Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 9, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JESSICA PECK,
Plaintiff - Appellee,
v. No. 21-1125
BETH MCCANN, in her official capacity
as the District Attorney of the Second
Judicial District, State of Colorado,
Defendant - Appellant,
and
MICHELLE BARNES, in her official
capacity as Executive Director of the
Colorado Department of Human Services,
Defendant.
------------------------------
OFFICE OF THE CHILD
REPRESENTATIVE; DENVER HUMAN
SERVICES; LARIMER COUNTY
HUMAN SERVICES,
Amici Curiae.
–––––––––––––––––––––––––––––––––––
JESSICA PECK,
Plaintiff - Appellee,
No. 21-1127
v.
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 2
MICHELLE BARNES, in her official
capacity as Executive Director of the
Colorado Department of Human Services,
Defendant - Appellant,
and
BETH MCCANN, in her official capacity
as the District Attorney of the Second
Judicial District, State of Colorado,
Defendant.
------------------------------
OFFICE OF THE CHILD
REPRESENTATIVE; DENVER HUMAN
SERVICES; LARIMER COUNTY
HUMAN SERVICES,
Amici Curiae.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:19-CV-03450-RBJ)
_________________________________
Bianca E. Miyata, Assistant Solicitor General, Denver, Colorado, and Kendra K. Smith,
Hall & Evans LLC, Denver, Colorado (Philip J. Weiser, Attorney General; Anita M.
Schutte, Second Assistant Attorney General; Aaron J. Pratt and Leeah B. Lechuga,
Assistant Attorneys General, State of Colorado, Department of Law, Denver, Colorado;
and Andrew D. Ringel, Hall & Evans LLC, Denver, Colorado, with them on the briefs),
for Defendants-Appellants.
Thomas B. Kelley (David A. Lane, with him on the briefs), Killmer, Lane & Newman,
LLP, Denver, Colorado, for Plaintiff-Appellee.
Anna Ulrich, Crestone, Colorado filed an Amicus Curiae brief for the Office of the Child
Representative, on behalf of Appellants.
2
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 3
Amy J. Packer and Robert A. Wolf, Assistant City Attorneys, Denver, Colorado, filed an
Amicus Curiae brief for Denver Human Services, in support of Appellants.
David P. Ayraud, Fort Collins, Colorado, filed an Amicus Curiae brief for Larimer
County, on behalf of Appellants.
_________________________________
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
__________________________________
Plaintiff-Appellee Jessica Peck is an attorney who represents parents and other
family members in child abuse cases in Colorado juvenile courts. She brought this
suit against Defendant-Appellants, Colorado Executive Director of Health Services
Michelle Barnes and Second Judicial District Attorney Beth McCann, to challenge
the constitutionality of § 19-1-307 (“Section 307”) of the Colorado Children’s Code
Records and Information Act (“Children’s Code”). Section 307 requires that child
abuse records and reports be kept confidential, and has two separate subsections—
Section 307(1) and Section 307(4)—that impose penalties upon those who
improperly disclose information from child abuse reports.
Ms. Peck alleges that Section 307 violates her First Amendment rights by
restricting her disclosures and thereby chilling her speech on these matters. The
district court agreed and struck down both of Section 307’s penalty provisions. But
for the reasons explained herein, we think that Section 307(1) and Section 307(4)
have different scopes due to their distinct language and legislative histories. As a
result, we find that Ms. Peck may challenge Section 307(4)’s penalty as
3
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 4
unconstitutional, but has not properly challenged Section 307(1). We thus
REVERSE the district court’s order insofar as it invalidated Section 307(1).
Proceeding with Ms. Peck’s challenge to Section 307(4), we find that the
Article III requirements for our subject matter jurisdiction are met. Because the
statute undisputedly imposes a burden on speech, we apply strict scrutiny and
conclude that this provision is not narrowly tailored to the state’s compelling interest.
Accordingly, we hold that Section 307(4) is unconstitutional and AFFIRM the
district court’s order to the extent that it struck down that provision. In light of these
dual conclusions, we also REMAND on the sole question of whether Section 307(4)
is severable from the rest of the statute.
BACKGROUND
Colorado’s child protection system is governed by the Children’s Code, which
was passed in 1975 to “balance the best interests of children and the privacy interests
of children and their families with the need to share information among service
agencies and schools and the need to protect the safety of schools and the public at
large.” Colo. Rev. Stat. § 19-1-302. At issue in this case is Section 307 of the
Children’s Code, which generally requires that “reports of child abuse or neglect and
the name and address of any child, family, or informant or any other identifying
information contained in such reports . . . be confidential.” Colo. Rev. Stat. § 19-1-
307(1)(a). This confidentiality requirement is enforced by two distinct penalties.
First is Section 307(1)(c), which states:
(c) Any person who violates any provision of this subsection (1)
4
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 5
is guilty of a class 2 petty offense and, upon conviction
thereof, shall be punished by a fine of not more than three
hundred dollars.
Colo. Rev. Stat. § 19-1-307(1) (2021). The second penalty is codified at Section 307(4),
and reads:
(4) Any person who improperly releases or who willfully
permits or encourages the release of data or information
contained in the records and reports of child abuse or
neglect to persons not entitled to access such information
by this section or by section 19-1-303 commits a class 1
misdemeanor and shall be punished as provided in section
18-1.3-501, C.R.S.
Colo. Rev. Stat. § 19-1-307(4) (2021) (emphasis added).1 The statute also lists a
number of individuals and entities that may lawfully access the otherwise-
confidential reports. Colo. Rev. Stat. § 19-1-307(b).
1
A minor amendment to both Section 307(1) and Section 307(4) took effect on
March 1, 2022, after this case was argued. The Colorado legislature changed the
phrase “is guilty of a class 2 petty offense” in Section 307(1)(c) to read “commits a
civil infraction,” and changed the phrase “class 1 misdemeanor” in Section 307(4) to
read “class 2 misdemeanor.” S.B. 21-271, 73d Gen. Assembly, 1st Reg. Sess. (Colo.
2021). The parties did not address the effect of this amendment on Ms. Peck’s
claims, but we clarify that the changes do not impact the constitutional implications
of the statute and do not moot the case. These changes were made as part of a
broader reform reclassifying various criminal offenses in Colorado and adding civil
infractions as a new category in accordance with the recommendations of a state
sentencing commission. Id. Because the current provisions continue to impose some
penalty on disclosures, with fairly nominal differences in how the penalties are
classified, the amendment does not alter the central fact of Ms. Peck’s claim that the
penalties in Section 307(1) and Section 307(4) prevent her from speaking as she
wishes and thus violate her First Amendment rights. Her claim is not contingent on
the severity of either penalty. Consequently, our ensuing analysis applies the same to
the 2021 iteration of the statute as it does to the current iteration.
5
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 6
One function of Section 307 is to fulfill Colorado’s obligations under the Child
Abuse Prevention and Treatment Act (“CAPTA”), which conditions federal funding
for state child protection systems on the state’s use of “methods to preserve the
confidentiality of all records in order to protect the rights of the child and the child’s
parents or guardians, including requirements ensuring that reports and records . . .
shall only be made available to [specified persons, entities, and agencies].” 42
U.S.C. § 5106a(b)(2)(B)(viii). Each year, the Colorado Department of Human
Services certifies that Section 307’s confidentiality requirement is being enforced in
order to ensure that the state receives CAPTA funding from the federal government.
Turning from the statutory background to the facts of this case,2 Ms. Peck is a
private attorney who represents family members in investigations of suspected child
abuse or neglect in Colorado. In January 2019, Ms. Peck represented the mother of a
three-year-old girl in a dependency and neglect case in Denver Juvenile Court.
While the case was ongoing, Ms. Peck made statements to the Denver weekly
newspaper Westword suggesting that Denver Human Services (“DHS”) filed the case
against her client “without a single shred of evidence, based on one family member
standing up for another family member in advance of trial when the accused is still in
jail.” App’x Vol. I at 55. Ms. Peck also provided Westword with an excerpt of a
caseworker supervisor’s email detailing the concerns DHS had about her client.
2
We rely on the parties’ joint statement of stipulated facts, as well as their attached
exhibits and declarations.
6
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 7
Ms. Peck further told Westword the date, time, and location of an upcoming hearing
in the case.
After the Westword article was published, the Juvenile Court Magistrate
presiding over Ms. Peck’s case issued an order stating “that Counsel for Respondent
Mother . . . may have disclosed information to a non-party in violation of § 19-1-
307(1)(a),” and emphasizing that “any identifying information pertaining to this
dependency and neglect proceeding shall be kept confidential in accordance with
§ 19-1-307(1)(a) and § 19-1-303.” Id. at 231. The court took no further action
against Ms. Peck, nor was she contacted by any law enforcement authority. In fact,
records dating back to 1966 indicate that Denver’s District Attorney has never
prosecuted anyone under Section 307, and records dating back to 2010 similarly
show zero Section 307 prosecutions by the Denver City Attorney. Defendant
McCann disclaims any policy, custom, or practices of prosecuting violations of
Section 307, but Defendants have expressly chosen not to disavow an intent to
prosecute Ms. Peck or anyone else under Section 307.
Ms. Peck filed this action in the United States District Court for the District of
Colorado on December 9, 2019, and an amended complaint on January 29, 2020,
seeking a court order declaring that Section 307 is unconstitutional and enjoining its
enforcement. She initially named several state government defendants, but the
district court dismissed all except Ms. Barnes and Ms. McCann in their official
capacities. As Executive Director of the Colorado Department of Human Service,
Ms. Barnes “supervises and provides policy direction for Colorado’s child welfare
7
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 8
system,” which provides services such as child protection, risk assessment, and case
management. App’x Vol. I at 222. As District Attorney for Colorado’s Second
Judicial District, Ms. McCann is in charge of enforcing Colorado criminal laws—
including the offenses under Section 307(1) and Section 307(4)—within the City and
County of Denver.
In July 2020, the parties filed a joint stipulation of facts for the district court to
rely on for the purposes of summary judgment in July 2020. Ms. Peck also filed a
sworn declaration stating that she desires in the future to rely on the child abuse
reports she comes across during her work to call out misconduct by government
officials and government employees to the public. She stated her belief that Section
307 unconstitutionally prohibits such speech, and that she would risk prosecution
under the statute by engaging in her desired speech.
Shortly thereafter, Ms. Peck and each Defendant filed cross-motions for
summary judgment. The district court granted Ms. Peck’s motion for summary
judgment, enjoining enforcement of both Section 307(1)(c) and Section 307(4) and
granting reasonable costs to Ms. Peck. Defendants now appeal that ruling.
DISCUSSION
The crux of Ms. Peck’s claim is a First Amendment challenge. But before we
can reach its merits, we address threshold legal questions of standing and ripeness,
which involve a predicate question of statutory interpretation. All of these issues,
including findings of constitutional fact and conclusions of law, are reviewed de
8
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 9
novo. See Coalition for Secular Gov’t v. Williams, 815 F.3d 1267, 1275 (10th Cir.
2016); Sinclair Wyoming Ref. Co. v. United States Env’t Prot. Agency, 887 F.3d
986, 990 (10th Cir. 2017); United States v. Supreme Court of N.M., 839 F.3d 888,
898 (10th Cir. 2016); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495,
1498-99 (10th Cir. 1995). Additionally, when addressing Ms. Peck’s First
Amendment claim, we “perform an independent examination of the whole record in
order to ensure that the judgment protects the rights of free expression.” Williams,
815 F.3d at 1275 (quotation omitted).
I. Article III Jurisdiction
Though we have appellate jurisdiction to review the district court’s final order
under 28 U.S.C. § 1291, we must assess whether this court or any federal court has
subject matter jurisdiction to review Ms. Peck’s constitutional challenge to Section
307(4) under Article III of the Constitution. We turn first to standing, then ripeness,
both of which are necessary components of Article III jurisdiction. See Initiative and
Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir. 2006).
A. Statutory Interpretation & Standing
We begin by interpreting Section 307’s language and scope in order to
determine whether Ms. Peck has alleged any injury that would potentially give her
standing to challenge the statute.3 The only interpretive dispute in this case is
3
In the next subsection of this opinion, we address the separate question of whether
Ms. Peck’s alleged injury suffices as an “injury-in-fact” under our standing
precedent, see infra Section I.B. Here, we first address whether Ms. Peck has alleged
9
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 10
whether the statute restricts the disclosure of non-identifying information contained
in child abuse reports, as well as the disclosure of identifying information.4 Ms. Peck
has disclaimed any desire to disclose identifying information, meaning that if the
statute reaches only those individuals who disclose identifying information, Ms. Peck
has not alleged a valid injury and would lack standing to sue because she would be
free to disclose non-identifying information, which is her sole stated intent, and the
case would end.5
The district court concluded that Section 307 generally reached non-
identifying and identifying information, thereby allowing Ms. Peck’s claim to
proceed against both Section 307(1) and Section 307(4). But the district court—and
the parties—read Section 307 as a whole, failing to explain and interpret key
differences between the separate penalties in Section 307(1) and Section 307(4). We
analyze each provision individually and find that although Section 307(1) reaches
only identifying information, Section 307(4) is broader, punishing the disclosure of
both identifying and non-identifying information. As a result, Ms. Peck lacks
any sort of injury under the statute, i.e., whether the statute reaches her desired
speech at all.
4
No party denies that the statute restricts the disclosure of identifying information.
Defendants provide only minimal argument to suggest that Section 307 does not
reach non-identifying speech. Nevertheless, resolving this question is a necessary
first step of the case and we analyze it initially.
5
Ms. Peck has not asserted on appeal that Section 307 is unconstitutionally vague or
overbroad, so we confine our analysis to ascertaining what the statute actually
prohibits and whether those prohibitions burden Ms. Peck’s desired speech.
10
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 11
standing to challenge Section 307(1) because she is not injured by it. She can,
however, proceed with her claim challenging Section 307(4).
i. Section 307(1)
The first restriction on disclosures of child abuse information is contained in
Section 307(1), which we recite in full for clarity:
(1)(a) Identifying information—confidential. Except as
otherwise provided in this section and section 19-1-303,
reports of child abuse or neglect and the name and address
of any child, family, or informant or any other identifying
information contained in such reports shall be confidential
and shall not be public information.
(b) Good cause exception. Disclosure of the name and address
of the child and family and other identifying information
involved in such reports shall be permitted only when
authorized by a court for good cause. . . .
(c) Any person who violates any provision of this subsection (1)
is guilty of a class 2 petty offense and, upon conviction
thereof, shall be punished by a fine of not more than three
hundred dollars.
Colo. Rev. Stat. § 19-1-307(1) (2021) (emphasis added). The plain text of
Section 307(1)(a) limits its scope to identifying information only, as indicated by the
subheading “[i]dentifying information.” Id. Its construction suggests that two types of
disclosures are prohibited: first, disclosures of the “reports of child abuse or neglect”
themselves—that is, the literal documents that comprise a child abuse report—and
second, “the name and address of any child, family, or informant or any other
identifying information contained in such reports.” Id. Neither of these categories
address disclosures of exclusively non-identifying information that may be included
in child abuse records. Disclosures in the first category (the documents themselves)
11
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 12
will necessarily reveal identifying information, given that the reports contain all
recorded information about the case, while the second category is limited by its own
terms to the identifying information contained in a report.
Legislative history and state-court case law support this narrow reading of
Section 307(1). Section 307(1) was amended to reflect approximately its current
wording in 1977, shortly after Gillies v. Schmidt, 556 P.2d 85 (Colo. App. 1976),
was decided. In Gillies, the state appellate court interpreted a 1975 version of
Section 307 (“the 1975 Act”) to determine whether it violated Colorado’s Public
Meetings Law. The court held that the 1975 Act covered “the Entire contents” of a
child abuse report, so prohibited the disclosure of non-identifying information. Id. at
86. But this reading was based on the 1975 Act’s text, which stated in relevant part:
“It is unlawful for any person or agency to solicit, encourage disclosure of, or
disclose the contents of any record or report made under this article.” Colo. Rev.
Stat. § 19-10-115 (1975) (emphasis added). The Colorado legislature amended the
statute in 1977 and deleted the phrase “the contents of any record or report,” so that
the statute effectively stated the same rule as Section 307(1) does today. H.B. 1266,
51st Gen. Assemb., 1st Reg. Sess. (Colo. 1977). This amendment thus suggests the
legislature’s desire to narrow the statute to cover only the reports themselves and
identifying information therein, not the “entire contents” of the reports. See City of
Colorado Springs v. Powell, 156 P.3d 461, 465 (Colo. 2007) (“[W]e presume that by
amending the law the legislature has intended to change it.”).
12
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 13
Additionally, principles of statutory interpretation favor reading Section
307(1) to reach only identifying disclosures. If a statute being challenged on its face
“is readily susceptible to a narrowing construction that would make it constitutional,
it will be upheld.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988)
(internal quotations omitted). See also Jennings v. Rodriguez, 138 S. Ct. 830 (2018)
(discussing the doctrine of constitutional avoidance). Ms. Peck does not contend that
a statute barring disclosure only of identifying information would be
unconstitutional, so we read ambiguities in favor of a narrower Section 307(1) in
order to preserve the law. Also, we seek to “avoid constructions that would render
any words or phrases superfluous.” McCoy v. People, 442 P.3d 379, 389 (Colo.
2019). A broader reading of Section 307(1) would render superfluous the phrase
“any other identifying information” in Section 307(1)(a), because such information
would already be covered by a reading of the word “reports” if that includes the
reports’ entire contents, as opposed to just the report document itself. Thus, we think
Section 307(1), on its own, prohibits and penalizes only the disclosure of identifying
information from child abuse reports—meaning it does not inhibit Ms. Peck’s stated
desire to disclose non-identifying information. Additional inquiry into the “injury-in-
fact” standing requirement as to Section 307(1) is therefore unnecessary, as she has
pleaded no injury under this provision at all.
ii. Section 307(4)
But of course, Section 307(1) is not the only relevant provision here. We also
13
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 14
examine Section 307(4)’s separate ban and criminal penalty on disclosures:
(4) Any person who improperly releases or who willfully
permits or encourages the release of data or information
contained in the records and reports of child abuse or neglect
to persons not entitled to access such information by this
section or by section 19-1-303 commits a class 1 misdemeanor
and shall be punished as provided in section 18-1.3-501, C.R.S.
Colo. Rev. Stat. § 19-1-307(4) (2021) (emphasis added). The plain text of this provision
goes further than Section 307(1): it prohibits the disclosure not only of “reports” and
“identifying information,” as specified in Section 307(1), but also any “data or
information contained in the records and reports of child abuse or neglect.” Id. This
latter category is unambiguously broad, such that it would include non-identifying
information contained in those reports.
Ms. Barnes posits that the only reason for the different language in Section 307(4),
as compared to Section 307(1), is not a broader scope but a different intent requirement—
she argues that Section 307(1)(c)’s penalty applies when someone “inadvertently, or
without knowing, discloses information,” while Section 307(4)’s harsher penalty applies
only when “a person who intentionally, or willfully releases information.” Barnes
Opening Br. at 12.6 This is not the only salient distinction between the two provisions,
6
It is not clear to us that “improperly releases” requires a mental state of
intentionality, as Ms. Barnes suggests. But we need not decide that issue, because no
party has contended that the mental state requirement is itself significant to the
statute’s constitutionality. Indeed, given that the First Amendment is intended to
facilitate the free expression of ideas, its protections generally extend to willful
speech as well as accidental speech. See generally Virginia v. Black, 538 U.S. 343,
358, 123 S. Ct. 1536, 1547, 155 L. Ed. 2d 535 (2003) (“The hallmark of the
protection of free speech is to allow free trade in ideas—even ideas that the
14
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 15
though; the “willfully permits” language is separate from the “data or information”
language, which has nothing to do with the discloser’s intent but rather the content of the
disclosure itself. We think Section 307(4) is not only harsher (by making the act a
misdemeanor, not just a petty offense or civil infraction) on people who intentionally
disclose information; it is also broader, by punishing non-identifying disclosures as well
as identifying disclosures, thereby enabling Ms. Peck’s First Amendment challenge to it.
The key distinction between Section 307(1) and Section 307(4) is not in the penalties
imposed but in their substantive terms dictating what conduct is being penalized.7
The legislative history reinforces our view. Section 307(1), in its current form,
was enacted in 1977. Section 307(4), on the other hand, was not added until 2003 as part
of Colorado House Bill 03-1211, which overhauled the Children’s Code. H.B. 03-1211,
64th Gen. Assembly, Reg. Sess. (Colo. 2003). The 2003 changes were made in
connection with the legislature’s decision to repeal the state’s central registry, a system
for “record[ing] perpetrators and victims of child abuse or neglect in order to aid in
investigations and to screen potential employees in child care-related positions.” Id.
The repeal followed reports showing that the registry’s data was both incomplete and
inaccurate. For example, at least 191 people who had been acquitted of child abuse were
still listed on the registry in 2001, and up to forty percent of registered sex offenders who
overwhelming majority of people might find distasteful or discomforting.” (quotation
marks omitted)).
7
In any event, Ms. Peck does not base her complaint on the harshness of the respective
penalties; she claims that any government penalty for non-identifying disclosures of
information from child abuse records imposes a burden on her free speech rights that
does not pass constitutional muster.
15
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 16
had committed sex crimes against children had been omitted from the registry. Id. And
frequent errors in how individuals were added to the registry made it impossible to match
a person to a registrant conclusively by a simple search. Id. In House Bill 03-1211, the
legislature expressed concerns that the registry was failing both to protect children and to
protect registrants’ due process rights, and so it expunged the list of names that were on
the registry and repealed all provisions concerning the registry, which were primarily
codified at Colo. Rev. Stat. § 19-3-313. Id.
Simultaneous to the repeal, the legislature amended other parts of the Children’s
Code to create alternative processes for processing and maintaining child abuse records.
See, e.g., Colo. Rev. Stat. § 19-3-313.5. This is the context of the 2003 amendments to
Section 307. First, all references to the registry were removed from Section 307, as from
all other parts of the Code. For instance, Section 307(2)(j) was altered. Before, it had
said the state department of human services could access child abuse records to
investigate a licensing applicant when the applicant gave “written authorization to the
licensing authority to obtain information contained in reports of child abuse or neglect or
to review the state central registry of child protection.” Colo. Rev. Stat. § 19-1-307(2)(j)
(2002) (emphasis added). The 2003 House Bill changed it to require the applicant’s
“written authorization to the licensing authority to obtain information contained in
records or reports of child abuse or neglect.” Colo. Rev. Stat. § 19-1-307(2)(j) (emphasis
added).
But Section 307(4) is the only subpart that was added wholesale to Section 307—
it simply did not exist prior to the 2003 amendments. The legislature provided no
16
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 17
specific explanation for why it was added. We note, however, that the provision is nearly
identical to Colo. Rev. Stat. § 19-3-313(10) (2002), which was deleted as part of the
repeal and had stated that
Any person who willfully permits or who encourages the
release of data or information contained in the central registry
to persons not permitted access to such information by this part
3 commits a class 1 misdemeanor and shall be punished as
provided in section 18-1.3-501, C.R.S.
The only difference in Section 307(4) is that “central registry” was replaced with
“records and reports of child abuse or neglect,” and “this part 3” was changed to “this
section.”
From this background, we can infer that Section 307(4)’s purpose was to maintain
the confidentiality requirements that § 19-3-313(10) had previously imposed on the
registry—covering all “data or information” contained therein—as to all child abuse
records, especially in light of legislators’ concerns that the registry was not protecting the
due process rights of the accused in child abuse cases. It therefore makes sense that
Section 307(4) would reach disclosures of any information, not merely identifying
information, unlike the existing Section 307(1). See also Russello v. United States, 464
U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of
a statute but omits it in another . . . it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.”).
Thus, we hold that Section 307(4) means what it says: disclosure of “data or
information in the records and reports of child abuse or neglect” to anyone not listed as
exempt in Section 307(2) is a crime, regardless of whether the information is identifying
17
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 18
or non-identifying. As a result, Ms. Peck can challenge Section 307(4)’s prohibition on
disclosing non-identifying information as an unconstitutional restriction on her desired
speech. But Section 307(1) is still best interpreted to reach only disclosures of
identifying information. Thus, Ms. Peck has alleged an injury under only Section 307(4),
and we proceed by analyzing her challenge to that sole provision.
B. Injury-in-Fact
Standing is a prerequisite to a federal court’s exercise of Article III
jurisdiction, “serv[ing] to identify those disputes which are appropriately resolved
through the judicial process.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The burden is on
the plaintiff to establish Article III standing by showing (1) an “injury in fact” that is
“concrete and particularized” and “actual or imminent,” (2) that the injury is
“fairly . . .trace[able] to the challenged action of the defendant,” and (3) that the
injury is likely to be “redressed by a favorable decision” of the court. Id. at 560–61.
Here, only the injury-in-fact requirement is at issue, as the statute’s alleged violation
of Ms. Peck’s First Amendment rights is undisputedly traceable to the statute itself
and could be redressed by this Court’s invalidation of the law.
The central problem for Ms. Peck is that she has not yet been subject to
Section 307(4)’s penalty, nor has any enforcement authority explicitly threatened to
charge her under the statute.8 But the First Amendment context creates unique
8
At the same time, neither Ms. Barnes, Ms. McCann, nor any other authority has
promised not to enforce the law against Ms. Peck should she violate its terms.
18
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 19
interests that lead us to apply the standing requirements somewhat more leniently,
facilitating pre-enforcement suits. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.
2003). Specifically, a plaintiff bringing a First Amendment claim can show standing
by alleging “an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by statute, and there exists a credible threat of
prosecution thereunder,” or by alleging “a credible threat of future prosecution” plus
an “ongoing injury resulting from the statute’s chilling effect on his desire to exercise
his First Amendment rights.” Id. (quoting Phelps v. Hamilton, 122 F.3d 1309, 1326
(10th Cir.1997), and Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987)).9
Here, Ms. Peck’s claimed injury is that she is “chilled from criticizing official
conduct based on information contained in child abuse records and reports as a result
of the criminal prohibitions of § 307 and the State’s commitment to enforcing them.”
Aple. Br. at 22. To determine whether Ms. Peck has adequately alleged a “chilling
effect” that establishes an injury in fact, we apply the test pronounced by this Court
in Initiative & Referendum Institute v. Walker:
[P]laintiffs in a suit for prospective relief based on a
“chilling effect” on speech can satisfy the requirement that
their claim of injury be “concrete and particularized” by
(1) evidence that in the past they have engaged in the type
of speech affected by the challenged government action;
(2) affidavits or testimony stating a present desire, though
no specific plans, to engage in such speech; and
(3) a plausible claim that they presently have no intention to
9
Though these are listed as two distinct tests in Ward, they overlap and the analysis
will be similar under either. See, e.g., D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.
2004).
19
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 20
do so because of a credible threat that the statute will be
enforced.
450 F.3d 1082, 1088–89 (10th Cir. 2006) (en banc).
i. Whether Ms. Peck has previously “engaged in the type of
speech affected by the challenged government action”
Defendants do not contest that Ms. Peck meets this first requirement of the
Walker test due to her previous disclosure of information in a child abuse report to
the newspaper Westword, in apparent violation of Section 307(4)’s broad ban. This
prong is therefore satisfied.
ii. Whether Ms. Peck has adequately stated “a present desire,
though no specific plans, to engage in” the restricted
speech
Ms. Peck has submitted a sworn declaration stating that in her work as an
attorney, she frequently encounters child abuse “records and reports showing lapses,
neglect, or misconduct on the part of Social Workers, including, false and at times,
even fabricated information detrimental to my clients or challenging their parenting
skills on improper grounds.” App’x Vol. I at 176. She also declared that she has in
the past “and desire[s] in the future to make public statements, including through the
press, calling out public officials and public employees when they have issued
materially false or improper reports concerning my clients,” but she believes Section
307 prohibits her from doing so. Id. at 176–177. Neither Ms. Barnes nor Ms.
McCann have offered factual rebuttals to these claims. Facially, then, Ms. Peck’s
declaration suffices to state a present desire to engage in the speech prohibited by
20
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 21
Section 307(4)—that is, a present desire to publicly disclose information from child
abuse reports that must be kept confidential under Section 307(4), as we have read it.
Ms. Barnes argues that Ms. Peck cannot meet this element because Ms. Peck’s
stated desire to engage in such speech is not “immediate and unconditional.” Barnes
Opening Br. at 25. She emphasizes that Ms. Peck has not “file[d] suit with a specific
employee, official, action, or statement in mind,” has not shown “that she is in
possession of information showing misconduct of a public official or employee on
which she presently desires to speak,” has not “explained how the statutory
exceptions for addressing any such misconduct are inadequate,” and has not
guaranteed that her clients will consent to the disclosure of the information. Id. at 27.
But Ms. Barnes’ vision of the “present desire” test is too strict, in light of our
precedent and the rationale behind a relaxed standing test for chilled speech in the
First Amendment context. Ms. Barnes extrapolates her stringent “immediate and
unconditional” standard from Susan B. Anthony List v. Driehaus, 573 U.S. 149
(2014); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); and Aptive
Environmental, LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020). In each
case, the court found the injury-in-fact requirement of standing met because the
plaintiffs had stated with certainty that they wished to engage in the proscribed
speech and definitively planned do so upon lifting of the government restriction. See
Driehaus, 573 U.S. at 161 (finding that plaintiffs had adequately “alleged an intention
to engage in a course of conduct arguably affected with a constitutional interest”
simply by “plead[ing] specific statements they intend to make in future election
21
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 22
cycles”); Humanitarian Law Project, 561 U.S. at 15–16 (finding standing where
plaintiffs showed that they had engaged in the proscribed charitable support before
and stated “that they would provide similar support again if the statute's allegedly
unconstitutional bar were lifted”); Aptive, 959 F.3d at 975 (finding present desire
prong met where plaintiff showed its desire to solicit during the proscribed hours
because their salespeople were more profitable during those hours). But those cases
did not hold that immediacy and unconditionality were necessary to demonstrate an
intention to engage in the speech at issue; the plaintiffs’ plans were merely sufficient
in light of the particular facts of each case. Furthermore, neither Driehaus nor
Humanitarian Law Project were using the “present desire” test we apply in this
circuit, and the Supreme Court’s analysis of the issue in each case was brief.
Only Aptive was applying Walker’s language at issue here, and the facts were
quite different from Ms. Peck’s situation. The restricted speech in Aptive was in the
form of commercial door-to-door solicitation—something much more easily planned
in advance than speech about a caseworker’s conduct in a child abuse case. 959 F.3d
at 966. Cf. Rio Grande Found. v. City of Santa Fe, 7 F.4th 956, 959 (10th Cir.
2021), cert. denied sub nom., 142 S. Ct. 1670 (2022) (“All three prongs of the Walker
test center on the circumstances of the particular plaintiff before the court.”). Plus,
we do not think Aptive’s fact-specific discussion of the “present desire” prong
translates to a broad rule requiring the plaintiff to state an “immediate and
unconditional” desire to speak in the restricted manner.
22
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 23
To the contrary, we have previously found the “present desire” prong met
where the plaintiff had not established the specific content and likely timing of their
desired speech. In Walker itself, we found the requirement satisfied even though the
plaintiffs had not pleaded “any certainty about their intentions” to bring a ballot
initiative in Utah that was affected by the challenged statute; it was enough that the
Court could “reasonably infer, based on [plaintiff’s prior] pattern of bringing wildlife
initiatives in Western states including three of Utah's neighbors, a present desire to
bring similar initiatives in Utah.” 450 F.3d 1082, 1091. Indeed, we explicitly held
that First Amendment plaintiffs generally need not state that they “have specific
plans to engage in XYZ speech next Tuesday” in order to show standing. Id. at 1089.
Similarly, in Rio Grande Foundation, the plaintiff advocacy group merely
presented an affidavit from its president stating a general “desire to continue
speaking about municipal ballot measures in the future” as support for its challenge
to a law requiring disclosures about campaign expenditures. 7 F.4th at 960. We held
that this affidavit was sufficient, even though it did not specify a particular upcoming
ballot measure that it would speak about or what it wished to say about such a
measure. Id. (“Nothing more concrete than this general aspiration is needed to meet
[Walker’s] second prong.”). Ms. Peck’s declaration here is not meaningfully
different from the plaintiffs’ showings in Walker or in Rio Grande Foundation.
We thus decline to require categorically that Ms. Peck and other First
Amendment plaintiffs know exactly what they would say and when they want to say
it in order to challenge a speech-restrictive law. Such a barrier would be so daunting
23
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 24
as to obviate the leniency we generally apply to First Amendment standing inquiries.
Ms. Peck’s sworn declaration clarified the type of speech she wishes to engage in:
non-identifying statements “calling out public officials and public employees when
they have issued materially false or improper reports concerning her clients.” App’x
Vol. I at 176–177. Ms. Peck also indicated that she would likely be in a position to
make such statements in the future. Id. at 180. Viewed in tandem with her apparent
prior violation of the statute, this declaration suffices to state a “present desire,
though no specific plans” to engage in speech that is restricted by Section 307(4).
iii. Whether there is “a credible threat that the statute will be
enforced”
To meet the requirement of showing a “credible threat” of Section 307(4)
being enforced against her, Ms. Peck must demonstrate “an objectively justified fear
of real consequences.” Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006).
This Court has identified
at least three factors to be used in determining a credible
fear of prosecution: (1) whether the plaintiff showed ‘past
enforcement against the same conduct’; (2) whether
authority to initiate charges was ‘not limited to a prosecutor
or an agency’ and, instead, ‘any person’ could file a
complaint against the plaintiffs; and (3) whether the state
disavowed future enforcement.
303 Creative LLC v. Elenis, 6 F.4th 1160, 1174 (10th Cir. 2021) (quoting Driehaus,
573 U.S. at 164–65), cert. granted on other grounds, 142 S. Ct. 1106 (2022). Here,
the second factor weighs against Ms. Peck—only prosecutors can bring charges
24
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 25
under Section 307.10 But our analysis of the other two factors show that they favor
Ms. Peck, and so we find that she has satisfied this prong of the Walker test as well.
The first factor’s application depends on whether the magistrate judge’s order
warning Ms. Peck against violating Section 307 following her disclosures to
Westword can be considered an “enforcement” of Section 307. Ms. Barnes argues
that this order was not “enforcement,” given that it stated only that Ms. Peck “may
have” violated Section 307 by speaking to Westword and did not hold any hearing or
impose any sanctions related to the disclosures. Barnes Opening Br. at 31. We
disagree. The order was intended to put Ms. Peck on notice that she would be
violating Section 307 if she spoke in this manner again. Being scolded by the judge
presiding over a client’s case is no small consequence, and we think it qualifies as
“enforcement” in the practical sense of the word.
We do acknowledge the lack of any recorded instances of past prosecutions
under Section 307, which weighs against Ms. Peck. But this dearth of prosecutions is
counterbalanced by the fact that each year, the Colorado Department of Human
Services certifies to the federal government that it is enforcing Section 307 in order
to obtain CAPTA funding. The state cannot have it both ways, and so we find the
“past enforcement” factor slightly favors Ms. Peck.
10
We note, however, that any prosecutor in the state of Colorado is empowered to
bring charges for a violation of Section 307(4), and Ms. Peck practices in several
different Colorado counties. Even if Ms. McCann and her successors never prosecute
Ms. Peck, someone in Jefferson County or Larimer County or other Colorado
counties might.
25
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 26
Ms. Peck more clearly prevails on the third factor. Defendants do not disavow
an intent to prosecute Ms. Peck. Indeed, they could not do so, because they assert
that certifying enforcement of Section 307 is essential to their access to federal
funding under CAPTA. While an assurance of non-enforcement “is not necessary to
defeat standing,” Ward, 321 F.3d at 1268, a refusal to provide such an assurance
undercuts Defendants’ argument that Ms. Peck’s perception of a threat of prosecution
is not objectively justifiable.
Weighing these factors, we find that Ms. Peck has satisfied the “credible
threat” prong. Circuit and Supreme Court precedent tells us that this is not supposed
to be a difficult bar for plaintiffs to clear in the First Amendment pre-enforcement
context. See Wilson, 819 F.2d at 946–47 (“[T]he Supreme Court has often found a
case or controversy between a plaintiff challenging the constitutionality of a statute
and an enforcement official who has made no attempt to prosecute the plaintiff under
the law at issue.”); Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)
(“We are not troubled by the pre-enforcement nature of this suit. The State has not
suggested that the newly enacted law will not be enforced, and we see no reason to
assume otherwise.”); Mangual v. Rotger-Sabat, 317 F.3d 45, 57 (1st Cir. 2003) (“As
to whether a First Amendment plaintiff faces a credible threat of prosecution, the
evidentiary bar that must be met is extremely low. . . . The Supreme Court has often
found standing to challenge criminal statutes on First Amendment grounds even
when those statutes have never been enforced.”).
26
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 27
Furthermore, we think the state’s staunch refusal to disavow prosecution has
heavy weight in this particular case. Section 307(4) enables Colorado prosecutors to
bring criminal charges against those who disclose even non-identifying information
from child abuse reports, and Ms. Peck’s prior disclosure to Westword falls in such a
category. There is nothing, not even their word, to prevent Ms. McCann or another
prosecutor from bringing charges against Ms. Peck for similar statements in the
future. This possibility makes Ms. Peck’s fear of consequences for disclosures of
information in violation of Section 307(4) objectively justifiable.
Accordingly, we conclude that Ms. Peck has met the Walker test, establishing
the injury-in-fact necessary for her to have Article III standing to challenge Section
307(4)’s constitutionality.
C. Ripeness
A case must also be ripe for this Court to exercise Article III jurisdiction over
it. Walker, 450 F.3d at 1097. “Standing and ripeness are closely related in that each
focuses on whether the harm asserted has matured sufficiently to warrant judicial
intervention.” Id. (internal quotations omitted). But unlike standing, ripeness issues
focus “not on whether the plaintiff was in fact harmed, but rather whether the harm
asserted has matured sufficiently to warrant judicial intervention.” Morgan v.
McCotter, 365 F.3d 882, 890 (10th Cir. 2004) (quotation omitted). Ms. Barnes
would apply that principle here to require Ms. Peck to have the information she
wishes to disclose in hand before she is able to file a ripe lawsuit. We do not agree
with Ms. Barnes.
27
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 28
The two central factors in ripeness inquiries are “the fitness of the issue for
judicial resolution” and “the hardship to the parties of withholding judicial
consideration.” Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir. 1990)
(quoting Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967)). The test is not “rigid or
mechanical,” but instead “flexible and often context-specific.” Id. at 1417. And as
with standing inquiries, ripeness inquiries are “relax[ed]” in the context of facial
challenges on First Amendment grounds due to “the chilling effect that potentially
unconstitutional burdens on free speech may occasion.” New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995).
In assessing hardship, we typically “focus on whether the challenged action
creates a direct and immediate dilemma for the parties.” Id. at 1499 (quotations and
alterations omitted). Ms. Peck has not identified specific, current confidential
information that she would like to disclose right this moment, so in the most literal
sense, she does not face a direct and immediate dilemma. But the speech context
again complicates our analysis of this factor. Our ripeness inquiries in First
Amendment cases often focus on the credibility of the threat of prosecution as an
indicator of hardship, as the specter of prosecution can be a hardship in itself because
it can chill future speech. See, e.g., id. at 1501. For the reasons described in our
standing analysis, we find a credible threat of prosecution here, which imposes a
hardship on Ms. Peck in the form of anxiety over and avoidance of her desired
speech. See App’x Vol. I at 181 (declaring that Ms. Peck is “not willing to disrespect
28
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 29
the rule of law nor to risk” prosecution, so she will not make such restricted
statements in the future).
Additionally, the next time Ms. Peck wants to speak on these subjects, she
would likely not have time to bring an analogous suit asserting her First Amendment
rights because child protection proceedings move quickly. She has shown facts
demonstrating a likelihood that her desire to speak in this manner will arise in the
near future. Thus, Ms. Peck is likely to confront a scenario where she has to choose
between either following the law under Section 307 and forgoing prohibited speech,
or representing her clients and holding public officials accountable to the best of her
abilities moving forward by making her desired disclosures. This is a dilemma
directly caused by Section 307(4) and has the potential to occur imminently, at a
speed preventing her from seeking relief in a later suit. Ms. Peck’s free speech is
indisputably chilled by Section 307(4), as we discussed at length within our standing
inquiry. These facts indicate ripeness. See New Mexicans for Bill Richardson v.
Gonzales, 64 F.3d at 1500 (treating “chilling effect” as a separate ripeness factor for
First Amendment plaintiffs).
As for the second factor, this facial constitutional challenge is a purely legal
question, accompanied by a joint statement of stipulated facts. It is thus an ideal fit
for judicial review, favoring a conclusion that the case is ripe.
In sum, the two factors reflect ripeness and our case law encourages particular
lenience in First Amendment ripeness inquiries. See id. at 1499 (“Reasonable
predictability of enforcement or threats of enforcement, without more, [are]
29
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 30
sometimes . . . enough to ripen a claim.”); Awad v. Ziriax, 670 F.3d 1111, 1125 (10th
Cir. 2012) (finding First Amendment challenge ripe); Walker, 450 F.3d at 1098
(same); U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999) (same). We
therefore find Ms. Peck’s challenge to Section 307(4) to be ripe.
II. Strict Scrutiny
The Supreme Court has held that facially “[c]ontent-based laws—those that
target speech based on its communicative content—are presumptively
unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576
U.S. 155, 163 (2015). Here, Section 307(4) is a content-based restriction on speech
in that it targets and prohibits speech based on its content, that content being
information from child abuse reports. As such, it is subject to strict scrutiny.11
11
While Ms. Barnes concedes this point, Ms. McCann argues against applying strict
scrutiny. Ms. McCann’s argument lacks merit, however. She seeks a novel
application of the Garcetti/Pickering test, which is used to determine whether a
government employee is entitled to First Amendment protection for speech within the
scope of employment. Garcetti v. Ceballos, 547 U.S. 410 (2006). One of the test’s
elements asks “whether the employee spoke as a citizen on a matter of public
concern. . . . If the answer is no, the employee has no First Amendment cause of
action based on his or her employer’s reaction to the speech.” Id. at 418. Ms.
McCann suggests that the “public concern” element should be applied to this context
to allow restriction of Ms. Peck’s speech because Ms. Peck, as an attorney for parents
in child abuse proceedings, “is a critical and necessary actor in the judicial system,”
and so has no greater right to publicly speak on these matters than would a
government employee like a social worker. McCann Opening Br. at 31–32. We
reject Ms. McCann’s invitation to so drastically extend the doctrine. Her argument
has no foundation in our First Amendment jurisprudence and it would have disastrous
downstream results, depriving every individual who plays a so-called “critical” role
in some part of the government of First Amendment rights to some degree, for no
reason other than their civil service.
30
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 31
It is undisputed that the state has a compelling interest “in protecting its child-
abuse information.” Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987). Conceding
this, Ms. Peck focuses only on the narrow tailoring requirement, arguing that
Defendants have failed to show that “a narrowed prohibition—banning only
disclosure of identifying information from child abuse records and reports—would
not substantially serve the compelling interest.” Aple. Br. at 40. The heavy burden
of demonstrating that a content-based restriction is “the least restrictive means among
available, effective alternatives” lies with the government. Ashcroft v. Am. C.L.
Union, 542 U.S. 656, 665–66 (2004).
Defendants contend that Section 307(4) is narrowly tailored because
mandating confidentiality as to all information within child abuse records is the only
feasible way to protect the compelling interest in privacy for children and their
families, because it is too difficult to draw a “bright line between identifying and
nonidentifying pieces of information.” Barnes Opening Br. at 55.12 Defendants
argue that removing identifiers from child abuse report disclosures would be
extremely difficult due to the case-by-case specificity of such reports. They further
suggest that the government’s compelling interest is not only to keep reports hidden
from the media and public, but also to shield the reports from abusers, who might
seek retribution, and from a “child’s own community, family members, friends,
12
Ms. McCann adopted in full Ms. Barnes’ argument regarding the tailoring issue.
31
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 32
classmates, and neighbors,” who might stigmatize the identifiable individuals. Id. at
51–54.
We agree that separating identifying information from non-identifying
information would often be a difficult task. But whether the alternative means are
“difficult” is not the standard we apply in tailoring inquiries. The touchstone is
whether the state has shown that no alternative exists that is both “less restrictive”
than the existing law and would effectively achieve the state’s compelling interest.
Ashcroft, 542 U.S. at 665. We need not draw a “bright line” between identifying and
non-identifying information at this point in time, when the central question before us
is only whether a law limiting identifying disclosures alone—a law that would be
enforced case-by-case—could accomplish the state’s compelling interest. Defendants
have not presented any actual evidence for their assertion that Ms. Peck’s proposed
alternative would be ineffectual. In response to the various hypothetical examples
listed by the district court in which information from a report would be
straightforwardly non-identifying, such as the steps a caseworker took to respond to a
report, Defendants merely insist that someone out there could, in theory, still identify
the child based on that information. This is not proof; it is merely speculation, which
is not enough to meet Defendants’ burden under strict scrutiny.
Additionally, Defendants have failed to demonstrate that their understanding
of what qualifies as “identifying” information—that is, information that would allow
anyone, including friends and family, to identify the individuals involved—is the
right definition. It is possible that “identifying information” should be construed to
32
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 33
cover only such information that would allow members of the public to figure out the
individuals’ identities, which would make distinguishing between identifying and
non-identifying information much easier.13 Defendants have not provided any
authority or principles in support of their interpretation, and so they have simply
failed to convince us that their definition is correct. It is their burden to do so for
Section 307(4) to survive strict scrutiny
Furthermore, other sections of the Children’s Code directly contemplate the
possibility of public disclosures of information from child abuse reports that do not
identify individuals. Section 19-3-308 provides for the creation of Child Protection
Teams, which are directed to “publicly review the responses of public and private
agencies to each reported incident of child abuse or neglect” and “publicly report
nonidentifying information relating to any inadequate responses.” Colo. Rev. Stat.
§ 19-3-308(6)(f) (emphasis added). If Child Protection Teams are capable of
distinguishing between identifying and non-identifying information, then so too are
courts and prosecutors tasked with enforcing confidentiality requirements.
Defendants argue that the Child Protection Team provision is not inconsistent
with their claim because § 19-3-308 requires that the Child Protection Teams
publicly disclose information only “after a thoughtful dialogue and determination
regarding what details of a case may be identifying,” which does not endanger the
state’s interest in the same way that unilateral disclosure “by an individual or
13
We do not express an opinion on which definition of “identifying” is the correct
one, as this would require a detailed exercise of statutory interpretation.
33
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 34
advocate with a subjective agenda” would. Barnes Opening Br. at 58. But that is
again Defendants’ subjective, unproven understanding of § 19-3-308. The statute
itself does not include procedural safeguards to guarantee such a “thoughtful
dialogue,” and Child Protection Teams include members of the lay community who
are no less likely to have an agenda than someone like Ms. Peck. At bottom, the
allowance of disclosures of non-identifying information by Child Protection Teams
necessarily implies that it is possible to distinguish between identifying and non-
identifying information, rebutting the central argument proffered by Ms. Barnes
against Ms. Peck’s less-restrictive alternative.
Section 307’s enumerated exceptions to the confidentiality requirement are
also not sufficient to establish narrow tailoring. There is no dispute that Ms. Peck’s
proposed alternative of allowing non-identifying disclosures by private parties
narrows the confidentiality protections of Section 307(4), even when accounting for
the exceptions. Likewise, the fact that forty-eight other states have laws similar or
identical to Section 307, without any explanation of why those laws are written that
way, does not persuasively support a conclusion that allowing non-identifying
disclosures would be an unworkable accommodation to Colorado’s compelling
interests.14
14
Tennessee, the outlier state, makes confidential only information that “directly or
indirectly identif[ies] a child or family receiving services from the department or that
identify the person who made a report of harm.” Tenn. Code. Ann. § 37-5-107(a).
This statute’s existence undermines Defendants’ argument that Section 307(4) is
narrowly tailored, especially in the absence of any indication that Tennessee has lost
CAPTA funding as a result of its narrower statute.
34
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 35
In a final effort to convince us that Section 307(4) is narrowly tailored,
Defendants emphasize Section 307’s relationship with CAPTA, because they believe
that continued enforcement of Section 307 in its entirety is necessary for Colorado to
receive federal funds for its child protection system. However, that does not resolve
the question of whether Section 307(4) is narrowly tailored, either. It is no excuse
for a state that is violating the constitutional rights of its citizens to say “the federal
government is paying us to do it.” And in any event, Defendants have produced no
affirmative evidence that the federal government would in fact withhold CAPTA
funding were Section 307(4) to be taken off the books or narrowed to allow private
parties to disclose non-identifying information from child abuse records. To the
contrary, it appears to us that Colorado qualified for CAPTA funding before Section
307(4) was enacted in its current form in 2003.
Thus, Defendants have failed to disprove that a narrower version of Section
307, prohibiting and punishing only disclosures of identifying information from child
abuse reports, would adequately serve Colorado’s compelling interest. Because there
is a feasible and less restrictive alternative, Section 307(4) is not narrowly tailored to
the state’s compelling interest, so is facially unconstitutional and void.
III. Severability
The district court held, erroneously, that Section 307(1)(c) and Section 307(4)
covered the same speech and were both unconstitutional. As a result, the court did
not have occasion to address below whether Section 307(4) could be severed from
the rest of the statute, leaving Section 307(1)’s penalty—which we find to be
35
Appellate Case: 21-1125 Document: 010110722208 Date Filed: 08/09/2022 Page: 36
narrower, reaching only disclosures of identifying information from child abuse
reports—intact. See generally Colo. Rev. Stat. § 2-4-204 (imposing rules for
severing unconstitutional provisions of Colorado statutes); Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208–09 (2020) (discussing federal
severability rules). The parties also did not provide any briefing on severability, as
they apparently assumed that the two provisions would have the same scope.
Because we have held that only Section 307(4) is unconstitutional, whereas Section
307(1) was not properly challenged by Ms. Peck, we order a limited remand to allow
the district court to determine the severability of Section 307(4) in the first instance.
CONCLUSION
Based on the foregoing, we AFFIRM in part, striking down Section 307(4) as
unconstitutional; REVERSE in part, finding that Ms. Peck has not stated a valid
challenge to Section 307(1) and leaving that provision in effect; and REMAND for
the district court to assess whether the invalid Section 307(4) is severable from the
rest of the statute.
36