Colorado Supreme Court Strikes Down Electronic Harassment Ban

Start at People v. MorenoToday, the Colorado Supreme Court ruled in favor of the petition, and Justice William W. Hood III wrote an unanimous opinion:

Section 18-9-111(1) (e), which is relevant in this case, states:

[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she … [d]Initiates or indirect communication with another person. Designed to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene….

Merriam-Webster defines “harass” in the following ways: exhaustion, fatigue; persistent annoyance; creating an uncomfortable or hostile environment[,] especially by uninvited and unwelcome verbal … conduct.” Black’s Law Dictionary defines harassment as “[w]Conduct, words, actions, etc. Repeated or persistent actions that are directed at one person in a way that annoys or alarms that person or is not for a legitimate purpose. … [T]his broad meaning of the term “harass” covers protected speech….

“First [A]Mendment protection does not only apply to friendly communications. People often communicate legitimately in ways that “intended harass” others by annoying, alarming or persistently irritating them to highlight an idea or provoke a response. To illustrate, paragraph (1)(e) might prohibit communication via social media or email about the need for public health threats to be addressed, to shelter from an approaching tornado, and to deal with an active-shooter situation. Consider other communications online: Negative restaurant reviews on Google, Yelp, angry emails addressed to service providers (contractors and plumbers), etc.There are also diatribes that disgruntled constituents post on the social media accounts for public officials. This statute can even interfere with highly personal family disputes.

Although subsection (1)(e) mainly targets unprotected speech like true threats and obscenity, its restriction on communication made in a manner “intended to harass” encompasses a substantial amount of protected speech…. [And w]There is no limiting construction available that could sufficiently limit the meaning of “intended harassment” in order to make it Constitutional. The harassment statute, taken in all, prohibits the use of any other unprotected speech. This leaves no constitutional alternative to the sentence at issue. We have previously held that subsection (1) (e) prohibits true threats or obscenity. Thus, the term “intended to harass” in subsection (1)(e) impermissibly leaches into areas of protected speech….

The entire statute is not invalidated by us, therefore we don’t need to. We only hold that subsection (1)(e), which includes the expression “intended harass”, is not constitutionally overbroad. Our partial invalidation does nothing to disturb the other prohibitions in subsection (1)(e) against communications that are made “in a manner intended to … threaten bodily injury or property damage … or that [are] obscene.” …

Our current holding might simply be described as:Bolles goes digital.” Bolles v. People (Colo. 1975) dealt with the 1973 version of section 18-9-111(1)(e), which stated in relevant part: “A person commits harassment if, with intent to harass, annoy, or alarm another person, he … [c]Communicates anonymously with another person by phone, telegraph or mail in a way likely to harass and cause alarm. Bolles was accused of harassment in subsection (1)(e). He sent anti-abortion materials to around 2,400 Boulder County residents. This was because Bolles challenged that the statute was too vague and unconstitutionally broad. However, this court found subsection (1)(e to be facially unconstitutional.

The BollesCourt began by acknowledging that free-speech protections are delicate and vulnerable and it was the duty of courts and judges to carefully inspect state actions which have the effect of curtailing, or even ‘chilling, free expression. Our conclusion was that while we recognize that free speech is a matter of careful crafting and tightening, it could be relied upon that this statute can “be relied upon” to penalize for obscenity or libel. [or]Communication that is wildly entertaining[,]Which is most likely legal under the Constitution[,] … [it]Could also be used in prosecuting communications which cannot be proscribed by law.”

It is true that free speech in the system of government serves a primary purpose: to discuss ideas. Although these debates can be lively and intellectual, they may sometimes degenerate into invective attacks. Speaking is challenging and provocative. This speech can challenge preconceptions, prejudices, and cause profound anxiety. It is important to remember that the BollesThe court observed with great accuracy that, if this speech can be limited, then “the protection provided by the First Amendment will be just a shadow.”

Both the 1973 and current versions of subsection (1) (e) are equally expansive. The 1973 statute covered “any other type of communication”, but it is now applicable to nearly all electronic communications.

Although we understand the feelings of those subject to unfounded or gratuitous insults, we don’t agree with the prosecution’s privacy argument. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Even in Bolles,We concluded that the defendant sent highly troubling materials to homes. He is free to dispose of any mail he doesn’t want to get and can ensure that no more such mail is coming from him. Today’s technology allows for the simple swipe to block unwanted electronic communication or even delete it. It is an acceptable price for freedom speech.

My argument is that speech restrictions should be imposed. You can find more information here Particular individuals, such as by e mail or text messaging after someone has said “stop speaking to me”, are protected under the Constitution. There is no restriction on speech. More They are usually unconstitutional, save for real threats or libel. Many states courts have upheld harassment laws that only target speech to uninformed listeners.

The Colorado Supreme Court ruled in favor of the law. It was either because it believed the law would allow speech to be made to the general public (such as those sent out by the mails). BollesIt believed that an intention “to annoy persistently or to create an unpleasant, hostile environment” was not sufficient to remove protection from unwelcome speech to persons. (3) Or that unwanted speech is completely protected to persons unless it’s within the First Amendment exception.