The Denver-based federal appeals court reinstated a man’s constitutional challenge on Wednesday to a law prohibiting the online dissemination of certain personal identifying information, including the details of police officers, if doing so poses an imminent safety threat.

Andrew Thomas Scott is a process server who attempted to deliver a subpoena at the home of Trooper Charles Hiller. Hiller subsequently filed a professional complaint against Scott for including Hiller’s personal information on the subpoena paperwork for “the criminals” to see. As a result, Scott was expelled from his trade association for the way he handled Hiller’s identifying details.

Scott then filed suit challenging the constitutionality of the law prohibiting the online posting of personal information for certain categories of people. He argued that it chilled his speech and precluded his launch of a law enforcement accountability website. A trial judge dismissed the lawsuit, finding the evidence did not show Scott would violate Colorado law by speaking out as he wished.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed that Scott lacked grounds to challenge Colorado’s law. In a Sept. 3 opinion, Judge Timothy M. Tymkovich explained that Scott’s stated goal of publishing content with officers’ personal information presented the possibility of criminal prosecution, even if he never wound up being charged.

“Scott maintains his conduct would be lawful, but that does not mean he concedes that he lacks standing, nor that a prosecutor would see his conduct differently,” wrote Tymkovich. “Scott need not show that his intended conduct actually violates the law, just that it arguably does.”

The disputed law pertains to “protected persons,” which include law enforcement officers, educators, healthcare workers and others. Colorado makes it unlawful for someone to post on the Internet personal information about protected persons — such as a home address or phone number — if the details would pose an imminent and serious threat to the protected person’s safety.

In the underlying case, Scott was hired to deliver a subpoena to Hiller for him to appear at a hearing. After unsuccessful attempts to serve him with the notice, Scott went to Hiller’s Colorado Springs home one morning in March 2021. Recording on a body-worn camera, Scott spoke to Hiller’s wife at the door, but ultimately Hiller did not make himself available.

Scott filled out a public affidavit describing his unsuccessful attempt at serving Hiller, and included personal details like Hiller’s address, phone number and license plate.

Hiller filed a complaint with the state and with the Process Servers Association of Colorado about Scott’s inappropriate inclusion of his personal information for “the criminals” to see. The Colorado Department of Regulatory Agencies found no discipline was warranted, but the trade association expelled Scott based on his decision to include Hiller’s personal information on the affidavit.

Scott’s lawsuit explained he wished to publish the video footage and his affidavit online to “corroborate his version of events and to defend against Trooper Hiller’s accusations,” but he feared prosecution under the law covering protected persons. As a defendant, Scott named Michael Allen, the elected district attorney for El Paso and Teller counties.

After both sides moved to end the lawsuit in their favor without a trial, U.S. District Court Judge Nina Y. Wang did not ultimately consider the free speech arguments at play. In an unusual move, she concluded Scott’s plans to post the video and affidavit with Hiller’s identifying information — plus Scott’s assertion that he wished to launch a website to assist Coloradans in serving police officers with legal papers — were not inherently illegal.

“First, the Statute only proscribes publication if it presents an imminent and serious threat,” Wang wrote in August 2024. “In reviewing the docket as a whole, this Court cannot find any reference to Trooper Hiller’s identification (as) an imminent and serious threat to his safety.”

Because Scott’s actions in disseminating personal information in the absence of a threat would fall outside the scope of the law, Wang determined he lacked standing to challenge its constitutionality.

Scott appealed to the 10th Circuit, arguing he was not obligated to “confess that he will in fact violate” the law. Instead, he contended it was enough that neither Hiller nor Allen promised they would never seek to enforce the law against him.

The appellate panel agreed with him.

The process servers association “terminated Scott’s membership because it believed he violated the statute, and the district attorney for Colorado’s Fourth Judicial District has refused to disavow any intention to prosecute,” wrote Tymkovich. Moreover, “Hiller himself claims that publishing his personal information would put him at threat from individuals he has interacted with.”

Although Wang was within her rights to determine if she could even hear Scott’s claim, she took “a step too far” in concluding Scott faced no specter of prosecution, Tymkovich added.

The panel declined to consider Scott’s arguments about the constitutionality of the law. It returned the case to Wang for her to perform the analysis.

The case is Scott v. Allen.