First Amendment claim in Colorado

2016Walker v. Van Laningham , 148 P.3d 391, 397 (Colo. App. 2006). ¶14 The First Amendment immunity defense raises the question of whether a plaintiff’s complaint states a claim upon which relief can be granted; therefore, courts should give the parties a reasonable opportunity to present all material pertinent to the motion and, when appropriate, should treat the motion as one for summary judgment.

2016Walker v. Van Laningham , 148 P.3d 391, 397 (Colo. App. 2006). ¶14 The First Amendment immunity defense raises the question of whether a plaintiff’s complaint states a claim upon which relief can be granted; therefore, courts should give the parties a reasonable opportunity to present all material pertinent to the motion and, when appropriate, should treat the motion as one for summary judgment.

2016But except in the context of the First Amendment, “a person to whom a statute was constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.” Cisneros , ¶39 (citation omitted); see also Bolles v. People , 189 Colo. 394, 396 , 541 P.2d 80, 82 (1975) (First Amendment exception).

2016But except in the context of the First Amendment, “a person to whom a statute was constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.” Cisneros , ¶39 (citation omitted); see also Bolles v. People , 189 Colo. 394, 396 , 541 P.2d 80, 82 (1975) (First Amendment exception).

2005We do not address various claims that could be brought by a minister against his or her church.”); see also Minker v. Baltimore Annual Conference, supra, 894 F.2d at 1360-61 (plaintiffs contract claim against church not automatically barred by the First Amendment where claim could potentially be addressed without analysis of church doctrine); Moses v. Diocese of Colo., 863 P.2d 310, 320-21 (Colo.1993) (claim of negligent hiring of a minister is actionable because it does not require interpretation or weighing of religious belief).

1994See Moses v. Diocese of Colorado, 863 P.2d 310 , 319 n. 10 (Colo.1993) (reviewing First Amendment issue not properly preserved in the trial court); Schuster v. Zwicker, 659 P.2d 687, 690 (Colo. 1983) (recognizing discretionary authority to correct a fundamental error); Patterson v. Cronin, 650 P.2d 531 , 535 n. 9 (Colo. 1982) (noting that the court was not precluded from addressing a due process argument although it was not ruled on by the court below because it was raised in the pleadings); Robinson v. People, 173 Colo. 113, 116 , 476 P.2d 262, 263 (1970) (addressing a question not raised in

2016But except in the context of the First Amendment, “a person to whom a statute was constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.” Cisneros , ¶39 (citation omitted); see also Bolles v. People , 189 Colo. 394, 396 , 541 P.2d 80, 82 (1975) (First Amendment exception).

2016But except in the context of the First Amendment, “a person to whom a statute was constitutionally applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the [c]ourt.” Cisneros , ¶39 (citation omitted); see also Bolles v. People , 189 Colo. 394, 396 , 541 P.2d 80, 82 (1975) (First Amendment exception).

2012Compare Smith v. Fruin, 28 F.3d 646 , 649 n. 3 (7th Cir.1994) ("[Ejven minor forms of retaliation can support a First Amendment claim, for they may have just as much of a chilling effect on speech as more drastic measures."), 15 with Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cnty., 587 F.3d 1223, 1243 (10th Cir.2009) ("An investigation of potential miseon-duct ... will generally not constitute an adverse employment action."), and Carrero v. Robinson, 05cv-02414, 2007 WL 1655350 , at *10 (D.Colo.

2012Compare Smith v. Fruin, 28 F.3d 646 , 649 n. 3 (7th Cir.1994) ("[Ejven minor forms of retaliation can support a First Amendment claim, for they may have just as much of a chilling effect on speech as more drastic measures."), 15 with Couch v. Bd. of Trs. of Mem'l Hosp. of Carbon Cnty., 587 F.3d 1223, 1243 (10th Cir.2009) ("An investigation of potential miseon-duct ... will generally not constitute an adverse employment action."), and Carrero v. Robinson, 05cv-02414, 2007 WL 1655350 , at *10 (D.Colo.

2012Brisben Cos., Inc., 90 P.3d 859, 870 (Colo.2004) ("[Slummary judgment is often the appropriate procedure for determining the merits of a First Amendment defense.").

2012Brisben Cos., Inc., 90 P.3d 859, 870 (Colo.2004) ("[Slummary judgment is often the appropriate procedure for determining the merits of a First Amendment defense.").

2004Citing § 14-10-130(1) and the absence of any “suggestion whatsoever that the children’s mental or physical health was at risk,” a division of this court held that the trial court had “improperly interfered with mother’s right to determine her children’s religious training.” In re Marriage of Oswald, supra, 847 P.2d at 253 ; see also In re Marriage of Jaeger, 883 P.2d 577 (Colo.App.1994)(rejecting noncustodial father’s First Amendment challenge to trial court order granting mother’s request that child receive counseling from a mental health professional who was not. a member of father’s faith).

2004Citing § 14-10-130(1) and the absence of any "suggestion whatsoever that the children's mental or physical health was at risk," a division of this court held that the trial court had "improperly interfered with mother's right to determine her children's religious training." In re Marriage of Oswald, supra, 847 P.2d at 253 ; see also In re Marriage of Jaeger, 883 P.2d 577 (Colo.App.1994)(rejecting noncustodial father's First Amendment challenge to trial court order granting mother's request that child receive counseling from a mental health professional who was not a member of father's faith).

1996In Destefano v. Grabrian, we held that when a defendant raises the Free Exercise Clause of the First Amendment as a defense, “the threshold question is whether the conduct of the defendant is religious.” 763 P.2d 275, 283 (Colo.1988) (citing Wiscon *1321 sin v. Yoder, 406 U.S. 205, 215-16 , 92 S.Ct. 1526, 1533-84 , 32 L.Ed.2d 15 (1972); Note, Intentional Infliction of Emotional Distress by Spiritual Counselors: Can Outrageous Conduct be “Free Exercise”?, 84 Mich.L.Rev. 1269, 1302 (1986)).

1995There, in a case involving alleged sexual misconduct by a Roman Catholic priest, the court recognized that: "If the alleged misconduct of [the defendant] was dictated by his sincerely held religious beliefs or was consistent with the practice of his religion, we would have to resolve a difficult First Amendment issue." Destefano v. Grabrian, supra, at 284.

1982While we have stated that Article II, Section 4, “em-bod[ies] the same values of free exercise and governmental non-involvement secured by the religious clauses of the First Amendment” and “echoes the principle of constitutional neutrality underscoring the First Amendment,” Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072, 1081, 1082 (Colo.1982) (Americans United), determination of the First Amendment challenge will not necessarily be dispositive of the state constitutional question.

1982While we have stated that Article II, Section 4, “em-bod[ies] the same values of free exercise and governmental non-involvement secured by the religious clauses of the First Amendment” and “echoes the principle of constitutional neutrality underscoring the First Amendment,” Americans United for Separation of Church and State Fund, Inc. v. State, 648 P.2d 1072, 1081, 1082 (Colo.1982) (Americans United), determination of the First Amendment challenge will not necessarily be dispositive of the state constitutional question.

1995Turner, ___ U.S. at ___, 114 S.Ct. at 2458-59 . [8] *312 Regulations void of any of the invidious dangers of censorship are therefore subject to less rigorous review than are regulations that prohibit expression based on the message. [9] See also Ward v. Rock Against Racism, 491 U.S. 781 , 798 n. 6, 109 S.Ct. 2746, 2757-58, n. 6 , 105 L.Ed.2d 661 (1989) ("While time, place, or manner regulations must also be `narrowly tailored' in order to survive First Amendment challenge, we have never applied strict scrutiny in this context."); Martin H.

1995Turner, ___ U.S. at ___, 114 S.Ct. at 2458-59 . [8] *312 Regulations void of any of the invidious dangers of censorship are therefore subject to less rigorous review than are regulations that prohibit expression based on the message. [9] See also Ward v. Rock Against Racism, 491 U.S. 781 , 798 n. 6, 109 S.Ct. 2746, 2757-58, n. 6 , 105 L.Ed.2d 661 (1989) ("While time, place, or manner regulations must also be `narrowly tailored' in order to survive First Amendment challenge, we have never applied strict scrutiny in this context."); Martin H.

2004Id. at 670 , 111 S.Ct. 2513 .

2004Id. at 670 , 111 S.Ct. 2513 .

2026Hernandez’s counsel argued that her statements were not true threats and were protected speech, while the People countered that, based on the totality of the circumstances, her statements were threats. 6 ¶ 10 The district court noted that if it “were assessing the sufficiency of the complaint without applying a First Amendment analysis, the charge appear[ed] to be facially sufficient to support th[e] prosecution,” but because the court was required to determine whether Hernandez’s alleged “credible threat” was a “true threat of violence” outside the bounds of First Amendment protection and pun

2026Hernandez’s counsel argued that her statements were not true threats and were protected speech, while the People countered that, based on the totality of the circumstances, her statements were threats. 6 ¶ 10 The district court noted that if it “were assessing the sufficiency of the complaint without applying a First Amendment analysis, the charge appear[ed] to be facially sufficient to support th[e] prosecution,” but because the court was required to determine whether Hernandez’s alleged “credible threat” was a “true threat of violence” outside the bounds of First Amendment protection and pun

2025See People v. Schnorenberg, 2025 CO 43, ¶ 60 (jury instructions that substantially track the language of the statute describing the crime are sufficient). ¶ 22 We further conclude that the trial court did not abuse its discretion by failing to provide the jury with a different First Amendment instruction.

2025See People v. Schnorenberg, 2025 CO 43, ¶ 60 (jury instructions that substantially track the language of the statute describing the crime are sufficient). ¶ 22 We further conclude that the trial court did not abuse its discretion by failing to provide the jury with a different First Amendment instruction.

2025See Newell, 192 P.3d at 535 . ¶ 15 “Under the First Amendment, the government may regulate the content of constitutionally protected speech in order to promote a compelling interest as long as it chooses the least restrictive means to further that interest.” Id.

2025See Newell, 192 P.3d at 535 . ¶ 15 “Under the First Amendment, the government may regulate the content of constitutionally protected speech in order to promote a compelling interest as long as it chooses the least restrictive means to further that interest.” Id.

2023See Kuhn, ¶ 1 n.1, 418 P.3d at 480 n.1 (emphasizing “the narrow nature of our review under section 1-1-113” and declining to address a First Amendment challenge to Colorado’s residency requirement for petition Candidates/packets/2024PresidentialPrimaryGuide.pdf [https:// perma.cc/ KK3L-X8BM] (listing the “basic qualifications” for the presidency including the qualifications from Article II and the Twenty-Second Amendment but not mentioning the Fourteenth Amendment’s disqualification for insurrectionists). 4 circulators “because such claims exceed this court’s jurisdiction in a section 1-1-113

2023See Kuhn, ¶ 1 n.1, 418 P.3d at 480 n.1 (emphasizing “the narrow nature of our review under section 1-1-113” and declining to address a First Amendment challenge to Colorado’s residency requirement for petition Candidates/packets/2024PresidentialPrimaryGuide.pdf [https:// perma.cc/ KK3L-X8BM] (listing the “basic qualifications” for the presidency including the qualifications from Article II and the Twenty-Second Amendment but not mentioning the Fourteenth Amendment’s disqualification for insurrectionists). 4 circulators “because such claims exceed this court’s jurisdiction in a section 1-1-113

2023See Independent Voters, Denver Metro Chamber of Com., https:// denverchamber.org/policy/policy-independent-voters-white-paper/ [https:// perma.cc/T2TT-A2UD] (The Denver Chamber of Commerce, which launched Proposition 107, noted that a semi-open primary system, because it would permit 16 unaffiliated voters to affiliate with the Republican or Democratic parties in a presidential primary, could face legal challenges based on parties’ First Amendment rights of association.); see also Christopher Jackson, Colorado Election Law Update, 46-SEP Colo. Law. 52, 53 (2017) (noting that the law was likely

2023See Independent Voters, Denver Metro Chamber of Com., https:// denverchamber.org/policy/policy-independent-voters-white-paper/ [https:// perma.cc/T2TT-A2UD] (The Denver Chamber of Commerce, which launched Proposition 107, noted that a semi-open primary system, because it would permit 16 unaffiliated voters to affiliate with the Republican or Democratic parties in a presidential primary, could face legal challenges based on parties’ First Amendment rights of association.); see also Christopher Jackson, Colorado Election Law Update, 46-SEP Colo. Law. 52, 53 (2017) (noting that the law was likely

2022Comm’rs, 656 F.2d 999, 1000-01 (5th Cir. 1981) (permanent discontinuance of a school prayer reading did not moot First Amendment claim because the school board disputed the constitutional issue up until the day of trial and discontinued the practice only after suit was filed). ¶ 34 True, as the DOC points out, courts may “accord ‘more solicitude’ to government officials” than to private actors when 14 evaluating a claim that voluntary conduct has mooted a case.

2020JUSTICE MÁRQUEZ dissents, and JUSTICE GABRIEL and JUSTICE HART join in the dissent. 25 JUSTICE MÁRQUEZ, dissenting. ¶51 In my view, we need not resolve today the question we left open in Castillo v. People, 2018 CO 62, ¶ 37 , 421 P.3d 1141, 1147 , because regardless of the quantum of proof required to justify an instruction on a statutory exception to self-defense, it was reversible error to give the instruction in this case. ¶52 The provocation exception defeats a defendant’s claim of self-defense where the defendant goads his victim into attacking him first to give the defendant an excuse to

2020The trial 1 Because I would reverse, I would vacate the court of appeals opinion, including its First Amendment analysis. 2 court should not, however, “instruct on abstract principles of law unrelated to the issues in controversy, nor . . . on doctrines or principles which are based upon fanciful interpretations of the facts unsupported by the record.” Id., 421 P.3d at 1147 (omission in original) (quoting People v. Alexander, 663 P.2d 1024, 1032 (Colo. 1983)); see also Barnhisel v. People, 347 P.2d 915, 917 (Colo. 1959) (“[A]n instruction, although in every respect announcing a correct princip

2020The trial 1 Because I would reverse, I would vacate the court of appeals opinion, including its First Amendment analysis. 2 court should not, however, “instruct on abstract principles of law unrelated to the issues in controversy, nor . . . on doctrines or principles which are based upon fanciful interpretations of the facts unsupported by the record.” Id., 421 P.3d at 1147 (omission in original) (quoting People v. Alexander, 663 P.2d 1024, 1032 (Colo. 1983)); see also Barnhisel v. People, 347 P.2d 915, 917 (Colo. 1959) (“[A]n instruction, although in every respect announcing a correct princip

2020The trial 1 Because I would reverse, I would vacate the court of appeals opinion, including its First Amendment analysis. 2 court should not, however, “instruct on abstract principles of law unrelated to the issues in controversy, nor . . . on doctrines or principles which are based upon fanciful interpretations of the facts unsupported by the record.” Id., 421 P.3d at 1147 (omission in original) (quoting People v. Alexander, 663 P.2d 1024, 1032 (Colo. 1983)); see also Barnhisel v. People, 347 P.2d 915, 917 (Colo. 1959) (“[A]n instruction, although in every respect announcing a correct princip