Summary
Colorado House Bill 1334 would bar the posting or dissemination, through any electronic means, of an image of a minor committing suicide or attempting to do so.
Status
The amended bill was signed into law by Gov. Jared Polis on May 31, 2019.
Action
On April 29, 2019, Media Coalition submitted a memo in opposition to the bill to the House Committee on Judiciary.
Analysis
There are several problems with the bill. It could allow the news media to be prosecuted for showing images of a suicide or attempted suicide, even if done unintentionally in the course of a live coverage of a news event. Also, the bill treats online publishers differently from non-electronic publishers. If passed, The Denver Post could publish an image of a suicide in the paper but could not publish the same image on its website.
The Supreme Court has explained that “new categories of unprotected speech” may not be created by legislatures because “certain speech is too harmful to be tolerated.” Brown v. Entertainment Merchants Association (2011)
The bill offers no suggestion what the state interest is in preventing publication of images of a suicide but only of minors and only by electronic means. It is unlikely that the privacy of the person who has committed suicide or attempted to do so is sufficient to overcome the First Amendment. Cox Broadcasting Corporation v. Cohn (1975); Oklahoma Publishing Company v. District Court (1977); Nebraska Press Association v. Stuart (1976).
The Supreme Court has also rejected that attempts to prevent the mental suffering on a victim’s family and friends by seeing an online image rise to the level of a compelling state interest. Simon and Schuster v. Members of New York State Crime Victims Board (1991)
The Court has also held that offensiveness of speech is not a compelling interest. Carey v. Population Services International (1977); Ashcroft v. Free Speech Coalition (2002)
The bill would be under-inclusive unless the state had an interest that could be satisfied only by restricting the electronic publication of an image of a suicide or attempted suicide by a minor. It is hard to imagine why the state would need to bar publication of images of a suicide by a 17-year-old but not of an 18-year-old. Or why the state would need to prevent an image from being published on denverpost.com but not on the paper version of the Post. Reed v. Town of Gilbert, Arizona (2015)
History
On April 26, 2019, H.B. 1344 was introduced and assigned to the House Judiciary Committee.
On April 29, 2019, Media Coalition submitted a memo in opposition to the bill to the House Judiciary Committee.
On April 30, 2019, the House Judiciary Committee amended the bill to limit the scope of the bill to distribution “with the intent to harass, intimidate, or coerce any person, and the posting or distribution results in serious emotional distress to any person.”
On May 2, 2019, the House passed the amended bill and sent it to the Senate. It was assigned to the Senate Committee on State, Veterans, and Military Affairs. The committee referred the bill to the Senate.
On May 3, 2019, the Senate passed the amended bill.
On May 31, 2019, Gov. Jared Polis signed the amended bill into law.