DENVER (KDVR) — An appeals court has sided in part with a Colorado attorney who challenged a state law she said protects the misconduct of child welfare workers.
Jessica Peck, a lawyer who works on child abuse and neglect cases, argued that Colorado law censors people with the threat of jail if they publicly share information about caseworkers they believe may have endangered children and teens across Colorado.
The 10th Circuit U.S. Court of Appeals partially sided with Peck in a decision issued Tuesday, finding part of the law unconstitutional.
“This is hugely significant because 48 other states have similarly unconstitutional laws on their books, which unlawfully prevent attorneys involved in child abuse cases, such as Jessica Peck, from blowing the whistle on government incompetence and corruption,” said David Lane of Killmer, Lane and Newman, LLP, the Denver civil rights firm that handled the case. Attorney Tom Kelley argued the appeal.
Media interview in child welfare case led to lawsuit
Peck’s case stems from an interview she did with the Denver weekly newspaper Westword. In the interview, she questioned a Denver Human Services case that put a mother at risk of losing her 3-year-old child “without a single shred of evidence.” She also provided a DHS email in the case to the newspaper.
While Peck was not punished for the interview, a judge in the case cited the legal punishments possible and ordered that information in the case was to remain confidential, court records show. Peck decided to sue, claiming that because of state law, she is “chilled from criticizing official conduct based on information contained in child abuse records and reports.”
In a 2019 interview with FOX31, she said her work led her to discover that good intentions have given way to a system where child welfare workers have unchecked power in too many child abuse and death cases.
“The agency operates in darkness, empowered to bully into silence the grieving families, reporters and lawyers who dare to question the agency’s role in any derogatory way,” Peck said at the time.
She said that after her interview with Westword, the caseworker she questioned was removed from the case.
“My client may have lost her child had we not spoken out. The Fourth Estate is critical to protecting my clients’ interests and without journalists, we’re doomed,” Peck said.
Colorado Children’s Code challenged in lawsuit
The case involves Section 307 of the Colorado Children’s Code, which details that child dependency and neglect records are to remain confidential. It includes two provisions to penalize violators, both of which Peck challenged in her lawsuit and which the lower court struck down.
The defendants — 2nd Judicial District Attorney Beth McCann, who enforces the law, and Michelle Barnes, executive director of the Colorado Department of Human Services — appealed.
The Supreme Court has held that laws that target speech based on content are unconstitutional and justified only in narrow circumstances, the court noted in its ruling on Tuesday.
With that considered, the court found that one of the law’s penalties, which threatens jail and fines for those who release information in a child welfare case, “undisputedly imposes a burden on speech.” The appeals court sided with Peck, finding that part of the law unconstitutional.
Another part of the law also issues penalties against violators, but the appeals court found it specifically targets the release of identifying information in such cases — a narrow enough application to satisfy the court. It reversed the lower court decision that struck it down.