The Colorado Supreme Court once again invalidated part of the state’s anti-harassment law, finding the legislature targeted constitutionally protected speech in its effort to criminalize certain types of electronic communication.

As written, Colorado law makes it a misdemeanor offense to communicate with someone by phone, text or computer in a manner intended to harass, threaten bodily injury or make an obscene comment. The Supreme Court took issue solely with the phrase “intended to harass,” concluding that nonthreatening, non-obscene speech would be deemed criminal under the law.

“(P)eople often legitimately communicate in a manner ‘intended to harass’ by persistently annoying or alarming others to emphasize an idea or prompt a desired response,” wrote Justice William W. Hood III in the March 28 opinion. For example, the law “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.”

Hood also theorized that “more routine communications” could fall into the category of criminal harassment: negative restaurant reviews, angry emails to companies, or even belligerent comments on the websites of news outlets.

The Supreme Court’s suggestion to harassment victims is to simply block unwanted online contacts.

Timothy Lane, the legislative liaison and policy analyst for the Colorado District Attorneys’ Council, said the group representing the state’s elected prosecutors is still assessing the decision, but it is likely too late in the legislature’s 2022 session to try and revise the law.

“With multiple bills related to ‘doxxing’ and other harassing online behavior in recent years, the legislature has made it clear that they feel phone, text and online communications can and do cross the line into being a criminal act,” he said. “Phone or electronic communications intended to convey a threat of bodily injury or property damage remains criminal, because the Supreme Court’s decision is limited to only striking part of the statute.”

David Lane, who is a civil rights and criminal defense attorney, agreed that the current wording of the law is not sufficient to restrict harassing speech in a constitutional fashion.

“I have often said that the First Amendment lives in a very rough neighborhood,” he said. “If you are upset by free speech, there are numerous countries around the world in which this is not a problem, as those governments take care of all of your ‘free speech’ needs.”

The state’s highest court has repeatedly taken issue with the General Assembly’s attempts to write a harassment law that complies with the First Amendment. In 1993, the justices voided the part of the law that criminalized “repeated communications at inconvenient hours or in offensively coarse language.” That same provision now clarifies that the repeated communications must also invade a person’s privacy and interfere with the enjoyment of their home.

Prior to that, the 1975 ruling in Bolles v. People struck down the prohibition on using the phone or mail “in a manner likely to harass or cause alarm.” In that case, a Boulder County leader of the Colorado Right to Life Council helped send anti-abortion mailers, including photos of aborted fetuses, to 2,400 county residents.

“The statute before us in this case is anything but narrowly drawn. It could, of course, be relied upon to punish for obscene, libelous, riotous communication,” wrote then-Chief Justice Edward E. Pringle. “Yet the crucial factor is that this statute could also be used to prosecute for communications that cannot be constitutionally proscribed.”

Hood, in the current court’s ruling, indicated that the latest pronouncement could be titled, “Bolles goes digital.” In the underlying case out of Garfield County, prosecutors charged Alfred Elias Moreno with harassing his ex-wife online after she had instructed him to stop.

“I’m glad you are finally back to reality of your a who’re! (sic) And I fkng hate you!” Moreno emailed on one occasion. “Why did you have my kids stop talking to me? You making your new bf there (sic) daddy?” he added.

At one point, Moreno’s ex-wife wrote back, “LEAVE ME ALONE. NO CONTACT, NO TEXTS, NO CALLS, NO EMAILS, NOTHING.”

Moreno continued to ignore her and instead posted on Facebook: “Will you please tell her (ex-wife) to have my kids call me asap. You can have her and the STD I just want my kids to contact me.”

District Court Chief Judge James Berkley Boyd dismissed the harassment charge in May of last year. He found that Moreno’s communications over social media were not threats, and the law governing speech over electronic media criminalized a “substantial amount” of protected speech. Boyd deemed the law so broad as to violate the First Amendment.

Appealing directly to the Supreme Court, the government argued that targets of online harassment should not be forced to endure unwanted contacts.

“It is a significant intrusion into a place that you need to survive in a modern world with email, text messages. And a place where we shouldn’t have to continue to be bombarded with harassing messages,” said Donald R. Nottingham, chief deputy district attorney for the Ninth Judicial District Attorney’s Office in Glenwood Springs.

Hood indicated that the Supreme Court sympathized with harassment victims, but referenced the logic of the Bolles decision, which noted that people are free to discard unwanted mail to their homes.

“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,” Hood wrote.

StopBullying.gov, a project of the federal government, advises subjects of bullying to document harmful content, report it to social media platforms and, in cases of physical threats, inform police. The Colorado Supreme Court in 2020 also released a decision establishing a context-driven test to determine whether online speech is protected under the First Amendment or qualifies as a true threat.

The case is People v. Moreno.