Colorado Court of Appeals overturns injunction

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This is the Colorado Court of Appeals decision dated October 9, 2003.

We have attempted to re-create the decision as it actually looks. Nothing has been omitted.

COLORADO COURT OF APPEALS
Court of Appeals NO. 02CA1331
Park County District Court No. 01CV191
Honorable Kenneth M. Plotz, Judge
Barbara Robbins and Douglas Robbins, both individually and in their capacities as representatives of NorthStar Company, International, LLC, NorthStar Design & Construction, LLC, NorthStar Realty & Development, NorthStar Management & Internal Control, LLC,
Plaintiffs-Appellees,
v.
Michael Meadors and Karen Dudnikov
Defendants-Appellants.

ORDER REVERSED
Division II
Opinion by JUDGE MARQUEZ
Rothenberg and Graham, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
October 9, 2003

No Appearance for Plaintiffs-Appellees
Michael Meadors, Pro Se
Karen Dudnikov, Pro Se

Defendants, Michael Meadors and Karen Dudnikov, appeal from the trial court's order granting a preliminary injunction to plaintiffs, Barbara Robbins and Douglas Robbins, individually and in their capacities as representatives of certain corporations. We reverse.
Plaintiffs are engaged in the business of selling and assembling factory-built homes. Defendants bought a home form plaintiffs in the summer of 2000, but allegedly experienced construction delays, cost overruns, and other project problems. Plaintiffs filed a civil action against defendants for nonpayment of money.
In January 2001, defendants established a website directed at plaintiffs, their business practices, and several of their business associates. The website grew to encompass approximately 500 pages.
In August 2001, plaintiffs filed a combined complaint and motion for preliminary injunction, asserting claims of intentional interference with contractual relations, outrageous conduct, defamation, slander, and libel, and preliminary and injunctive relief. In a memorandum supporting their motion for preliminary injunction, plaintiffs alleged that portions of the website contained content that was obscene. Their memorandum alleged no other grounds for injunctive relief.
In its order granting the preliminary injunction, the trial court found certain portions of the website addressing alleged sexual activities by Barbara Robbins to be obscene and also found that defendants had failed to present evidence to support allegations of criminal activity by plaintiffs. The order directed defendants to delete those portions of the website addressing alleged sexual and criminal activities.
I.

Defendants contend that the website constitutes protected speech or press under the First Amendment. We agree.
The prerequisites for preliminary injunctive relief include, among other things, a demonstration that there is no plain, speedy, and adequate remedy at law. Rathke v. MacFarlane, 648 P. 2d 648 (Colo. 1982).
The decision to grant or deny injunctive relief lies within the sound discretion of the court. City of Colorado Springs v. Blanche, 761 P 2d 212 (Colo. 1988); Rathke v. MacFarlane, supra.
Speech cannot be subjected to a prior restraint, including injunctive relief, merely because it is alleged to be defamatory. Such restraints are justified only in exceptional circumstances, such as when the speech involves national security or obscenity or has the effect of force. Degroen v. Mark Toyota-Volvo, Inc., 811 P. 2d 443 (Colo. App. 1991) (citing Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931)); see also Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961) (recognizing that prior restrains may be valid in cases of obscenity, incitement to acts of violence, impairment of national security, or invitation to overthrow the government by force); People v. Ford, 773 P. 2d 1059 (Colo. 1989)(any system of prior restraint on First Amendment freedoms is subject to a heavy presumption against its constitutional validity).
Courts do not concern themselves wit the truth or validity of the speech in evaluating prior restraints cases. The claim that the expressions were intended to exercise a coercive effect does not remove them from the reach of the First Amendment. Degroen, supra (citing Org. for Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971)).
A.

We agree with defendants that the court erred in ordering that the wording in the website concerning alleged criminal activity should be enjoined.
Here, the evidence showed that several pages of defendants' website expressed their opinion that plaintiffs and their business associates were involved in "lies, deception, fraud, and other criminal activities." The trail court ordered that those portions of the website be deleted.
We conclude that those portions of the website do not fall into the narrow exceptions for which defamatory speech may be restrained by a preliminary injunctions.
B.

We also agree with defendants that the trial court erred in determining that portions of the website were obscene.
Defamatory speech that is obscene falls into one of the narrow areas of speech that may be restrained by an injunction. See Times Film Corp. v. City of Chicago, supra; Near, supra; Degroen, supra.
Section 18-7-101(2), C.R.S. 2002, defines "obscene":
"Obscene" means material…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.
People v. Ford, supra; see Miller V. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).
The patent offensiveness of material is measured against a community standard of tolerance, but the lack of serious value is measured by an objective national standard. The definition of "patently offensive" must incorporate a standard that protects all but the most insufferable of sexually explicit material. Material is not offensive unless the community cannot endure it. Ford, supra.
Defendants concede that the material on the website alleging adulterous sexual activity by plaintiff Barbara Robbins is crude and tasteless. However, as defendants argue, the material contains no patently offensive representations or descriptions of sex acts or other mattes set forth in the statute. Further, the allegations of one plaintiff's sexual activity are only one portion of a lengthy website spelling out defendants' complaints concerning plaintiffs' business practices.
We agree with defendants that the website may be crude and tasteless, but as a matter of law, it is not obscene. Therefore, it does not fall within those categories of defamatory speech that may properly be restrained by a preliminary injunction.
II.

Because we reverse the trial court's order granting a preliminary injunction, we do not address defendants' other issues.
Accordingly, the order granting a preliminary injunction is reversed.
JUDGE ROTHENBERG and JUDGE GRAHAM concur.