Colorado high court upholds law prohibiting threats of retaliation

Wednesday, November 17, 1999

A state law that prohibits the making of threats against witnesses and victims does not violate the First Amendment, the Colorado Supreme Court has ruled.

The decision came in the case of Glen Hickman, charged with one count of retaliation against a witness or victim after he allegedly set off a firecracker at his ex-wife’s home and then told her: “The next one’s gonna blow your head off.”

The law under which Hickman was charged specifies that “an individual commits retaliation against a witness or victim if such person uses a threat, act of harassment, or act of harm … directed to … a witness or victim to any crime.”

Hickman’s ex-wife had testified against him in a case in which he was charged with sexually assaulting his stepdaughter.

Hickman denied he had violated the retaliation law, but argued that, even if the charges were true, the retaliation statute was unconstitutionally overbroad. Hickman contended the law could chill speech that is protected by the First Amendment. In First Amendment jurisprudence, an overly broad law is one that prohibits a substantial amount of constitutionally protected speech.

After a trial court agreed with Hickman and dropped the retaliation-against-a-witness charge, the state appealed.

In its Nov. 8 opinion in People v. Hickman, the Colorado Supreme Court declared that although the statute did “infringe upon communications that are protected by the First Amendment,” the infringement was not substantial enough for the law to be considered overbroad.

The court noted that true threats receive no First Amendment protection, but other types of threats can constitute protected speech. The court also recognized the difficulty in distinguishing between the two, writing that “it is not evident how to define precisely the differences between the two categories.”

However, the court also determined that, with respect to threats, the amount of protected speech that is prohibited by the law is insubstantial.

The court interpreted the law to apply only to threats that are made for “retributive or retaliatory purposes.” According to the court, “the bulk of the speech covered by the statute is not protected.”

The court also noted that “in the few instances when protected speech might be prosecuted under the statute, a court may invalidate the particular prosecution.”

The court did find that the part of the law which prohibited making an “act of harassment” was unconstitutional. According to the court, the phrase “act of harassment encompasses a substantial amount of protected speech.”

The state high court cited an earlier decision in which it had invalidated a harassment statute that contained similar language.

The court then determined that it could preserve the constitutionality of the statute by severing the unconstitutional “act of harassment” language.

That “partial invalidation” of the law “does not alter the basic prohibition against making a threat or committing an ‘act of harm or injury’ against a person protected by the statute,” the court concluded.