|
THE COMPLETE THUNDER MEMO By Uncommon Ground Note: The site is no longer up, and therefore the page is from an archive that I found. If someone knows when the site comes back up, please Contact Us. THE THUNDER MEMO Background This is the memorandum of law prepared by the attorney for Thunder in the Mountains on July 27, 1999. If you plan to rely on it, please update the case law and statutes for any developments that may have occurred since then. The footnotes are at the end. You can access them quickly by clicking on the footnote number. Each footnote has a point-and-click to return you to your place in the document, or use the back arrow on your browser. The attachments to the memo are omitted. To: Thunder Mountain Leather
By: William H. ReMine, Attorney at Law Date: July 27, 1999
LEGAL ISSUES RE: This memo will analyze the legal issues regarding Thunder in the Mountains, focusing on two areas: (a) the applicability or inapplicability of public indecency laws; and (b) constitutional rights of the participants in the event. By way of preface, I note that Thunder in the Mountains is a national, weekend-long conference that is hosted in Denver and is devoted to S/M. It features seminars, panel discussions, vendors, parties, the regional Mr. and Ms. Leather contests, fund-raising activities for the Leather Archives in Chicago, and a Sunday worship service. It is similar to other national and regional S/M events hosted in New York City, Atlanta, San Diego, Boston, San Francisco, Michigan, Pennsylvania, and Maryland. S/M refers to consensual sadomasochism. To borrow a description commonly given in the S/M community, nationally and locally, S/M is the consensual use of some combination of psychological dominance and submission, physical bondage, pain, and related practices to experience erotic arousal, emotional intimacy, and personal growth. /1/
I. SUMMARY OF The Colorado statute and the Denver ordinance on public indecency are inapplicable to the seminars and parties of Thunder in the Mountains because none of these activities are conducted in a public place or where they might be expected to be viewed by members of the public. I will give a detailed analysis later in this memo. For the present, I merely note that an attempt by the police to apply the public indecency laws to Thunder would fail the test of "objective legal reasonableness" under Anderson v. Creighton, 483 U.S. 635, 639 (1987). /2/ As I will discuss toward the end of this memo, the organizers, presenters, and participants at Thunder are protected by the freedoms of expression and association under the First Amendment to the United States Constitution. Included within these protections is the right of "associational privacy" recognized in Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984), and Evans v. Romer, 882 P.2d 1335, 1344 (Colo. 1994). Additionally, there is a reasonable expectation of privacy in commercial premises that are not open to the public, such that an intrusion by law enforcement without a valid warrant would violate the Fourth Amendment. United States v. Bute, 43 F.3d 531, 536-37 (10th Cir. 1994). II. FACTUAL BACKGROUND My legal analysis is based on the following facts: Thunder in the Mountains began last year as an annual pansexual S/M conference hosted in Denver. Pansexual means it is for all sexual orientations, whether gay, lesbian, bisexual, transgendered, or heterosexual. The common interest is S/M. Thunder is a weekend-long event at mid-summer, spanning three days from Friday through Sunday. This year’s event is scheduled for July 30-August 1, 1999. The event attracts a national following. Last year it drew 300 people, a third of which were from Colorado. The remainder came from New York City, Chicago, Minneapolis, Dallas, Houston, Los Angeles, San Francisco, Washington, D.C., and other points around the country. Ultimately, Thunder won the award given by Pantheon of Leather for Event of the Year. (Pantheon is an S/M publication that holds an award ceremony each January). The anticipated attendance for this year’s Thunder is 500 people. Just as last year, access is restricted to people who agree in writing to attend not as members of the public, but as members of Thunder Mountain Leather, under strict Terms of Membership. (A copy of last year’s Terms of Membership is appended to this memo as Attachment A. See also last year’s Dungeon Rules, appended as Attachment B). This year, as last year, the highlight of Thunder is the seminars and panel discussions by a faculty of nationally recognized presenters. S/M is a complex subject. It touches upon issues of proficiency, ethics, emotional response, arousal, self-knowledge, consensuality, and above all health and safety. The consensus within the S/M community is that S/M, especially the safety aspects of S/M, cannot be taught adequately without exposing the buttocks, breasts, or genitalia, as needed for the subject under discussion. The consensus is also that S/M and S/M safety cannot be taught adequately without demonstrating how a "scene" is done, whether the subject is spanking, flogging, bondage, or any of the other subjects within S/M. (A "scene" is an S/M session between two or more consenting partners). It is taken as a given in the S/M community that the exposure of body parts and the presentation of demonstration scenes is not for prurient interest. It is done because there is no other way to impart S/M know-how effectively. There is also an educational subtext to the parties at S/M conferences. These parties are commonly referred to as "dungeon parties" or play parties. A dungeon party is an opportunity for conference participants to exhibit their proficiency or to try out new techniques learned in the seminars. Dungeon parties are offered at all national and regional S/M conferences aligned with S/M education. By contrast, dungeon parties do not occur at the national and regional "leather contests," which are not educational. (For a representative list of S/M conferences and leather contests, see Attachment C). The activity at dungeon parties is patrolled for safety by dungeon monitors or "DMs," who are chosen from among the experienced members of the S/M community. DMs have the power to stop scenes that appear unsafe or to interrupt and suggest safer ways of doing scenes. Because of the number of national-stature participants at Thunder, the dungeon parties use a two-tiered system of Primary DMs, who are drawn from the conference faculty, and Secondary DMs, who are experienced local volunteers and who undergo training for this role in the event. To prepare for a medical emergency at the parties, if one should occur, Thunder uses a crew of local volunteers who are Red Cross certified in CPR and first aid. In summary, a dungeon party is a combination of social event, showcase, and lab - monitored for safety - with some people honing established skills and others trying new ones. Because of the explicit subject matter of S/M, the organizers of Thunder impose tight security measures to assure that no member of the general public could walk into the seminars, dungeon parties, or other venues. Last year, seventy volunteers were trained and deployed to restrict access only to participants at Thunder - people displaying membership credentials and I.D. such as a driver’s license, with a matching signature. The seventy volunteers were recognizable by T-shirts identifying them as event staff. Signs were posted at the hotel and the dungeon venue, giving notice that access was restricted to members only. My understanding is that the efficacy of these measures was tested by undercover police officers, who tried to gain entrance to the seminar area at the hotel and to the two dungeon parties without registering as members. /3/ My further understanding is that none of them (or anyone else without membership credentials) gained admittance. Security for this year’s Thunder is essentially the same, except that the event staff has been increased to seventy-five people. Each of these people is scheduled to work nine to twelve hours during the three days of the conference. Thunder is not advertised to the general public. Promotion of the conference has been through S/M support groups, special-interest publications that are read by the S/M community and by the gay-lesbian community, word of mouth (by e-mail) within the S/M community, and a website on the Internet. The website enables people to register online in advance of Thunder weekend and gives information about making room reservations at the hotel. The organizing committee has arranged for all of the rooms in the hotel to be set aside for Thunder and has guaranteed the hotel a full occupancy for the whole weekend. In other words, there will be no hotel guests other than Thunder participants. THE VENUES. Before I go into more detail about the security measures at Thunder, I will describe the venues for the events. This is necessary to distinguish the Rocky Mountain Mr. and Ms. Leather contests, which are a separate event that is open to the public. The events at the hotel are: (a) a vendor area, where merchants from around the country display and sell S/M gear and clothing (Friday afternoon through Sunday); (b) a "meet-and-greet" gathering (Friday evening); (c) twenty-nine seminars and two panel discussions (Saturday through Sunday); and (d) a Sunday morning worship service. The dungeon parties, which are Friday and Saturday night, are located well away from the hotel grounds. The Rocky Mountain Mr. and Ms. Leather contests predate Thunder by more than fifteen years. Historically, they were an annual event held at a gay bar. The contests were open to the public and remain so today. Past experience shows that the contests have a broad appeal within gay-lesbian circles, attracting a wider audience than just the S/M community. The contests became affiliated with Thunder last year and were staged at a gay bar some five blocks from the hotel during Thunder weekend. This year, the expected audience is too big to hold the contests in a bar. My understanding is that a tent will be erected in the hotel parking lot, with chairs and a stage inside, and that the Mr. and Ms. Leather contests will take place inside the tent on the night of Saturday, July 31, 1999. The event is open to anyone who is willing to pay the admission fee, regardless of their participation at Thunder. Since the contests are meant for the public, they do not carry the same security concerns as Thunder’s seminars and dungeon parties. The contest rules remind the contestants of the need to tailor their presentations to the public nature of the event. Another feature of the Mr. and Ms. Leather contests, as distinct from Thunder, is that the contests are receiving sponsorship from Coors. SECURITY. The security procedures are the same this year as last year. No one is allowed to go from the lobby to the parts of the hotel where the conference rooms are located unless they have agreed in writing that they are participating in a private, members-only event. The same applies to the dungeon parties. The Terms of Membership must be signed, and a registration staff worker must verify the person’s identity, age, and signature. Under the Terms of Membership, the member also affirms that he or she understands the nature of the sexual practices that are the subject of Thunder and does not find them offensive, objectionable, or lewd. (See Attachment A, at paragraphs 1-5). The member must be at least twenty-one years of age, and his or her age must be verified by valid identification, such as a driver’s license. ( Id . at paragraph 9). The Terms of Membership also ban alcohol, /4/ drugs, and solicitation of sex for money, as well as cameras, video cameras, and audio recording devices. My understanding is that these terms are strictly enforced. The staff of Thunder consists of seventy-five volunteers whose primary duty is to assure that no one but members have access to the event venues. Even the hotel employees are excluded from the conference rooms when seminars are in session. The volunteers are divided into registration staff, security for the seminar and vendor areas, and dungeon party security. A few volunteers have responsibility for setup and tear-down, and others have supervisory responsibility for segments of the volunteers. Some are responsible for housing and transporting the seminar faculty, who are flying in from New York, Chicago, Houston, Los Angeles, and San Francisco. But the bulk of the volunteers are charged with preventing the public from entering the restricted areas of the hotel. On Friday, the registration staff verifies each registrant’s identity, age, and signature on the Terms of Membership. They print the membership credentials, which contain, on the back side, the member’s printed name and signature. Seminar security is the largest portion of the staff. These volunteers prevent anyone without membership credentials and a valid I.D. from passing from the hotel lobby to the hallways leading to the conference rooms where the vendors and the seminars are. /5/ Even the vendors and seminar faculty are required to show their membership credentials and I.D. Dungeon-party security consists of eight people who are responsible for maintaining the door to the dungeon parties, plus roving security inside the dungeon. The dungeon security staff is separate from the dungeon monitors, who oversee safety. As with the seminars, no one is allowed inside without membership credentials and a valid, matching I.D. III. PUBLIC INDECENCY Colorado’s public indecency statute and its counterpart in Denver’s municipal code have some elements of vagueness, but they do not appear to be unconstitutionally vague or overbroad on their face. /6/ Every legislative enactment enjoys a presumption of constitutionality. People v. Schoondermark, 699 P.2d 411, 415 (Colo. 1985). On the other hand, if a statute is capable of alternative constructions, one of which is constitutional, the constitutional one must be adopted. People v. Smith, 862 P.2d 939, 943 (Colo. 1993); Schoondermark at 415. To comply with the Due Process clause of the Fourteenth Amendment, a penal statute must give fair notice to ordinary people of what conduct is prohibited and must do so in a manner that does not encourage arbitrary and discriminatory enforcement. United States v. Agnew, 931 F.2d 1397, 1403 (10th Cir. 1991). This is especially true when First Amendment rights are implicated. American Constitutional Law Foundation, Inc. v. Meyer, 120 F.2d 1092, 1107 (10th Cir. 1997). Penal statutes that fail to state sufficiently clear guidelines may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." United States v. Gaudreau, 860 F.2d 357, 363-64 (10th Cir. 1988). The Denver ordinance on public indecency, found in the Revised Municipal Code at Chapter 38, Article V, section 38-157, reads: Sec. 38-157. Public Indecency. (a) It shall be unlawful for any person to perform an act of public indecency. (b) Any person commits public indecency who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public: (1) An act of sexual intercourse; (2) An act of deviate sexual intercourse; (3) Insertion of one (1) or more fingers or other object into the vagina or anus; (4) Masturbation; (5) Caressing or fondling of the genitals of another person; (6) Patently offensive representations or imitations of sexual intercourse, masturbation or excretory functions accompanied by exhibition of the genitals; (7) Lewd fondling or caressing of the body of another person. [ Emphasis added ] The Colorado statute on public indecency, codified at C.R.S. § 18-7-301, reads: § 18-7-301. Public indecency (1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency: (a) An act of sexual intercourse; or (b) An act of deviate sexual intercourse; or (c) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of any person; or (d) A lewd fondling or caressing of the body of another. (2) Public indecency is a class 1 petty offense. [ Emphasis added ] The issue is public vs. non-public. Both the ordinance and the statute are directed to conduct done in a "public place" or where it "may reasonably be expected to be viewed by members of the public," but neither actually defines "public place" or "members of the public." The general definition section of the Colorado Criminal Code, however, does define "public place" as follows: § 18-1-901. Definitions. (3)(n) "Public place" means a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings. A. "PUBLIC PLACE" Traditionally, the term "public place" has been equated with streets, sidewalks, and other areas where the general public is free to travel. For example, Article XX, section 4(4), of the Colorado Constitution, relating to Denver’s powers as a home rule city, reads: "Any franchise relating to any street, alley or public place of the said city and county shall be subject to the initiative and referendum powers reserved to the people." (Emphasis added). In the same vein, the opinions in City of Montrose v. Public Utilities Commission, 732 P.2d 1181, 1187 (Colo. 1987), and City of Englewood v. Mountain States Telephone & Telegraph Co., 163 Colo. 400, 431 P.2d 40 (1967), discuss identical language equating streets and alleys with public places as to home rule cities generally. Such language is also common in city charters. See City of Greeley v. Poudre Valley Rural Electric Association, 744 P.2d 739, 742 (Colo. 1987). In DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443, 445 (Colo. App. 1991), the Colorado Court of Appeals described sidewalks as the archetype of a public place. A more expanded discussion of this concept is found in Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266, 272-73 (Colo. 1997), a case involving the sidewalks adjoining Coors Field. In Lewis, the Colorado Supreme Court was concerned with what is a public forum for purposes of delineating the extent to which the government can control access to the property, but it is clear from the discussion that a public forum or public place is: (1) streets, sidewalks, and parks; (2) other government property that has been opened to the public; and (3) other government property, subject to reasonable restrictions. That is not to say streets, sidewalks, and parks are the only public places. But beyond these, the case law breaks down into a patchwork quilt of contradictions. In City & County of Denver v. Taylor, 88 Colo. 89, 292 P. 594 (1930), the Colorado Supreme Court ruled that the Denver municipal auditorium was not a public place. Likewise, in Wilson v. City & County of Denver, 168 Colo. 43, 449 P.2d 822 (1969), the Supreme Court ruled that Denver’s golf course was not a public place. By contrast, the common areas of an airport terminal and of a shopping mall were described as public places in United States v. Carhee, 27 F.3d 1493, 1497 (10th Cir. 1994), and Bock v. Westminster Mall Co., 819 P.2d 55, 61 (Colo. 1991). The most striking case on what is or is not a public place is United States v. Wright, 864 F. Supp. 1013 (D. Colo. 1994). There, two people were charged with violating Colorado’s disorderly conduct statute. The charges were brought in federal court because the acts were committed at the Veteran’s Administration Hospital, which is federal property. The case is noteworthy because the disorderly conduct statute is similar to the public indecency statute and Denver’s public indecency ordinance in its reference to conduct done in a "public place." The statute defined disorderly conduct as occurring when a person abuses or threatens another person "in a public place in an obviously offensive manner." Id. at 1014. The court found that Colorado had passed other statutes regulating conduct in public buildings, including one applicable to the VA Hospital. It therefore concluded that the hospital was not a "public place" within the meaning of the disorderly conduct statute. Id . at 1015. The Tenth Circuit’s opinion in United States v. Carhee, 27 F.3d 1493 (10th Cir. 1994), and the Colorado Supreme Court’s opinion in People v. Paynter, 955 P.2d 68 (Colo. 1998), are examples of discussions in the case law about the Fourth Amendment in relation to public places. In Carhee, at 1497, the court wrote: "The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate." The implication is that a public place is anywhere that a person might be randomly approached by a police officer and where the person would not be alarmed by the approach, so as to believe he or she was subject to anything more than random questioning. By that standard, a person traveling to Denver for Thunder in the Mountains would expect that he or she is in a public place in the airport terminal, but not in the hotel conference rooms or at the dungeon parties. Being approached by a police officer at the airport would not be cause for great alarm. By contrast, the entry of a police officer into one of Thunder’s seminars to question one of the participants would be highly unexpected, intrusive, non-random, and alarming. /7/ In fact, a similar intrusion by a police officer at a seminar of any kind in any hotel seminar room in Denver would be non-random and alarming. As noted in People v. Melton, 910 P.2d 672, 677 n.6 (Colo. 1996), an uninvited or unwelcomed intrusion by the police on private property is "more coercive to a reasonable person than a casual approach by the police in a public place." The key here is the expectation that a seminar room is not a place of public traffic. A hotel is private property, but it invites the general public onto its premises for business purposes as hotel guests and restaurant customers. Within the confines of a hotel are spaces partaking of different degrees of privacy or non-privacy. There is no question that its guest rooms are private, not public places. The kitchen, storage areas, and other areas of the hotel that are meant for access only by hotel employees are not public places. For the most part, a hotel’s lobby and restaurant would be considered public places. /8/ A hotel conference room, by contrast, would be non-public. Access to hotel conference rooms is available by arranging to lease them. The general public is not invited to enter them when they are unleased. They are typically locked when not in use. When a hotel conference room is leased, the person or organization leasing it has the right to determine who will be admitted and who will not. The fact that some portions of a hotel, such as the lobby, are open to the public does not make the entire building a public place. A license or privilege to remain in a building that is only partly open to the public is not a license or privilege to enter or remain in the parts that are not open to the public. People v. Ridenour, 878 P.2d 23, 26 (Colo. App. 1994). The above analysis applies with equal force to the premises being used for Thunder’s dungeon parties. The location is private business property, and the time during which Thunder has contracted to occupy the premises is after 10:00 PM, well after the business has closed its doors for the night. There is nothing about the character of the building or other circumstances that would remotely suggest it could be a "public place." B. "MEMBERS OF THE PUBLIC" The second issue is whether the participants at Thunder are "members of the public." As a threshold matter, it is abundantly clear that no one from the general public - that is, no one without membership credentials - can gain access to the seminars, the vendor area, or the dungeon parties. The security measures to prevent the general public from entering or viewing are vigorous and impressive. Although Thunder’s security record from last year was perfect, it does not follow that this year’s conference would inadvertently fall within the scope of the public indecency statute or the ordinance if an individual from the public, particularly a deliberate intruder, were to penetrate the security net. Both the statute and the ordinance are framed in terms of whether the enumerated acts are done where they "may reasonably be expected to be viewed by members of the public." (Emphasis added). Given the barrier of seventy-five volunteer staff workers, the bulk of whom are deployed specifically to prevent access by anyone without membership credentials, it would be unreasonable to expect anyone from the general public to view the seminars, the vendor area, or the dungeon parties. The real issue, for someone intent on suppressing the event, is whether an argument could be made that Thunder is open to the public because anyone can buy a membership. In actuality, this is a skewed framing of the issue, and it begs the question. It overlooks the fact that the right to participate is premised on more than just buying a membership. It also overlooks the fact that Thunder is not advertised or promoted to the general public. To register and obtain membership credentials, the person must consent to and sign an agreement acknowledging his or her understanding of the nature of the subject matter of Thunder, affirming that he or she does not find the subject matter offensive, and pledging to be bound by a series of stringent terms and conditions. It is a conditional membership. Each person agrees in writing that he or she is not attending as a member of the public, but as a member of a private organization. Permission to enter and to remain at the seminars and other events is restricted to people who sign and adhere to the Terms of Membership. Whether premises are open to the public is determined by the permission extended by the occupier of the premises. The Colorado Court of Appeals has adopted the following test: "Open to the public means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe no permission to enter or remain is required." People v. Bozeman, 624 P.2d 916, 918 (Colo. App. 1980). Accord, People v. Ridenour, 878 P.2d 23, 26 (Colo. App. 1994). Although the buildings in Bozeman and Ridenour were partly open to the public, both cases involved unlawful entry into parts of the buildings that were not. The key was that a reasonable person, under the circumstances, would not have concluded he had permission to enter or remain in those parts of the building. Permission was also the test in Thompson v. City of Lawrence, 58 F.3d 1511 (10th Cir. 1995). A bail bondsman was arrested, at his office, during a sting operation relating to solicitation of theft. After the charges were dropped, he sued for violation of his civil rights because he was arrested without a warrant. The case turned on whether his office was open to the public at the time. A warrantless arrest based upon probable cause may occur in a public place. The Tenth Circuit held that his premises were open to the public because "there is no evidence that customers needed permission to enter the business." Id. at 1516. The security net at Thunder is the antithesis of permission for the public to enter. The Terms of Membership are unequivocal that permission to enter and to remain at Thunder events is dependent upon each the following:
The dungeon rules, which must also be signed by the member, add another condition that applies to dungeon parties. If the member is noticeably affected by alcohol or drugs, he or she will be denied admittance or required to leave the dungeon venue. There is no evidence from which an inference could arise that members of the public at large could reasonably believe they had permission to enter the seminar and vendor areas of the hotel or the offsite dungeon venue. The security measures provide ample notice that these areas are closed to the public, and the Terms of Membership make it clear that permission to enter and remain is conditional and that the person entering agrees and understands that he or she is not doing so as a member of the public. IV. CONSTITUTIONAL RIGHTS The organizers, faculty, and participants at Thunder are protected by the freedom of expression and the freedom of association under the First Amendment to the United States Constitution, including the right of "associational privacy" discussed below. Additionally, there is a reasonable expectation of privacy at the event venues, such that an intrusion by law enforcement officials without a valid warrant would violate the Fourth Amendment. A. FREEDOM OF EXPRESSION All types of expression that are not obscene, including sexually explicit expression, are protected by the First Amendment. City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 292 (Colo. 1995). The government may not limit the content of such expression, however objectionable or offensive that content may be to many. Id. at 293. Protection of the right to express controversial ideas in controversial ways is at the heart of the values embodied in the First Amendment. An infringement of that right occurs when an insufficiently justified governmental action /9/ discourages a group’s pursuit of these First Amendment interests. State Board for Community Colleges & Occupational Education v. Olson, 687 P.2d 429, 439 (Colo. 1984). See also Eagon v. City of Elk City, 72 F.3d 1481, 1487 (10th Cir. 1996). Obscenity is a legal term of art. The content of Thunder is not obscene, for multiple reasons. First, in any consideration of whether expression is obscene, it is constitutionally mandated that the material be "taken as a whole." People v. New Horizons, Inc., 616 P.2d 106, 110 (Colo. 1980). This test requires that the material be considered in its entirety. For example, if the challenged work is a magazine or a book, the entire magazine or book must be examined, including articles, interviews, reviews, letters, drawings, and photographs. Id. at 110. The content can be classified as obscene only if, taken as a whole, it appeals to the prurient interest. /10/ People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 358 (Colo. 1985); People v. Tabron, 190 Colo. 149, 544 P.2d 372, 376 (1976). In other words, all of the content of Thunder must be weighed together in its entirety. The weekend-long conference encompasses S/M education and social gatherings. Thunder features twenty-nine seminars and two panel discussions. Among these are two sessions on law (Lenny Broberg's seminars on "S/M and the Law"), one on racial minorities in the S/M community (Vi Johnson's seminar on "People of Color"), one on defining the boundaries of consent /11/ before engaging in S/M with someone (Cléo Dubois' seminar on "Playing with Someone New to You"), one on the psychological problem of burnout (Frank Strona's seminar on "BD/SM Burnout"), one on the psychological and social issues of people who take the submissive role in S/M scenes (Vi Johnson's discussion group on "Bottoms Talking to Bottoms"), and one on the historical roots of the S/M community (Joseph Bean's seminar on "The History of Leather Institutions"). The rest of the seminars are on S/M technique, with emphasis on health and safety. /12/ One of the panel discussions, featuring six faculty members, is on a form of S/M role playing in which the partners pretend to engage in non-consensual acts. Another panel discussion, featuring seven faculty members, is on creating and developing S/M relationships. The social events are a "meet-and-greet," which is a hospitality gathering at the hotel on Friday night, and the two offsite dungeon parties. In addition, there will be a fund-raising drive Saturday evening for the Leather Archives, which is a museum in Chicago that preserves documents and other artifacts from the history of the S/M culture in the United States. /13/ On Sunday morning, the Reverend Jeremy McLeod will lead a non-denominational "Leatherfolk Worship Service." Taken as a whole, it cannot be said that Thunder appeals to the prurient interest. Second, expression is obscene only if it depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by applicable state law. The Colorado obscenity statute, at C.R.S. § 18-7-101(2)(b), 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. To be "patently offensive," however, the material must be so offensive on its face as to affront current community standards of tolerance. C.R.S. § 18-7-101(4). The Colorado Supreme Court has rejected any standard based on community standards of "decency." Seven Thirty-Five East Colfax, supra at 360-61. The test is tolerance. It is whether the material affronts current community standards of tolerance. In this regard, it should be pointed out that while S/M is a minority sexual practice, it is widely tolerated. Attachment C to this memo is a representative list of eleven S/M educational events around the country besides Thunder, ranging in attendance from 200 to 2,000 people, and four gay-lesbian leather contests besides the Rocky Mountain Mr. and Ms. Leather contest, ranging in attendance from 750 to 10,000 people. Attachment D is a copy of an appendix from the S/M manual "Screw the Roses, Send Me the Thorns," by Philip Miller and Molly Devon (Mystic Rose Books 1995), giving names and addresses of 154 local S/M support groups throughout the United States, plus twenty-nine public gathering places devoted to S/M. Attachment E is a bibliography of eighteen books currently in circulation on S/M safety, ethics, know-how, and related issues, plus four periodicals featuring articles on these S/M topics. Additionally, it is readily observable that S/M fetishwear and S/M demonstrations have been featured at public nightclubs in Denver frequently over the past year, most recently on July 9, 1999, when Rock Island hosted a fetish night. Third, expression is obscene only if, taken as a whole, it lacks serious literary, artistic, political, or scientific value. People v. Tabron, 190 Colo. 149, 544 P.2d 372, 276-77 (1976). With Thunder's emphasis on education relating to law, history, special issues of racial minorities, safety, and health, along with its advocacy of values, norms, and ethics within the S/M community and its fund-raising for the Leather Archives, it cannot be said that the conference lacks political and scientific value. Additionally, the conference carries substantial political value in promoting the freedom of association discussed in the next segment of this memorandum. Fourth, the Colorado Supreme Court has held that the community standards to be applied are statewide standards and that therefore the Colorado obscenity statute preempts and invalidates all local ordinances on the subject. Pierce v. City & County of Denver, 193 Colo. 347, 565 P.2d 1336, 1338-39 (1977). Under the statue, the definition of obscene reaches only to "material" or "a performance." C.R.S. § 18-7-101(2). To be material, the expression must in tangible form. C.R.S. § 18-7-101(1). To be a performance, it must be "a play, motion picture, dance, or other exhibition performed before an audience." C.R.S. § 18-7-101(5). It would appear on its face that the Colorado statute was written so as to exclude educational presentations. While the seminars and panel discussions at Thunder are offered to an audience, they are not "performed." Nor do any of them classify as "a play, motion picture, dance, or other exhibition." The statute's use of the words "or other exhibition" following the words "play, motion picture, dance" means an exhibition similar in kind to those types of performances. The guiding principle is that when words of general import (such as "or other exhibition") are preceded by words setting forth specific categories, the specific words will control the general words. City & County of Denver v. Taylor, 88 Colo. 89, 292 P. 594, 595 (1930). In Taylor, the Colorado Supreme Court considered the words "streets, alleys, sidewalks or other public places" in the Denver city charter. The issue was whether the municipal auditorium was a public place. The Supreme Court decided that because "other public places" was preceded by "streets, alleys, sidewalks," a public place must be something similar in kind to those categories, for purposes of the charter. Accordingly, the municipal auditorium was not a public place. The seminars at Thunder are not plays, motion pictures, or dances. Nor are they exhibitions of a type similar to plays, motion pictures, or dances. They are educational programs and are given mainly in lecture and demonstration format. /14/ Each of the above reasons, standing separately by itself, is sufficient to remove Thunder from the sphere of obscenity. Taken together they are conclusive. The organizers, faculty, and participants at Thunder have a constitutionally protected interest in disseminating and receiving the information in the seminars, panel discussion, and other programs during the weekend conference. They are entitled to the protection of the First Amendment, notwithstanding the controversial nature of the subject matter. B. 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. Healy v. James, 408 U.S. 169, 181 (1972); State Board for Community Colleges & Occupational Education v. Olson, 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 government action /15/ interferes with or discourages a group's pursuit of its First Amendment interests. 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. Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984). Protecting these relationships from unwarranted state interference safeguards the ability to independently define one's identity that is central to the concept of liberty. Id . at 619. Freedom of association also includes the right of "associational privacy," which protects associations involving deep attachments and commitments to other individuals with whom one shares a special community of thoughts, beliefs, and experiences, and the sharing of distinctly personal aspects of one's life. Roberts, supra at 620; Evans v. Romer, 882 P.2d 1334, 1344 (1994). This is a perfect description of the S/M community, as to its local and regional groups and its gathering together at national conferences such as Thunder. 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. Roberts at 620; Evans at 1344. Among other things, associational privacy protects against the government or the judicial system compelling the disclosure of individuals' affiliations with the group. Smith v. District Court, 797 P.2d 1244, 1249 (Colo. 1990). When associational privacy is concerned, the disclosure of threatened disclosure of affiliation with the group could result in the chilling of constitutionally protected expression. City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 289 (Colo. 1995). Thus, for example, associational privacy protects against an organization from being forced to divulge a list of its members. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958). While such a case has not arisen in Colorado, it seems relatively certain that another way associational privacy might be violated would be if law enforcement officials exposed individual members of such a group to media publicity by giving reporters access to police files or inviting a television camera along on a police raid. In the later instance, the violation of rights would encompass both the First Amendment and the Fourth Amendment. The Supreme Court of the United States recently determined that police officers may be held personally liable for violating the Fourth Amendment if they invite a representative of the television news media to accompany them in executing a warrant. /16/ Wilson v. Layne, ___ U.S. ___, 119 S. Ct. 1692, 1698-99 (1999). /17/ C. PRIVACY & THE FOURTH AMENDMENT The Fourth Amendment protects an individual's reasonable expectations of privacy in commercial premises. United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994). Classifying a building as "commercial" is not dispositive as to the level of privacy that attaches. On the contrary, the reasonable expectation of privacy turns on the nature and circumstances of the premises at the time. Id . at 536-37. Given the security measures of Thunder, which preclude access by the public into the seminar, vender, and dungeon venues, there is a high expectation of privacy. (But that expectation does not extend to the Rocky Mountain Mr. and Ms. Leather contests, which are open to the public). Police intrusion into Thunder's venues without a valid search warrant or arrest warrant would be constitutionally impermissible. The infringement in Bute, for example, arose from a security check by a police officer. Nonetheless, in view of the need to avoid obstruction of law enforcement, if a police officer were to demand entry upon the premises, my recommendation is that the Thunder staff member make the following statement and step aside: "I do not consent to your entry upon the premises, nor am I waiving the privacy rights or Fourth Amendment rights of anyone here, but I will not obstruct you in the discharge or apparent discharge of your official duties." We can review the nature and circumstances of the entry afterwards. Date: July 27, 1999.
FOOTNOTES 1. The description is paraphrased from J. WISEMAN, SM 101: A REALISTIC INTRODUCTION, at 10 (Greenery Press 2d ed. 1996). /Return to Text/ 2. In Anderson v. Creighton, the Supreme Court of the United States was discussing the defense of "qualified immunity" in claims for violations of civil rights under 42 U.S.C. § 1983. A government official may be protected from liability if his or her actions are based on an objectively reasonable interpretation of the law. Subjective good faith is not enough. See ReMine, Civil Suits for Civil Rights: A Primer on § 1983, 26 Colorado Lawyer, Vol. 11, at 5, 9 (November 1997). Whether an interpretation of the law is objectively reasonable is usually assessed in light of whether the law was "clearly established" at the time. In the case of Colorado's and Denver's public indecency laws and their potential applicability to Thunder in the Mountains, there are no Colorado appellate decisions directly on point. Their inapplicability, however, is so clear that a contrary interpretation by Denver authorities would be manifestly unreasonable. /Return/ 3. In addition, I understand the Denver police have confirmed that one or more undercover police officers registered at Thunder last year, signed the Terms of Membership, and came to the seminars and dungeon parties using membership credentials. /Return/ 4. The Terms of Membership make an exception for the consumption of alcoholic beverages at an event held in a place, such as a bar, where the sale and consumption of alcoholic beverages is legal and expected. /Return/ 5. On a limited basis, passes to the vendor area may be made available to people who do not register as members of Thunder, provided they sign the Terms of Membership and show proof that they are at least twenty-one years of age. But the more liberal access to the vendor area does not affect the analysis of whether Thunder's seminars and dungeon parties are under the purview of the public indecency laws. /Return/ 6. Although a statute’s meaning may be plain on its face, it may be unconstitutionally vague or overbroad in application. United States v. Agnew, 921 F.2d 1397, 1403 (10th Cir. 1991). A loose interpretation of the public indecency statute or of the corresponding Denver ordinance would undoubtedly be found unconstitutional, in view of the constitutionally protected rights of Thunder’s participants to freedom of expression and freedom of association. It is unnecessary to carry the analysis to that point, however, because it is clear that Thunder’s venues are neither "public places" nor accessible to "members of the public." /Return/ 7. It also would be a violation of the Fourth Amendment, as discussed later in this memo. /Return/ 8. An exception might occur if an organization leased the entire hotel, effectively closing the hotel and its lobby to the public, but that issue need not be addressed in this memo. None of Thunder's seminars will be held in the hotel lobby or the restaurant. /Return/ 9. Government regulations that do not directly or indirectly limit the content of protected expression but seek only to impose time, place, and manner regulations are constitutionally permissible, but only if they are narrowly crafted to further a substantial governmental interest and preserve ample alternative means of communication. City of Colorado Springs v. 2354, Inc., at 293, 295; Tattered Cover, Inc. v. Tooley, 696 P.2d 780, 784 (Colo. 1985). Examples of the type of content-neutral regulations that may be upheld, if they are do not unduly burden the freedom of expression, are zoning and licensing. /Return/ 10. Prurient interest has been defined by statute in Colorado to mean "a shameful or morbid interest." C.R.S. § 18-7-101(6.5). /Return/ 11. Consensuality is the central and single most important value of the S/M community. /Return/ 12. The focus of all seminars on S/M technique is no how to do the activity proficiently, with sufficient knowledge, minimizing the emotional and physical risks, so that the partners have a safe and rewarding experience within agreed upon (consented to) boundaries. /Return/ 13. The Leather Archives is a tax-exempt 501(c)(3) corporation. /Return/ 14. Some seminars are straight lectures, such as Lenny Broberg's program on "S/M and the Law" or Lolita Wolf's "S/M 101." Some are workshops, in which the audience practices the technique in question under the supervision of the faculty member, such as Peter Fiske's "Whipping Workshop" or Tony DeBlase's "Bondage Workshop." Others are seminars with demonstrations, such as Fetish Diva Midori's program on "Female Genitorture" or Sky Renfro's program on "Temporary Piercing." One program, Vi Johnson's "Bottoms Talking to Bottoms," is a discussion group. And finally, Thunder wraps up with two panel discussions. /Return/ 15. Infringement of the rights of expression and association is justified only when a regulation is adopted to serve compelling state interests, unrelated to suppression of ideas, that cannot be achieved through means significantly less restrictive of these rights. Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984). /Return/ 16. In terms of the violation of constitutional rights, it would make little difference whether the police directly invited the news media (as was done in the Wilson case) or made the invitation indirectly by broadcasting their purpose and destination on a radio band known to be monitored by television reporters. /Return/ 17. The warrant in Wilson was executed at someone's house, but the same principle would apply to business premises when the occupant has a reasonable expectation of privacy. In any case, the participants at Thunder have the additional protection of associational privacy under the First Amendment. /Return/
|
