JONATHAN TURLEY: This blue state's latest attack on free speech is awful and sneaky, too
Colorado's tourism slogan, "it's our nature," has a menacing meaning for free speech 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 Donald Trump 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.
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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 Joe Biden-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 state e-filings that requires lawyers 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.
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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 bar on cooperating with federal authorities.
The law will likely face an immediate challenge not only from lawyers and clients but also from the federal government.
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Denver Gazette investigative columnist Jimmy Sengenberger has been covering the story on limiting what is considered a public resource.
The Colorado Judicial Branch's page on the law previously posted a statement that "In September 2025, some users may have briefly seen a certification requirement appear in the system." It noted that the Judicial Department elected to take it down "for further internal and external discussion regarding the implementation of the new statutory requirements." However, it announced implementation in March.
It stated that the condition would apply to any "third party" with access to the system – "certain attorneys, LLPs, and, in certain case types, pro se litigants" with access to information that is not "available to the public online, in person, or through a records request."
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It added, "We recognize that some people may be frustrated by the requirements of this new legislation," but insisted that the "judiciary is required to comply with the laws as enacted by the legislature and has worked hard to make the process as easy as possible."
In my view, the law is facially unconstitutional and should be struck down. Regardless of the outcome on these challenges, Colorado appears hellbent on maintaining its dubious status as the most anti-free speech state in the union. Citizens will continue to subsidize this effort to defend laws compelling or censoring speech.
Colorado's record is reminiscent of other blue jurisdictions like New York, Illinois and Washington, D.C. in creating precedent in support of gun rights. In passing flagrantly unconstitutional gun control legislation, these Democratic legislators and governors proved a windfall for gun rights advocates in triggering a series of major Second Amendment victories, including New York State Rifle & Pistol Association, Inc. v. Bruen and Heller v. District of Columbia.
Colorado appears to be working to create the same legacy on the First Amendment. The state motto, "Nil Sine Numine" (Nothing without Providence), is fitting. For free speech advocates, Colorado has proven positively a godsend in its string of losses in seeking to gut the First Amendment.
