Under the proposal, Senate Bill 125 would make it a Class 2 misdemeanor to “disseminate to a minor any material that is harmful to minors or to allow a minor to view any performance that is harmful to minors.”
Colorado is one of seven U.S. states that do not currently have an enforceable prohibition regarding the distributing or displaying of harmful material to minors. At one time, Colorado did have such laws on the books, but the entire relevant section of state law was struck down in a 1980s court case, Tattered Cover Inc. vs. Tooley.
Attorney Michael Gross of the Denver-based law firm Schwartz & Goldberg told XBIZ that crafting legislation relating to obscenity and/or material harmful to minors is a tricky business for Colorado lawmakers, due to the nature the state’s constitution and the political orientation of its citizenry.
“In Colorado, we have a pretty strong Constitution, and while we have a lot of conservative voters, there’s a strong libertarian streak among conservatives here,” said Gross, who also served as a member of the Free Speech Coalition’s legal team in the FSC’s challenge to the 2257 federal record-keeping requirements. “For the legislators, it’s not an area that many of them really want to get into, because for most Colorado voters, it’s a non-issue.”
Gross noted that while Colorado does not currently have a law regulating the distribution of material that meets the lower “harmful to minors” standard it is a felony to display materials that qualify as legally “obscene.” The state’s definition of obscenity, however, makes that law difficult to enforce.
“Legal ‘obscenity’ is a very high standard in Colorado,” Gross said, noting that while the language of Colorado’s statute appears at first glance to mirror the “Miller Test” for obscenity that governs federal obscenity law, there are some important differences in Colorado’s definitions.
Colorado’s definition of “patently offensive,” for example, states that the term means “so offensive on its face as to affront current community standards of tolerance.” Gross said that the difference between “tolerance” and “acceptance” — a term more commonly used in such definitions, state by state — is significant in the eyes of the court.
“A thing that cannot be ‘tolerated’ is defined as something the community ‘cannot endure’,” Gross said. “That’s been interpreted as a much higher bar to clear for the government when they are making an obscenity case than something that the community does not ‘accept.’”
SB125 was amended following hearings on the bill in February, but the changes made to the language of the bill were not to the liking of its sponsor, Sen. Ted Harvey, R-Highlands Ranch. The bill was amended to remove the ban on selling harmful materials to minors, and replaced with language that provided stiff penalties for adults who use sexually explicit material to “groom” minors they intend to molest.
Proponents of the amendment to SB125 relented, however, and reinserted the ban on selling harmful materials to minors after Harvey vowed to make sure the public got the message that the legislature was endorsing the idea of selling pornography to minors.
“That's the message that will be sent to the voters of Colorado,” Harvey said. “I will make sure of it.”
A compromise was reached, and the current version of SB 125 includes both the sales ban and the “grooming” provision.
SB 125 is currently before the Senate Appropriations committee, who will review the bill to determine how much it will cost to implement and enforce before referring it back to the full Senate.