Driving down through Main Street in Longmont, Colorado, perceptive individuals will note the no cruising ban. I thought the ban was interesting — I do not believe I have ever seen a “no cruising” law anywhere else. This is civil infraction allow permit a $125 minimum fine for a first offense, and $350 minimum fine if it is the third offense or more. This ordinance can be quite the cash cow.
I have probably driven by these signs thousands of times before. Yesterday when I passed by one of the signs with a good friend, I had a thought: is the “no cruising” ban constitutional? My initial thought was, no. This really can’t be allowed, can it?
My friend staunchly defended it because of the “noise and the traffic.” I thought don’t they already have noise and traffic laws?
In this blog post I will analyze the constitutionality of this fairly unusual law.
Now, I’ve had a run in or two with the new fee structure for the Colorado Open Records Act (CORA). Colo. Rev. Stat. § 24-72-205 (6)(a) which changed how much government agencies could charge for Open Records requests. Since the provision is relatively new, I want to take a deeper look at it. My initial thought is that it is unconstitutional as it is currently written because of vagueness, arbitrariness, and a violation of fundamental constitutional rights.
The new law allows custodians of records (the record keepers) to create policies to charge for the retrieval and research of public records, only if it meets the following requirements: 1. there must be prior notification of the policies before the request is made; 2. the custodian must publish on her website or otherwise the policies (formally and presumably in a public place so prior notification can occur); 3. it must specify the fee for research and retrieval per hour.
The first hour is free and any additional hours a governmental agency can charge up to $30 dollars an hour.
Under any such policy, the custodian shall not impose a charge for the first hour of time expended in connection with the research and retrieval of public records. After the first hour of time has been expended, the custodian may charge a fee for the research and retrieval of public records that shall not exceed thirty dollars per hour.
— Colo. Rev. Stat. § 24-72-205 (6)(a); See Colorado HB 14-1193 (2014) (full text is provided in a .pdf at the bottom of the page).
Thirty dollars may seem like a nominal fee, but it can quickly add up and keep public documents out of the reach of those who cannot afford it. My Open Records request for the operating procedures of the Denver Sheriff and Denver County Jail estimated that it would take 25 hours to fulfill and would come out to $750. Also, the agency determines how long it will take and there is no way for individuals to challenge it.
Probably a good first step in the analysis of the CORA fee provision would be to see if it is a valid law. If it isn’t a valid law the way it is written it would be struck down. Let’s start our journey there first.
The First Amendment encompasses the right of free speech. But many times that speech is uninformed because Colorado in some instances does not respect an individual’s right to know. Colorado is not the only state who does this, as I have noted, Arizona ignores the right to know at times too.
I ran into this first with the Colorado Revised Statutes when the Colorado General Assembly did not provide a free copy of the state law on the internet. Now, I am running into it with Denver Sheriff Department Orders and the Denver Sheriff Department County Jail Division Procedure Manual.
A ‘right to know’ can seem weird. The first time I heard the argument, I took a step back, “that is really interesting,” I thought. The argument goes, citizens have a right to know policies, procedures, and dealings of the government. This is also referred to as the ‘right to access.’ In this article, I will refer to it as a right to know.
Nowhere in the United States or Colorado Constitution is it stated there is a right to know, but it is implied through the freedom of speech. The protection of free speech against the government is protected by both the United States and Colorado Constitutions.
The right to know is not a foreign concept legally either. “The right to know is the corollary of the right to speak or publish.” Miller v. California, 413 U.S. 15, 44 (1973) (Douglas, J., dissenting). To extend Justice Douglas’ thought, the freedom to criticize the government via free speech is not worth much, if governmental policies and procedures are unknown. There is a symbiotic relationship between speech and knowledge — they depend on each other, especially when criticizing the government. It is kinda tough to criticize the government, if the government withholds information about its policies and procedures. Go ahead, try to criticize a policy or procedure you don’t know about. I’ll wait…. Glad you’re back.
I am going to make the argument the right to know is implied through the right of free speech. And in the digital age, public documents should be readily available on the internet for individuals to be able to support or criticize if they so choose, as a function of the First Amendment.
You are my true love, but I can’t stand your mixed constitutional messages anymore. Instead of me having to try to decipher what you mean would you please clarify your intent?
Free speech and copyrights are both protected constitutional interests. Usually those interests act in harmony, but there are times when they conflict.
A copyright grants its holder the power to stop other people – noncopyright holders – from saying certain things or distributing certain messages. A legislative grant of this private power to stop speech on the basis of its content is in overt tension with the constitutional guarantees of speech and press freedom.
— C. Edwin Baker, First Amendment Limits on Copyright, 55. Vand. L. Rev. 891, 892 (2002).
This post is a follow-up post to A Case for Ignorance of Colorado Law, where I detailed my trials and tribulations of trying to read the Colorado Revised Statutes. My previous article focused generally on how the system is screwed up.
Here is a quick recap of the situation. If you try to look up a Colorado state statute on the internet it appears any official state government website will redirect you to a private website, LexisNexis. To enter LexisNexis’ website the user needs to agree to the terms and service of the site which include a disclaimer of liability and a choice of forum clause. Then to compound the situation the Colorado legislature severely restricts the distribution of the state statutes. If I wanted to provide a copy of the state statutes here, free to download, it is likely the Colorado legislature could sue me for violating Colo. Rev. Stat. § 2-5-118. So if ignorance is no excuse to know the law, citizens in Colorado are placed between a virtual rock and a virtual hard place when trying to access the state statutes online.
So let me start out this post by clarifying legally where I think there are legal problems: 1. Colorado’s contract with LexisNexis to provide the state statutes online violates free speech and due process protections; and 2. The Legislature’s restriction on distribution and dissemination of the statutes violates free speech and due process protections as well as federal copyright law.
What is the problem? Doesn’t the mere fact that the statutes are on the internet suffice? Probably not. This is starting to get into an emerging area of the law where the internet, free speech, and due process all converge.
To be fair, let’s see what Colorado’s Constitution and statutes have to say about the issue. As a preface to this section, I want to warn that I did not find much information directly on point. Furthermore, some of the statutes seem to conflict.
A little surprisingly, the Colorado Constitution says little on this subject. “The general assembly shall provide for the publication of the laws passed at each session thereof.” Colo. Const. art. VIII, § 8. This section is squeezed between land value increases and limited gaming permitted sections. Fortunately, the state statutes clarify. “[T]he state acknowledges its obligation to provide official sets of statutes that are reasonably priced, accurate, and easy to use.” Colo. Rev. Stat. § 2-5-105. The state of Colorado holds itself to the standard of just having to make the statutes available. People may have to purchase them, but they have to be available.
The Colorado Secretary of State’s website also warns that there is a limit to the fair use of the state statutes. “In addition, any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services; permission is not required to reprint fewer than 200 sections of C.R.S. (please see §2-5-118, C.R.S.).” Also the legislature expressly reserves the right to limit reprint and distribution of the statutes. Colo. Rev. Stat. § 2-5-118. I guess that is why I could only find the statutes linked to on LexisNexis. Honestly, I think this is just comical the state of Colorado is asserting a copyright claim to limit distribution. “Judge, you know, these people need to be prosecuted to the fullest extent of the law, for reprinting too much of the law.”
To throw salt into the wound a little, and then rub it in a bit, the Colorado Secretary of State’s website publishes on it’s official website both current and pending Code of Colorado Regulations. To put matters into perspective this includes all of the codes and rules pertaining to bingo and raffle games. Apparently bingo and raffle game regulations are important enough to have official copies placed on official state websites without being forced to sign a contract with a third-party. So we know that Colorado doesn’t get overly protective about everything — the codes and regulations are fair game. It is the state statutes that they are overly possessive about.
It turns out Oregon asserted a copyright over it’s statutes and starting sending out cease and desist letters for unauthorized distribution. The legal argument later settled amicably out of court.
If there is any solace for the people of Colorado, at least the Colorado legislature has not threatened to sue them yet for trying to distribute state law.
Free Speech and Federal Copyright Law
Colorado’s claims about the state statutes violate free speech protections and are not supported by federal copyright law.
The state of Colorado unfairly restricts free speech rights under the United States Constitution. By forcing a contract upon a person before they can even view the state statutes anywhere on the internet could constitute a prior restraint on speech and a violation of the First Amendment to the Constitution. Prior restraints can take different forms, but here it is the restrictions on speech before it occurs. The state statutes may be an unconstitutional prior restraint because they say what, I or anyone, may do with the statutes before I get a chance to use them. A second prior restraint comes from the forced contract with LexisNexis. LexisNexis is acting as an agent of the Colorado government by being the official host of the state statutes. While acting on the government’s behalf it forces me to accept disclaimers, choice of forum clauses, etc. if I want to see the laws. The choice of forum clause my restricts my liberty to file a lawsuit about Copyright to a court in New York, even though nothing has to do with New York in this case. See generally Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). Both instances are most likely prior restraints and a violation of free speech protections.
Then Colorado has this wacky copyright law too. Copyright law is federal law and if Colorado decided to sue someone to assert their copyright over the Colorado Statutes, the suit would have to be filed in federal court. The United States government determines what is copyrightable and what is not. The statute states copyright protection is not available for the United States Government. See 17 U.S.C. § 105. The statute does not clarify if it is meant to encompass state and local governments, or even governmental contractors. This decision has been left to the courts.
The good news is a federal court of appeals case is pretty close to on point and provides some direction. A Texas man put up two municipal building codes on his non-commercial website. The cities based their municipal code largely upon the purchased model code written by Southern Building Code Congress International, Inc. (SBCCI), a non-profit, non-governmental organization. Unable to easily locate the cities’ codes, the Plaintiff purchased the model codes directly from SBCCI for $72. Along with the purchased code came a copyright notice that forbade copies or distributions of the model code. Plaintiff cut and pasted the model code and placed it on his website. SBCCI claimed copyright infringement.
Lawmaking bodies in this country enact rules and regulations only with the consent of the governed. The very process of lawmaking demands and incorporates contributions by “the people,” in an infinite variety of individual and organizational capacities…In performing their function, the lawmakers represent the public will, and the public are the final “authors” of the law.
— Veeck v. S. Bldg. Code Cong. Int’l, 293 F.3d 791, 799 (5th Cir. 2005) (en banc).
I don’t think that the legislature’s claims about a copyright interest hold much water.
In fact, it also potentially violates Colorado Open Records Act (CORA (and I will link to the Colorado Secretary of State’s summation instead of LexisNexis on this one)). The general rule is “all public records shall be open for inspection by any person at reasonable times.” Colo. Rev. Stat. § 24-72-201. The forced contract by LexisNexis probably violates the open records act because then the statute is not genuinely open for inspection. It is only open for inspection if the terms of service are agreed to beforehand.
Colorado’s treatment of the state statutes also violates procedural due process.
Due process is the idea of fundamental fairness in our justice system. “No person shall be deprived of life, liberty or property, without due process of law.” Colo. Const. art. II, § 25; See also U.S. Const. amend V.
First, we need to start of with the principle that ignorance of the law is not an excuse. Lambert v. California, 335 U.S. 225, 228 (1957). “Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.” Cheek v. United States, 498 U.S. 192, 199 (1992). It stands to reason how the government can expect citizens to know the law, but to place severe limits on its distribution. A reference is necessary to know the law in the present day. The complexity and breadth make knowing it without a reference prohibitive. The Court even acknowledges that fact in regards to tax law in Cheek.
Part of what comprises due process is notice. “Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.” Lambert v. California, 335 U.S. 225, 228 (1957). In other words, a fair fight requires both parties to know the rules of the game. Even if you do not know the rules of the game, you need to at least be given a chance to learn them or prepare, which is the essence of notice.
Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. So long as the law is generally available for the public to examine, then everyone may be considered to have constructive notice of it; any failure to gain actual notice results from simple lack of diligence. But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them.
— Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730, 734-35 (1st Cir. 1980).
The first problem is not where the Colorado Statutes are located online, it is the hoops that one is required to go through in order to read them. “A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful.” City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999). Colorado’s statutes lose their meaningfulness when a user must submit to LexisNexis’ terms of service.
The second problem is the copyright restrictions on dissemination. In criminal prosecutions especially, it is not fair for the government to have complementary copies of the statutes and for the citizenry to be subject to copyright violations. For an equal playing field, the statutes should be available without restrictions to both parties.
Honestly, I just hope the state of Colorado changes it’s policies and puts the statutes up on the legislature’s website, accessible to everyone, for free, without having to sign a contract. And any claims to a copyright of the Colorado Statutes should be waived immediately by the government.