Money and the law: the court tinkers with the anti-harassment law | Business

Occasionally, the Colorado General Assembly decides to name a piece of legislation after an individual whose circumstances contributed to its passage. One such act, from 2015, is called Kiana Arellano’s Law.

Kiana Arellano, as a teenager, was the victim of vicious cyberbullying, resulting in a suicide attempt and permanent disability. Kiana Arellano’s law amended a section of Colorado law governing the crime of harassment. This law makes it a crime to direct communications at another person with the malicious intent to harass, annoy or alarm that person.

On March 28, the Colorado Supreme Court found that a sentence in that law — “in a manner intended to harass” — was too broad and crossed the line between constitutionally protected speech and unprotected speech. The court said a law is too broad “if it sweeps so completely that it substantially includes within its prohibitions constitutionally protected speech.”

The court did not declare the law unconstitutional. It simply removed the offensive phrase “in a manner intended to harass” from the law, leaving intact the prohibitions against unprotected communications that threaten to cause bodily harm or property damage, or that are obscene. In its opinion, the court pointed to various situations where communications made with the intent to annoy or alarm were protected by the First Amendment and did not violate the Constitution, such as political speech or unfavorable restaurant reviews.

The case in question here began when a man, Alfred Moreno, posted derogatory information about his ex-wife on Facebook. Moreno was charged with harassment in Garfield County, but the judge assigned to his case found that there was indeed a constitutional flaw in the law and dismissed the charge. The prosecution appealed.

Since this case started in county court, the appeal went to the next higher court, the district court, which upheld the county court’s decision.

This decision was appealed to the Supreme Court, which has jurisdiction over cases from a district court involving an alleged constitutional defect, without having to stop at the Court of call on the way. The Supreme Court upheld the district court.

An interesting aspect (at least for lawyers) of this case is that Moreno did not have to argue that the law was unconstitutional as applied to him. Rather, his argument was that the law, as it applied to anyone, was unconstitutional because of its overbroad scope in protected speech.

Colorado’s harassment law continues to be full of crazy words and regularly presents challenges to the courts.

For example, a January ruling, again by the Colorado Supreme Court, found that a person accused of harassment could, in limited circumstances, assert self-defense in response to the charge. (It was a road rage case in which the defendant punched the other driver in the face, after being punched himself.) The sole dissenting judge in the case held that he n It made no sense to create an affirmative defense out of the identical action of arrest—a punch in the face.

Instead, the judge argued, the defendant could introduce the same evidence to rebut one of the elements of a harassment charge – intent – ​​which the prosecution must prove beyond a reasonable doubt to obtain. a conviction.

Thus, there is no need for a separate and confusing affirmative defense and, after proper instruction on applicable law, the jury can be left to sort it all out.

As for Kiana Arellano, she died in February at the age of 23.

Jim Flynn is with the Colorado Springs company of Flynn & Wright LLC. You can contact him at

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