PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JESSICA PECK, Plaintiff - Appellee,

v. BETH MCCANN, in her official capacity as the District Atto rney of the Second Judicial District, State of Colorado, Defendant - Appellant, and MICHELLE BARNES, in her official capacity as Executiv e Director of the Colorado Department of Human Services, Defendant.

------------------------------ OFFICE OF THE CHILD REPRESENTATIVE; DENVER HUMAN SERVICES; LARIMER COUNTY HUMAN SERVICES, Amici Curiae.

––––––––––––––––––– –––––––––––––––– JESSICA PECK, Plaintiff - Appellee,

v. No. 21-1125

No. 21-1127 FILED United States Court of Appeals Tenth Circuit 

### August 9, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 12 MICHELLE BARNES, in her official capacity as Executiv e Director of the Colorado Department of Human Services, Defendant - Appellant, and BETH MCCANN, in her official capacity as the District Atto rney of the Second Judicial District, State of Colorado, Defendant.

------------------------------ OFFICE OF THE CHILD REPRESENTATIVE; DENVER HUMAN SERVICES; LARIMER COUNTY HUMAN SERVICES, Amici Curiae.

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-03450-RBJ)

________________ _________________ Bianca E. Miyata, Assistant Solicitor Genera l, Denver, Colorado, and Kendra K. Smith, Hall & Evans LLC, Denver, Colorado (Philip J. Weiser, Attorney General; Anita M. Schutte, Second Assistant A ttorney General; Aaron J. Pratt and Leeah B. Lechuga, Assistant Attorneys General, State of Colorado, Department of Law, Denver, Colorado; and Andrew D. Ringel, Hall & Evans LLC, De nver, Colorado, with them on the briefs), for Defendants-Appellants. Thomas B. Kelley (David A. Lane, with him on the brie fs), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiff-Appellee. Anna Ulrich, Crestone, Colorado filed an Amicus Curiae br ief for the Office of the Child Representative, on behalf of Appellants. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 23 Amy J. Packer and Robert A. Wolf, Assistant City Attorneys, Denve r, Colorado, filed an Amicus Curiae brief for Denver Human Serv ices, in support of Appellants. David P. Ayraud, Fort Collins, Colorado, filed an Amicus Curiae brief for Larimer County, on behalf of Appellants.

________________ _________________ Before MATHESON , EBEL , and PHILLIPS , Circuit Judges.

________________ _________________ Plaintiff-Appellee Jessica Peck is an attorney who represents parents and other family members in child abus e cases in Colorado juvenile courts. She brought this suit against Defendant-Appellants, Colorado Executive Director of Health Services Michelle Barnes and Second Ju dicial District Attorney Beth McCann, to challenge the constitutionality of § 19-1-307 (“Secti on 307”) of the Colorado Children’s Code Records and Information Act (“Children’s Code”). Section 307 requires that child abuse records and reports be kept confid ential, and has two se parate subsections— Section 307(1) and Section 307(4)—th at impose penalties upon those who improperly disclose informatio n from child abuse reports. Ms. Peck alleges that Section 307 vi olates her First Amendment rights by restricting her disclosures and thereby ch illing her speech on th ese matters. The district court agreed and struck down both of Section 307’s penalty provisions. But for the reasons explained herein, we thi nk that Section 307(1) and Section 307(4) have different scopes due to their distinct language and legislativ e histories. As a result, we find that Ms. Peck may ch allenge Section 307(4)’s penalty as unconstitutional, but has not properly ch allenged Section 307(1). We thus REVERSE the district court’s order inso far as it invalida ted Section 307(1). Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 34 Proceeding with Ms. Peck’s challenge to Section 307(4), we find that the Article III requirements for our subject matter jurisdicti on are met. Because the statute undisputedly imposes a burden on speech, we apply strict scrutiny and conclude that this provision is not narrowly tailored to the state’s compelling interest. Accordingly, we hold that Section 30 7(4) is unconstitutional and AFFIRM the district court’s order to the ex tent that it struck down that provision. In light of these dual conclusions, we also REMAND on the so le question of whet her Section 307(4) is severable from the re st of the statute.
BACKGROUND Colorado’s child protection system is governed by the Children’s Code, which was passed in 1975 to “balance the best interests of child ren and the privacy interests of children and their families with the need to share info rmation among service agencies and schools and the need to protect the safety of schools and the public at large.” Colo. Rev. Stat. § 19-1-302. At issue in this case is Section 307 of the Children’s Code, which generally requires that “reports of child abuse or neglect and the name and address of any child, family , or informant or any other identifying information contained in such reports . . . be confidential.” Colo. Rev. Stat. § 19-1- 307(1)(a). This confidentia lity requirement is enforced by two distinct penalties. First is Section 307(1)(c), which states: (c) Any person who violates any pr ovision of this subsection (1) is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 45 Colo. Rev. Stat. § 19-1-307(1) (2021). The se cond penalty is codified at Section 307(4), and reads: (4) Any person who improperly releases or who willfully permits or encourages the rele ase of data or information contained in the records and reports of child abuse or neglect to persons not entitled to access such information by this section or by secti on 19-1-303 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. Colo. Rev. Stat. § 19-1-307(4) (2021) (emphasis added). 1 The statute also lists a number of individuals and entities that may lawfully ac cess the otherwiseconfidential reports. Colo. Rev. Stat. § 19-1-307(b). One function of Section 307 is to fulfill Colorado’s obligati ons under the Child Abuse Prevention and Treatment Act (“CAPT A”), which conditions federal funding for state child protection systems on the st ate’s use of “methods to preserve the

1 A minor amendment to both Section 307( 1) and Section 307(4) took effect on March 1, 2022, after this case was argue d. The Colorado legislature changed the phrase “is guilty of a class 2 petty offense” in Section 30 7(1)(c) to read “commits a civil infraction,” and changed the phrase “c lass 1 misdemeanor” in Section 307(4) to read “class 2 misdemeanor.” S.B. 21-271, 73d Gen. Assembly, 1st Reg. Sess. (Colo. 2021). The parties did not address the ef fect of this ame ndment on Ms. Peck’s claims, but we clarify that the changes do not impact the constitutional implications of the statute and do not moot the case. These changes were made as part of a broader reform reclassifying various crimin al offenses in Colorado and adding civil infractions as a new category in accordance with the recommendations of a state sentencing commission. Id. Be cause the current provisions continue to impose some penalty on disclosures, with fairly nominal differences in how the penalties are classified, the amendment does not alter the cen tral fact of Ms. P eck’s claim that the penalties in Section 307(1) and Section 307(4) preven t her from speaking as she wishes and thus violate her First Amendment rights. Her claim is not contingent on the severity of either penalty . Consequently, our ensuing an alysis applies the same to the 2021 iteration of the statute as it does to the current iteration. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 56 confidentiality of all r ecords in order to protect the ri ghts of the child and the child’s parents or guardians, includi ng requirements ensuring that reports and records . . . shall only be made availabl e to [specified persons, en tities, and agencies].” 42 U.S.C. § 5106a(b)(2)(B)(viii). Each y ear, the Colorado Department of Human Services certifies that Section 307’s confid entiality requirement is being enforced in order to ensure that the st ate receives CAPTA funding fro m the federal government. Turning from the statutory backgrou nd to the facts of this case, 2 Ms. Peck is a private attorney who represen ts family members in inves tigations of suspected child abuse or neglect in Colorado. In January 2019, Ms. Peck represen ted the mother of a three-year-old girl in a de pendency and neglect case in Denver Juvenile Court. While the case was ongoing, Ms. Peck ma de statements to the Denver weekly newspaper Westword suggesting that Denve r Human Services (“DHS”) filed the case against her client “without a single shred of evidence, based on one family member standing up for another family member in a dvance of trial when th e accused is still in jail.” App’x Vol. I at 55. Ms. Peck al so provided Westword with an excerpt of a caseworker supervisor’s emai l detailing the concerns DHS had about her client. Ms. Peck further told Westword the date, time, and location of an upcoming hearing in the case. After the Westword article was publishe d, the Juvenile Court Magistrate presiding over Ms. Peck’s case issued an order stating “t hat Counsel for Respondent

2 We rely on the parties’ join t statement of stipulated fact s, as well as their attached exhibits and declarations. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 67 Mother . . . may have disclosed informa tion to a non-party in violation of § 19-1- 307(1)(a),” and emphasizing that “any identifying information pertaining to this dependency and ne glect proceeding shall be kept confidentia l in accordance with § 19-1-307(1)(a) and § 19-1-303.” Id. at 231. The court took no further action against Ms. Peck, nor was sh e contacted by any law enfor cement authority. In fact, records dating back to 1966 indicate that Denver’s District Attorney has never prosecuted anyone under Section 307, and records dating back to 2010 similarly show zero Section 307 prosecutions by th e Denver City Attorney. Defendant McCann disclaims any policy, custom, or practices of prosecuting violations of Section 307, but Defendants have expressl y chosen not to disavow an intent to prosecute Ms. Peck or anyone else under Section 307. Ms. Peck filed this action in the United States District Court for the District of Colorado on December 9, 2019, and an am ended complaint on January 29, 2020, seeking a court order declaring that Sect ion 307 is unconstitutional and enjoining its enforcement. She initially named seve ral state government defendants, but the district court dismissed a ll except Ms. Barnes and Ms. McCann in their official capacities. As Executive Dire ctor of the Colorado Depart ment of Human Service, Ms. Barnes “supervises and provides polic y direction for Colorado’s child welfare system,” which provides services such as child protection, risk assessment, and case management. App’x Vol. I at 222. As District Attorney for Colorado’s Second Judicial District, Ms. McCann is in char ge of enforcing Colorado criminal laws— Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 78 including the offenses under Section 307(1) and Section 307(4)—within the City and County of Denver. In July 2020, the parties filed a joint sti pulation of facts for th e district court to rely on for the purposes of su mmary judgment in July 2020. Ms. Peck also filed a sworn declaration stating that she desires in the future to re ly on the child abuse reports she comes across during her wo rk to call out misconduct by government officials and government employ ees to the public. She stat ed her belief that Section 307 unconstitutionally prohibits such spee ch, and that she would risk prosecution under the statute by engaging in her desired speech. Shortly thereafter, Ms. Peck and each Defendant filed cross-motions for summary judgment. The district court granted Ms. Peck’s motion for summary judgment, enjoining enforcement of both Section 307(1)(c) and Section 307(4) and granting reasonable costs to Ms. Peck. Defendants now appeal that ruling.

DISCUSSION The crux of Ms. Peck’s claim is a Firs t Amendment challenge. But before we can reach its merits, we addr ess threshold legal questions of standing and ripeness, which involve a predicate question of statut ory interpretation. All of these issues, including findings of constitutio nal fact and conclusions of law, are reviewed de novo. See Coalition for Secular Gov’t v. Williams, 815 F.3d 1267, 1275 (10th Cir. 2016); Sinclair Wyoming Ref. Co. v. Unite d States Env’t Prot. Agency, 887 F.3d 986, 990 (10th Cir. 2017); Un ited States v. Supreme Court of N.M., 839 F.3d 888, Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 89 898 (10th Cir. 2016); New Mexicans for Bi ll Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. 1995). Additionally , when addressing Ms. Peck’s First Amendment claim, we “perform an independe nt examination of the whole record in order to ensure that the judgment pr otects the rights of free expression.” Williams, 815 F.3d at 1275 (quotation omitted).
I. Article III Jurisdiction

Though we have appellate jurisdiction to review the district court’s final order under 28 U.S.C. § 1291, we must assess wh ether this court or any federal court has subject matter jurisdiction to review Ms. Peck’s constitutional challenge to Section 307(4) under Article III of the Constitution. We turn first to sta nding, then ripeness, both of which are necessary components of Article III jurisdicti on. See Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1087 (10th Cir. 2006).
A. Statutory Interpretation & Standing We begin by interpreting Section 307’ s language and scope in order to determine whether Ms. Peck has alleged any injury that would potentially give her standing to challenge the statute. 3 The only interpretive di spute in this case is whether the statute restricts the disclosu re of non-identifying in formation contained

3 In the next subsection of this opinion, we address the separate question of whether Ms. Peck’s alleged injury suffices as an “injury-in-fact” under our standing precedent, see infra Section I. B. Here, we first address whether Ms. Peck has alleged any sort of injury under th e statute, i.e., whether the statute reaches her desired speech at all. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 910 in child abuse reports, as well as th e disclosure of identifying information. 4 Ms. Peck has disclaimed any desire to disclose identifying informa tion, meaning that if the statute reaches only those indi viduals who disclose identif ying information, Ms. Peck has not alleged a valid injury and would l ack standing to sue b ecause she would be free to disclose non-identifying information, which is her sole st ated intent, and the case would end. 5
The district court concluded that Section 307 generally reached nonidentifying and identifying information, thereby allowing Ms. Peck’s claim to proceed against both Section 30 7(1) and Section 307(4). But the district court—and the parties—read Section 307 as a whole, failing to explain and interpret key differences between the separa te penalties in Section 307(1) and Section 307(4). We analyze each provision individually and find that although Section 307(1) reaches only identifying information, Section 307(4) is broader, punishing the disclosure of both identifying and non-identifying informa tion. As a result, Ms. Peck lacks standing to challenge Section 307(1) b ecause she is not in jured by it. She can, however, proceed with her clai m challenging Section 307(4).

4 No party denies that the statute restricts the disclosure of iden tifying information. Defendants provide only minimal argument to suggest that Section 307 does not reach non-identifying speech. Ne vertheless, resolving this question is a necessary first step of the case a nd we analyze it initially. 5 Ms. Peck has not asserted on appeal that Section 307 is unconstitutionally vague or overbroad, so we confine our analysis to ascertaining what the statute actually prohibits and whether those prohibiti ons burden Ms. Peck’s desired speech. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1011 i. Section 307(1) The first restriction on disclosures of child abuse informati on is contained in Section 307(1), which we r ecite in full for clarity: (1)(a) Identifying information—confidential. Except as otherwise provided in this section and section 19-1-303, reports of child abuse or negl ect and the name and address of any child, family, or inform ant or any other identifying information contained in such reports shall be confidential and shall not be public information. (b) Good cause exception. Disc losure of the name and address of the child and family and other identifying information involved in su ch reports shall be permitted only when authorized by a court for good cause. . . . (c) Any person who violates any pr ovision of this subsection (1) is guilty of a class 2 petty offense and, upon conviction thereof, shall be punished by a fine of not more than three hundred dollars. Colo. Rev. Stat. § 19-1-307( 1) (2021) (emphasis added). The plain text of Section 307(1)(a) limits its scope to identif ying information only, as indicated by the subheading “[i]dentifying information.” Id. Its construction suggests that two types of disclosures are prohibited: first, disclosures of the “reports of child abuse or neglect” themselves—that is, the liter al documents that comprise a child abuse report—and second, “the name and address of any ch ild, family, or info rmant or any other identifying information containe d in such reports.” Id. Neither of these categories address disclosures of exclusively non-id entifying information that may be included in child abuse records. Di sclosures in the first categor y (the documents themselves) will necessarily reveal identif ying information, given that the reports contain all Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1112 recorded information about th e case, while the second category is limited by its own terms to the identifying inform ation contained in a report. Legislative history and state-court case law support this narrow reading of Section 307(1). Section 3 07(1) was amended to reflec t approximately its current wording in 1977, shortly after Gillies v. Schmidt, 556 P.2d 85 (Colo. App. 1976), was decided. In Gillies, the state a ppellate court interpreted a 1975 version of Section 307 (“the 1975 Act”) to determin e whether it violated Colorado’s Public Meetings Law. The court held that the 1975 Act covered “the Entire contents” of a child abuse report, so prohib ited the disclosure of non-iden tifying information. Id. at 86. But this reading was based on the 1975 Act’s text, which stated in relevant part: “It is unlawful for any person or agency to solicit, encourage disclosure of, or disclose the contents of any record or report made under this article.” Colo. Rev. Stat. § 19-10-115 (1975) (emphasis added) . The Colorado legislature amended the statute in 1977 and deleted th e phrase “the contents of any record or report,” so that the statute effectively stated the same rule as Section 30 7(1) does today. H.B. 1266, 51st Gen. Assemb., 1st Reg. Sess. (Colo. 19 77). This amendment thus suggests the legislature’s desire to narrow the statute to cover only the reports themselves and identifying information therein, not the “entir e contents” of the reports. See City of Colorado Springs v. Powell , 156 P.3d 461, 465 (C olo. 2007) (“[W]e presume that by amending the law the legislature has intended to change it.”). Additionally, principles of statutory interpretati on favor reading Section 307(1) to reach only identifying disclosures. If a statute being challenged on its face Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1213 “is readily susceptible to a narrowing cons truction that would ma ke it constitutional, it will be upheld.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397 (1988) (internal quotations omitted). See also Jennings v. Rodri guez, 138 S. Ct. 830 (2018) (discussing the doctrine of constitutional avoi dance). Ms. Peck does not contend that a statute barring disclosure only of identifying information would be unconstitutional, so we read ambiguities in favor of a narrower Section 307(1) in order to preserve the law. Also, we seek to “avoid c onstructions that would render any words or phrases supe rfluous.” McCoy v. People , 442 P.3d 379, 389 (Colo. 2019). A broader reading of Section 307(1) would render superfluous the phrase “any other identifying information” in Sect ion 307(1)(a), because such information would already be covered by a reading of the word “reports” if that includes the reports’ entire contents, as oppo sed to just the report documen t itself. Thus, we think Section 307(1), on its own, pr ohibits and penalizes only th e disclosure of identifying information from child abuse reports—meani ng it does not inhibit Ms. Peck’s stated desire to disclose non-identifying informati on. Additional inquiry into the “injury-infact” standing requirement as to Section 307(1) is ther efore unnecessary, as she has pleaded no injury under this provision at all.

ii. Section 307(4) But of course, Section 307(1) is not the only relevant provision here. We also examine Section 307(4)’s separate ban an d criminal penalty on disclosures: (4) Any person who improperly releases or who willfully permits or encourages the release of data or information Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1314 contained in the records and repor ts of child abuse or neglect to persons not entitled to acce ss such informa tion by this section or by section 19-1-303 commits a class 1 misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S. Colo. Rev. Stat. § 19-1-307(4) (2021) (emphasis added). The plain text of this provision goes further than Section 307(1): it prohibits the disclosure not only of “reports” and “identifying information,” as specified in Section 307(1), but also any “data or information contained in the records and report s of child abuse or neglect.” Id. This latter category is unambiguously broad, su ch that it would include non-identifying information contained in those reports. Ms. Barnes posits that the only reason for the different language in Section 307(4), as compared to Section 307(1), is not a broa der scope but a different intent requirement— she argues that Section 307(1)(c)’s penalty applies when someone “inadvertently, or without knowing, discloses info rmation,” while Section 307(4)’s harsher penalty applies only when “a person who intentionally, or willfully rele ases information.” Barnes Opening Br. at 12. 6 This is not the only salient di stinction between the two provisions, though; the “willfu lly permits” language is separate from the “data or information”

6 It is not clear to us that “improperly releases” requires a mental state of intentionality, as Ms. Barnes s uggests. But we need not d ecide that issue, because no party has contended that the mental state requirement is itself significant to the statute’s constitutionality. Indeed, given th at the First Amendment is intended to facilitate the free expression of ideas, its protections generall y extend to willful speech as well as accidental speech. See generally Virg inia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 1547, 155 L. Ed. 2d 535 (2003) (“The hallmark of the protection of free speech is to allow fr ee trade in ideas—ev en ideas that the overwhelming majority of pe ople might find distasteful or discomforting.” (quotation marks omitted)). Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1415 language, which has nothing to do with the discloser’s intent but rather the content of the disclosure itself. We think Section 307(4) is not only harsher (by making the act a misdemeanor, not just a petty offense or ci vil infraction) on peop le who intentionally disclose information; it is also broader, by punishing non-identifying disclosures as well as identifying disclosures, ther eby enabling Ms. Peck’s First Amendment challenge to it. The key distinction between S ection 307(1) a nd Section 307(4) is not in the penalties imposed but in their substantive terms di ctating what conduct is being penalized. 7 The legislative history rein forces our view. Section 30 7(1), in its current form, was enacted in 1977. Section 30 7(4), on the other hand, was not added until 2003 as part of Colorado House Bill 03-1211, which overha uled the Children’s Code. H.B. 03-1211, 64th Gen. Assembly, Reg. Sess. (Colo. 20 03). The 2003 cha nges were made in connection with the legislature’s decision to re peal the state’s central registry, a system for “record[ing] perpetrators and victims of child abuse or neglect in order to aid in investigations and to screen potential employe es in child care-related positions.” Id. The repeal followed reports showing that th e registry’s data was both incomplete and inaccurate. For example, at le ast 191 people who had been acquitted of child abuse were still listed on the registry in 2001, and up to forty percent of regist ered sex offenders who had committed sex crimes agains t children had been omitted fro m the registry. Id. And frequent errors in how individuals were added to the registry made it impossible to match

7 In any event, Ms. Peck does not base he r complaint on the harshn ess of the respective penalties; she claims that any government penalty for non-identif ying disclosures of information from child abuse records imposes a burden on her free speech rights that does not pass constitutional muster. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1516 a person to a registrant conclu sively by a simple search. Id. In House Bill 03-1211, the legislature expressed concerns that the regist ry was failing both to protect children and to protect registrants’ due process rights, and so it expunged the list of names that were on the registry and repealed all provisions conc erning the registry, which were primarily codified at Colo. Rev. Stat. § 19-3-313. Id. Simultaneous to the repeal, the legislat ure amended other parts of the Children’s Code to create alternative pro cesses for processing and mainta ining child abuse records. See, e.g., Colo. Rev. Stat. § 19-3-313.5. Th is is the context of the 2003 amendments to Section 307. First, all refere nces to the registry were remo ved from Section 307, as from all other parts of the Code. For instance, Se ction 307(2)(j) was altered. Before, it had said the state department of human serv ices could access child abuse records to investigate a licensing applican t when the applicant gave “w ritten authorization to the licensing authority to obtain information containe d in reports of child abuse or neglect or to review the state central registry of child protection.” Colo. Rev. Stat. § 19-1-307(2)(j) (2002) (emphasis added). Th e 2003 House Bill changed it to require the applicant’s “written authorization to the licensing authority to obtain information contained in records or reports of child abuse or neglect. ” Colo. Rev. Stat. § 19-1-307(2)(j) (emphasis added). But Section 307(4) is the only subpart that was added wholesale to Section 307— it simply did not exist prio r to the 2003 amendments. The legislature provided no specific explanation for why it was added. We note, however, that the provision is nearly identical to Colo. Rev. Stat. § 19-3-313(10) (2002), which was deleted as part of the Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1617 repeal and had stated that Any person who willfully perm its or who encourages the release of data or information c ontained in the central registry to persons not permitted access to such information by this part 3 commits a class 1 misdemeano r and shall be punished as provided in section 18-1.3-501, C.R.S. The only difference in Secti on 307(4) is that “central registry” was replaced with “records and reports of child abuse or neglec t,” and “this part 3” was changed to “this section.” From this background, we can infer that Section 307(4)’s purpose was to maintain the confidentiality requirements that § 19-3 -313(10) had previo usly imposed on the registry—covering all “data or information” contained therein—as to all child abuse records, especially in light of legislators’ c oncerns that the registry was not protecting the due process rights of the accused in child ab use cases. It therefore makes sense that Section 307(4) would reach di sclosures of any informati on, not merely identifying information, unlike th e existing Section 307(1). See also Russello v. United States , 464 U.S. 16, 23 (1983) (“[W]here Congress incl udes particular language in one section of a statute but omits it in a nother . . . it is generally presumed that Congress acts intentionally and purposely in the disp arate inclusion or exclusion.”). Thus, we hold that Section 307(4) mean s what it says: disclosure of “data or information in the records and reports of child abuse or negl ect” to anyone not listed as exempt in Section 307(2) is a crime, regard less of whether the information is identifying or non-identifying. As a result, Ms. Peck can challenge Section 307(4)’s prohibition on disclosing non-identifying info rmation as an unconstitutional restriction on her desired Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1718 speech. But Section 307(1) is still best interpreted to reach only disclosures of identifying information. Thus , Ms. Peck has alleged an in jury under only Section 307(4), and we proceed by analyzing her cha llenge to that sole provision.
B. Injury-in-Fact Standing is a prerequisite to a fede ral court’s exercise of Article III jurisdiction, “serv[ing] to identify those disputes which are a ppropriately resolved through the judicial proces s.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). The burden is on the plaintiff to establish Artic le III standing by showing (1) an “injury in fact” that is “concrete and particularized ” and “actual or imminent,” (2) that the injury is “fairly . . .trace[able] to the challenged action of the defendant,” and (3) that the injury is likely to be “redre ssed by a favorable decision” of the court. Id. at 560–61. Here, only the injury-in-fact re quirement is at issue, as th e statute’s alleged violation of Ms. Peck’s First Amendmen t rights is undisputedly traceab le to the statute itself and could be redressed by this C ourt’s invalidation of the law. The central problem for Ms. Peck is th at she has not yet been subject to Section 307(4)’s penalty, nor has any enfor cement authority explic itly threatened to charge her under the statute. 8 But the First Amendment context creates unique interests that lead us to apply the standing require ments somewhat more leniently, facilitating pre-enforcement su its. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.

8 At the same time, neither Ms. Barnes, Ms. McCann, nor any other authority has promised not to enforce th e law against Ms. Peck shoul d she violate its terms. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1819 2003). Specifically, a plaint iff bringing a First Amendmen t claim can show standing by alleging “an intention to engage in a c ourse of conduct argua bly affected with a constitutional interest, but proscribed by statut e, and there exists a credible threat of prosecution thereunder,” or by alleging “a cred ible threat of future prosecution” plus an “ongoing injury resulting fro m the statute’s chilling effect on his desire to exercise his First Amendment rights.” Id. (quoting Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir.1997), and Wilson v. Stocker, 819 F.2d 94 3, 946 (10th Cir. 1987)). 9 Here, Ms. Peck’s claimed inju ry is that she is “chille d from criticizing official conduct based on information contained in ch ild abuse records and reports as a result of the criminal prohibitions of § 307 and th e State’s commitment to enforcing them.” Aple. Br. at 22. To determine whether Ms . Peck has adequately alleged a “chilling effect” that establishes an in jury in fact, we apply the test pronounced by this Court in Initiative & Referendum Institute v. Walker: [P]laintiffs in a suit for prospective relief based on a “chilling effect” on speech can sa tisfy the requirement that their claim of injury be “conc rete and particularized” by (1) evidence that in the past th ey have engaged in the type of speech affected by the ch allenged government action; (2) affidavits or testimony st ating a present desire, though no specific plans, to enga ge in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible th reat that the statute will be enforced. 450 F.3d 1082, 1088–89 (10th Cir. 2006) (en banc).

9 Though these are list ed as two distinct te sts in Ward, they overl ap and the analysis will be similar under either. See, e.g., D. L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004). Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 1920 i. Whether Ms. Peck has previous ly “engaged in the type of speech affected by the cha llenged government action” Defendants do not contest th at Ms. Peck meets this first requirement of the Walker test due to her previous disclosure of information in a child abuse report to the newspaper Westword, in apparent viola tion of Section 307(4)’s broad ban. This prong is therefore satisfied.
ii. Whether Ms. Peck has adequate ly stated “a present desire, though no specific plans, to engage in” the restricted speech Ms. Peck has submitted a sworn declarati on stating that in her work as an attorney, she frequently enc ounters child abuse “records and reports showing lapses, neglect, or misconduct on the part of Social Workers, including, false and at times, even fabricated information detrimental to my clients or challenging their parenting skills on improper grounds.” App’x Vol. I at 176. She also declared that she has in the past “and desire[s] in th e future to make public stat ements, including through the press, calling out public officials and public employees when they have issued materially false or improper reports concerning my clients, ” but she believes Section 307 prohibits her from doing so. Id. at 176–177. Neither Ms. Barnes nor Ms. McCann have offered factual re buttals to these claims. Facially, then, Ms. Peck’s declaration suffices to state a present desi re to engage in the speech prohibited by Section 307(4)—that is, a pres ent desire to publicly disc lose information from child abuse reports that must be ke pt confidential under Section 307( 4), as we have read it. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2021 Ms. Barnes argues that Ms. Peck cannot meet this element because Ms. Peck’s stated desire to engage in such speech is not “immediat e and unconditional.” Barnes Opening Br. at 25. She emphasizes that Ms. P eck has not “file[d] su it with a specific employee, official, action, or statement in mind,” has not shown “that she is in possession of information showing miscon duct of a public official or employee on which she presently desires to speak,” has not “explained how the statutory exceptions for addressing any such mi sconduct are inadequa te,” and has not guaranteed that her clients will consent to the disclosure of the information. Id. at 27. But Ms. Barnes’ vision of the “present desi re” test is too strict, in light of our precedent and the rationale behind a relaxed standing test for chi lled speech in the First Amendment context. Ms. Barnes ex trapolates her stri ngent “immediate and unconditional” standard from Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014); Holder v. Humanitarian La w Project, 561 U.S. 1 (2010); and Aptive Environmental, LLC v. Town of Castle Rock , 959 F.3d 961 (10th Cir. 2020). In each case, the court found the injury-in-fact requirement of sta nding met because the plaintiffs had stated with certainty that they wished to engage in the proscribed speech and definitively planned do so upon lifting of the gove rnment restriction. See Driehaus, 573 U.S. at 161 (findi ng that plaintiffs had adequa tely “alleged an intention to engage in a course of conduct arguably affected with a constitutional interest” simply by “plead[ing] specific statements they intend to make in future election cycles”); Humanitarian Law Project, 561 U.S. at 15–16 (findi ng standing where plaintiffs showed that they had engaged in the proscribed charit able support before Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2122 and stated “that they would provide simila r support again if the statute's allegedly unconstitutional bar were lifted”); Aptive, 959 F.3d at 975 (fi nding present desire prong met where plaintiff showed its desire to solicit during the proscribed hours because their salespeople were more profitable during thos e hours). But those cases did not hold that immediacy and unconditi onality were necessary to demonstrate an intention to engage in the sp eech at issue; the pl aintiffs’ plans were merely sufficient in light of the particular facts of each case. Furthermore, neither Driehaus nor Humanitarian Law Project were using the “present desire ” test we apply in this circuit, and the Supreme Cour t’s analysis of the issue in each case was brief. Only Aptive was applying Walker’s language at issue here, a nd the facts were quite different from Ms. Peck’s situation. The restricted speech in Aptiv e was in the form of commercial door-to-door solicita tion—something much more easily planned in advance than speech about a caseworker’ s conduct in a child abuse case. 959 F.3d at 966. Cf. Rio Grande Found. v. City of Santa Fe, 7 F.4th 956, 959 (10th Cir. 2021), cert. denied sub nom., 142 S. Ct. 1670 (2 022) (“All three prongs of the Walker test center on the circumstances of the particular plaintiff before the court.”). Plus, we do not think Aptive’s fact-specific di scussion of the “present desire” prong translates to a broad rule requiring th e plaintiff to state an “immediate and unconditional” desire to speak in the restricted manner. To the contrary, we have previously found the “present desire” prong met where the plaintiff had not es tablished the specific conten t and likely timing of their desired speech. In Walker itself, we found the requirement satisfied even though the Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2223 plaintiffs had not pleaded “any certainty about their intentions” to bring a ballot initiative in Utah that was affected by the challenged statute; it was enough that the Court could “reasonably infer, based on [pla intiff’s prior] pattern of bringing wildlife initiatives in Western states including three of Utah's neighbors, a present desire to bring similar initiatives in Utah.” 450 F.3d 1082, 1091. Indeed, we explicitly held that First Amendment plainti ffs generally need not stat e that they “have specific plans to engage in XYZ speech next Tuesday” in order to show standing. Id. at 1089. Similarly, in Rio Grande Foundation, the plaintiff advocacy group merely presented an affidavit from its president stating a general “desire to continue speaking about municipal ballot measures in the future” as suppor t for its challenge to a law requiring disclosures about campaign expenditures. 7 F.4th at 960. We held that this affidavit was suffi cient, even though it did not specify a particular upcoming ballot measure that it would speak about or what it wished to say about such a measure. Id. (“Nothing more concrete than this general as piration is needed to meet [Walker’s] second prong.”). Ms. Peck’s declaration here is not meaningfully different from the plaintiffs ’ showings in Walker or in Rio Grande Foundation. We thus decline to require categori cally that Ms. Peck and other First Amendment plaintiffs know exactly what they would say and when they want to say it in order to challenge a sp eech-restrictive law. Such a barrier would be so daunting as to obviate the leniency we generally a pply to First Amendmen t standing inquiries. Ms. Peck’s sworn declaration clarified the type of speech she wi shes to engage in: non-identifying statements “calling out pub lic officials and public employees when Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2324 they have issued materially false or improper re ports concerning he r clients.” App’x Vol. I at 176–177. Ms. Peck also indicated that she would likely be in a position to make such statements in the future. Id. at 180. Viewed in tandem with her apparent prior violation of the statut e, this declaration suffices to state a “present desire, though no specific plans” to e ngage in speech that is re stricted by Section 307(4).
iii. Whether there is “a credible threa t that the statute will be enforced” To meet the requirement of showing a “credible threat” of Section 307(4) being enforced against her, Ms. Peck must demonstrate “an objec tively justified fear of real consequences.” Winsness v. Yo com, 433 F.3d 727, 73 2 (10th Cir. 2006). This Court has identified at least three factor s to be used in determining a credible fear of prosecution: (1) whethe r the plaintiff showed ‘past enforcement against the sa me conduct’; (2) whether authority to initiate charges wa s ‘not limited to a prosecutor or an agency’ and, instead, ‘any person’ could file a complaint against the plaintif fs; and (3) whether the state disavowed future enforcement. 303 Creative LLC v. Elenis, 6 F.4th 1160, 1174 (10th Ci r. 2021) (quoting Driehaus, 573 U.S. at 164–65), cert. granted on other grounds, 142 S. Ct. 1106 (2022). Here, the second factor weighs against Ms. Pe ck—only prosecutors can bring charges under Section 307. 10 But our analysis of the other two factors show that they favor Ms. Peck, and so we find that she has satisfie d this prong of the Walk er test as well.

10 We note, however, that any prosecutor in the state of Colorado is empowered to bring charges for a violation of Section 30 7(4), and Ms. Peck practices in several different Colorado counties. Even if Ms . McCann and her successors never prosecute Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2425 The first factor’s application depends on whether the magist rate judge’s order warning Ms. Peck against violating S ection 307 following her disclosures to Westword can be considered an “enforcement” of Sec tion 307. Ms. Barnes argues that this order was not “enforcement,” given that it stated only that Ms. Peck “may have” violated Section 307 by speaking to Westword and did not hold any hearing or impose any sanctions related to the disclosu res. Barnes Opening Br. at 31. We disagree. The order was intended to put Ms. Peck on notice that she would be violating Section 307 if she s poke in this manner again. Being scolded by the judge presiding over a client’s case is no sma ll consequence, and we think it qualifies as “enforcement” in the practi cal sense of the word. We do acknowledge the lack of any reco rded instances of past prosecutions under Section 307, which weighs against Ms. Peck. But this dearth of prosecutions is counterbalanced by the fact that each ye ar, the Colorado Department of Human Services certifies to the fede ral government that it is enforcing Section 307 in order to obtain CAPTA funding. The state canno t have it both ways, and so we find the “past enforcement” factor slightly favors Ms. Peck. Ms. Peck more clearly prevails on the third factor. Defe ndants do not disavow an intent to prosecute Ms. Peck. Indeed, they could not do so, because they assert that certifying enforcement of Section 307 is essential to their access to federal funding under CAPTA. While an assuran ce of non-enforcement “i s not necessary to

Ms. Peck, someone in Jeff erson County or Larimer County or other Colorado counties might. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2526 defeat standing,” Ward, 321 F.3d at 1268, a refusal to provide such an assurance undercuts Defendants’ argument that Ms. Peck’s perception of a threat of prosecution is not objectively justifiable. Weighing these factors, we find that Ms. Peck has satisfied the “credible threat” prong. Circuit and Supreme Court preced ent tells us that th is is not supposed to be a difficult bar for pl aintiffs to clear in the Fi rst Amendment pre-enforcement context. See Wilson, 819 F.2d at 946–47 (“[T]he Supreme Court has often found a case or controversy between a plaintiff ch allenging the constitutionality of a statute and an enforcement official who has made no attempt to prosecute the plaintiff under the law at issue.”); Virginia v. Am. Bookse llers Ass’n, Inc., 484 U.S. 383, 393 (1988) (“We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise.”); Mangual v. Rotger-Sab at, 317 F.3d 45, 57 (1st Cir. 2003) (“As to whether a First Amendment plaintiff faces a cr edible threat of prosecution, the evidentiary bar that must be met is extremely low. . . . The Supreme Court has often found standing to challenge criminal st atutes on First Amendment grounds even when those statutes have ne ver been enforced.”). Furthermore, we think the state’s sta unch refusal to disavow prosecution has heavy weight in this particul ar case. Section 307(4) en ables Colorado prosecutors to bring criminal charges against those who disclose even non-identifying information from child abuse reports, and Ms. Peck’s prior disclosure to Westwo rd falls in such a category. There is nothing, not even thei r word, to prevent Ms. McCann or another Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2627 prosecutor from bringing charges against Ms . Peck for similar statements in the future. This possibility ma kes Ms. Peck’s fear of cons equences for disclosures of information in violation of Secti on 307(4) objectivel y justifiable. Accordingly, we conclude that Ms. Peck has met the Walker test, establishing the injury-in-fact nece ssary for her to have Article I II standing to challenge Section 307(4)’s constitutionality.
C. Ripeness A case must also be ripe for this Court to exercise Article III jurisdiction over it. Walker, 450 F.3d at 1097. “Standing and ripeness are closely related in that each focuses on whether the harm asserted has matured sufficiently to warrant judicial intervention.” Id. (internal quotations omitt ed). But unlike sta nding, ripeness issues focus “not on whether the plaintiff was in fact harmed, but rather whether the harm asserted has matured suffici ently to warrant judicial intervention.” Morgan v. McCotter, 365 F.3d 882, 89 0 (10th Cir. 2004) (quotation omitted). Ms. Barnes would apply that principle here to require Ms. Peck to have the information she wishes to disclose in hand befo re she is able to file a ripe lawsuit. We do not agree with Ms. Barnes. The two central factors in ripeness inquiri es are “the fitnes s of the issue for judicial resolution” and “the hardship to the parties of withholding judicial consideration.” Sierra Club v. Yeu tter, 911 F.2d 1405, 1415 (10th Cir. 1990) (quoting Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967)). The test is not “rigid or mechanical,” but instead “flexible and ofte n context-specific.” Id. at 1417. And as Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2728 with standing inquiries, ripe ness inquiries are “relax[ed] ” in the context of facial challenges on First Amendment grounds due to “the chilli ng effect that potentially unconstitutional burdens on free speech ma y occasion.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995). In assessing hardship, we typically “focus on whether the challenged action creates a direct and immediate dilemma for the parties.” Id. at 1499 (quotations and alterations omitted). Ms. Peck has not identified specific, current confidential information that she would like to disclose right this mome nt, so in the most literal sense, she does not face a di rect and immediate dilemma. But the speech context again complicates our analys is of this factor. Our ripeness inquiries in First Amendment cases often focus on the credibility of the threat of prosecution as an indicator of hardship, as the specter of prosecution can be a hardship in itself because it can chill future spee ch. See, e.g., id. at 1501. For the reasons described in our standing analysis, we find a credible thre at of prosecution here, which imposes a hardship on Ms. Peck in the form of anxiety over and avoidance of her desired speech. See App’x Vol. I at 181 (declaring that Ms. Peck is “not willing to disrespect the rule of law nor to risk” prosecution, so she will not make such restricted statements in the future). Additionally, the next time Ms. Peck wants to speak on th ese subjects, she would likely not have time to bring an an alogous suit asserting her First Amendment rights because child protection proceedings move quickly. She has shown facts demonstrating a likelihood that her desire to speak in this ma nner will arise in the Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2829 near future. Thus, Ms. Peck is likely to confront a scen ario where she has to choose between either following the law under Sec tion 307 and forgoing prohibited speech, or representing her clients a nd holding public officials acc ountable to the best of her abilities moving forward by making her desi red disclosures. This is a dilemma directly caused by Section 307(4) and has the potential to occu r imminently, at a speed preventing her from seeking relief in a later suit. Ms. Peck ’s free speech is indisputably chilled by Section 307(4), as we discussed at length within our standing inquiry. These facts indicate ripeness. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1500 (tr eating “chilling effect” as a sepa rate ripeness factor for First Amendment plaintiffs). As for the second factor, this facial c onstitutional challenge is a purely legal question, accompanied by a joint statement of st ipulated facts. It is thus an ideal fit for judicial review, favoring a co nclusion that the case is ripe. In sum, the two factors re flect ripeness and our case la w encourages particular lenience in First Amendment ripeness i nquiries. See id. at 1499 (“Reasonable predictability of enforcement or threat s of enforcement, without more, [are] sometimes . . . enough to ri pen a claim.”); Awad v. Ziri ax, 670 F.3d 1111, 1125 (10th Cir. 2012) (finding First Amendment challe nge ripe); Walker, 450 F.3d at 1098 (same); U.S. West, Inc. v. Tristani, 182 F. 3d 1202, 1208 (10th Cir. 1999) (same). We therefore find Ms. Peck’s challenge to Section 307(4) to be ripe. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 2930 II. Strict Scrutiny The Supreme Court has held that faci ally “[c]ontent-based laws—those that target speech based on its communi cative content—are presumptively unconstitutional and may be ju stified only if the government proves that they are narrowly tailored to serve compelling state in terests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Here , Section 307(4) is a conten t-based restriction on speech in that it targets and prohibits speech based on its content, that content being information from child abuse reports. As such, it is subject to strict scrutiny. 11 It is undisputed that the state has a co mpelling interest “in protecting its childabuse information.” Pennsylvania v. Ritc hie, 480 U.S. 39, 60 (1987). Conceding this, Ms. Peck focuses only on the na rrow tailoring requirement, arguing that Defendants have failed to show that “a narrowed prohibition—banning only

11 While Ms. Barnes concedes this point, Ms. McCann argues against applying strict scrutiny. Ms. McCann’s argument lack s merit, however. She seeks a novel application of the Garcetti/Pickering test , which is used to determine whether a government employee is entitled to First Amendment protection fo r speech within the scope of employment. Garcetti v. Ceballo s, 547 U.S. 410 (2006). One of the test’s elements asks “whether th e employee spoke as a citi zen on a matter of public concern. . . . If the answer is no, th e employee has no First Amendment cause of action based on his or her em ployer’s reaction to the sp eech.” Id. at 418. Ms. McCann suggests that the “publ ic concern” element should be applied to this context to allow restriction of Ms. Pe ck’s speech because Ms. Peck, as an attorney for parents in child abuse proceedings, “is a critical and necessary actor in the judicial system,” and so has no greater right to publicly speak on these matters than would a government employee like a social worker. McCann Op ening Br. at 31–32. We reject Ms. McCann’s invitation to so dras tically extend the doctrine. Her argument has no foundation in our First Amendment ju risprudence and it would have disastrous downstream results, deprivi ng every individual who plays a so-called “critical” role in some part of the government of Firs t Amendment rights to some degree, for no reason other than their civil service. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3031 disclosure of identifying information fro m child abuse records and reports—would not substantially serve the co mpelling interest.” Aple. Br . at 40. The heavy burden of demonstrating that a cont ent-based restriction is “the least restrictive means among available, effective alternat ives” lies with the government. Ashcroft v. Am. C.L. Union, 542 U.S. 656, 665–66 (2004). Defendants contend that Section 307( 4) is narrowly tailored because mandating confidentiality as to all information within child abuse records is the only feasible way to protect the compelling in terest in privacy for children and their families, because it is t oo difficult to draw a “bright line between identifying and nonidentifying pieces of informati on.” Barnes Opening Br. at 55. 12 Defendants argue that removing identifiers from ch ild abuse report disclosures would be extremely difficult due to th e case-by-case specificity of such reports. They further suggest that the government’s compelling inte rest is not only to keep reports hidden from the media and public, but also to shie ld the reports from abusers, who might seek retribution, and from a “child’s ow n community, family members, friends, classmates, and neighbors,” wh o might stigmatize the identif iable individuals. Id. at
51–54. We agree that separating identif ying information from non-identifying information would often be a difficult task . But whether the al ternative means are “difficult” is not the standa rd we apply in tailoring inqui ries. The touchstone is

12 Ms. McCann adopted in full Ms. Barnes’ argument regarding the tailoring issue. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3132 whether the state has shown th at no alternative exists that is both “less restrictive” than the existing law and woul d effectively achieve the st ate’s compelling interest. Ashcroft, 542 U.S. at 665. We need not draw a “bright line” between identifying and non-identifying information at this point in time, when the central question before us is only whether a law limiting identifying disclosures alone—a law that would be enforced case-by-case—could accomplish the state’s compelling interest. Defendants have not presented any actua l evidence for their assertion that Ms. Peck’s proposed alternative would be ineffect ual. In response to the various hypothetical examples listed by the district court in whic h information from a report would be straightforwardly non-identifying, such as the steps a caseworker took to respond to a report, Defendants merely insist that someone out there could, in theory, still identify the child based on that information. This is not proof; it is merely speculation, which is not enough to meet Defendants’ burden under strict scrutiny. Additionally, Defendants have failed to demonstrate that their understanding of what qualifies as “identifying” informat ion—that is, information that would allow anyone, including friends and family, to identify the individuals involved—is the right definition. It is possi ble that “identifying informa tion” should be construed to cover only such information that would allo w members of the public to figure out the individuals’ identities, which would make distinguishing between identifying and non-identifying information much easier. 13 Defendants have not provided any

13 We do not express an opinion on which de finition of “identifyi ng” is the correct one, as this would require a detailed ex ercise of statutor y interpretation. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3233 authority or principles in support of their interpretation, and so they have simply failed to convince us th at their definition is correct. It is their burden to do so for Section 307(4) to survive strict scrutiny Furthermore, other sections of the Ch ildren’s Code directly contemplate the possibility of public disclosu res of information from child abuse reports that do not identify individuals. Secti on 19-3-308 provides for the creation of Child Protection Teams, which are directed to “publicly review the respon ses of public and private agencies to each reported incident of ch ild abuse or neglect” and “publicly report nonidentifying information rela ting to any inadequate res ponses.” Colo. Rev. Stat. § 19-3-308(6)(f) (emphasis added). If Child Protection Teams are capable of distinguishing between identif ying and non-identifying inform ation, then so too are courts and prosecutors tasked with en forcing confidentiality requirements. Defendants argue that the Child Protecti on Team provision is not inconsistent with their claim because § 19-3-308 re quires that the Child Protection Teams publicly disclose informa tion only “after a thoughtful dialogue and determination regarding what details of a case may be identifying,” which does not endanger the state’s interest in the same way that un ilateral disclosure “by an individual or advocate with a subjective age nda” would. Barnes Opening Br. at 58. But that is again Defendants’ subjective, unproven und erstanding of § 19-3-308. The statute itself does not include procedural safe guards to guarantee such a “thoughtful dialogue,” and Child Protection Teams incl ude members of the lay community who are no less likely to have an agenda than someone like Ms. Peck. At bottom, the Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3334 allowance of disclosures of non-identifying informatio n by Child Protection Teams necessarily implies that it is possible to distinguish between identifying and nonidentifying information, rebutting the cen tral argument proffered by Ms. Barnes against Ms. Peck’s less-re strictive alternative. Section 307’s enumerated exceptions to the confidentiality requirement are also not sufficient to establish narrow tailor ing. There is no dispute that Ms. Peck’s proposed alternative of allowing non-id entifying disclosures by private parties narrows the confidentiality protections of Section 307(4), even when accounting for the exceptions. Likewise, the f act that forty-eight other st ates have laws similar or identical to Section 307, without any explan ation of why those laws are written that way, does not persuasively support a c onclusion that allo wing non-identifying disclosures would be an unworkable accommodation to Colorado’s compelling interests. 14
In a final effort to c onvince us that Section 307( 4) is narrowly tailored, Defendants emphasize Section 307’s relations hip with CAPTA, because they believe that continued enforcement of Section 307 in its entirety is nece ssary for Colorado to receive federal funds for its child protecti on system. However, that does not resolve the question of whether Secti on 307(4) is narrowly tailored , either. It is no excuse

14 Tennessee, the outlier state, makes confid ential only information that “directly or indirectly identif[ies] a child or family receiving services fr om the department or that identify the person who made a report of harm .” Tenn. Code. Ann. § 37-5-107(a). This statute’s existence undermines Defenda nts’ argument that Section 307(4) is narrowly tailored, especially in the absence of any indica tion that Tennessee has lost CAPTA funding as a result of its narrower statute. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3435 for a state that is violating the constitutional rights of its citizens to say “the federal government is paying us to do it.” And in any event, Defendants have produced no affirmative evidence that the federal gove rnment would in fact withhold CAPTA funding were Section 307(4) to be taken off the books or narrowed to allow private parties to disclose non-identifying informat ion from child abuse records. To the contrary, it appears to us that Colorado qualified for CAPTA funding before Section 307(4) was enacted in it s current form in 2003. Thus, Defendants have failed to disprove that a narrower version of Section 307, prohibiting and punishi ng only disclosures of identif ying information from child abuse reports, would adequately serve Colo rado’s compelling intere st. Because there is a feasible and less restri ctive alternative, Section 307( 4) is not narrowly tailored to the state’s compelling inte rest, so is facially unc onstitutional and void.
III. Severability The district court held, erroneously, th at Section 307(1)(c) and Section 307(4) covered the same speech and were both unc onstitutional. As a result, the court did not have occasion to address below whet her Section 307(4) could be severed from the rest of the statute, leaving Section 307(1)’s pena lty—which we find to be narrower, reaching only disclosures of identifying information from child abuse reports—intact. See genera lly Colo. Rev. Stat. § 2- 4-204 (imposing rules for severing unconstitutional provisions of Co lorado statutes); Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208–09 (2020) (discussing federal severability rules). The parties also did not provide any briefi ng on severability, as Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 3536 they apparently assumed that the two pr ovisions would have the same scope. Because we have held that only Section 307(4) is unconstitutiona l, whereas Section 307(1) was not properly cha llenged by Ms. Peck, we orde r a limited remand to allow the district court to determine the severab ility of Section 307(4) in the first instance.
CONCLUSION Based on the foregoing, we AFFIRM in pa rt, striking down Section 307(4) as unconstitutional; REVERSE in part, finding th at Ms. Peck has not stated a valid challenge to Section 307(1) and leaving that provision in effect; and REMAND for the district court to assess whether the invalid Section 307(4) is severable from the rest of the statute. Appellate Case: 21-1125 Document: 010110722080 Date Filed: 08/09/2022 Page: 36