Colorado is a primary battlefield for attempts to undermine the First Amendment. From Denver Post:
"U.S. District Court Judge William J. Martinez’s ruling Thursday is a win for a coalition of tech companies that sued in August to block the enactment of 2024’s House Bill 1136. He granted a preliminary injunction against the measure, which would require those companies to display warning labels to minors about the potential impacts to the youths’ brains and health — a provision that the companies argued was compelled speech.
'The Court fully appreciates Colorado’s legitimate effort to protect the children and adolescents of our state from the impacts of social media use on their health and wellbeing,' he wrote. 'The Court concludes, however, that it is substantially likely NetChoice will succeed on the merits of its claims that Colorado may not pursue this laudable goal by compelling social media companies to speak (the state’s) expressive messages.'"
We all remember Masterpiece Cake Shop – the case that compelled expression that violated the baker’s religious beliefs in the name of prohibiting discrimination. That went on from 2012 to 2018, because the process is the punishment. Similar cases have advanced through Colorado courts before being overturned at SCOTUS.
A couple years ago, in 2023, another First Amendment case, Counterman vs. Colorado, was decided by the High Court. This case established the prevailing legal precedent for determining “true threats” as a predicate for criminalizing and punishing speech, including a four part test that should have gutted plaintiffs’ ability to engage in speech related lawfare…
It was a nice idea. The following year, I presented a First Amendment defense in the federal District of Colorado (citing Counterman and its Colorado Test), when the League of Women Voters recruited the NAACP and Mi Familia Vota to accuse me and my co-defendants of voter suppression, intimidation, coercion, and threats under the Voting Rights Act and the Ku Klux Klan Act. We won, they appealed, and the case is scheduled to be heard in eight days in the 10th Circuit Court of Appeals (November 18th). Learn more about my case here, and you can read my trial brief and more. I am defending myself in this action.
These three – out of many – cases were all about punishing disagreeable speech… But Colorado is also compelling speech – which is sort of the opposite but just as unconstitutional. The Colorado legislature decided to compel speech for “child safety” online, and the Colorado court said, “hold up.”
This one will be interesting to watch as it works its way through the courts. The compelled speech of labels on tobacco, for example, has been determined to be lawful. This may go the other way. They’re both science-based arguments for government intervention to compel speech.
Ashe Epp is the Editor of the Colorado Free Press, a CDM contributor, and local writer and liberty advocate. Find all of Ashe's work at linktr.ee/asheinamerica.
