Colorado group seeks to bolster obscenity law

October 09, 1994|By New York Times News Service

DENVER -- Claiming that Colorado has become a haven for sexually explicit books, magazines and videos, a conservative group here is promoting an initiative on the November ballot that would give local communities more power to outlaw such materials.

The measure, which won a place on the ballot after a petition drive gathered more than 80,000 signatures, has alarmed civil libertarians in Colorado, who say that its passage would mean widespread censorship of books and movies.

But proponents of the initiative, Amendment 16, say that it is needed because dealers of pornography are moving to the state to take advantage of a relatively liberal free-speech clause in the Colorado Constitution.

"This is a very modest piece of legislation," said Denise Mund, president of the Coalition Helping to Insure Lives for Dignity, a group that supports the measure. "All we're asking is that Colorado adopt the same standard for obscenity as the U.S. Constitution."

The state constitution, as it has been interpreted by the courts, provides greater protection for sexually explicit materials than does the standard set down by the U.S. Supreme Court in 1973.

In the landmark Miller vs. California case that year, the Supreme Court established a three-part test for determining whether materials were obscene and therefore ineligible for First Amendment protection: the materials had to appeal to "prurient" interests, offend contemporary community standards and lack artistic or political merit.

Under the Colorado Constitution, materials must be considered intolerable, not just offensive or unacceptable, to be deemed obscene. Moreover, the courts here have defined "community" as the entire state. In other words, a county or town could not rely on its own standards.

"Like some other states, Colorado has added a few extra hurdles in the test for obscenity," said Bob Nagel, a law professor at the University of Colorado in Boulder. "This amendment essentially says that they don't want Colorado to give greater protection than what the Supreme Court allows."

About a dozen other states, including California and New York, use a broader standard than provided in the Miller decision, generally defining a community as the state or nation, said Martin Garbus, a lawyer in New York who deals with First Amendment issues.

Critics of Amendment 16 say that it would encourage harassment aimed at adult bookstores, as well as mainstream bookstores and libraries that carry works that some people find objectionable.

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