{ "id": 731665, "name": "CITY OF FARMINGTON, Plaintiff-Appellee, v. Tom FAWCETT, d/b/a Farmington Magazine and Book Store, Defendant-Appellant", "name_abbreviation": "City of Farmington v. Fawcett", "decision_date": "1992-06-30", "docket_number": "No. 12900", "first_page": "537", "last_page": "549", "citations": [ { "type": "official", "cite": "114 N.M. 537" }, { "type": "parallel", "cite": "843 P.2d 839" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "71 L.Ed.2d 453", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "102 S.Ct. 1264", "category": "reporters:federal", "reporter": "S. 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Supp.", "case_ids": [ 3992637 ], "opinion_index": 0, "case_paths": [ "/f-supp/446/0643-01" ] }, { "cite": "652 F.2d 1115", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1251629 ], "opinion_index": 0, "case_paths": [ "/f2d/652/1115-01" ] }, { "cite": "70 Va.L.Rev. 53", "category": "journals:journal", "reporter": "Va. L. Rev.", "year": 1984, "opinion_index": 0 }, { "cite": "104 N.M. 176", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594945 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0176-01" ] }, { "cite": "87 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831238 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "488" }, { "page": "1339" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0486-01" ] }, { "cite": "713 P.2d 556", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1986, "opinion_index": 0 }, { "cite": "103 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "year": 1986, "opinion_index": 0 }, { "cite": "103 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711384 ], "weight": 2, "pin_cites": [ { "page": "672-73" }, { "page": "18-19" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0667-01" ] }, { "cite": "94 N.M. 784", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573188 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0784-01" ] } ], "analysis": { "cardinality": 1922, "char_count": 43571, "ocr_confidence": 0.756, "pagerank": { "raw": 1.7246050798063946e-07, "percentile": 0.7044559354618745 }, "sha256": "8b2bbd83b252f0efaa538dea0ebe8422d166b1b9344e35bcde467313402cf1b4", "simhash": "1:b27a0dee2c8f46b2", "word_count": 7017 }, "last_updated": "2023-07-14T15:11:13.314573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and PICKARD, JJ\u201e concur." ], "parties": [ "CITY OF FARMINGTON, Plaintiff-Appellee, v. Tom FAWCETT, d/b/a Farmington Magazine and Book Store, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nDefendant appeals his conviction of five counts of dissemination of obscene material in violation of Farmington, New Mexico, Ordinance Number 89-920, Section 21-50.1 (1989) (the Ordinance). He raises four issues on appeal: 1) whether the Farmington Ordinance violates Article II, Section 17 of the New Mexico Constitution, the free speech provision; 2) whether the trial court improperly admitted opinion evidence regarding community standards and improperly instructed the jury on those standards; 3) whether, as a matter of constitutional law, the magazines are patently offensive; and 4) whether there was sufficient evidence that the magazines lack serious literary, artistic, political, or scientific value. We remand for a new trial, based on the district court\u2019s improper jury instruction on the community standard.\nFACTS\nDefendant operated the Farmington Magazine and Book Store. He sold a wide variety of magazines and books from this outlet, including the five magazines in controversy here: The Best of Club, Forbidden Erotica, Hot Swinging Couples, Over 40, and Swank. The controversy between the City of Farmington (City) and Defendant arose when two City residents investigated Defendant\u2019s store for possible violations of the obscenity Ordinance. As a result of this investigation, a complaint was filed in municipal court, and Defendant and one of his employees were convicted of disseminating obscene materials.\nDefendant appealed to the district court and received a trial de novo. Prior to trial, Defendant filed a motion to dismiss, alleging that the City Ordinance violated Article II, Section 17 of the New Mexico Constitu-' tion. The trial court denied the motion, apparently because it was not timely under the local rules. After hearing testimony and examining the magazines involved, the jury found Defendant guilty of five counts of dissemination of obscene materials.\nI. THE CONSTITUTIONALITY OF THE CITY ORDINANCE\nThe City argues that Defendant's failure to timely file his motion to dismiss precludes him from now arguing the issue of the unconstitutionality of the Ordinance. In a criminal prosecution the constitutionality of the statute (or ordinance) pursuant to which the defendant was convicted may be raised for the first time on appeal. State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980). Therefore, even though the motion to dismiss was not denied on its merits below, the constitutionality of the City\u2019s obscenity Ordinance may be argued on appeal. See State v. Lujan, 103 N.M. 667, 672-73, 712 P.2d 13, 18-19 (Ct.App.1985), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).\nThe Farmington Ordinance at issue provides:\n(a) No person shall:\n(1) Knowingly sell, show or otherwise disseminate in any manner obscene material; or\n(2) Knowingly possess obscene material with the intent to sell, show or otherwise disseminate the same.\n(b) For the purposes of this section, \u201cobscene material\u201d shall be defined as material, written, pictorial or recorded, which:\n(1) Taken as a whole, appeals to the prurient interest in sex as judged by the average person applying local contemporary community standards;\n(2) Describes or depicts in a patently offensive way any of the following behavior designed or intended to stimulate sexual excitement: the description, depiction or simulated portrayal of the acts of sodomy, fellatio, cunnilingus, masturbation, excretory functions, ejaculation, sexual intercourse, bestiality, sadism or masochism; and\n(3) Taken as a whole, lacks serious literary, artistic, political or scientific value.\nA. Standard of Review\nIn considering any constitutional challenge, we must establish the proper legal rules of construction. There is a presumption that all legislative acts, including municipal ordinances, are constitutional. City of Albuquerque v. Jones, 87 N.M. 486, 535 P.2d 1337 (1975). And it is the duty of the appellate court to uphold such legislation unless satisfied beyond all reasonable doubt that the legislation is outside the constitution. State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986). The burden is therefore upon the party attacking the constitutionality of the enactment to show that the act is invalid. Jones, 87 N.M. at 488, 535 P.2d at 1339.\nB. Prior Restraint\nDefendant initially argues that Article II, Section 17 of the New Mexico Constitution prohibits all prior restraints on speech and publication, and the City Ordinance constitutes such a prior restraint. That section of our constitution, which is pivotal to this appeal, provides: \u201cEvery person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.\u201d\nWe believe Defendant misconstrues the nature of \u201cprior restraint.\u201d Pri- or restraint means only that the government may not enjoin or restrain a particular expression prior to its judicial review, even though the same expression could constitutionally be subject to punishment afterwards. Laurence H. Tribe, American Constitutional Law \u00a7 12-34 (2d ed. 1988); Martin H. Redish, The Proper Role of the Prior Restraint Doctrine In First Amendment Theory, 70 Va.L.Rev. 53 (1984); see also Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115 (1st Cir.1981). A municipal anti-obscenity ordinance does not constitute a prior restraint on speech when the municipality has the burden of instituting prompt judicial proceedings and there is no provision for restraint prior to such judicial review. Eastern Books v. Bagnoni, 446 F.Supp. 643 (W.D.Pa.1978); cf. State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960) (statute making it a crime to prepare, publish, sell, distribute, or give away any obscene or indecent matter is not a prior restraint).\nC.Free Speech is not Absolute\nDefendant next urges us to \u201chold that there is no exception, whether for obscenity or otherwise, to the absolute right of free publication stated in the first clause of Article II, Section 17.\u201d One need only consider this proposition logically to realize it cannot stand. No civilization can survive which allows its press to freely publish troop movements in times of war, or permits its citizens to falsely yell \u201cFire!\u201d in a crowded theater. Even in a society which cherishes free speech above other personal liberties, life presents situations where such civil liberties must be balanced. See Blount v. TD Publishing Corp., 77 N.M. 384, 388, 423 P.2d 421, 424 (1966).\nWhile the language of Article II, Section 17, unambiguously protects speech on all subjects, our supreme court has recognized that the state may constitutionally regulate the place and manner of such speech. Nall v. Baca, 95 N.M. 783, 626 P.2d 1280 (1980) (nude dancing may be restricted in liquor establishments); Stuckey\u2019s Stores, Inc. v. O'Cheskey, 93 N.M. 312, 600 P.2d 258 (1979) (commercial billboard \u201cspeech\u201d may be regulated), appeal dismissed, 446 U.S. 930, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980). The supreme court has also recognized that the constitutional liberty to speak freely can be limited to the extent it conflicts with other constitutionally protected rights. State ex rel New Mexico Press Ass\u2019n v. Kaufman, 98 N.M. 261, 648 P.2d 300 (1982) (media\u2019s right to free speech may be limited when necessary to guarantee defendant a fair trial).\nMoreover, Defendant emphasizes the initial language of Article II, Section 17, and ignores the clear limitation also contained in that section. After granting citizens the right to speak freely, our constitution makes each person \u201cresponsible for the abuse of that right.\u201d A citizen who \u201cabuses\u201d the right of free speech may be legally liable. See Blount, 77 N.M. at 388, 423 P.2d at 424. Can obscenity be an \u201cabuse\u201d of free speech? We believe it can.\nDicta in various New Mexico cases appear to acknowledge that obscenity may be an abuse of the right to \u201cfreely speak, write and publish.\u201d In Curry v. Journal Publishing Co., the supreme court said:\nThe First Amendment to the Constitution of the United States provides that Congress shall make no law abridging the freedom of speech or of the press; the effect of which was to prevent Congress from interfering with such rights as they existed at the time of the adoption of this amendment. Similar provisions are a part of the constitution of each of the forty-eight states. See section 17 of article 2 of the New Mexico Constitution.\n\u201cThe constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals.\u201d\n41 N.M. 318, 328, 68 P.2d 168, 174-75 (1937) (emphasis added) (quoting 2 Thomas M. Cooley, A Treatise on the Constitutional LAmitations 886 (8th ed. 1927)).\nMuch more recently in State v. Gattis, 105 N.M. 194, 730 P.2d 497 (Ct.App.1986), this court upheld a statute proscribing malicious use of the telephone against a challenge based on the First Amendment of the United States Constitution. In doing so, we quoted from von Lusch v. State, 39 Md.App. 517, 387 A.2d 306, 310 (1978). \u201c \u2018Freedom of speech does not encompass the right to abuse the telephone with the specific intent to annoy and to harass the recipient of the call.\u2019 \u201d 105 N.M. at 199, 730 P.2d at 502.\nThe language of Article II, Section 17, therefore, recognizes that obscenity may be an abuse of free speech. Other jurisdictions have reached the same conclusion when interpreting substantially similar constitutional provisions.\nAlthough the language guaranteeing free speech in Article II, Section 17 of the New Mexico Constitution differs somewhat from the First Amendment of the United States Constitution, it is virtually identical to the language adopted by thirty-nine other states which also make citizens responsible for the \u201cabuse\u201d of the right. Some state courts have followed the United States Supreme Court\u2019s interpretation of the First Amendment, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and found that por-' nography or obscenity is not entitled to protection under such language; others have found that all speech is protected, but obscenity may be an \u201cabuse\u201d of the right. Our conclusion that obscenity constitutes an abuse of the right to freely speak and publish is, then, both plain in the language of Article II, Section 17, and supported by the interpretation given similar provisions by several other state courts.\nWe also find little of relevance in the \u201chistorical facts\u201d offered by Defendant, who relies heavily on State v. Henry, 302 Or. 510, 732 P.2d 9 (1987), for his interpretation of history. In Henry the Oregon Supreme Court traced the history of obscenity regulation in England and its American colonies in the seventeenth and eighteenth centuries. That court relied on Oregon\u2019s limited criminalization of distributing obscenity only to minors in the nineteenth century, and concluded that obscenity \u2014 unlike perjury, solicitation of crime, and fraud \u2014 did not fall within any recognized exception to free speech at the time Oregon\u2019s Bill of Rights was adopted in 1857.\nThe Colorado Supreme Court participated in the same process and reached the opposite conclusion in People v. Ford, 773 P.2d 1059 (Colo.1989) (en banc). That court expressly rejected the historical analysis set forth in Henry, saying:\nWe also decline to adopt the historical analysis in State v. Henry, 302 Or. 510,\n732 P.2d 9 (1987), because the Oregon court concentrated on the state of the law in the early 19th century rather than at the time our constitution was adopted in 1876. We believe that the status of obscenity regulation across the nation in the early 1870\u2019s is more relevant in assessing whether the framers of our- constitution intended to protect obscenity.\n773 P.2d at 1065. The Colorado court noted that not only was the Colorado Constitution adopted twenty years after Oregon\u2019s, but that Colorado had statutes prohibiting the dissemination of obscenity both before and immediately after the adoption of its constitution in 1876. Id.; see also Long v. 130 Mkt. St. Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982) (concluding the \u201cabuse\u201d language was adopted because the First Amendment was thought to be absolute at the time the Pennsylvania Constitution was adopted).\nA similar historical analysis of Article II, Section 17 of the New Mexico Constitution produces no definitive answer, but provides no solace for Defendant. The 1846 Kearny frame of government consisted of a code of laws, including a bill of rights, promulgated by Brigadier General Kearny after his occupation of Santa Fe during the Mexican War. Leyes del Territorio de Nuevo Mejico, introduction (1846). The twelfth article of the bill of rights provided: \u201cThat free communications of thoughts and opinions is one of the invaluable rights of freemen, and that every person may freely speak, write or print on any subject \u2014 being responsible for every abuse of that liberty.\u201d Id. at 15.\nNew Mexico\u2019s initial move toward statehood began immediately after execution in 1848 of the Treaty of Guadalupe Hidalgo. Constitution of the State of New Mexico, 1850 vii-viii (Stagecoach Press 1965). Even though New Mexico, including what is now Arizona, was not yet an organized territory, a \u201cstate\u201d constitution was drafted and adopted. Id. As early as 1850, the proposed New Mexico Constitution copied the free speech clause already widely adopted in other states: \u201cEvery person may freely speak, write and publish, his sentiments on all subjects, being responsible for the abuse of that liberty.\u201d Id. at 15 (N.M. Proposed Const, of 1850, art. I, \u00a7 5). Further attempts at statehood produced constitutions containing guarantees of free speech, but always making citizens responsible for its abuse. See N.M. Proposed Const, of 1872, art. II, \u00a7 4; N.M. Proposed Const, of 1889, art. II, \u00a7 16.\nAfter being rebuffed in its first attempt at statehood, New Mexico organized its territorial government under the Organic Act in 1851. L. Bradford Prince, New Mexico\u2019s Struggle for Statehood 22-23 (1910). In 1873 the United States Congress passed an act applicable to all its territories, including New Mexico, which provided in part:\n[Wjhoever ... shall sell, or lend, or give away, or in any manner exhibit, or shall otherwise publish or offer to publish in any manner, or shall have in his possession, for any such purpose or purposes, any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article of an immoral nature ... shall be imprisoned at hard labor ... or fined____\nAn Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use, ch. 258, 17 Stat. 598 (1873).\nIn November 1910, the New Mexico Constitutional Convention adopted the state constitution containing the language of Article II, Section 17. Dorothy I. Cline, New Mexico\u2019s 1910 Constitution (1985). What, then, did the framers of Article II, Section 17 of the New Mexico Constitution intend by making every person responsible for the \u201cabuse\u201d of free speech? It seems likely they understood there was nothing inherently contradictory in adopting this constitutional standard at a time when the distribution of obscene materials had long been prohibited in the territory.\nMoreover, since almost one-third of the constitutional delegates were lawyers who received their legal training in other states, they may have brought some understanding on the subject from their states of origin. Id. at 30. Two of the primary drafters, Thomas B. Catron and Charles A. Spiess, for example, were born and educated in Missouri. Id. at 31-35. In spite of constitutional language similar to that adopted by the 1910 New Mexico convention, Missouri had long recognized the state could prohibit obscenity. State v. Van Wye, 136 Mo. 227, 37 S.W. 938 (1896); State v. Appling, 25 Mo. 315 (1857). Another prominent convention leader, Charles Springer, had come from Iowa to practice law near Cimarron. Cline, supra, at 35. Iowa, too, had constitutional language virtually identical to that adopted by the New Mexico delegates, but also had recognized the power of the state to criminalize the distribution of obscenity. Iowa Rev.Laws, part IV, tit. 23, ch. 172, \u00a7 4359 (1860) (as cited in Ford, 773 P.2d at 1065 n. 7); State v. Doty, 103 Iowa 699, 73 N.W. 352 (1897).\nEven if we found the language of Article II, Section 17, ambiguous and resorted to the historical setting as urged by Defendant, we could not accept his conclusion that the framers of the 1910 constitution intended no liability for obscenity as an abuse of free speech. Moreover, as the Colorado Supreme Court stated in Ford, the history of obscenity regulation in the years immediately preceding the adoption of our constitution is more relevant than the early English law and English colonial law which were the foundation for the Oregon court in Henry. While evidence of the historical context of our 1910 constitution is not conclusive, it augurs in favor of finding that the language of Article II, Section 17, was not intended to preclude the regulation of obscenity as an abuse of free speech.\nIf the language of the constitution is plain, definite, and free from ambiguity, the intent is to be found in the instrument itself and it is not necessary to resort to such extrinsic aids as the conditions of its adoption. Flaska v. State, 51 N.M. 13, 177 P.2d 174 (1946); State ex rel. Delgado v. Romero, 17 N.M. 81, 124 P. 649 (1912). The drafters of the constitution are presumed to give the words their plain, natural, and usual significance. Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd., 80 N.M. 633, 459 P.2d 159 (Ct.App.1969). We believe the term \u201cabuse\u201d clearly qualifies the constitutional right to free speech and press in New Mexico. Even if we did not find the language clear, however, the extrinsic aids offered by Defendant do not convince us the City Ordinance runs afoul of Article II, Section 17.\nII. WHAT CONSTITUTES AN \u201cABUSE\u201d OF FREE SPEECH AND PRESS UNDER ARTICLE II, SECTION 17?\nA. Jury Instructions\nThat \u201cobscenity\u201d may be an \u201cabuse\u201d of free speech and press is, then, clear. What type of material constitutes such an abuse is less clear. The Farmington ordinance tracks the definition of obscenity approved by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Defendant urges us to interpret Article II, Section 17 of the New Mexico Constitution so as to reject the definition of obscenity set forth in Miller. We note initially that, while we relied upon the definition of obscenity set forth in Miller and other United States Supreme Court cases to affirm a conviction for distribution of obscene material in State v. Johnson, 104 N.M. 430, 722 P.2d 681 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986), the defendant in Johnson did not contend that the Curry County ordinance under which he was convicted violated Article II, Section 17 of the New Mexico Constitution. Johnson therefore offers no direct guidance on this issue.\nThe Miller definition of obscenity has also been cited with approval by the New Mexico Attorney General\u2019s office in opining on the authority of the State to proscribe the possession of child pornography. AG Op. No. 90-24 (1990). And while by no means identical, our legislature adopted criteria somewhat similar to those in Miller in prohibiting the sexual exploitation of children. See NMSA 1978, \u00a7 30-6A-2 (Repl.Pamp.1984). Again, however, this offers little guidance on whether Article II, Section 17 of the New Mexico Constitution mandates a different legal analysis under the City Ordinance.\nDefendant argues that the free expression provision of the New Mexico Constitution provides greater protection than the First Amendment to the United States Constitution. While the difference in the language used in the First Amendment and Article II, Section 17, may be some evidence that the drafters of the New Mexico Constitution intended a somewhat different scope of protection, our supreme court has recognized that Article II, Section 17, \u201creads substantially the same\u201d as the First Amendment. Nall v. Baca, 95 N.M. 783, 787, 626 P.2d 1280, 1284 (1980) (dictum); see also Curry, 41 N.M. at 328, 68 P.2d at 174-75 (Article II, Section 17, characterized as \u201csimilar\u201d to the First Amendment). Even where the language of our state constitution is almost identical to the federal constitution, however, federal decisions do not control the nature and scope of the rights guaranteed by the New Mexico Constitution. State v. Cordova, 109 N.M. 211, 784 P.2d 30 (1989). While it is settled constitutional law that state courts may not restrict the protection afforded by the federal Constitution, as interpreted by the United States Supreme Court, they may find greater protection under their state constitutions, even when the language is identical. McCauley v. Tropic of Cancer, 20 Wis.2d 134, 121 N.W.2d 545 (1963); William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535, 548 (1986).\nDefendant argues that the \u201ccontemporary community standard\u201d provided by Miller, and adopted in the City Ordinance, allows the majority to impose its moral standards on the minority. He notes, correctly we believe, that the purpose of such constitutional protections is to prevent the majority from limiting the personal liberties of political, religious, and cultural dissenters while propagating their views in the marketplace of ideas. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185-86, 87 L.Ed. 1628 (1943); Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 697, 763 P.2d 1153, 1162 (1988). Defendant, however, does not offer a formula he believes less \u201coppressive\u201d than Miller or any state precedent interpreting similar constitutional provisions. Rather, he contends for absolute freedom of expression. As we have indicated, we find little legal support for such an interpretation and have declined to adopt it.\nWe can, however, assume that the authors of the New Mexico Constitution were aware of the language of the First Amendment to the United States Constitution and consciously chose to adopt a different formula. We must therefore determine the legal significance of such a choice.\nIn considering language different from the First Amendment but similar to Article II, Section 17, other state courts have adopted various interpretations. A majority of the Maine Supreme Court opted to follow the United States Supreme Court and hold obscenity is not protected under the \u201cabuse\u201d language of their state constitution. City of Portland v. Jacobsky, 496 A.2d 646 (Me.1985). However, in a thoughtful partial concurrence, Justice Scolnik pointed out that the \u201cabuse\u201d standard of the Maine Constitution sets different parameters than the language of the First Amendment:\nUnlike the First Amendment (\u201cCongress shall make no law ... abridging the freedom of speech, or of the press ... \u201d), Article I, Section 4 [of the Maine Constitution] is an affirmative grant of liberty to the citizen: \u201c[e]very citizen may freely speak, write and publish his sentiments on any subject, being responsible for the abuse of this liberty.\u201d\nLooking first at the plain meaning of this clause, one finds that it has not been overlaid by judicial interpretation as has the federal First Amendment. On its face, Article I, Section 4 does not merely vouchsafe protection to the expression of ideas of value, but to \u201csentiments on any subject.\u201d The word \u201csentiments,\u201d comporting elements of emotion and feeling, may, by itself, be broader than \u201cideas.\u201d More important, no subject is unprotected. The Maine Constitution extends at least the protection of constitutional-level scrutiny to the expression of sentiments on any subject, whether it be hostile and vulgar as in State v. John W., [418 A.2d 1097 (Me.1980) ] or sexually explicit, as in the present case. None should be deemed wholly without protection and, by the plain language of Article I, Section 4, that protection only recedes so far as to permit holding the citizen \u201cresponsible for the abuse of this liberty.\u201d [Footnotes omitted.]\n496 A.2d at 653.\nThe issue, then, is what standard the finder of fact, either judge or jury, should use to determine whether an \u201cabuse\u201d has Occurred. In this regard, we are impressed with Defendant\u2019s argument that the district court erred in giving the jury the following instructions:\nContemporary community standards are determined by what the community as a whole in fact finds acceptable. The community as a whole is society at large, and not particular people or particular groups. What some people think the community ought or ought not to accept is not important nor is what you as an individual juror think is good or bad. It is what people in general, the community as a whole, accept that is determinative. You should judge how the average person in this community would view this material.\nFor this case, the \u201ccommunity\u201d is the City of Farmington, N.M.\n\u201cPatently offensive\u201d means that which offends or affronts local contemporary community standards because it goes beyond the customary limits of candor and decency in describing or representing sexual matters. Contemporary community standards are set by what is in fact accepted in the community as a whole.\nWhile there is some question, it seems likely that these instructions would pass constitutional muster under the First Amendment. Defendant, however, argues that Article II, Section 17 of the New Mexico Constitution offers more protection than the First Amendment. We are inclined to agree that our constitution requires a standard somewhat broader than \u201cdecency\u201d and \u201caccepted in the community as a whole.\u201d\nWhen we consider the jury instructions given in this case, we believe they allowed the jury to convict Defendant for speech which was merely \u201cunacceptable\u201d or beyond \u201cdecency.\u201d The purpose of free speech and press is to preserve \u201cthe independence of public discourse so that a democratic will within a culturally heterogeneous state can emerge under conditions of neutrality, and so that individuals can use the medium of public discourse to persuade others to experiment in new forms of community life.\u201d Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv.L.Rev. 601, 684 (1990). Freedoms of expression require \u201cbreathing space.\u201d New York Times Co. v. Sullivan, 376 U.S. 254, 271-72, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). \u201cAcceptance\u201d is really the lowest common denominator, and may well limit dialogue on significant public issues beyond obscenity. Tribe, supra, \u00a7 12-16, at 913. \u201cDecency\u201d implies what is \u201cproper.\u201d Ford, 773 P.2d at 1066. The community, or indeed the average person, may well find some speech \u201cunacceptable\u201d or not \u201cdecent\u201d which is nonetheless constitutionally permissible. Professor Schauer recognized this distinction, saying:\nIn most obscenity cases, the materials would in fact offend most people. But there is another possible interpretation, that asks not whether the materials offend the community or the average person, but whether the community or the average person is offended by the materials being available to those who wish to see them. In other words, are the community standards tolerant, even though most members of the community might themselves be offended by the materials.\nFrederick F. Schauer, The Law of Obscenity 133 (1976).\nRather than allowing the fact finder to determine that material is an abuse of the grant of free speech under Article II, Section 17, based on the \u201cacceptance\u201d of the community, we believe more is required. We believe our constitution requires that, although the community might not find the materials \u201cacceptable,\u201d it must find them \u201cintolerable\u201d before they may be deemed as an \u201cabuse\u201d of the right to freely speak, write, and publish sentiments on all subjects.\nIn reaching this conclusion, we are persuaded by a ease heavily relied upon by the City for other theories, People v. Ford, 773 P.2d 1059 (Colo.1989) (en banc). In Ford the Colorado Supreme Court determined that obscenity could be an abuse of the right to freely speak under the Colorado Constitution, but held that an \u201cabuse\u201d could only be defined in terms of speech that was intolerable and not merely unacceptable. Id. at 1066-67. In requiring a new trial because the jury had been instructed on a community standard based on \u201cacceptance,\u201d the Colorado court reasoned:\nWe also believe that the \u201ctolerance\u201d standard is acceptable under the Colorado Constitution. We have previously stated, and reaffirm today, that our constitution extends broader protection to freedom of expression than does the first amendment to the United States Constitution. See People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985). In order to be constitutionally sufficient, the definition of \u201cpatently offensive\u201d must incorporate a standard which protects all but the most insufferable of sexually explicit material. Although both federal and state courts have approved definitions of \u201cpatently offensive\u201d which incorporate community standards of decency, acceptance, or tolerance, we believe that the tolerance standard better protects freedom of expression, and is the only standard of the three which would satisfy the Colorado Constitution. Whereas \u201cdecency\u201d implies a community standard of what is proper, and \u201cacceptance\u201d connotes approval, tolerance stretches the community\u2019s standards to their outermost limits. When a tolerance standard is employed, material is not offensive unless the community cannot endure it.\n773 P.2d at 1066. The \u201ctolerance\u201d standard has also been advanced by legal scholars and adopted in other jurisdictions as the proper measure when \u201cabuse\u201d is constitutionally mandated. State ex rel. Collins v. Superior Court, 163 Ariz. 246, 787 P.2d 1042 (1986) (en banc) (interpreting First Amendment); Leech v. American Booksellers Ass\u2019n, 582 S.W.2d 738 (Tenn.1979); Michael K. Curtis, Obscenity: The Justices\u2019 (Not So) New Robes, 8 Campbell L.Rev. 387, 410 (1986); cf. State v. Davidson, 481 N.W.2d 51 (Minn.1992) (although tolerance might better reflect the appropriate considerations in obscenity cases, instruction based on \u201cacceptance\u201d permissible).\nWe likewise believe that \u201cthe tolerance standard better protects freedom of expression,\u201d Ford, 773 P.2d at 1066, and is the only standard which can truly satisfy Article II, Section 17 of the New Mexico Constitution. Since defining community standards to require the speech or publication at issue be beyond community tolerance also has received approval under the First Amendment, only one jury instruction defining community standards should be necessary.\nB. Non-Expert Testimony on Community Standards\nDefendant next argues that the trial court abused its discretion in allowing James Bacon and Keith Baker to testify that they felt the five magazines violated the community standard. Since this case is remanded for a new trial, we will briefly consider this issue.\nBaker gave his opinion on community standards. He testified that he was acquainted with the twenty or so employees he supervises at a Farmington-area oil company, sees people at his church and his \u201cspa,\u201d and has children involved in \u201clots of activities.\u201d Like Bacon, he basically testified that, in his opinion, the magazines at issue appealed to a prurient interest in sex as judged by an average person applying the community standards of Farmington.\nDefendant argues that Baker and Bacon were not properly qualified to testify as experts on the community standard; however, there is nothing in the record to show that they were offered as expert witnesses. A review of their testimony shows that they were simply giving their own opinions based on their own observations. This is valid lay testimony. The only foundation required for this kind of testimony is a showing of first-hand knowledge and a rational connection between the observations made and the opinion formed. State v. Luna, 92 N.M. 680, 594 P.2d 340 (Ct.App.1979).\nDefendant further argues that, even as lay opinion, Baker\u2019s and Bacon\u2019s testimony should not have been admitted. Where the magazines were actually presented to the jury, which presumably represents a random cross-section of the community and can judge what the community will tolerate, no further testimony, especially of a non-expert nature, is necessary. Olsen v. Doerfler, 14 Mich.App. 428, 165 N.W.2d 648 (1968); Schauer, supra, at 135. However, the fact that the testimony is not strictly necessary does not mean that a court abuses its discretion when it is admitted. See State v. Worley, 100 N.M. 720, 676 P.2d 247 (1984) (admission of evidence is discretionary with trial court).\nIII. STANDARD OF APPELLATE REVIEW\nDefendant urges us to determine \u201cas a matter of constitutional fact, the magazines are not patently offensive.\u201d The proper role of the appellate court in obscenity cases is one which has engendered a variety of opinions. E.H. Schopler, Annotation, Modem Concept of Obscenity, 5 A.L.R.3d 1158, \u00a7 15(b) (1966 & Supp. 1991); see also Comment, Removal of Supreme Court Appellate Jurisdiction: A Weapon Against Obscenity?, 1969 Duke L.J. 291. Many courts have held that the appellate court is obligated to make an independent, de novo review of all the evidence. See, e.g., State v. LeWitt, 3 Conn. Cir. 605, 222 A.2d 579 (1966); Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (1974), cert. denied, 421 U.S. 952, 95 S.Ct. 1687, 44 L.Ed.2d 106 (1975); People v. Anderson, 130 Ill.App.3d 318, 85 Ill.Dec. 540, 473 N.E.2d 1345 (1985), aff'd, 112 Ill.2d 39, 96 Ill.Dec. 58, 490 N.E.2d 1263 (1986). Other jurisdictions review the record only for substantial evidence. United States v. Cutting, 538 F.2d 835 (9th Cir.1976), cert. denied, 429 U.S. 1052, 97 S.Ct. 766, 50 L.Ed.2d 769 (1977); Nissinoff v. Harper, 212 So.2d 666 (Fla.Dist.Ct.App.1968); Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 (1974). We are inclined to follow the second line of precedent, for as Professor Sehauer notes, \u201cIf the appellate court were not in any way influenced by the rulings or verdict below, then there would be no purpose in having trials at all in obscenity cases.\u201d Schauer, supra, at 152.\nWe also believe our approval of the Miller test with the community standard based on tolerance influences the level of appellate review. Under Miller, which is also the model for this City Ordinance, we believe the first two prongs of the three-prong test are primarily factual issues to be judged by contemporary community standards. Miller, 413 U.S. at 24-26, 93 S.Ct. at 2615-16; State v. Anderson, 322 N.C. 22, 366 S.E.2d 459, cert. denied, 488 U.S. 975, 109 S.Ct. 513, 102 L.Ed.2d 548 (1988). Obviously, the judge or jurors who live in the community are better able to determine what the community can tolerate. The \u201cpatently offensive\u201d test is also measured by community tolerance and, because of the constitutional aspects of the decision, the scope of review must be broader than for a conventional factual determination; however, deference to the jury findings is again due. Schauer, supra, at 114; see also Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977).\nOn the third prong (i.e., whether the work has serious literary, artistic, political, or scientific value) the appellate court will possess at least equal expertise and authority. The \u201cvalue\u201d of a work is not to be judged by community standards. Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). \u201cThe value of a work, unlike its prurient appeal or patent offensiveness ... does not vary from community to community based on the degree of local acceptance it has won.\u201d 3 Ronald D. Rotunda et al., Treatise on Constitutional Law \u00a7 20.61, at 102 (1986 & Supp.1991).\nAlthough somewhat dated, Professor Schauer\u2019s treatise summarizes the appropriate appellate role in this process succinctly:\nIn other words, the appellate court must make an independent review, but the question to be asked is not whether the materials are obscene, but whether the materials create a jury issue as to obscenity. Since this involves questions of constitutional law, more evidence is needed to create a jury issue than in other criminal cases, not by virtue of a different standard, but by virtue of the various elements of the Roth-Miller test.\nSchauer, supra, at 152.\nWe have independently reviewed the evidence under these standards. We believe there was sufficient evidence to submit this case to the jury on the first two prongs of Miller. Defendant does not seriously argue, nor did our independent examination discover, that the magazines have any serious literary, artistic, political, or scientific value. We therefore decline Defendant\u2019s invitation to hold that \u201cas a matter of constitutional fact, the magazines are not patently offensive.\u201d\nIV. SUBSTANTIAL EVIDENCE ON LACK OF VALUE\nFinally, Defendant argues, because \u201cthe city failed to present substantial evidence that the magazines as a whole lacked serious literary, artistic, political or scientific value,\u201d the convictions must be reversed. As indicated earlier, \u201cOnce the allegedly obscene material is actually placed into evidence the state need not present expert testimony that the material is obscene, lacks serious artistic value, or any other ancillary evidence of obscenity.\u201d Rotunda et al., supra, \u00a7 20.61(g).\nCONCLUSION\nBased on our conclusion that Article II, Section 17 of the New Mexico Constitution requires that an \u201cabuse\u201d of free speech only occurs when the community cannot tolerate the matter on trial, we hold that a new trial is required and the jury must be so instructed.\nIT IS SO ORDERED.\nCHAVEZ and PICKARD, JJ\u201e concur.\n. The following table from the Index Digest of State Constitutions 485 (Richard A. Edwards ed., 2d ed. 1959) indicates the precise linguistic formulations of the \u201cabuse\u201d standard:\nEvery person may speak on all subjects, being responsible for abuse of that liberty. Ala I 4; Colo II 10; Ga I Sec I 15; Iowa 17; La I 3; Tex I 8.\nSame; inserts \u201cfreely\u201d before \u201cspeak\u201d. Alas I 5; Ariz II 6; Fla DR 13; Ida I 9; 111 II 4; Kan BR 11; Ky 8; Me I 4; Mich II 4; Minn I 3; Mont III 10; Nebr 15; NJ I 6; NM II 17; ND I 9; Okla II 22; SD VI 5; Wash I 5; Wis I 3; Wyo I 20.\nEvery citizen may freely speak on all subjects, being responsible for abuse of that right. Cal I 9; Conn I 5; Nev 19; NY I 8; Ohio 111; Pa I 7; Tenn I 19; Va I 12.\nCitizens of state ought to be allowed to speak on all subjects, being responsible for abuse of that privilege. Md DR 40.\nEvery person to be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for abuse of that liberty. Mo I 8.\nRestrictions on Legislation\nNo law to restrict right to speak freely on any subject; but for abuse of that right every person to be responsible. Ind I 9; Ore I 8.\nThe Utah Constitution also adopts a responsibility for abuse standard in the following terms: \"All men have the inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right.\" Utah Const, art. I, \u00a7 1. The Delaware Constitution provides in relevant part: \"The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty.\u201d Del. Const, art. I, \u00a7 5.\n. See, e.g., Fordyce v. State, 569 N.E.2d 357 (Ind.Ct.App.1991); State v. Simmer, 111 S.W.2d 372 (Mo.1989) (en banc); City of Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 539 N.E.2d 140 (1989); West Gallery Corp. v. Salt Lake City Bd. of Comm'rs, 586 P.2d 429 (Utah 1978); Fine Arts Guild, Inc. v. City of Seattle, 74 Wash.2d 503, 445 P.2d 602 (1968) (en banc).\n. People v. Ford, 773 P.2d 1059 (Colo.1989) (en banc); Long v. 130 Mkt. St. Gift & Novelty, 294 Pa.Super. 383, 440 A.2d 517 (1982); K. Gordon Murray Prods., Inc. v. Floyd, 217 Ga. 784, 125 S.E.2d 207 (1962); People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979); cf. State v. Davidson, 481 N.W.2d 51 (Minn.1992) (obscenity a per se abuse).\n. Cf. State v. Sutton, 112 N.M. 449, 455, 816 P.2d 518, 524 (Ct.App.) (dictum) (difference in language in the state constitutional provision regarding search and seizure \"is some evidence that the state constitutional provision may be interpreted to provide broader protection than the federal\u201d), cert. denied, 112 N.M. 308, 815 P.2d 161 (1991).\n. Providing a legal definition of obscenity has proved a monumental task. Pornography, Obscenity & the Law 2-6 (Lester A. Sobel ed., 1979); Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 Geo.Wash.L.Rev. 1, 42-43 (1990). Indeed, the late Justice Harlan pronounced this problem \"intractable\u201d as early as 1968. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 704. 88 S.Ct. 1298, 1313, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). This problem is perhaps best illustrated by federal decisions holding that, while \u201cobscenity\u201d is not entitled to protection, \"indecency\u201d is protected by the First Amendment. FCC v. Pacifica Found., 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); Action for Children's Television v. FCC, 932 F.2d 1504 (D.C.Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1281, 117 L.Ed.2d 507 (1992).\n. Smith v. United States, 431 U.S. 291, 305, 97 S.Ct. 1756, 1766, 52 L.Ed.2d 324 (1977); United States v. Various Articles of Obscene Merchandise, 709 F.2d 132, 136-37 (2d Cir.1983); Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1028-29 (5th Cir.1981), cert. denied, 455 U.S. 913, 102 S.Ct. 1264, 71 L.Ed.2d 453 (1982).\n. The Miller test requires the trier of fact to determine \u201c(a) whether 'the average person, applying contemporary community standards\u2019 would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the [ordinance]; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.\" 413 U.S. at 24, 93 S.Ct. at 2615 (citation omitted) (quoting Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 (1956)).", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Jay Burnham, Deputy City Atty., Farmington, James P. Mueller, Children\u2019s Legal Foundation, Phoenix, Ariz., for plaintiffappellee.", "Philip B. Davis, Jeffrey J. Buckels, Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "843 P.2d 839\nCITY OF FARMINGTON, Plaintiff-Appellee, v. Tom FAWCETT, d/b/a Farmington Magazine and Book Store, Defendant-Appellant.\nNo. 12900.\nCourt of Appeals of New Mexico.\nJune 30, 1992.\nCertiorari Granted Aug. 14, 1992.\nCertiorari Quashed Oct. 16, 1992.\nJay Burnham, Deputy City Atty., Farmington, James P. Mueller, Children\u2019s Legal Foundation, Phoenix, Ariz., for plaintiffappellee.\nPhilip B. Davis, Jeffrey J. Buckels, Albuquerque, for defendant-appellant." }, "file_name": "0537-01", "first_page_order": 571, "last_page_order": 583 }