overbreadth doctrine in Colorado

2016Because its application results in the facial invalidation of a statute, 7 the overbreadth doctrine is “strong medicine” that is employed “only as a last resort.” Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613 ); see also Hickman, 988 P.2d at 636 . ¶14 To succeed on an overbreadth challenge, a litigant must show that the overbreadth of the statute is both real and substantial, judged in relation to the statute’s plainly legitimate sweep.

2016Because its application results in the facial invalidation of a statute, 7 the overbreadth doctrine is “strong medicine” that is employed “only as a last resort.” Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613 ); see also Hickman, 988 P.2d at 636 . ¶14 To succeed on an overbreadth challenge, a litigant must show that the overbreadth of the statute is both real and substantial, judged in relation to the statute’s plainly legitimate sweep.

2022Indeed, the overbreadth doctrine is “strong medicine” that we employ “only as a last resort.” Graves, ¶ 13, 368 P.3d at 323 (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)).

2022Indeed, the overbreadth doctrine is "strong medicine" that we employ "only as a last resort." Graves , ¶ 13, 368 P.3d at 323 (quoting New York v. Ferber , 458 U.S. 747, 769 (1982)).

2016The requirement of “substantial” overbreadth is derived from the purpose and nature of the doctrine: To justify facial invalidation of the statute, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Taxpayers for Vincent, 466 U.S. at 801 . ¶15 In examining an overbreadth challenge, a court must first construe the challenged statute before it can determine whether a statute “criminalizes a substantial amount of protected expressive activity.” United States v. Williams, 553 U.S. 285, 297

2016The requirement of “substantial” overbreadth is derived from the purpose and nature of the doctrine: To justify facial invalidation of the statute, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Taxpayers for Vincent, 466 U.S. at 801 . ¶15 In examining an overbreadth challenge, a court must first construe the challenged statute before it can determine whether a statute “criminalizes a substantial amount of protected expressive activity.” United States v. Williams, 553 U.S. 285, 297

2019If it does not, then the overbreadth challenge must fail." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489 , 494, 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982) (footnote omitted). ¶81 Here, construing section 18-6-403 so broadly as to encompass a teenager's request that another teenager send a nude selfie strikes me as potentially implicating a juvenile's right to free speech.

2019If it does not, then the overbreadth challenge must fail." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U.S. 489 , 494, 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982) (footnote omitted). ¶81 Here, construing section 18-6-403 so broadly as to encompass a teenager's request that another teenager send a nude selfie strikes me as potentially implicating a juvenile's right to free speech.

2016See, e.g., People v. Shepard, 983 P.2d 1 , 3–4 (Colo. 1999) (rejecting overbreadth challenge to wiretapping statute, reasoning that the possibility that the statute “infringes upon a parent’s right to privacy in familial matters” was slight); People v. Gross, 830 P.2d 933, 939 (Colo. 1992) (rejecting overbreadth challenge to definition of “knife” within the statute prohibiting possession of a weapon by a convicted felon, without reaching determination of whether possession of a screwdriver was constitutionally protected conduct).

2016See, e.g., People v. Shepard, 983 P.2d 1, 3-4 (Colo.1999) (rejecting overbreadth challenge to wiretapping statute, reasoning that the possibility that the statute "infringes upon a parent's right to privacy in familial matters" was slight); People v. Gross, 830 P.2d 933, 939 (Colo.1992) (rejecting overbreadth challenge to definition of "knife" within the statute prohibiting possession of a weapon by a, convicted felon, without reaching determination of whether possession of a screwdriver was constitutionally protected conduct).

2014However, facial challenges are disfavored and 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 Court'" Sequin, 199 Colo. at 384 , 609 P.2d at 624 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1978)); see also United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) (noting the Court has not recognized an overbreadth doctrine outside the limited context of the Firs

2014However, facial challenges are disfavored and 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 Court'" Sequin, 199 Colo. at 384 , 609 P.2d at 624 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1978)); see also United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987) (noting the Court has not recognized an overbreadth doctrine outside the limited context of the Firs

2020See also People v. Garcia, 595 P.2d 228, 230 (Colo. 1979) (holding that overbreadth applies to restrictions on the right to bear arms).

1999See People v. Rowerdink, 756 P.2d 986, 990 (Colo.1988); People v. Garcia, 197 Colo. 550, 552 , 595 P.2d 228, 230 (1979).

2012People v. Mason, 642 P.2d 8, 13 (Colo.1982).

1985“The overbreadth doctrine prevents the state from regulating conduct by encroaching on basic constitutional rights, such as speech and assembly, which may be within the sweep of the statutory prohibition.” People v. Andrews, 632 P.2d 1012, 1016 (Colo.1981); see Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973); Grayned v. City of Rockford, 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972); People v. Mason, 642 P.2d 8 (Colo. 1982).

2016The requirement of “substantial” overbreadth is derived from the purpose and nature of the doctrine: To justify facial invalidation of the statute, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Taxpayers for Vincent, 466 U.S. at 801 . ¶15 In examining an overbreadth challenge, a court must first construe the challenged statute before it can determine whether a statute “criminalizes a substantial amount of protected expressive activity.” United States v. Williams, 553 U.S. 285, 297

2016The requirement of “substantial” overbreadth is derived from the purpose and nature of the doctrine: To justify facial invalidation of the statute, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Taxpayers for Vincent, 466 U.S. at 801 . ¶15 In examining an overbreadth challenge, a court must first construe the challenged statute before it can determine whether a statute “criminalizes a substantial amount of protected expressive activity.” United States v. Williams, 553 U.S. 285, 297

2016See, e.g., People v. Shepard, 983 P.2d 1 , 3–4 (Colo. 1999) (rejecting overbreadth challenge to wiretapping statute, reasoning that the possibility that the statute “infringes upon a parent’s right to privacy in familial matters” was slight); People v. Gross, 830 P.2d 933, 939 (Colo. 1992) (rejecting overbreadth challenge to definition of “knife” within the statute prohibiting possession of a weapon by a convicted felon, without reaching determination of whether possession of a screwdriver was constitutionally protected conduct).

2016See, e.g., People v. Shepard, 983 P.2d 1, 3-4 (Colo.1999) (rejecting overbreadth challenge to wiretapping statute, reasoning that the possibility that the statute "infringes upon a parent's right to privacy in familial matters" was slight); People v. Gross, 830 P.2d 933, 939 (Colo.1992) (rejecting overbreadth challenge to definition of "knife" within the statute prohibiting possession of a weapon by a, convicted felon, without reaching determination of whether possession of a screwdriver was constitutionally protected conduct).

2016Broadrick, 413 U.S. at 612 ; see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 , 798–99 (1984) (tracing the doctrine to Thornhill v. Alabama, 310 U.S. 88 (1940)); People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999) (“[A] party may challenge a law as overbroad regardless of whether that party’s speech is constitutionally protected.”); Wilder, 960 P.2d at 703 (“Overbroad laws may be challenged even by parties whose speech is not protected by the First Amendment.”).

2016Broadrick, 413 U.S. at 612 , 93 S.Ct. 2908 ; see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99 , 104 S.Ct. 2118 , 80 L.Ed.2d 772 (1984) (tracing the doctrine to Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940)); People v. Baer, 973 P.2d 1225, 1231 (Colo.1999) ("[A] party may challenge a law as overbroad regardless of whether that party's speech is constitutionally protected."); Wilder, 960 P.2d at 703 ("Overbroad laws may be challenged even by parties whose speech is not protected by the First Amendment.").

2007In light of the fundamental nature of the rights implicated by the overbreadth doctrine, "a heightened level of scrutiny is involved in over-breadth analysis." [People v. Becker, 759 P.2d 26, 29 (Colo.1988)].

1994See People v. Becker, 759 P.2d 26, 30 (Colo.1988).

2016Broadrick, 413 U.S. at 612 ; see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 , 798–99 (1984) (tracing the doctrine to Thornhill v. Alabama, 310 U.S. 88 (1940)); People v. Baer, 973 P.2d 1225, 1231 (Colo. 1999) (“[A] party may challenge a law as overbroad regardless of whether that party’s speech is constitutionally protected.”); Wilder, 960 P.2d at 703 (“Overbroad laws may be challenged even by parties whose speech is not protected by the First Amendment.”).

2016Broadrick, 413 U.S. at 612 , 93 S.Ct. 2908 ; see also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99 , 104 S.Ct. 2118 , 80 L.Ed.2d 772 (1984) (tracing the doctrine to Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940)); People v. Baer, 973 P.2d 1225, 1231 (Colo.1999) ("[A] party may challenge a law as overbroad regardless of whether that party's speech is constitutionally protected."); Wilder, 960 P.2d at 703 ("Overbroad laws may be challenged even by parties whose speech is not protected by the First Amendment.").

2016People v. Shell, 148 P.3d 162, 174 (Colo. 2006).

2016People v. Shell, 148 P.3d 162, 174 (Colo.2006).

2016New York v. Ferber, 458 U.S. 747 , 768–69 (1982); Dombrowski v. Pfister, 380 U.S. 479 , 486–87 (1965) (noting that the Court has fashioned the overbreadth exception to the usual rules governing standing because of the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible to sweeping and improper application); see also Wilder, 960 P.2d at 703 (“Such facial challenges are permitted to protect the rights of third parties whose First Amendment rights may be ‘chilled’ by the law’s overbreadth.”).

2016R-1 v. Wilder, 960 P.2d 695 , 702–03 (Colo. 1998). 6 ¶13 The overbreadth doctrine represents a departure from “traditional rules of standing” in that it permits a litigant to challenge a statute not because his own constitutional rights have been violated, but because the very existence of an overly broad statute may deter others from exercising their First Amendment rights.

1988The overbreadth doctrine “prevents the state from regulating conduct by encroaching on basic constitutional rights, such as speech and assembly, which may be within the sweep of the statutory prohibition.” People v. Andrews, 632 P.2d 1012, 1016 (Colo.1981) (quoted in People v. Aalbu, 696 P.2d 796, 805 (Colo.1985)).

1985“The overbreadth doctrine prevents the state from regulating conduct by encroaching on basic constitutional rights, such as speech and assembly, which may be within the sweep of the statutory prohibition.” People v. Andrews, 632 P.2d 1012, 1016 (Colo.1981); see Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973); Grayned v. City of Rockford, 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972); People v. Mason, 642 P.2d 8 (Colo. 1982).

2016Because its application results in the facial invalidation of a statute, 7 the overbreadth doctrine is “strong medicine” that is employed “only as a last resort.” Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613 ); see also Hickman, 988 P.2d at 636 . ¶14 To succeed on an overbreadth challenge, a litigant must show that the overbreadth of the statute is both real and substantial, judged in relation to the statute’s plainly legitimate sweep.

2016Because its application results in the facial invalidation of a statute, 7 the overbreadth doctrine is “strong medicine” that is employed “only as a last resort.” Ferber, 458 U.S. at 769 (quoting Broadrick, 413 U.S. at 613 ); see also Hickman, 988 P.2d at 636 . ¶14 To succeed on an overbreadth challenge, a litigant must show that the overbreadth of the statute is both real and substantial, judged in relation to the statute’s plainly legitimate sweep.

2007In Whimbush v. People, 869 P.2d 1245, 1248 (Colo.1994), the supreme court held that the criminal extortion statute then in effect was facially overbroad because it included within its reach both protected and unprotected speech.

1994Whimbush v. People, 869 P.2d 1245, 1247-48 (Colo.1994).

1999Because of the effects of striking down a statute on its face as a result of a challenge by a person whose own conduct may not be protected by the First Amendment, courts recognize the overbreadth doctrine as “strong medicine,” and the doctrine is applied only as a “last resort.” Id. at 769 , 102 S.Ct. 3348 ; Ryan, 806 P.2d at 939 .

1999Because of the effects of striking down a statute on its face as a result of a challenge by a person whose own conduct may not be protected by the First Amendment, courts recognize the overbreadth doctrine as "strong medicine," and the doctrine is applied only as a "last resort." Id. at 769 , 102 S.Ct. 3348 ; Ryan, 806 P.2d at 939 .

2015However, "[alll overbreadth challenges are facial challenges" because "[a] party alleging overbreadth claims that although a statute did not violate his or her First Amendment rights, it would violate the First Amendment rights of hypothetical third parties if applied to them," and thus "an overbreadth challenge by its nature assumes that the measure is constitutional as applied to the party before the court." Farrell v. Burke, 449 F.3d 470, 498 (2d Cir.2006) (Soto-mayor, J.).

2012See Forrell, 449 F.3d at 499 . 4 30 Defendant simply asserts, without developing any further argument or providing an overbreadth analysis, that the prohibition against possessing pornography is overbroad and "is not narrowly tailored and is unduly restrictive [and as] such it impermissibly infringes upon [defendant's] First Amendment rights." However, parties must do more than make conclusory assertions; they must present reasoned analysis.

1999See People v. Rowerdink, 756 P.2d 986, 990 (Colo.1988); People v. Garcia, 197 Colo. 550, 552 , 595 P.2d 228, 230 (1979).

1988Rowerdink , at 990; Garcia , 197 Colo, at 552, 595 P.2d at 230 (1979).

2026See People v. Lee, 717 P.2d 493, 495 (Colo. 1986) (“Generally, the overbreadth doctrine is applied when legislative enactments threaten the exercise of fundamental or express constitutional rights, such as first amendment freedoms.”); see also People v. Conlon, 2025 COA 79M , ¶ 85 (“[A] statute is facially overbroad if it sweeps so comprehensively as to substantially include within its proscriptions constitutionally protected speech.”); People v. Graves, 2016 CO 15, ¶ 12 (a statute is overbroad if its scope is so comprehensive that it restricts or has a chilling effect on speech 11 protected b

2022When a litigant brings a facial challenge on 8 both overbreadth and vagueness grounds, we begin with the overbreadth analysis. [4] See id. at ¶ 25, 368 P.3d at 326 . 2.

2022Overbreadth Doctrine ¶14 The overbreadth doctrine establishes contours for the free-speech provisions of our state and federal constitutions. “[A] statute is facially overbroad if it sweeps so comprehensively as to substantially include within its proscriptions constitutionally protected speech.” Bolles, 541 P.2d at 82 . ¶15 The prosecution contends that Moreno lacks standing to bring this facial challenge because his conduct is clearly regulated by the statute, and therefore, he should not be able to attack the statute on the ground that prosecution of another defendant under the statute woul

2022Overbreadth Doctrine ¶14 The overbreadth doctrine establishes contours for the free-speech provisions of our state and federal constitutions. " [A] statute is facially overbroad if it sweeps so comprehensively as to substantially include within its proscriptions constitutionally protected speech." Bolles , 541 P.2d at 82 . ¶15 The prosecution contends that Moreno lacks standing to bring this facial challenge because his conduct is clearly regulated by the statute, and therefore, he should not be able to attack the statute on the ground that prosecution of another defendant under the statute wo

2005Cf. People v. Batchelor, 800 P.2d 599, 601, n. 2 (Colo.1990) (deciding an over-breadth claim on the merits rather than on standing because "the Colorado doctrine of standing to challenge overbreadth has become more complex than the overbreadth doctrine.").

1994The court rejected the overbreadth challenge to the statute, finding that the statute sufficiently narrowed the scope of its prohibitions to avoid “criminal-iz[ing] an intolerable range of constitutionally protected conduct.” Batchelor, 800 P.2d at 602 (quoting Osborne v. Ohio, 495 U.S. 103, 112 , 110 S.Ct. 1691, 1697-98 , 109 L.Ed.2d 98 (1990)).

1990Compare People v. Weeks, 197 Colo. 175, 179 , 591 P.2d 91, 94 (1979) (reserving facial overbreadth challenges to "those defendants whose speech is at the fringes of that activity which the statute is designed to regulate.

1990Compare People v. Weeks, 197 Colo. 175, 179 , 591 P.2d 91, 94 (1979) (reserving facial overbreadth challenges to "those defendants whose speech is at the fringes of that activity which the statute is designed to regulate.

1987See People v. Bridges, 620 P.2d 1, 5 (Colo.1980); People v. Garcia, 189 Colo. 347, 350 , 541 P.2d 687, 689 (1975).

1984People v. Allen, 657 P.2d 447 (Colo.1983); People v. Bridges, 620 P.2d 1 (Colo.1980); People v. Weeks, 197 Colo. 175 , 591 P.2d 91 (1979).

2020And in Ford, an as-applied challenge to the same statute, we expressly stated that “the specific limitations of [article II, section 13] must be superimposed on the statute’s otherwise valid language,” and that a state may “validly restrict or regulate the right to possess arms where the purpose of such possession is not a constitutionally protected one” such as defense of home, person, or property. 568 P.2d at 28 (emphases added); see also City of Lakewood v. Pillow, 501 P.2d 744, 745 (Colo. 1972) (striking down ordinance that made it unlawful for a person to possess a firearm in a vehicle or

1979City of Lakewood v. Pillow, 180 Colo. 20 , 501 P.2d 744 (1972).

1999In Janousek , we held that a person “has no constitutionally protected right to make threats of violence to a public servant.” 871 P.2d at 1193 . 7 The category of unprotected threats, however, cannot conveniently be defined as “threats to commit immediate bodily harm” or “threats of violence,” because some unprotected threats do not meet these definitions.

1994In First Amendment cases, an overbreadth challenge will not void a statute on its face unless the statute substantially chills constitutionally protected expression or activity- Janousek, 871 P.2d at 1193 (citations omitted); see Ryan, 806 P.2d at 939 ; Bolles v. People, 189 Colo. 394, 397 , 541 P.2d 80, 82 (1975). 3 In determining whether a statute is facially overbroad, it is necessary to examine the extent to which the statute could prohibit speech beyond the reach of governmental regulation.