People v. Tabron

• Decision Date: 05 January 1976
• Docket Number: No. 26390,26390
• Citation: 544 P.2d 372
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Samuel TABRON, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 372

544 P.2d 372

190 Colo. 149

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Samuel TABRON, Defendant-Appellant.

No. 26390.

Supreme Court of Colorado, En Banc.

Jan. 5, 1976.

John P. Moore, Atty. Gen., John E. Bush Deputy Atty. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Bernard D. Morley, Denver, for defendant-appellant.

ERICKSON, Justice.

The appellant, Samuel Tabron, was convicted of promoting obscenity in violation of the Colorado Obscenity Statute, 1971 Perm.Supp., C.R.S. 1963, 40--7--102(1)(a), ¹ which incorporates the definition of 'obscenity' set out in 1971 Perm.Supp., C.R.S. 1963, 40--7--101(1) and 40--7--101(2). ² The primary issue on appeal is whether the Colorado statutes which define and regulate obscenity can pass constitutional muster. The First Amendment of the United States Constitution, applied to the States by the Fourteenth Amendment, and Article II, Section 10 of the Colorado Constitution, guarantee every person in Colorado the fundamental right of freedom of speech and of the press. The interpretation of the federal constitutional standards by the United States Supreme Court leaves us with no alternative but to declare the statutes in issue to be unconstitutional and to reverse the appellant's conviction and dismiss the charges in this case.

On April 10, 1973, a deputy district attorney for El Paso County, accompanied by another complaining witness, viewed the film 'Deep Throat' at the Las Vegas Cinema in Colorado Springs after purchasing tickets from the appellant, Tabron. The appellant was arrested the following day, pursuant to an arrest warrant issued by an El Paso County district court judge. The allegedly obscene film was never seized by the authorities. Instead, a videotape of a film with the same title, but with many dissimilarities, was obtained from the Los The Colorado statutes relating to the definition of and promotion of obscenity, in our view, fail to meet the requirements of specificity imposed upon the States by the United States Supreme Court that are necessary to fairly apprise a person that his conduct may be subject to criminal penalties. Furthermore, the statutes are unconstitutionally vague and overbroad and impose a threat and tend to chill the exercise of protected speech under both the Colorado and United States Constitutions. U.S. Const. amends. I and XIV; Colo.Const. Art. II, Sec. 10.

                Angeles Police Department and admitted into evidence at the appellant's trial, with no valid foundation.  3 After a guilty verdict was returned, the lower court imposed a $1,000 fine against the appellant and sentenced him to twelve months at hard labor in the county jail.  4
                

The standing of the appellant to challenge the constitutionality of these statutes cannot be disputed. In Bolles v. People, Colo., 541 P.2d 80 (announced October 6, 1975), ⁵ we said:

'Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Not so, however, where, as here, we are dealing with First Amendment protections. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830; Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600.

'In Broadrick, supra, the Court noted that in statutes seeking to regulate only speech or written words, claims of facial overbreadth should be entertained as an exception to the general rule. This is because 'the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.' Id., 413 U.S. at 613, 93 S.Ct. (2908); at 2916; Bigelow v. Virginia, supra.'

In a five-to-four decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court made its most recent attempt to alleviate the confusion engendered by the history of obscenity decisions. In Miller, the Court was once again 'faced with the task of trying to define what may be indefinable.' See Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). ⁶ A concise review

of the history of obscenity regulation may be helpful in achieving an understanding of the current controversy and the confusion brought about by the many conflicting decisions of the United States Supreme Court.

I. COMMON LAW AND COLONIAL REGULATION OF OBSCENITY

The publication of obscenity was not a widely recognized or vigorously prosecuted Common Law crime. At first, the publication of obscene literature was thought to be the exclusive concern of the ecclesiastical courts, ⁷ and was not held to be an indictable offence until 1727. ⁸ The only obscenity case reported in the seventeenth century was that of The King v. Sir Charles Sedley, 1 Kebel 620 (K.B.1663). ⁹ Authorities generally agree that this was the first reported case involving obscene conduct. ¹⁰

Whether the framers of the United States Constitution were influenced by the Common Law experience with the regulation of obscenity is, in our opinion, an unresolved issue. Mr. Justice Douglas suggests in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts (hereinafter Memoirs), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (Douglas, J., Concurring), that the impact of the Common Law decisions was probably negative:

'(T)o assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.' Schofield, Freedom of the Press in the United States, 9 Publications Amer. Social. Soc. 67, 76.'

Nevertheless, Justice Brennan, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), posits that the rejection of obscenity is 'implicit in the history of the First Amendment . . ..' In our opinion, however, the historical narative lends little forcefulness to Justice Brennan's opinion. Little consideration was given to the regulation of obscenity in colonial New England. In fact, the only colonial statute expressly mentioning the word 'obscene' was a Massachusetts statute which prohibited 'composing, writing, printing, or publishing . . . any filthy, obscene, or profane song, pamphlet, libel or mock sermon, in imitation of or in mimicking of preaching, or any other part of divine worship.' ¹¹ The regulatory context No obscenity decisions were reported during the colonial period, and the first case was in Pennsylvania in 1815. ¹³ Not until 1821 was a decision reported which involved obscene literature. ¹⁴ The same year, Vermont passed the first state law proscribing the publication or sale of 'lewd or obscene' material. ¹⁵ Congress passed no legislation relating to obscenity until the middle of the nineteenth century. ¹⁶ The sketchy evidence leads us to conclude that the absolute rejection of obscenity is less than 'implicit' in the history preceding the adoption of the First Amendment. U.S. Const. amend. I.

in which the word 'obscene' appears in this statute casts it more as a blasphemy statute than as an obscenity statute. All other colonies left obscenity essentially unregulated, concentrating instead upon the offenses of blasphemy and libel. ¹²

II. POST-COLONIAL REGULATION OF OBSCENITY

Early obscenity laws were few in number, and few were brought before the courts until 1870, when federal and state governments, mainly due to the efforts of Anthony Comstock, ¹⁷ actively campaigned to suppress obscenity. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

In subsequent obscenity cases, the basic definition of 'obscenity' which received virtually unanimous judicial acceptance until Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), was announced, was that formulated by the Court of Queens Bench in England in 1868, where Chief Justice Cockburn stated:

'. . . I think the test of obscenity is this, whether the tendency of the mater 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.' Regina v. Hicklin, L.R. 3 Q.B. 360 (1868).

The effect of the Hicklin test was to permit obscene material to be judged by the impact of isolated excerpts of material upon particularly sensitive persons. See United States v. Kennerley, 209 F. 119 (S.D.N.Y.1913); MacFadden v. United States, 165 F. 51 (3d Cir. 1908); United States v. Clarke, 38 F. 500 (E.D.Mo.1889); Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (1909).

In Roth v. United States, supra, the United States Supreme Court expressly rejected the Hicklin test, stating that it was unconstitutionally restrictive of freedom of speech and the press. Strangely enough, this was the first time that the Supreme Court ruled directly on the question of whether obscenity was protected under the '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

First Amendment of the United States Constitution. The Supreme Court, in Roth, refused to grant 'obscenity' protection, asserting that it was 'utterly without redeeming social importance,' and measuring it according to the following standard:

Subsequent cases elaborated upon the Roth standard, and eventually, the Supreme Court articulated three elements which must coalesce to establish that expression constituted obscenity:

(a) 'the dominant theme of the material taken as a whole appeals to a prurient...