The Statute at Issue: Colo. Rev. Stat. § 18‑9‑313(2.7)

The statute makes it unlawful to knowingly make personal information about a “protected person” (including peace officers) or their immediate family available on the internet if:

• Dissemination of the personal information poses an imminent and serious threat to the protected person’s or family’s safety; and
• The publisher knows or reasonably should know of that imminent and serious threat.

Scott’s proposed speech—posting a body‑cam video and an affidavit with a trooper’s personal information—falls in the zone regulated by the statute. The merits question (constitutionality) remains undecided; the Tenth Circuit addressed only whether Scott may litigate that question before enforcement.

Precedents Cited and Their Influence

1) Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)

SBA List is the linchpin for modern pre‑enforcement standing in First Amendment contexts. It clarifies that a plaintiff:

• Need not admit an intent to violate the law to have standing;
• Must show intended conduct is arguably proscribed and that there is a credible threat of enforcement causing a chilling effect.

The Tenth Circuit relied on SBA List to reject the district court’s inference that Scott’s professed “innocence” eliminated injury. SBA List squarely holds that one can challenge a law without confessing to violating it; indeed, that is the point of pre‑enforcement review in speech cases.

2) Babbitt v. United Farm Workers, 442 U.S. 289 (1979)

Babbitt established the “arguably proscribed” formulation used in SBA List. Plaintiffs need show only that their intended conduct arguably falls within a statute’s scope and that a credible threat of enforcement exists. The Tenth Circuit applied this flexible standard, emphasizing that the bar is not high in First Amendment cases.

3) 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021), rev’d on other grounds, 600 U.S. 570 (2023)

On standing, 303 Creative is important in the Tenth Circuit for two reasons:

• Even where a plaintiff stipulated to serving all customers, the court looked beyond labels to assess whether some intended conduct was arguably covered by Colorado law.
• “Non‑disavowal” of enforcement by the government is a relevant factor supporting a credible threat.

The court drew on 303 Creative to hold that the DA’s refusal to disavow future enforcement supports standing. It also used 303 Creative to explain why a litigant’s statements of good faith or “innocence” do not negate standing.

4) Peck v. McCann, 43 F.4th 1116 (10th Cir. 2022)

Peck underscores that First Amendment standing requirements are applied “somewhat more leniently,” reflecting the judiciary’s sensitivity to chilling effects. It also reinforces that the “arguably proscribed” bar is low and that courts should not collapse merits into standing. The Tenth Circuit quoted and relied on Peck’s framing throughout.

5) Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc)

Walker provides an alternative, compatible articulation: plaintiffs can establish a sufficiently concrete chilling injury by showing (1) past engagement in the type of speech, (2) a present desire to engage in such speech, and (3) a plausible claim that they refrain due to a credible threat of enforcement. The court acknowledged Walker and SBA List as consistent formulations it has long treated as complementary.

6) Loving v. Boren, 133 F.3d 771 (10th Cir. 1998)

Loving stands for the uncontroversial proposition that a plaintiff must support “each element” of standing with appropriate evidence. The district court misapplied Loving by requiring Scott to offer evidence proving the statute’s elements (e.g., knowledge of an imminent and serious threat) rather than evidence establishing the standing test (arguably proscribed conduct and a credible threat leading to chill).

7) Non‑disavowal and the “no standing” line of cases

The Tenth Circuit contrasted this case with decisions where standing failed because prosecutors effectively renounced enforcement:

• Brown v. Buhman, 822 F.3d 1151 (10th Cir. 2016) (office policy prevented future prosecutions);
• Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) (DA disavowed enforcement);
• PeTA v. Rasmussen, 298 F.3d 1198 (10th Cir. 2002) (defendants admitted earlier threats stemmed from misinterpretation);
• Faustin v. City of Denver, 268 F.3d 942 (10th Cir. 2001) (prosecutor determined ordinance didn’t apply).

Here, by contrast, the DA did not disavow enforcement, and other signals (the association’s expulsion and the trooper’s complaints) point toward a credible risk.

8) Sua sponte jurisdiction checks and ripeness

The court reaffirmed a federal court’s obligation to assess jurisdiction sua sponte (United States v. Colorado Supreme Court; New England Health Care Emps. Pension Fund v. Woodruff), while faulting the district court’s analysis. On ripeness, the court cited Peck and related cases (e.g., Coomer v. Make Your Life Epic LLC, Pacific Frontier v. Pleasant Grove City) to conclude that where there is a credible threat and present chill, the dispute is fit for review now.

9) Other supporting authority

The court noted First Circuit support for the “extremely low” evidentiary bar on credible threat in First Amendment cases (Mangual v. Rotger-Sabat).

Legal Reasoning: Why Standing Exists Here

1. No admission of illegality required. The district court treated Scott’s statement—“there is no evidence that Mr. Scott knows or reasonably should know of an imminent and serious threat”—as a concession undermining standing. The Tenth Circuit rejected that approach under SBA List. Plaintiffs challenging a law pre‑enforcement do not have to incriminate themselves or concede they plan to violate the law.
2. Do not conflate the statute’s elements with standing elements. Standing turns on whether the proposed speech is “arguably proscribed,” not on whether the prosecutor could prove all elements of the offense beyond a reasonable doubt. Requiring Scott to prove the statute’s mens rea at the standing stage improperly collapses merits into jurisdiction.
3. “Arguably proscribed” is a low bar in First Amendment cases. Scott’s intended publication of personal information about a protected person on the internet arguably falls within § 18‑9‑313(2.7). He also offered uncontested evidence of self‑censorship (e.g., investment of $30,000 in the site but no publication).
4. Credible threat evidenced by concrete signals. The Process Servers Association expelled Scott while expressly invoking the statute; the trooper alleged Scott put him and his family at risk; the DA did not disavow enforcement. These factors collectively establish a credible threat of prosecution and explain the chilling effect on Scott’s speech.
5. Sua sponte standing review was permissible, but the conclusion was wrong. While courts may and must police jurisdiction at any time, the record (and the parties’ summary‑judgment submissions) already contained sufficient material to resolve standing correctly without additional briefing.
6. Ripeness follows from the same logic. Because the threat of enforcement is credible and it presently chills speech, Scott’s as‑applied claim is ripe. There is no need to wait for prosecution or another enforcement action to mature the dispute.

Impact and Forward‑Looking Implications

For First Amendment Litigants

• The decision fortifies access to pre‑enforcement review within the Tenth Circuit. Plaintiffs may challenge speech‑restrictive statutes without admitting illegality and without proving every element of the offense, including mens rea.
• Evidence sufficient for standing can include: prior or intended engagement in the regulated speech; third‑party actions that signal potential enforcement (e.g., professional discipline referencing the statute); and prosecutorial non‑disavowal.
• Strategically, plaintiffs should document concrete chilling effects (e.g., expenditures made, publication plans halted) and compile credible threats (complaints, demand letters, agency actions, non‑disavowal).

For Prosecutors and Government Defendants

• Non‑disavowal of enforcement is a “relevant factor” favoring standing. Prosecutors who wish to contest pre‑enforcement standing must consider formal disavowals or clear policies against enforcement under the challenged statute.
• Arguments that plaintiffs must prove the offense’s elements to show standing are unlikely to succeed; courts will focus on arguable coverage and chilling risk.

For Statutes Regulating “Doxxing” and Public Official Privacy

• This decision does not reach the merits of § 18‑9‑313(2.7), but it ensures those merits will be litigated. Similar statutes may face increased pre‑enforcement challenges where plaintiffs can show arguable coverage and non‑disavowal.
• On the merits (to be decided on remand), courts may confront questions of content‑ or subject‑matter‑based regulation, overbreadth, and vagueness. The presence of a harm‑risk and knowledge standard may influence scrutiny, but none of that is resolved here.

For Professional Associations and Regulators

• Disciplinary actions explicitly premised on a statute can be evidence of a credible threat of criminal enforcement, strengthening pre‑enforcement standing.

Doctrinal Clarification in the Tenth Circuit

• The opinion harmonizes SBA List and Walker as parallel ways to frame pre‑enforcement injury and reiterates the circuit’s “somewhat more lenient” approach to First Amendment standing (Peck).
• It instructs district courts not to demand proof of statutory elements at the standing stage and not to treat a plaintiff’s assertion of innocence as fatal to standing.