BD/SM & THE FIRST AMENDMENT

By Uncommon Ground

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FIRST AMENDMENT RIGHTS

FIRST AMENDMENT & ZONING

Government regulations that neither directly nor indirectly limit the content of protected expression and that seek only to impose time, place, and manner restrictions are constitutionally permissible – but only if they are narrowly crafted to further a substantial governmental interest and they preserve ample alternative means of communication. content City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 293-95 (Colo. 1995); content Tattered Cover, Inc. v. Tooley, 696 P.2d 780, 784 (Colo. 1985).

Examples of the type of content-neutral regulations that are typically upheld, if they do not unduly burden the freedom of expression, are zoning and licensing. But governmental actions under the guise of zoning laws will run afoul of the Constitution if they are taken arbitrarily and with the intent of suppressing protected expression.

FIRST AMENDMENT & FREEDOM OF EXPRESSION

All expression that is not obscene, including sexually explicit expression, is protected by the First Amendment. content City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 292 (Colo. 1995). Obscenity is a legal concept. It differs from the colloquial use of the word "obscenity" or "obscene" and does not depend on whether an individual or group, whether religious or otherwise, would consider something obscene.

All types of expression are protected unless they are obscene. And expression is not obscene unless three tests are met:

One: Taken as a whole, does the challenged material appeal to the prurient interest?

Two: Taken as a whole, does the material depict or describe, in a patently offensive way, sexual conduct that is specified by state laws? In Colorado, to be patently offensive, the material must be so offensive on its face as to affront current community standards of tolerance. The community standard is a statewide standard, not a question of what is tolerable in a given town or suburb. But in some states, the standard is a community standard of decency rather than of tolerance.

Three: Taken as a whole, does the material lack serious literary, artistic, political, or scientific value?

If any one of these three questions is answered "no," the material is not obscene and is protected expression under the First Amendment.

The government may not limit the content of protected expression, however objectionable or offensive that content may be to many. content Id. at 293. Protection of the right to express controversial ideas in controversial ways lies at the heart of the values embodied in the First Amendment. An infringement of that right occurs when an insufficiently justified governmental action discourages a group’s pursuit of these First Amendment interests. content State Board for Community Colleges & Occupational Education v. Olson, 687 P.2d 429, 439 (Colo. 1984). content See also Eagon v. City of Elk City, 72 F.3d 1481, 1487 (10^th Cir. 1996).

Insufficiently justified means regulation that is: (a) not content-neutral; or (b) is content-neutral but does not serve a substantial governmental interest; or (c) is content-neutral and furthers a substantial governmental interest but nonetheless fails to preserve ample alternative means of communication.

We believe the content of BD/SM education and BD/SM social gatherings is not obscene because it typically meets none of three tests of obscenity.

As we discuss the three tests below, remember that in any analysis of whether expression is obscene, the constitution mandates that the material be "taken as a whole." content People v. New Horizons, Inc., 616 P.2d 106, 110 (Colo. 1980). This means the material is considered in its entirety. For example, if the challenged work were a magazine, the entire magazine must be examined, including articles, interviews, reviews, letters, drawings, and photographs. content Id. at 110.

1. Prurient Interest

First, material can be classified as obscene only if, taken as a whole, it appeals to the prurient interest. content People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 358 (Colo. 1985); content People v. Tabron, 190 Colo. 149, 544 P.2d 372, 376 (1976). Prurient interest has been defined by statute in Colorado to mean "a shameful or morbid interest." C.R.S. § 18-7-101(6.5). In other words, the meetings and gatherings of your BD/SM group must be weighed together in their entirety and the question is whether, taken as whole, the content appeals to a shameful or morbid interest.

In the context of an organization such as Uncommon Ground, the scope of consideration would include the totality of the educational programs and the content of those programs. UG meets in the Denver metropolitan area on the second Saturday evening of each month. A typical meeting lasts from two to three hours, consisting of a business portion, a social break, an educational program on BD/SM. Examples of past programs include bondage, flogging and paddling, temporary piercing, the care and feeding of latex, and psychological edge play. (For a more complete listing of past programs, click Programs). The overwhelming tone of the programs is anything but titillation. It is safety, ethics, and the building of skills and effective BD/SM technique. Although some members-only parties are held and some meetings segue into a party for the organization's members, the content of such parties is approximately half conversation among friends and half practical opportunities to practice new skills or hone existing ones, under the eye of safety monitors (called "dungeon monitors") and mentors, or to watch and learn from experienced members.

The consensus in the BD/SM community is that BD/SM - and especially the safety aspects of BD/SM - cannot be taught adequately without exposing the buttocks, breasts, or genitalia content as needed for the subject being presented. The reason some presentations are more explicit than others is not to inflame a shameful or morbid interest in sex. It is because the explicitness is necessary to teach BD/SM safety and know-how. The consensus is also that BD/SM and safety cannot be taught adequately without demonstrating how a "scene" is done. A scene is a BD/SM session between tow or more consenting partners.

2. Patently Offensive

Second, expression is obscene only if it depicts or describes, in a patently offensive way, sexual conduct that is specifically identified by applicable state law. The Colorado obscenity statute delineates two categories:

(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 covered male genitals in a discernibly turgid state.

C.R.S. § 18-7-101(2)(b).

Under the guidelines laid down by the Supreme Court of the United States, to be patently offensive the material must be so offensive on its face as to affront current community standards of decency. Colorado uses an even more difficult hurdle, for those who wish to challenge material as being obscene, by requiring that the material on its face affronts current community standards of tolerance. content Seven Thirty-Five East Colfax, supra at 360-61.

While BD/SM is a minority sexual practice, it is widely tolerated and accepted. Given below is a representative list of twelve S/M educational events around the country, ranging in attendance from 200 to 2,000 people, plus five gay or lesbian BD/SM-oriented leather contests ranging in attendance from 750 to 10,000 people. There are many other national, regional, and local events not listed here:

In an appendix to their S/M manual "Screw the Roses, Send Me the Thorns," published in 1995, authors Phillip Miller and Molly Devon (Mystic Rose Books 1995), listed the names and addresses of 154 local BD/SM support groups throughout the United States, plus twenty-nine public gathering places devoted to BD/SM. The S/M community has grown considerably in the five years since the book was published.

Additionally, it is readily observable that BD/SM fetish wear and activities have been featured in music videos and in commercials on television, in print media advertising, and at local nightclubs.

3. Lacking Political or Scientific Value\

Third, expression is obscene only if, taken as a whole, it lacks serious literary, artistic, political, or scientific value. content People v. Tabron, 190 Colo. 149, 544 P.2d 372, 276-77 (1976). BD/SM organizations such as Uncommon Ground focus on education relating to law, the history of the S/M community, the social and political issues of sexual minorities, safety, and health, along with advocacy of values, norms, and ethics within the BD/SM community itself. The government would have an uphill battle trying to show that the content found at meetings of any given BD/SM organization, taken as a whole, lack political value.

If scientific value includes discussion of safety and health issues, then the case for BD/SM organizations engaging in protected expression becomes almost conclusive. The emphasis on education issues of safety and health in BD/SM is overwhelming in every BD/SM organization we know of around the country.

Each of the three points above, standing separately by itself, is sufficient to remove a BD/SM organization from the sphere of obscenity. The organizers, educational presenters, and participants at meetings of these groups have a constitutionally protected interest in disseminating and receiving information about BD/SM and in socializing with others who hold BD/SM and the ethical values of the BD/SM community as a common interest. They are entitled to the protection of the First Amendment, notwithstanding the controversial nature of the subject matter.

FREEDOM OF ASSOCIATION

Freedom of association is considered an element of the broad right to freedom of expression. It protects the right of individuals to associate to further their personal beliefs. content Healy v. James, 408 U.S. 179, 181 (1972); content State Board for Community Colleges & Occupational Education v. Olsen, 687 P.2d 429, 439 (Colo. 1984). Association, in the context of the First Amendment, refers to the means by which individual members of a group seek to make more effective the expression of their own views.

The right to associate recognizes one’s right to join with others to pursue goals protected by the First Amendment. An abridgement of that right occurs when any insufficiently justified governmental action interferes with or discourages a group’s pursuit of its First Amendment interests. content Olson at 439.

The constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. content Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). Protecting these relationships from unwarranted state interference is necessary to safeguard the ability to independently define one’s own identity, which is central to the concept of liberty. content Id. at 619.

ASSOCIATIONAL PRIVACY

Freedom of association also includes the right of "associational privacy," which protects associations involving attachments and commitments among members who share a special community of thoughts, experiences, and beliefs, and the sharing of personal aspects of one’s life. content Roberts, supra at 620; content Evans v. Romer, 882 P.2d 1334, 1344 (1994).

Groups entitled to associational privacy are marked by such attributes as relative smallness, a high degree of selectivity in the individuals’ decisions to begin and maintain the affiliation, and seclusion from outsiders in critical aspects of the relationship. content Roberts at 620; content Evans at 1344.

Among other things, associational privacy protects against the government or the courts compelling an organization to disclose its membership list. content Smith v. District Court, 797 P.2d 1244, 1249 (Colo. 1990).

When associational privacy is concerned, even the threatened disclosure of affiliation with the group could result in the chilling of constitutionally protected expression. content City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 289 (Colo. 1995). Thus, for example, associational privacy protected the NAACP from being forced to divulge a list of its members to the state of Alabama in content NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).