People v. New Horizons, Inc.

Decision Date18 August 1980
Docket NumberBRY-LYN,Nos. 28038,28136,28096,28413 and 79SA322,28200,s. 28038
Citation200 Colo. 377,616 P.2d 106
Parties, 6 Media L. Rep. 1828 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. NEW HORIZONS, INC., a Colorado Corporation, d/b/a The News Stand, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Johann SKINNER, Darryl I. Deighton, Wayne Fair, Jesse Jay Weaver and Richard Browning, Defendants-Appellants. The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. RENEGADE ROYALE, LTD., a Colorado Corporation, James Allen Hildebrandt and Suzanne M. Hildebrandt, Defendants-Appellees. PEOPLE of the State of Colorado, Plaintiff-Appellee, v.CORP., a Colorado Corporation, d/b/a Adult Gift Shoppe, Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. PLATEAU MANAGEMENT AND INVESTMENT CO., INC., a Colorado Corporation, doing business as Kitty's Pleasure Palace, Inc., Defendant-Appellant. The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. G. N. A. INCORPORATED, Kristy Nease, William Robert McCall and Wayne Hickerson, Defendants-Appellants.
CourtColorado Supreme Court

Alexander M. Hunter, Dist. Atty., Kevin M. Shea, Deputy Dist. Atty., Boulder, for plaintiff-appellee in No. 28038.

Arthur M. Schwartz, P. C., Denver, for defendants-appellants in Nos. 28038, 28096, 28200 and 79SA322.

Bruce Taylor, Cleveland, Ohio, for Charles H. Keating, Jr., amicus curiae.

Robert L. Russel, Dist. Atty., Lance M. Sears, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellee in No. 28096.

Charles H. Keating, Cleveland, Ohio, amicus curiae in No. 28096 J. E. Losavio, Dist. Atty., Warren T. Marshall, Amy S. Isaminger, Deputy Dist. Attys., Pueblo, for plaintiff-appellant in No. 28136.

Nicholas J. Bourg, Lloyd C. Kordick, Colorado Springs, for defendants-appellees in No. 28136.

Lance M. Sears, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellee in No. 28200.

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellee in No. 28413.

Arthur M. Schwartz, P. C., Neil Ayervais, Denver, for defendant-appellant in No. 28413.

Robert N. Miller, Dist. Atty., Stanley C. Peek, Asst. Dist. Atty., Greeley, for plaintiff-appellee in No. 79SA322.

ERICKSON, Justice.

In these appeals, which have been consolidated for the purposes of this opinion, we are called upon to determine the constitutionality of the Colorado Obscenity Statute, section 18-7-101, C.R.S. 1973 (now in 1978 Repl.Vol. 8), et seq. The defendants in People v. Skinner, People v. Royale and People v. G.N.A., Inc., were charged with promoting obscene material, pursuant to section 18-7-103, C.R.S. 1973, and conspiracy to promote obscene material, pursuant to section 18-2-201, C.R.S. 1973 (now in 1978 Repl.Vol. 8), which provide the foundation for the constitutional claim that the statute abridges the First Amendment. In People v. New Horizons, People v. Plateau Management and Investment Co., and People v. Bry-Lyn Corp., the prosecution sought to enjoin the distribution of obscene material. We hold the Colorado Obscenity Statute to be unconstitutional because of the statutory definition of obscene materials, and remand to the respective trial courts for dismissal. (People v. Renegade Royale, Ltd., et al. has previously been dismissed.)

The facts in these cases are substantially similar and may be amply illustrated by reference to People v. G.N.A., Inc. In G.N.A., officers of the Greeley Police Department purchased several allegedly obscene magazines from employees of the Greeley News Agency, located in Greeley, Colorado. Each of the magazines contained written textual material accompanied by photographs of a number of sexual acts. The sex acts depicted in the photographs included intercourse, fellatio, masturbation, and other explicit sex acts. The prosecution subsequently charged G.N.A. and several of its employees with promoting obscene materials and with conspiring to promote obscene material.

After a trial to the court, the defendants were convicted on all counts. On appeal, the defendants challenge the constitutionality of the Colorado Obscenity Statute and assert other issues relating to their convictions. Our resolution of the constitutional issue obviates the need to address the other contentions raised by the defendants.

I.

In People v. Tabron, 190 Colo. 149, 544 P.2d 372 (1976), and its companion cases, 1 we conducted an extensive review of the history of obscenity regulation, from the first reported common-law decision on obscenity 2 through the United States Supreme Court's pronouncement in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Although we are not inclined to repeat that exegesis in this opinion, we feel that a review of the "taken as a whole" standard, which requires the examination of allegedly obscene matter in its entirety, is a necessary predicate to the resolution of the constitutional issue which lies at the heart of the cases before us.

At early common law, many courts adopted the definition of obscenity set forth in Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). In that case, Chief Justice Cockburn defined the test for obscenity as "Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such influences, and into whose hands a publication of this sort may fall."

As construed by the courts, the Hicklin test had two effects. First, it established a standard for obscenity based on the material's impact on particularly sensitive persons; and second, it allowed the challenged material to be judged by the impact of isolated excerpts without regard for the impact of the work taken as a whole. See People v. Tabron, supra ; Annot., 5 A.L.R.3d 1178, 1183.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Hicklin test was rejected on the ground that its approach to the determination of obscenity based on the use of isolated passages could infringe upon legitimate materials which, on the whole, deserved First Amendment protection. The Supreme Court of the United States emphasized that "books, pictures and circulars must be judged as whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion." 354 U.S. at 490, 77 S.Ct. at 1312. With this principle in mind, the United States Supreme Court formulated a new test which required a determination that an average person, applying contemporary community standards, would find that the dominant theme of the material taken as a whole appealed to prurient interests. Subsequent decisions, while modifying the prurient interest standard, adhered rigidly to the requirement that challenged materials be considered in their entirety. See A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of the Commonwealth of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (obscene material must be utterly without redeeming social value.

The 1973 decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), marked the latest resolution of the obscenity issue. Miller provided the basis for the enactment of a host of new obscenity statutes, including the Colorado statute before us today. In Miller, the Court announced that the following three guidelines as to obscenity must be placed before the trier of fact:

"(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . .;

"(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

"(c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value." (Emphasis supplied.)

Significantly, while the Supreme Court of the United States again modified its definition of obscenity, most notably by abandoning the Memoirs' requirement that the work be utterly without redeeming social value, it reaffirmed the necessity of judging the material which is asserted to be obscene as a whole.

II.

Section 18-7-101(6), C.R.S. 1973 of the Colorado Obscenity Statute provides the following definition of "obscene material:"

" 'Obscene material' means that material, as defined in subsection (5) of this section, which:

(a) Taken as a whole, appeals to the prurient interest of the average person, applying contemporary statewide...

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5 cases
  • State v. Henry
    • United States
    • Oregon Court of Appeals
    • April 9, 1986
    ...not impose a stricter standard in this regard. " 127 Cal.Rptr. at 323, 545 P.2d at 235. (Emphasis supplied.) 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 (1976), the Colorado Supreme Court struck down that state's obs......
  • People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc.
    • United States
    • Colorado Supreme Court
    • February 25, 1985
    ...998-1002. See also, supra note 1. Earlier statutory enactments were declared unconstitutional by this court 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 (1976). 9 We appreciate, as Justice Harlan noted, that obscenity......
  • People v. Ford
    • United States
    • Colorado Supreme Court
    • May 15, 1989
    ...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 ......
  • Passarelli v. Schoettler, 85SA208
    • United States
    • Colorado Supreme Court
    • September 8, 1987
    ...448 P.2d 624 (1968). Courts must, whenever possible, construe statutes to conform to constitutional standards. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980). While the role of the courts is not to determine whether particular legislation is wise or desirable, Kallenberger......
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1 books & journal articles
  • Obscenity and Pornography: Forging Decency Through the Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 17-1, January 1988
    • Invalid date
    ...(Colo. 1985). 8. People v. Tabron (I), 544 P.2d 372 (Colo. 1976) (1969 statute declared unconstitutional); People v. New Horizons, Inc., 616 P.2d 106 (Colo. 1980) (1977 statute declared unconstitutional). 9. 735 East Colfax, supra, note 7 at 370. 10. Colo. Const., art. II, § 10. See also, P......

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