Allegations of ‘obscene’ books in school libraries insufficient for criminal charges

The following is a press release sent out by the Fourth Judicial District Attorney’s Office. After receiving allegations of criminal activity surrounding the availability of specific books in local school districts from the group “Take Back Our Schools,” the 4th Judicial District Attorney’s conducted a comprehensive legal review. As a result, our office has determined there is insufficient evidence of criminal activity and will not pursue charges in relation to the allegations made. Our analysis is outlined in the letter that was sent in response to Take Back Our Schools and can be read in its entirety below. Although we will not be commenting further on this matter, we encourage concerned members of the community, school board members, and district administrators to work together for the benefit of our students. Dec. 21, 2023 Kate Singh Director of Communications  Allegations of ‘obscene’ books in school libraries insufficient for criminal charges  Release: #2023-010 719-520-6084  ACT AT  OFFICE OF THE DISTRICT ATTORNEY Michael J. Allen, District Attorney Colorado’s 4th Judicial District – Serving El Paso & Teller Counties  I 7ci  December 21, 2023 Dr. Bill Sawvel  RE: Allegations of obscene materials in El Paso County public schools Dr. Sawvel, I have reviewed the allegations raised in your letter dated November 21, 2023, as well as considered the thoughts you and others provided to us on December 14, 2023. It is clear you and others in the community are frustrated with the processes established by elected members of area school boards and their respective school districts. As we discussed at our in-person meeting, when we review allegations of criminal activity we are bound by the law and ethics rules that govern the practice of law in Colorado. The law, as it applies to this office and the review of the allegations you raised, includes Colorado statutes and case law from both the Colorado and United States Supreme Courts. This office and I do not have the authority to enforce federal law, so the allegations raised regarding violations of federal law are not addressed here. As I mentioned in our meeting, engaging with this office is essentially a request to investigate criminal allegations to determine if those allegations are supported by sufficient evidence. Further, if those allegations are supported by sufficient evidence, to issue criminal complaints and commence criminal prosecution against specific individuals. In the United States, every crime charged has specific elements that define that crime, and the prosecution always bears the burden of proof to prove each element beyond a reasonable doubt. This burden of proof is appropriately the highest burden of proof in American courtrooms. Put another way, to achieve a guilty conviction at trial, a jury must reach a unanimous verdict that each element is proven beyond a reasonable doubt. The elements of promotion of obscenity to a minor include the following: 1. That the defendant, 2. In the State of Colorado, at or about the date and place charged, 3. Knowing its content and character, 4. [Promoted to a minor or possessed with intent to promote to a minor any obscene material] or [Produced, presented, or directed an obscene performance involving a minor or participated in a portion thereof that was obscene or that contributed to obscenity]  El Paso County Office: 719.520.6000 – 105 East Vermijo Ave., Colorado Springs, CO 80903 Teller County Office: 719.520.7168 – 112 N. A St., PO Box 958, Cripple Creek, CO 80813  Ultimately, there is insufficient evidence to support your allegations of criminal conduct related to promotion of obscenity to minors due to specific books being available in El Paso County public school libraries. There is also insufficient evidence to pursue an injunction against schools for promotion of obscenity. Because the allegations are not supported by sufficient evidence, no criminal charges will be filed, and no injunction sought by this office. In your letter, you correctly pointed out a guiding principle of this office, given to us by Martin Luther King Jr., who said, “the time is always right, to do what is right.” That principle, when applied to prosecution, means we must follow the law when exercising our authority. We also must refrain from exercising the immense power of our authority when the facts and the law do not support it. Sometimes, not prosecuting someone is the right thing to do, particularly when there is insufficient evidence to support exercising our authority. The criminal justice system in the United States should not be weaponized against political or social opponents based simply on disagreements, and the misuse of the prosecution process only erodes trust in an essential function of our shared government. I encourage you and others in the community to work with area school boards and administrations to find an agreeable solution to the issues you raised. And I would encourage school boards and school districts to do the same. It is ultimately a joint responsibility between parents and schools to ensure children receive the education they will need to lead our country into the future. School boards should be responsive to parents and enact policies that recognize the value of that partnership. I also remind school boards they have the authority to determine what books are available in school libraries. CRS §22-32-110(1)(r) specifically empowers school boards “to exclude from each school library any books, magazines, papers, or other publications which, in the judgment of the board, are of immoral or pernicious nature.” I include that here to remind parents and other concerned members of the community that even though the allegations raised in the “Take Back Our Schools” letter do not rise to the level of criminal activity; you still have an avenue to affect change. Your desired change runs through school boards. In our meeting, you and others acknowledged familiarity with processes to challenge specific books, while expressing frustration with school boards and school districts who, you’ve said, continually “move the goal posts” by changing the challenge process. However, whether school boards or districts faithfully uphold the processes they have established to challenge books does not change the determination I have made regarding the allegations of criminal activity presented in your letter. As I noted above, when reviewing allegations for potential filing of criminal charges we are guided by the law as we assess facts in each circumstance. I also mentioned above that we are obligated to adhere to ethics rules that govern the practice of law in the state of Colorado. Accordingly, all analysis included herein is focused on relevant law and ethics rules. Ethically, all lawyers licensed in the State of Colorado are required to adhere to the Colorado Rules of Professional Conduct. These rules have been adopted by the Colorado  Page 2 of 9  Supreme Court, and the entire body of rules can be found online at the following address: A brief review of some of the relevant rules that guide us in this instance include: Rule 3.1 – “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.” As applied to prosecutors, this rule prohibits initiating criminal proceedings when allegations are unsupported by law and fact. Rule 3.3 – “(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false.” In practice, this rule means that lawyers cannot mislead a court regarding the status of the law or evidence. In terms of review of the allegations raised in your letter, we are required to review the totality of the law (both statutory and case law) surrounding criminal obscenity. A full analysis of relevant law follows below. Rule 3.8 – “The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause…” This rule is appropriately titled “Special Responsibilities of a Prosecutor” and it stands, above all others, for the idea that prosecutors must hold themselves to a higher standard than other lawyers. All prosecutors are tasked with responsibly wielding an immense amount of power that can result in imprisonment and prosecuting cases that are not supported by enough evidence to satisfy probable cause is abjectly unethical. Considering the Rules of Professional Conduct and the burden of proof required in criminal cases, prosecutors are obligated to review allegations with an eye toward likely trial outcomes. This concept is often referred to as “a reasonable likelihood of success at trial.” Ultimately, if there is no reasonable likelihood of success at trial, then the prosecutor should refrain from filing criminal charges. A review of the relevant statutes and case law governing the allegations raised in your letter follows:  Page 3 of 9  Statutes Regarding “Sexually Explicit Materials Harmful to Children” CRS §§18-7-501 through 18-7-504 was declared unconstitutional by the Colorado Supreme Court in Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo. 1985). While these statutes remain in the Colorado Revised Statutes, they are entirely inoperable, and no further analysis is required. Statutes Governing “Internet Protection In Public Libraries” CRS §§24-90-601 through 24-90-606 applies specifically to public libraries and not to school libraries, so no further analysis will be provided here as related to the allegations raised in your letter other than to note the law on obscenity will be the same. Obscenity Under CRS §18-7-102(2.5)(a), a person commits promotion of obscenity to a minor if that person promotes or possesses with intent to promote, to a minor, any obscene material, with knowledge of the content and character of that material. “Definitions” Definitions for relevant terms contained in that section are found in CRS §8-7-101. (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.  Page 4 of 9  (4) “Patently offensive” means so offensive on its face as to affront current community standards of tolerance. (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.  Colorado’s definition of “obscene” tracks the three-part test set out by the US Supreme Court in Roth v. United States, 354 U.S. 476 (1957) and later refined in both Miller v. California, 413 U.S. 15 (1973) and Pope v. Illinois, 481 U.S. 497 (1987). Material that meets the definition of “obscene” is not protected under the United States Constitution or the Colorado Constitution. See Roth v. United States, id., 354 U.S. 485; People v. Ford, 773 P.2d 1059, 1066 (Colo. 1989). “Obscenity is excluded from constitutional protection because it is ‘utterly without redeeming social importance.”Jacobellis v. Ohio, 378 U.S. 184, 191 (1964) (quoting Roth). This is a demanding standard to satisfy. The portrayal of sex in art, literature, and scientific works is not itself a sufficient reason to deny material the constitutional protection of freedom of speech and press. Id. “It follows that material dealing with sex in a manner that advocates ideas…or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.” Id. Your letter raised issues that are properly separated into two categories. One category concerns issues that relate to the definition of “obscene” as that word is used in CRS §18-7- 102(2.5)(a). The second category concerns practical issues that are raised by the specific allegations in the letter. I. Specific Issues pertaining to the definition of “obscenity” a. “Prurient Interest” Material is not considered obscene unless it appeals to a “prurient” (i.e., shameful or morbid) interest in sex as defined by CRS §18-7-101(6.5) That subsection was added to the statute in 1986, likely in response to the United States Supreme Court’s opinion in Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985). There, the court distinguished material that incites “lust” (a normal, healthy interest in sex that is constitutionally protected) from material that appeals to “prurience” (a shameful or morbid interest in sex that is not constitutionally protected). 472 U.S. at 505-506. “Shameful” and “morbid” are not specifically defined but appear to refer to an interest in sex that is “unhealthy” rather than “normal.” 472 U.S. at 505.  Page 5 of 9  To resolve the normal vs. unhealthy distinction, CRS §18-1-701(2)(a) requires application of an “average person” standard: Would “[t]he average person, applying contemporary community standards, find that taken as a whole,” the material in question “appeals to a prurient interest in sex?” The “community standard” employed is the standard of the state where the offense is alleged to have occurred. See People v. Tabron, 190 Colo. 161, 162, 544 P.2d 380, 381 (1976) (anything less than a state-wide standard is unworkable when state obscenity statutes are involved). The concerns you raised in your letter do not satisfy the contemporary-community standard. While you referred to “academic standards” published by the Colorado Department of Education, it does not include any reference to a specific standard and that lack of specificity requires the reader to guess at what standards the letter writer believes are in play. It should also be noted that purported violations of “academic standards” set by the Colorado Department of Education does not rise to the level of criminal conduct. The “taken as a whole” requirement “mandates that the entire magazine or book must be examined [by the trier of fact], including articles, interviews, reviews, letters, drawings, and photographs.” People v. New Horizons, Inc.,  200 Colo. 377, 383, 616 P.2d 106, 110 (1980). This process would be a labor- intensive exercise that will not be performed in this review because, as stated  earlier, there is insufficient evidence on the record to support further criminal investigation. It is not clear that each book cited has been read in entirety, and there is nothing in the letter suggesting that a thorough review of secondary materials has been performed. To establish the “sexual lewdness” of the cited sources, the letter quoted a snippet from each. That approach is grossly insufficient to demonstrate that these books are “utterly without social importance.” See Jacobellis v. Ohio, 378 U.S. at 191. b. “Patently offensive” Like the prurient-interest issue, contemporary community standards govern the question of what is “patently offensive.” In People v. Ford, 773 P.2d 1059 (Colo. 1989), the Colorado Supreme Court adopted a community standard of “tolerance” under which “the definition of ‘patently offensive’ must incorporate a standard which protects all but the most insufferable of sexually explicit material.” Ford, 773 P.2d at 1066. The court based its decision in part on the U.S. Supreme Court’s use of the word tolerance in its obscenity opinions. Ford, id., at 1063-1064. In adopting this standard, Colorado has separated itself from jurisdictions that employ a community standard of “decency” or “acceptance.” The court in Ford explained the distinction by stating that  Page 6 of 9  the tolerance standard better protects freedom of expression, and is the only standard of the three which would satisfy the Colorado Constitution. Whereas “decency” implies a community standard of what is proper, and “acceptance” connotes approval, tolerance stretches the community’s standards to their outermost limits. When a tolerance standard is employed, material is not offensive unless the community cannot endure it. Ford, id. At 1066. Under a tolerance standard, the question is not whether the materials offend community standards, but whether the community would be offended by the materials being available to those who wish to see them. See City of Farmington v. Fawcett, 114 N.M. 537, 843 P.2d 839 (1992)(citing the Ford decision and a book, The Law of Obscenity by Professor Frederick F. Schauer). It is clear that you and others are offended that the books identified in the letter are available in school libraries. But the relevant question under a tolerance standard is whether the community will tolerate the books’ availability to others, even if the books offend the sensibilities of some community members. The answer to that question is not apparent. See Scott Calvert, LGBT Issues Galvanize Democrats’ School-Board Push, Wall St. J., Nov. 6, 2023, at 3A. Calvert’s article details an ongoing dispute in a Pennsylvania school district about library books that contain sexual content. One of the books mentioned in the article is This Book is Gay, which was also identified in your letter. The quotes in the article indicate that, in Pennsylvania, the parental reaction to the book is mixed, and that there is no consensus as to whether it should be in a school library. c. Works that, taken as a whole, have serious literary, artistic, political, or scientific value “The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent.” Miller v. California, id., 413 U.S. at 34. “At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection.” Miller, id., at 26. The question of whether material has serious literary, artistic, political, or scientific value is determined by a “reasonable person” standard. See Pope v. Illinois, 481 U.S. 497, 501 (1987), where the supreme court stated that “[t]he proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value in allegedly obscene material, but whether a reasonable person would find such value in  Page 7 of 9  the material, taken as a whole.” The addition of the “serious” element allows the trier of fact to consider the intent for including material in a book. “If that intent is to convey a literary, artistic, political, or scientific idea, or to advocate a position, then the intent is ‘serious.” State v. Walden Book Co., 386 So.2d 342 (La. 1980)(citing Schauer’s The Law of Obscenity). Material depicting sexual activity might be offensive to some people while still having serious literary, artistic, political, or scientific value. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), a case that considered the constitutionality of a law that regulated “virtual” child pornography (i.e., computer-generated pornography produced without the use of real children), the supreme court held that the law was unconstitutional in part because it prohibited the publication of work that had serious literary, artistic, political, or scientific value. The court was troubled that “[t]he statute proscribes the visual depiction of an idea – that of teenagers engaging in sexual activity – that is a fact of modern society and has been a theme in art and literature throughout the ages.” Id. at 246. The court noted that the themes of teenage sexual activity and sexual abuse of children have inspired  “countless literary works,” and it cited Romeo and Juliet and several award- winning movies as examples. Id. at 247-248. It declared that “Nile artistic  merit of a work does not depend on the presence of a single explicit scene,” and therefore “[w]here the scene is part of the narrative, the work itself does not become obscene, even though the scene in isolation might be offensive.” Id. at 248. Considering Ashcroft, the excerpted examples of graphic sexual content in seven books cited in your letter are insufficient to demonstrate those works are criminally obscene, though those examples might rise to levels that some would classify as offensive.  II. Practical issues raised by the “Take Back Our Schools” letter a. In Colorado, the standard for prosecuting the promotion of obscenity is the same regardless of whether the target audience is minors or adults The United States Supreme Court has recognized “the legitimate and indeed exigent interest of States and localities throughout the nation in preventing the dissemination of material deemed harmful to children.”Jacobellis, id., 378 U.S. at 195. Consistent with this recognition, the court in Ginsburg v. New York, 390 U.S. 629 (1968), upheld the constitutionality of a statute that prohibited selling material to minors under age 17 where that material was defined to be obscene based on its appeal to minors regardless of whether it would be obscene to adults. The court reasoned that the state’s interest in the well-being of its youth and the parents’ claim to authority in their own household to direct the rearing of their children justified the law, which  Page 8 of 9  defined obscenity differently for minors than for adults. Ginsburg, id., 360 U.S. at 639. Colorado could, consistent with Jacobellis and Ginsburg, pass laws to keep materials out of the hands of minors that will remain available to adults by applying a different definition of obscenity in cases involving minors. The Colorado General Assembly has not pursued that course of action. Rather, CRS §18-7-102(2.5)(a), which proscribes the promotion of obscenity to minors, applies the same definition of obscenity as §18-7-102(2)(a), which proscribes the promotion of obscenity to adults. (The crimes have different severity levels — promotion of obscenity to minors is a class 6 felony and promotion of obscenity to adults is a class 2 misdemeanor — but the elements of both crimes are the same). b. The challenge of proving that material is obscene Under CRS §18-7-101(2), the test for obscenity is in the conjunctive. Material is obscene if, taken as a whole, it (1) appeals to a prurient interest in sex under the circumstances set forth in subsection (2)(a); and (2) depicts or describes patently offensive representations or descriptions of various acts specified in subsection (2)(b); and (3) lacks serious literary, artistic, political or scientific value as required by subsection (3). Each of these three elements must be proven beyond a reasonable doubt, and if any element is not present then the material under review is not considered obscene. The books identified in your letter may not be great works of literature, but this would not mean they are obscene. “The constitutional guarantee of freedom of speech and the press protects not only the great literary works which we all revere, but also those questionable forms of literary expression which some of us abhor.” People v. Berger, 185 Colo. 85, 90, 521 P.2d 1244, 1246 (1974).  While the books cited in your letter are clearly offensive to some members of this community and perhaps others in the State of Colorado, they do not rise to the level of criminally obscene material. Engaging the immense power of this office to prosecute individuals for promotion of obscenity to minors, based on certain books being available in school libraries, would be an unethical abuse of power. The question of whether those books should even be available in school libraries is one that school boards are equipped and mandated to take on. Sincerely,  Michael J.Al-‘en District Attorney