The Volokh Conspiracy
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From People v. Moreno, decided today by the Colorado Supreme Court, in a unanimous opinion written by Justice William W. Hood, III:
As relevant here, section 18-9-111(1)(e) states that
[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she … [d]irectly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended 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 the verb "harass" as to: "exhaust, fatigue"; "to annoy persistently"; and "to create an unpleasant or hostile situation for[,] especially by uninvited and unwelcome verbal … conduct." The definition of "harassment" in Black's Law Dictionary means "[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress to that person and serves no legitimate purpose; purposeful vexation." … [T]his broad meaning of the term "harass" covers protected speech….
"First [A]mendment protection is not limited to amiable communications." On the contrary, people often legitimately communicate in a manner "intended to harass" by persistently annoying or alarming others to emphasize an idea or prompt a desired response. For example, subsection (1)(e) could prohibit communications made by email or social media about the need to combat a public health threat, or to seek shelter from an imminent tornado, or to respond to an active-shooter situation. Or consider more routine communications on the web: negative restaurant reviews left on Google or Yelp, irate emails sent to service providers (contractors, plumbers, etc.), diatribes posted on public officials' social media accounts by disgruntled constituents, or antagonistic comments left on news sites. In fact, the statute could even intrude into highly personal family squabbles.
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]e see no available limiting construction that would sufficiently narrow the phrase "intended to harass" to render it constitutional. Viewed in its entirety, the rest of the harassment statute forecloses this approach by proscribing other forms of unprotected speech, leaving no alternative, constitutional construction to ascribe to the phrase at issue. Subsection (1)(e)'s other terms prohibit true threats and obscenity, and we previously held that subsection (1)(h) outlaws fighting words. Thus, the term "intended to harass" in subsection (1)(e) impermissibly leaches into areas of protected speech….
We need not, and thus do not, invalidate the entire statute. Instead, we hold only that the phrase "intended to harass" in subsection (1)(e) is unconstitutionally 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 holding today might be summarized simply 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]ommunicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of communication, in a manner likely to harass or cause alarm." Bolles was charged with harassment under subsection (1)(e) for mailing anti-abortion material to approximately 2,400 Boulder County residents. He challenged the statute as unconstitutionally overbroad and vague, and this court concluded that subsection (1)(e) was facially overbroad and thus unconstitutional.
The Bolles court began its analysis by recognizing the "delicate and vulnerable nature" of free-speech protections and the responsibility of courts to closely inspect "state action which has the effect of curtailing or 'chilling' free expression." Recognizing that in the area of free speech, statutes must be carefully crafted and narrowly drawn, we concluded that, while the statute at issue could "be relied upon to punish for obscene, libelous, [or] riotous communication[,] which is probably constitutionally permissible[,] … [it] could also be used to prosecute for communications that cannot be constitutionally proscribed."
Indeed, a fundamental purpose of free speech in our system of government is to debate ideas. These debates may be vigorous and high-minded but may at times devolve into vituperative attacks. "Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects." But as the Bolles court aptly observed, if such speech could be restricted, "the protection of the First Amendment would be a mere shadow."
The 1973 version of subsection (1)(e) and the current iteration are similarly expansive. While in 1973 the statute applied to "any other form of communication," now it applies to almost any form of electronic communication.
While we sympathize with those who become the target of gratuitous and unfounded insults, we are not persuaded by 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, where the defendant mailed highly disturbing materials to people's homes, we concluded that "the intrusion into the recipient's privacy is only minimal since he is not only free to discard at once any mail that he does not wish to receive, but can also ensure that he will not receive any more like it from the sender." Likewise, today, the swipe of a finger can often block, or at least delete, unwanted electronic communication. This is a small price to pay for freedom of speech.
I have argued that restrictions on speech said to particular people, for instance by e-mail or text messaging, especially after those people have said "stop talking to me" are constitutional, though restrictions on speech said about those people are generally unconstitutional (unless limited to true threats, libel, or speech within a similar First Amendment exception). And courts in many states have indeed upheld some such harassment laws that are focused just on speech to unwilling listeners.
Nonetheless, the Colorado Supreme Court struck down this law, whether because (1) it thought the law might allow to speech said to the public at large (such as the mailings in Bolles), (2) it thought that an intent "to annoy persistently" or "to create an unpleasant or hostile situation" wasn't sufficient to strip protection even from unwanted speech to a person, or (3) it thought that even unwanted speech to a person is fully protected unless it falls within a First Amendment exception.