of what respectfully part I concur and dissent “patently deemed offensive” is left to di- part. agree I “pat- that the definition of vergent judicial articulations the unbri- ently 18-7-101(4), offensive” 8 dled jury any particular discretion of a (1984 Supp.) unconstitutionally C.R.S. case. overbroad because the term is defined in community decency. Recognizing terms of engineer- standards of the difficulties in However, ing agree I do not that the an comports defective statute that effectively requirements, term constitutional severed from the I would never- conclude theless that the better result in case is to declare that infirmities 18-7-101(4)

contained renders entirety. statute unconstitutional in Colorado,

The PEOPLE of the State

Plaintiff-Appellant, KROVARZ,

Victor R.

Defendant-Appellee.

No. 82SA563.

Supreme Colorado, Court of

En Banc.

March

Case Details

Case Name: People Ex Rel. Tooley v. Seven Thirty-Five East Colfax, Inc.

Court Name: Supreme Court of Colorado

Date Published: Feb 25, 1985

Citation: 697 P.2d 348

Docket Number: 82SA212, 83SA83 and 83SA99

Court Abbreviation: Colo.