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Colorado Supreme Court Removes Part of Cyber-Bullying Law

The court struck the phrase “intended to harass” from the 7-year-old law, arguing that it could criminalize online communication like irate emails or negative social media posts about local policies and public figures.

colorado supreme court
(TNS) — The Colorado Supreme Court unanimously struck down part of the state’s 7-year-old cyber-bullying law Monday on the grounds that the statute limits free speech and violates both the Colorado and U.S. constitutions.

The state’s harassment laws were tweaked in 2015 to strengthen protections for victims of cyber-bullying — a measure named for a Highlands Ranch teenager who attempted suicide after being cyber-bullied — but the justices on Monday said the law was overly broad.

As written, the law could be used to prosecute people for constitutionally protected speech, the justices found. The law could criminalize online communication like negative restaurant reviews, social media posts about public health protocols, irate emails, diatribes posted about public figures by disgruntled constituents, or antagonistic comments left on news sites, Justice William Hood wrote in the opinion.

“The primary concern here isn’t the invasive medium the government seeks to regulate — omnipresent electronic communication — but how much the statute impinges on or potentially chills speech,” Hood wrote. “Today’s technology merely amplifies this old-fashioned problem.”

Monday’s decision echoes a stance the court took in 1973, when it considered the case of a man charged with harassment for mailing anti-abortion material to about 2,400 people in Boulder County. The man, Frank Bolles, argued the state’s harassment statute at the time was too broad, and the state Supreme Court agreed and struck it down as unconstitutional.

“Our holding today might be summarized simply as ‘Bolles goes digital,’” Hood wrote.

The state Supreme Court struck down only the phrase “intended to harass,” and left in place the rest of the cyber-bullying statute, which prohibits communication that “threaten(s) bodily injury or property damage” or is obscene. The law can no longer prohibit communication merely because it is “intended to harass,” the justices found.

The current case before the state Supreme Court involved a man who repeatedly emailed his ex-wife “disparaging and vulgar” comments in 2018 despite her requests that he stop. The man then posted on Facebook that his ex-wife had contracted a sexually transmitted disease. He was charged with harassment and domestic violence, and challenged the harassment charge on constitutional grounds.

Harassment is often charged in addition to other crimes, said attorney Stan Garnett, former Boulder County district attorney. People convicted of harassment under the now-unconstitutional law could raise legal appeals or seek post-conviction relief in light of the ruling, he said, but the change is unlikely to have a major retroactive impact because harassment is rarely the only charge filed in a case.

“Whenever you are criminalizing speech, the courts are going to look at that very closely,” Garnett said. “I’ve thought for a while that criminal harassment was a little vague and a little hard to figure out exactly what it is, so it doesn’t surprise me that the Supreme Court would be trimming the statute back a little bit to make sure it complies with the First Amendment.”

The cyber-bullying statute was passed in 2015 and named after Kiana Arellano, a high school student who tried to kill herself in 2013 after she was bullied on social media. Kiana survived but was left paralyzed and unable to speak. She died in February at age 23, according to an online obituary, which pointed to the cyber-bullying law as part of her legacy.

Her family could not be immediately reached Monday.

When the statute passed, Republican lawmakers expressed concerns that it violated the right to free speech, but supporters of the bill said they aimed to balance First Amendment rights with the new criminal restrictions. One of the bill’s sponsors, now-Sen. Rhonda Fields, did not return a request for comment Monday. Another sponsor, former Sen. Linda Newell, was not immediately available for comment.

Denver attorney Christopher Jackson said Monday he was not surprised by the ruling, but said it is relatively rare for the state’s high court to strike down a law as unconstitutional.

“It’s definitely unusual,” he said.

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