Colorado § 18-7-101 - Definitions.

§ 18-7-101. Definitions.

As used in this part 1, unless the context otherwise requires:

(1) "Material" means anything tangible that is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound, or in any other manner, but does not include an actual three-dimensional obscene device.

(1.5) "Minor" means a person under eighteen years of age.

(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.

(3) "Obscene device" means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.

(4) "Patently offensive" means so offensive on its face as to affront current community standards of tolerance.

(5) "Performance" means a play, motion picture, dance, or other exhibition performed before an audience.

(6) "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.

(6.5) "Prurient interest" means a shameful or morbid interest.

(7) "Simulated" means the explicit depiction or description of any of the types of conduct set forth in paragraph (b) of subsection (2) of this section, which creates the appearance of such conduct.

(8) "Wholesale promote" means to manufacture, issue, sell, provide, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale.

(9) If any of the depictions or descriptions of sexual conduct described in this section are declared by a court of competent jurisdiction to be unlawfully included herein, this declaration shall not invalidate this section as to other patently offensive sexual conduct included herein.

Source: L. 81: Entire part R&RE, p. 998, § 1, effective July 1. L. 86: (2)(b)(II) and (4) amended and (6.5) added, p. 782, § 1, effective April 21. L. 94: (1.5) added, p. 1720, § 16, effective July 1.

Editor's note: This section is similar to former § 18-7-101 as it existed prior to 1981.

ANNOTATION

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "Obscenity Law in Colorado: The Struggle to Pass a Constitutional Statute", see 60 Den. L.J. 49 (1982). For article, "Obscenity and Pornography: Forging Decency Through the Law", see 17 Colo. Law. 45 (1988).

Annotator's note. Cases decided under the 1971 and 1977 versions of this section which are deemed to be relevant appear below.

The 1977 version of the Colorado obscenity statute was unconstitutional. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Provisions regulating promotion of obscene devices held unconstitutional. The provisions of the statutory scheme which regulate the promotion of obscene devices impermissibly burden the right of privacy. People v. Seven Thirty-five E. Colfax, Inc., 697 P.2d 348 (Colo. 1985) (decided prior to 1986 amendment).

Definition of "patently offensive" contained in this section is unconstitutionally overbroad. The first amendment to the U.S. Constitution requires a "tolerance" standard, for determining whether material or a performance is "patently offensive". People v. Seven Thirty-five E. Colfax, Inc., 697 P.2d 348 (Colo. 1985) (decided prior to 1986 amendment).

Subsection (2)(b) held constitutional. The terms used in this paragraph are sufficiently specific to satisfy requirements of Miller v. California, and thus statute is not unconstitutionally overbroad. People v. Seven Thirty-five E. Colfax, Inc., 697 P.2d 348 (Colo. 1985).

Obscenity statute provides sufficiently adequate standards to enable courts and juries to apply the law consistently and is not impermissibly vague. People v. Ford, 773 P.2d 1059 (Colo. 1989).

Obscenity statute that defines material that is patently offensive in terms of community standards of tolerance satisfies Colorado and U.S. constitutions and is not overbroad. People v. Ford, 773 P.2d 1059 (Colo. 1989).

Terms "materials" and "promote" as used in this section held not constitutionally defective. People v. Seven Thirty-five E. Colfax, Inc., 697 P.2d 348 (Colo. 1985).

Federal court abstained from determining provisions' constitutionality until state courts determined validity. The United States district court for Colorado chose to abstain from the determining any federal constitutional question concerning Colorado legislation regulating obscene material, § 18-7-101 et seq., until the Colorado state courts were afforded an opportunity to construe the provisions and determine their validity or invalidity under the state constitution. Bergstrom v. Ricketts, 495 F. Supp. 210 (D. Colo. 1980).

United States supreme court decisions binding on state. United States supreme court decisions interpreting the scope of the first amendment's protections in obscenity cases are binding upon the state supreme court. People v. Berger, 185 Colo. 85, 521 P.2d 1244 (1974).

A statewide community standard is dictated by the constitution. To impose less than a statewide standard in the interpretation of a state obscenity statute would be to denigrate the constitutional guarantees that are afforded to every person. People v. Tabron, 190 Colo. 161, 544 P.2d 380 (1976).

Anything less than a statewide standard is unworkable when state obscenity statutes are involved. People v. Tabron, 190 Colo. 161, 544 P.2d 380 (1976).

Obscenity test derived from supreme court decisions. The three-fold test of obscenity set forth in subsection (5)(now (6)) is derived from the United States supreme court's decision in Roth v. United States, 354 U.S. 476 (1957), as further defined in Memoirs v. Massachusetts, 383 U.S. 413 (1968), and Redrup v. New York, 386 U.S. 767 (1967). People v. Berger, 185 Colo. 85, 521 P.2d 1244 (1974).

Question of obscenity is one of law, not of fact. Houston v. Manerbino, 185 Colo. 1, 521 P.2d 166 (1974).

Whether the statutory tests of subsection (5)(now (6)) have been properly applied in a given case, as well as whether the materials are obscene, are questions of law in the first instance. People v. Berger, 185 Colo. 85, 521 P.2d 1244 (1974).

For a review of the history of obscenity regulation, see People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Magazine can be banned where pictures, without reference to text, declared obscene. Where an allegedly obscene magazine consists of both words and pictures, the pictures can be declared obscene and the entire magazine banned under this part without reference to whether the included text or other articles imbue the magazine with serious literary, artistic, political, or scientific value. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Obscenity provisions could not support injunction or criminal charge. The 1977 version of the Colorado obscenity statute could not be relied upon to support either a civil injunction or a criminal charge. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980).

Denver obscenity ordinance held in conflict with legislative grant of power. Pierce v. City & County of Denver, 193 Colo. 347, 565 P.2d 1337 (1977).

Applied in Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982).