Colorado’s tourism slogan, “it’s our nature,” has a menacing meaning for advocates. Colorado is now arguably the most anti-free speech state in the union, pushing an array of measures attacking those with opposing social and political views. The irony is that the state has proved a bonanza for free speech with spectacular legal failures that reaffirmed rather than restricted the First Amendment. Now, the Democratic legislature and governor are back with new unconstitutional measures, including a requirement that lawyers not share information with federal immigration officials as a condition for filing with state courts.
Colorado legislators and judges have spent years attacking core free speech and associational rights. In the last election, the state attempted to strip President from the ballot with the support of a majority of its Democratic-controlled state supreme court. (The effort was later declared unconstitutional in a unanimous decision by the Supreme Court. Colorado could not even get any of the liberal justices to support its actions).
The state is responsible for the efforts to force business owners to create products celebrating same-sex marriages. That effort led to the Masterpiece Cake Shop case and then the 303 Creative case. Even after losing earlier efforts against Masterpiece Cake Shop owner Jack Phillips, the targeting of its owner continued for years. That litigation proved to be a tremendous victory for free speech.
Colorado has also been leading the fight to limit the speech and associational rights of professionals and parents on “conversion therapy.” Recently, that effort led to another massive loss before the Supreme Court in Chiles v. Salazar, resulting in a resounding 8-1 rejection of Colorado’s position. It could only secure the vote of Justice Ketanji Brown Jackson.
After that near-unanimous ruling against the state, Colorado responded by doubling down with legislation to expose any counselors engaged in conversion therapy to heightened legal liability, including waiving any statute of limitations. That case could also result in legal challenges as Colorado continues to spend a fortune on seeking to curtail free speech rights.
Now, the state is defending a new public accommodation law, HB 25-1312, that defines “gender expression” to include “chosen name” and “how an individual chooses to be addressed.”
As in past Colorado cases, the state secured favorable rulings from district court judges. President -nominated U.S. District Judge Regina Rodriguez refused to grant a preliminary injunction against the Colorado public accommodation law.
The Alliance Defending Freedom is appealing the matter to the United States Court of Appeals for the Tenth Circuit on behalf of its clients, XX-XY Athletics and Born Again Used Books. Other appeals are also being brought in the matter.
At the same time, the state has moved forward on Senate Bill 25-276, which imposes a threshold condition for to certify annually “under penalty of perjury,” that they will not use “personal identifying information” from the system to help federal immigration enforcement.
The provision is vague on critical points in seeking to bar any information that might identify an individual or cooperating or assisting in federal enforcement. While the rule allows for compliance with federal law and court orders, it leaves considerable ambiguity on the scope of the rule.
It is common for courts to consider specific motions to seal certain information, but such motions must state a legal basis for such withholding of information in a given case.
Lawyers have already objected to the compelled endorsement of the state’s anti-ICE policies as a condition to their representing their clients, as well as a .
The law will likely face an immediate challenge not only from lawyers and clients but also from the federal government.
 investigative columnist Jimmy Sengenbe
