Peck v. McCann, 43 F.4th 1116

Jessica Peck, a Colorado attorney representing family members in juvenile child-abuse matters, publicly disclosed non-identifying information from a case to a newspaper and provided an internal caseworker email excerpt.
Colorado Children’s Code § 19-1-307 requires confidentiality of child-abuse reports and contains two penalty provisions: § 307(1)(c) (misdemeanor/petty offense/civil infraction for violating subsection (1) identifying-information rule) and § 307(4) (misdemeanor for improperly releasing “data or information” in records and reports).
A juvenile court magistrate warned Peck she may have violated § 307(1)(a); no recorded prosecutions under § 307 exist, but Colorado annually certifies enforcement to obtain CAPTA funding.
Peck sued state officials seeking a declaration and injunction against enforcement; the district court struck both § 307(1)(c) and § 307(4). Defendants appealed.
The Tenth Circuit held § 307(1) reaches only identifying information (so Peck lacked standing to challenge it), but § 307(4) unambiguously covers non-identifying information; the court invalidated § 307(4) under strict scrutiny and remanded to decide severability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of § 19-1-307(1) v. § 19-1-307(4)	§ 307 broadly bars disclosure of information in reports (including non-identifying)	Both provisions cover the same speech; § 307(1) and (4) overlap	§ 307(1) is limited to identifying information; § 307(4) separately and broadly covers all "data or information," including non-identifying
Standing/ripeness for pre-enforcement First Amendment claim	Peck has a present desire to speak, past similar disclosures, and a credible threat of enforcement; suit is ripe	Lack of prosecutions and no explicit threat means no credible threat; Peck’s desire is not immediate	Peck has Article III standing and the claim is ripe as to § 307(4) (but not § 307(1) because she disclaims desire to disclose identifying info)
First Amendment standard and tailoring of § 307(4)	§ 307(4) is content-based and not narrowly tailored because a law limited to identifying info would serve the interest	Broad confidentiality is necessary; distinguishing identifying vs non-identifying is infeasible and required for CAPTA compliance	§ 307(4) is content-based, triggers strict scrutiny, and is not narrowly tailored; statute fails strict scrutiny and is unconstitutional
Severability	(Implicit) Invalidate § 307 provisions together	§ 307(4) may be severable from § 307(1)	Court remanded to district court to determine if § 307(4) is severable from the remainder of § 307

Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions trigger strict scrutiny)
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (relaxed standing/ripeness framework for chilled First Amendment claims)
Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383 (1988) (narrowing constructions can save statutes from constitutional infirmity)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (credible-threat standing in pre-enforcement First Amendment suits)
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) (government bears heavy burden to show narrow tailoring under strict scrutiny)
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (state interest in protecting child-abuse information)
Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) (objective-credibility test for threat of prosecution)
Rio Grande Found. v. City of Santa Fe, 7 F.4th 956 (10th Cir. 2021) (Walker prongs applied to advocacy group's present desire to speak)
Gillies v. Schmidt, 556 P.2d 85 (Colo. App. 1976) (earlier Colorado case prompting legislature to narrow confidentiality statute)