Tattered Cover, Inc. v. Tooley

• Decision Date: 25 February 1985
• Docket Number: No. 82SA85,82SA85
• Parties: TATTERED COVER, INC., a Colorado corporation, d/b/a Tattered Cover Bookstore; Joyce Knauer; Pioneer Ventures, Inc., a Colorado corporation, d/b/a Columbine Books and Records; Larry Hamilton; American Booksellers Association, Inc.; Association of American Publishers, Inc., a New York corporation, and Council For Periodical Distributors Associations, Plaintiffs-Appellees, Cross- Appellants, v. Dale TOOLEY, District Attorney, Second Judicial District; Arthur Dill, Chief of Police, Denver Police Department; and Jerry Kennedy, Captain, Vice Squad, Denver Police Department, Defendants-Appellants, Cross-Appellees.
• Court: Colorado Supreme Court

Page 780

696 P.2d 780

TATTERED COVER, INC., a Colorado corporation, d/b/a Tattered Cover Bookstore; Joyce Knauer; Pioneer Ventures, Inc., a Colorado corporation, d/b/a Columbine Books and Records Larry Hamilton; American Booksellers Association, Inc. Association of American Publishers, Inc., a New York corporation, and Council For Periodical Distributors Associations, Plaintiffs-Appellees, Cross- Appellants, v. Dale TOOLEY, District Attorney, Second Judicial District Arthur Dill, Chief of Police, Denver Police Department; and Jerry Kennedy, Captain, Vice Squad, Denver Police Department, Defendants-Appellants, Cross-Appellees.

No. 82SA85.

Supreme Court of Colorado En Banc.

Feb. 25, 1985.

Rehearing Denied April 1, 1985.

Peter H. Ney, Littleton, Finley, Kumble, Wagner, Heine, Underberg & Casey, Jeffrey A. Mitchell, Michael A. Bamberger, New York City, for plaintiffs-appellees, cross-appellants.

Norman S. Early, Jr., Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., David Purdy, Chief Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for defendants-appellants, cross-appellees.

L. Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard Forman, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for amicus curiae, Colorado Attorney General.

NEIGHBORS, Justice.

This is an appeal from the judgment of the Denver District Court declaring that sections 18-7-502(5) and 18-7-503, 8 C.R.S. (1984 Supp.), are unconstitutional and severing them from the remainder of the provisions governing "Sexually Explicit Materials Harmful to Children" (the Act), sections 18-7-501 to -504, 8 C.R.S. (1984 Supp.). ¹ The plaintiffs ² request reversal of the trial court's order severing the invalid provisions rather than declaring the entire Act unconstitutional. The defendants ³ seek review of the declarations of unconstitutionality. We affirm the trial court's decision that the challenged provisions are unconstitutional but reverse its ruling that the offending provisions are severable from the Act. Accordingly, we hold the Act unconstitutional.

I.

In their complaint, the plaintiffs requested that the Act be declared unconstitutional because it violated their rights of free speech and expression and rights to due process and that the defendants be enjoined from enforcing the Act. At trial, the plaintiffs introduced testimony from booksellers and publishers to the effect that the Act is vague and difficult to apply and that any method of separating the books and magazines so that children would not be able to view sexually explicit materials would interfere with adults' exercise of their rights of free speech and expression.

The parties stipulated to several possible methods of complying with the Act: (1) prohibiting entry into the plaintiffs' stores of persons under the age of eighteen; (2) refusing to carry or display all sexually explicit material; (3) refusing to carry or display material proscribed by the Act; (4) restricting access to substantial portions of their material by segregating sections of their establishment with an "adults only" section; and (5) establishing an "adults only" section solely for material proscribed by the Act. The trial court found that "any of the foregoing alternatives would not be commercially ... feasible or sound." The trial court concluded that section 18-7-502(5), the display provision, is unconstitutional:

[A] literal enforcement of this statute would impinge upon the constitutional rights of adults. It is admitted that the adults would have the right under the laws that now exist to view the material that is set forth in the statute we are considering. The problem is the chilling effect that literal enforcement of a criminal statute such as this have [sic] on the channels of dissemination. The court specifically finds and concludes that the statute effectively closes the channels of dissemination. The court specifically would find that the application of this display part of the statute would interfere, diminish and severely curtail the unfettered expression and interchange, inter alia, of literary, artistic, political and scientific ideas which are found in the human interest in sex. Enforcing this provision ... would be a regulation to an unreasonable degree and unconstitutional in violation of the First Amendment to the United States Constitution and Article II, Section 10 of the Constitution of the State of Colorado.

The court also declared section 18-7-503, the exemption provision, unconstitutional. The court stated:

C.R.S. 1973, 18-7-503 provides for an exemption of the applicability of the remaining parts of the statute to so-called accredited museums, libraries, schools or institutions of higher learning. The court finds that such exemption is entirely too vague, too broad and overreaching. Applying the general statutory rules of interpretation including a strict scrutiny test the court hereby finds and determines that the section is likewise invalid and unconstitutional in violation of the due process and equal protection clauses of the United States and Colorado Constitutions. The court therefore declares C.R.S. 1973, 18-7-503 unconstitutional and invalid.

The district court then applied the qualified severability statute found in section 18-7-504 of the Act to its determinations of unconstitutionality and concluded that the offending provisions were severable. The court upheld the remaining provisions in the Act and the defendants appealed. The plaintiffs then cross-appealed. Accordingly, four issues are presented for our consideration: (1) Whether the display provision in section 18-7-502(5) is constitutional; (2) whether the word "accredited" in section 18-7-503 is unconstitutionally vague; (3) whether the exemption provision denies plaintiffs' equal protection guarantees; and (4) whether the exemption and display provisions can be severed from the Act.

II.

The state's interest in protecting the well-being of children permits the state greater latitude in adopting restrictions which limit children's access to sexually explicit materials than can be imposed on adults. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In Ginsberg, the Court upheld a statute regulating the sale, not display, of sexually explicit materials to persons under seventeen years of age. The Court stated:

[M]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable matter is directed or from whom it is quarantined. Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.

Ginsberg, 390 U.S. at 636, 88 S.Ct. at 1278 (quoting Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 271 N.Y.S.2d 947, 951, 218 N.E.2d 668, 671 (1966)). In People v. Enea, 665 P.2d 1026 (Colo.1983), we upheld the constitutionality of the statute prohibiting the sexual exploitation of children, section 18-6-403, 8 C.R.S. (1984 Supp.). In that opinion, we noted the variable obscenity standard which permits "states to ban the sale to minors of materials deemed legally obscene as to children, but not to adults...." Enea, 665 P.2d at 1028. See also F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The parties agree that the materials involved in this case are not obscene as defined in section 18-7-101, 8 C.R.S. (1984 Supp.); rather, they are protected under the first amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. Therefore, only reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further a compelling government interest, are permitted by the federal and state constitutions. Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982 (Colo.1981).

It is within this analytical framework that the display provision in section 18-7-502(5) must be evaluated. Section 18-7-502(5) provides:

(5) It shall be unlawful for any person knowingly to exhibit, expose, or display in public at newsstands or any other business or commercial establishment frequented by children or where children are or may be invited as part of the general public:

(a) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to children; or

(b) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (a) of this subsection (5), or explicit verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to children.

The plaintiffs' principal contention is that this provision is objectionable, not because it prohibits sale or display of certain materials to children, but rather because in doing so it infringes upon the free speech rights of adults. This is so, they claim, because there is no reasonable way for a commercial establishment to prohibit children from being exposed to material "harmful to children" while allowing adults access to such material.

We conclude that this provision is overly broad. Statutes designed to restrict children's access to sexually explicit materials must be narrowly drawn. As we noted earlier, the Supreme Court in Ginsberg v. New York, 390...