Harassment and Constitutional rights

As this blog has discussed before, Colorado state law has provisions prohibiting what it calls harassment.

Basically, harassment includes certain types of behavior that is intended to disturb the peace of another person. These behaviors can, but do not have to, involve physical contact. For instance, simply making repeated phone calls or contacting a person late at night or at other obviously bad times can constitute harassment.

There is a problem though in that some sorts behavior that Colorado authorities might call harassment is also speech protected under the First Amendment of the United States Constitution. Likewise, many people communicate, sometimes with strong or controversial language, political or religious views or other philosophical ideas that they hold dear. They may do so even when those around them do not share their views or even find them to be disturbing or offensive.

It is a fundamental point of law that no state's criminal statutes, including Colorado's anti-harassment provisions, can violate a person's Constitutional rights. The law of this state itself acknowledges as much, as the language of the law specifically says that police and prosecutors cannot use it to punish expression that is legally protected.

While this may seem straightforward enough, sometimes the line between what is or is not First Amendment speech or, for that matter, protected expression can be fuzzy. To give an obvious example, for instance, a political demonstrator would have no right to touch someone while demonstrating, even if the message is otherwise free speech.

Of course, many cases are even less clear-cut. Someone in the Fort Collins area accused of harassment, especially while in the course of political or other expressive activity, should consider speaking with an experienced attorney.

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