People v. Ford
| Decision Date | 15 May 1989 |
| Docket Number | 87SA480 and 88SA3,Nos. 87SA61,s. 87SA61 |
| Citation | 773 P.2d 1059 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark FORD, Ted Jarosz, Lawrence McKay, Modern Books of Colorado, Clarence Neville, James Johnston, Mitchell Kelloff, Myrna Bastian, Clint Hopkins, Darryl Deighton, Gordon Mizell, and Richard Snyder, Defendants-Appellees. MOUNTAINS AND PLAINS BOOKSELLERS ASSOCIATION; Tattered Cover Bookstore, Inc., a Colorado corporation; Joyce Knauer; Gordon's Books, Inc., a Colorado corporation; Cathy Nachtigal, d/b/a Bookplace of Applewood, Plaintiffs-Appellants, v. Norman EARLY in his official capacity as District Attorney for the City & County of Denver; J.D. MacFarlane in his official capacity as Manager of Safety for the City & County of Denver; and Thomas Coogan in his official capacity as Chief of Police for the City & County of Denver, Defendants-Appellees. 735 EAST COLFAX, INC., d/b/a Kitty's Pleasure Palace, Plaintiff-Appellant, v. Norman EARLY; J.D. MacFarlane; and Thomas Coogan, Defendants-Appellees. |
| Court | Colorado Supreme Court |
Barney Iuppa, Dist. Atty., Robert M. Brown, Chief Deputy Dist. Atty., Linda A. McMahan, Deputy Dist. Atty., Colorado Springs, for the people.
Arthur M. Schwartz, P.C., Arthur M. Schwartz, Michael W. Gross, Bradley J. Reich, Denver, for Mark Ford, et al.
Moya and Recht, Daniel N. Recht, Denver, Peter H. Ney Littleton, for Mountains and Plains Booksellers Ass'n, et al.
Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for Norman Early, et al.
Arthur M. Schwartz, P.C., Arthur M. Schwartz, Michael W. Gross, Denver, for 735 East Colfax, Inc.
These appeals concern the constitutionality of the Colorado obscenity statute, §§ 18-7-101 to -105, 8B C.R.S. (1986). We have elected to consolidate three separate cases, for the purposes of this opinion, because each challenges the validity of the obscenity statute based upon the first amendment to the United States Constitution, article II, section 10 of the Colorado Constitution, and the due process clause of each constitution. We hold that the obscenity statute is not vague or overbroad, does not violate due process requirements, and it therefore passes constitutional muster. We do not address the constitutionality of section 18-7-104.5, which provides civil remedies to neighboring property owners, because there is no justiciable issue or legal controversy in existence at this time.
In People v. Ford, the People instituted an enforcement proceeding against defendants, the owners and sales clerks of adult bookstores (booksellers) in Colorado Springs, charging them with promoting obscene materials in violation of sections 18-7-101 and -102, 8B C.R.S. (1986). The trial court granted defendants' motion to dismiss on the ground that the obscenity statute is unconstitutional. The court held that it is constitutionally impermissible to impose criminal liability on the basis of a hypothetical "average person's" state of mind; that the statute is vague because criminal liability is premised on a community opinion rather than a standard of conduct; that article II, section 10 of the Colorado Constitution prohibits the criminalization of promoting books, magazines, and motion picture films based upon a standard of community tolerance; and that the statute's lack of a true criminally culpable mens rea serves to exacerbate the vagueness problems. The People appeal from the order of dismissal.
In Mountains and Plains Booksellers Association v. Early, a booksellers' association instituted a declaratory judgment action seeking to have the current version of the Colorado obscenity statute declared unconstitutional. This suit was consolidated with 735 East Colfax, Inc. v. Early, a separate action requesting declaratory and permanent injunctive relief against the enforcement of the obscenity statute. After a trial, the court issued an order declaring the statute constitutional. On appeal, the booksellers challenge this conclusion on several grounds which we will discuss in turn.
The statute under review represents the General Assembly's latest attempt to formulate an obscenity statute which will pass constitutional muster. Former versions of this statute were declared unconstitutional in People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980), and People v. Tabron, 190 Colo. 149, 544 P.2d 372 (1975). In People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985), this court invalidated certain portions of the obscenity statute, but found the remaining portions to be constitutional. Before addressing the merits of the vagueness, overbreadth, and due process issues, we first consider the booksellers' claim that the government must bear the burden of establishing the constitutionality of any law regulating the exercise of first amendment rights.
We have consistently held that a statute is presumed to be constitutional, and the party attacking the statute has the burden of proving it unconstitutional beyond a reasonable doubt. People v. French, 762 P.2d 1369 (Colo.1988); Cox v. People, 735 P.2d 153 (Colo.1987); People v. Schoondermark, 699 P.2d 411 (Colo.1985). We have applied this rule even in cases in which it is alleged that a statute infringes on first amendment freedoms. See People v. French, 762 P.2d 1369 (Colo.1988); People v. Moore, 674 P.2d 354 (Colo.1984); People v. Enea, 665 P.2d 1026 (Colo.1983).
The booksellers contend, however, that where first amendment rights are allegedly infringed, the state bears the burden of demonstrating the constitutionality of the statute. In support of this contention, they direct us to a number of recent federal decisions which place the burden of proof on the state. See, e.g., New Jersey Citizen Action v. Edison Township, 797 F.2d 1250 (3d Cir.1986); City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir.1986); ACORN v. Municipality of Golden, 744 F.2d 739 (10th Cir.1984); ACORN v. City of Frontenac, 714 F.2d 813 (8th Cir.1983). In addition, they point out that at least one Colorado case has indicated that an ordinance would not be presumed constitutional when it impinges on first amendment freedoms, citing City of Lakewood v. Colfax Unlimited Association, 634 P.2d 52 (Colo.1981).
Many of the federal cases which place the burden of proving the constitutionality of a statute on the state cite Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), as authority for this proposition. However, the court in Keefe held only that the imposition of a prior restraint on expression is presumed unconstitutional. We too have held that any system of prior restraint on first amendment freedoms is subject to a heavy presumption against its constitutional validity. See People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985). The United States Supreme Court has never held that the first amendment requires that a statute proscribing obscenity be presumed unconstitutional where no prior restraint is involved. Because a presumption of invalidity is not constitutionally required, and because we see no reason to treat the burden of proof differently in first amendment challenges than in other constitutional challenges, we believe that the booksellers retain the burden of establishing that the obscenity statute is invalid. 1
Section 18-7-101(2), 8B C.R.S. (1986), defines "obscene" as:
(2) "Obscene" means material or a performance that:
(a) The average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;
(b) Depicts or describes:
(I) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
(II) Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, or covered male genitals in a discernibly turgid state; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.
Thus, the section incorporates that definition of obscenity which was approved by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). 2 The phrase "patently offensive" is further defined in section 18-7-101(4), 8B C.R.S. (1986), to mean "so offensive on its face as to affront current community standards of tolerance."
In People v. Ford, the trial court held that article II, section 10 of the Colorado Constitution prohibits the criminalization of promoting books, magazines, and films based upon a standard of community "tolerance." Additionally, the booksellers argue that a tolerance standard impermissibly infringes on speech which is protected by the first amendment to the United States Constitution. 3 Finally, they contend that the lack of a Colorado tradition of prohibiting obscenity indicates that the constitutional framers intended to provide unlimited constitutional protection to freedom of speech.
In People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985), we held that the term "patently offensive" could not be defined in terms of a community standard of decency. We stated that a community standard of tolerance is required, at a minimum, by the United States and Colorado Constitutions, but noted that the issue of whether the tolerance standard is constitutionally sufficient was not before us at that time. We are now squarely faced with this issue.
First we examine whether the tolerance standard is constitutionally sufficient under the first amendment to the United States Constitution. The United States Supreme Court has often spoken in terms of material...
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