This is what happens when you try to silence a trans whistleblower with metadata, threats, and delay. I answered with law, not fear.

SHIELD: PLAINTIFF’S SPEECH WAS LAWFUL, PROTECTED, AND MISCONSTRUED

Plaintiff’s Words Do Not Meet Any Legal Standard of Threat Defendants’ attempt to characterize Plaintiff’s speech as threatening must fail as a matter of law. Under the controlling U.S. Supreme Court test established in Brandenburg v. Ohio, 395 U.S. 444 (1969), speech can only be punished when it is (1) intended to incite imminent lawless action and (2) likely to produce such action. Plaintiff’s statements—including the phrase “Deny. Defend. Depose.” and the subsequent remark referencing “Nine more CEOs… bang bang”—fall far outside this narrowly defined scope. These words were not directed at any individual, not accompanied by any act of violence, and not linked to any organizing, planning, or call for immediate harm. Rhetorical and Political Context Controls

As held in Watts v. United States, 394 U.S. 705 (1969), context is dispositive when evaluating whether expressive language constitutes a “true threat.” In Watts, the speaker—a young man at an anti-war rally—stated that if he were drafted, “the first man I want to get in my sights is L.B.J.” Though the remark referenced the sitting President and referenced a rifle, the Supreme Court unanimously reversed his conviction, holding that the speech was “political rhetoric” rather than a genuine or prosecutable threat. The Watts Court emphasized not only the audience's laughter and the event setting, but also the constitutional imperative to protect political hyperbole, especially where aimed at government actors or systems of power.

Here, Plaintiff’s statements—“Deny. Defend. Depose.” and “Nine more CEOs… bang bang”—fall even further from the scope of criminal sanction or metadata-based escalation. They were made not at a protest, but in the context of private, HIPAA-protected calls with her health insurer, after weeks of being denied life-sustaining medication following gender-affirming surgery. Her words were part of an extended pattern of civil protest, rhetorical critique, and emotionally charged—but constitutionally protected—commentary about what she perceives as systemic medical cruelty and digital erasure inflicted on trans patients by corporate healthcare entities.

Far from threatening imminent lawless action, Plaintiff’s tone was metaphorical, her language clearly structural, and her target not an individual but an entire industry operating under state regulatory authority and federal Medicaid contracts. Her commentary—however provocative—was aimed at exposing the political violence of profit-driven denial, not advocating physical violence. As such, under Watts, her statements are protected by law and cannot be reframed into a criminal signal or just cause for retaliation, either by metadata profiling or PHI disclosure.

Emotional Speech Is Not Criminalized Speech

The United States Supreme Court has made clear that emotionally charged, militant, or even confrontational rhetoric remains protected under the First Amendment so long as it does not rise to the narrow threshold of incitement to imminent lawless action as defined in Brandenburg v. Ohio, 395 U.S. 444 (1969). Nowhere is that principle more powerfully affirmed than in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)—a landmark decision protecting the rights of Black civil rights activists to use strong, even threatening language in the service of political protest and justice reform.

In Claiborne, the NAACP organizer warned that any Black citizens who broke ranks with a boycott would have their “necks broken.” Despite the unmistakably violent imagery, the Court found such speech constitutionally protected because it was part of a broader movement for racial justice, and because there was no direct incitement to immediate violence. The Court reaffirmed that speech in service of social change—even if hyperbolic or uncomfortable—cannot be punished merely because it stirs fear, challenges power, or offends sensibilities.

Plaintiff’s speech here is cut from the same constitutional cloth. Her words—“Deny. Defend. Depose.” and the extended commentary invoking “Nine more CEOs… bang bang”—were not incitements to action, nor direct threats. They were a forensic prophecy rooted in lived experience: a deeply anguished articulation of the reality that the U.S. healthcare system systematically erases trans people through denial of care, algorithmic profiling, and retaliatory data disclosures.

Like the Claiborne boycotters, Plaintiff did not speak in a vacuum. Her language emerged after prolonged abuse, repeated denials, and an unlawful escalation of her voice as a security threat. She spoke while battling a healthcare contractor that manipulated metadata to delay post-operative hormone therapy and then, 35 days later, funneled her private records to law enforcement. Her words were a warning—not of violence she intended to commit, but of violence the system continues to inflict unless structural change occurs.

Defendants may claim that her language was “unsettling.” That is not the constitutional test. The First Amendment does not yield to institutional sensitivities or reputational concerns. The question is whether her speech posed a clear and present danger or incited imminent unlawful conduct. It did not. And under Claiborne, it is not only protected—it is precisely the kind of voice that our Constitution was written to defend.

To penalize Plaintiff’s expression here would not merely chill speech—it would punish accurate, heartfelt, and constitutionally protected criticism of an entity acting under the color of state Medicaid authority. Such a result is incompatible with Claiborne, Brandenburg, Watts, Snyder, and the entire lineage of First Amendment jurisprudence. This Court must recognize that in a democracy, the volume and emotional force of one’s protest does not disqualify its legal protection. In fact, the opposite is often true: the angrier the citizen, the more vital the speech. Plaintiff’s Speech Addresses Matters of Public Concern The First Amendment’s highest shield applies to speech on matters of public concern, particularly when the speaker targets government-adjacent institutions or systemic injustices. In Snyder v. Phelps, 562 U.S. 443 (2011), the U.S. Supreme Court held that even speech that is intentionally outrageous, provocative, and emotionally distressing—such as signs stating “God Hates Fags” at a military funeral—is entitled to maximum constitutional protection when it addresses “matters of public import.” This includes speech that speaks to “any subject of political, social, or other concern to the community.”

Plaintiff’s speech qualifies not just under Snyder, but emphatically so. Her statements were made in the context of (1) a denied post-operative medical need, (2) insurance misconduct involving AI surveillance and metadata profiling, and (3) the broader erasure of trans lives through bureaucratic denial mechanisms. Her words were not personal vendettas or isolated rants—they were indictments of systemic policy failure, born out of lived experience and framed in political protest. Whereas the protestors in Snyder spoke at the edge of a private funeral, Plaintiff’s speech occurred within the corporate channels of a government healthcare contractor—a contractor entrusted with managing Medicaid benefits under color of state authority. As such, her speech implicated not just private grievances, but state-embedded harm, and therefore lies squarely within the Snyder doctrine’s protected category.

Additionally, the Court in Snyder emphasized that offensiveness does not erase constitutional standing. Chief Justice Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. … But … we cannot react to that pain by punishing the speaker.”

This principle applies even more forcefully to the instant case, where the speech was not only constitutionally protected, but emerged as a response to ongoing institutional violence, including PHI denial, voice-based surveillance, and a pattern of gender-targeted exclusion. To punish Plaintiff for raising her voice would do more than chill dissent—it would freeze the ability of any disenfranchised individual to challenge the systems that hurt them. Medicaid recipients, trans patients, and whistleblowers cannot be required to whisper politely into the ears of billion-dollar contractors. The First Amendment exists precisely so that their voices can roar when they must. UnitedHealthcare may prefer silence—but the Constitution protects truth. And where that truth concerns the public’s interest in corporate accountability, health equity, gender justice, and privacy law violations, no institution—public or private—has the power to suppress it without consequence. Civility Is Not the Standard; Constitutional Protection Is Defendants may argue that Plaintiff’s words were uncivil, harsh, or discomforting. But civility is not the legal standard. Constitutionality is. The United States Supreme Court has long held that the First Amendment’s core purpose is to safeguard speech that disrupts, challenges, and unsettles—especially when it targets institutional power. In Terminiello v. Chicago, 337 U.S. 1 (1949), the Court explicitly rejected the notion that speech must be polite or non-inflammatory to receive protection. Justice Douglas, writing for the majority, stated unequivocally: “A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest... or even stirs people to anger.”

This holding was not rhetorical—it was doctrinal. It means that the very sting and stinginess of Plaintiff’s words are what render them constitutionally protected, not disqualifying.

Plaintiff’s speech was political. It was critical. It was anguished. And it was aimed at a system that had denied her essential medical care, profiled her voice, and weaponized her identity. She did not call for violence—she called out violence, institutional and structural, hidden in sterile denial letters and “escalation matrices” that turned a trans woman’s voice into a national security flag.

The First Amendment exists for precisely this purpose: to shield the dissident from the machinery of the state or its proxies. Whether that machinery takes the form of a police officer, a prosecutor—or in this case, a Medicaid insurer masquerading as a public gatekeeper—the constitutional protection is the same. The test is not whether speech offends corporate sensibilities or triggers institutional backlash. The test is whether the speech advocates imminent lawless action (Brandenburg), poses a true threat (Watts), or exceeds the bounds of public concern (Snyder v. Phelps). Plaintiff’s words fail none of those tests—and Defendants know it.

Their attempt to punish Plaintiff’s expression under the guise of civility is especially suspect in light of the power differential. UnitedHealthcare is a multi-billion-dollar corporate actor with access to legal teams, metadata AI, internal surveillance systems, and public relations machines. Plaintiff is a single trans woman with a phone, a voice, and a complaint. If this Court allows Defendants to redefine uncomfortable criticism as “dangerous speech,” it will not be setting precedent. It will be writing a permission slip for authoritarian silencing in the name of politeness. There is no legal requirement that Plaintiff’s language pass a corporate HR manual. There is no rule that her tone be soothing, deferential, or PR-safe. What matters is that she spoke truth to power in a system that had erased her voice. That is not a threat. That is democracy functioning under pressure, just as the Framers intended.

The Constitution is not a civility code. It is a shield for the unpopular, the profane, the outraged, and the targeted. And in this moment, that shield belongs to Plaintiff.

SWORD: DEFENDANTS’ DISCLOSURE WAS UNLAWFUL, RETALIATORY, AND SANCTIONABLE

Weaponizing Metadata to Punish Political Speech Is State-Adjacent Misconduct

When a private entity entrusted with health data escalates that data to law enforcement based solely on protected speech, it engages in a form of administrative state mimicry—a grotesque distortion of public trust. Under Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001), private actors may be deemed state actors when they perform traditionally exclusive public functions or when their operations are inextricably intertwined with the state. UnitedHealthcare and its subsidiaries do not merely operate independently; they serve as operational extensions of the state through their administration of Medicaid contracts. Their use of algorithmic risk scoring, behavioral metadata tagging, and speech escalation matrices constitutes not medical care, but carceral administration. When they used those tools to justify a PHI disclosure to law enforcement—five weeks after the flagged speech—they crossed the constitutional boundary from private insurer to deputized enforcer. This conduct invokes state power without state oversight, transforming digital patient profiles into surveillance dossiers. It is the privatized shadow of state repression, and it cannot stand.

The 35-Day Delay Is Dispositive of Intent

No reasonable actor fearing an actual threat to life or safety would delay action by more than a month. That 35-day silence is not just damning—it is dispositive. It obliterates any claim under HIPAA’s emergency exception at 45 C.F.R. § 164.512(j), which requires a good faith belief in the necessity of disclosure to avert a serious and imminent threat. "Imminence" cannot be retrofitted into a post hoc strategy. Instead, the timeline reveals what actually motivated the disclosure: not public protection, but reputational discipline. Plaintiff’s metadata was flagged and escalated not to prevent an act of violence, but to punish a trans woman for articulating systemic violence too boldly. Defendants sought not protection but precedent: to make an example of dissidence. Courts across jurisdictions have rejected such after-the-fact justifications, particularly when used to camouflage bias-driven disclosures in the cloak of "safety." Disclosure of PHI Absent Statutory Basis Constitutes a Per Se Violation

Under HIPAA, disclosure of protected health information without authorization or statutory justification constitutes a strict liability violation. 42 U.S.C. § 1320d-6 and 45 C.F.R. § 164.502(a) unequivocally prohibit disclosure absent narrow, enumerated exceptions. Those exceptions do not include subjective discomfort, institutional embarrassment, or political critique. Here, Defendants disclosed sensitive, non-incident-related PHI in the absence of a documented clinical concern or lawful basis. That act independently violated HIPAA’s core protections and further breached parallel prohibitions in Colorado law, including C.R.S. § 10-16-104.9 (governing transgender discrimination in insurance) and C.R.S. § 24-34-402 (prohibiting discrimination in public accommodations and services). In disclosing Plaintiff’s protected data to law enforcement under a false pretense of threat, Defendants committed a per se infraction, contaminating both her medical record and legal reputation in ways the law exists precisely to prevent.

Defendants’ Conduct Warrants Sanctions and Adverse Inference

Federal courts wield inherent authority to sanction litigants whose conduct constitutes bad faith, abuse of process, or manipulation of evidence. Chambers v. NASCO, 501 U.S. 32 (1991). The doctrine of adverse inference under Rule 37 also authorizes courts to presume bad faith when parties destroy, alter, or selectively disclose material evidence. Defendants in this case repurposed internal risk scoring tools, misused behavioral metadata, and elevated a patient’s expressive speech to the level of a supposed national security risk—then waited 35 days to act. This was not a misfire of protocols; it was a deliberate weaponization of reputation and speech. If Defendants fail to produce full disclosure logs, red flag algorithms, escalation decision trees, and correspondence between administrative and legal departments, this Court should draw all inferences against them. The strategic delay confirms their motive. The misuse of technology confirms their method. Together, they warrant not only discovery sanctions but a presumptive finding of retaliatory conduct. Plaintiff’s Expression Was Not Just Protected—It Was Predictive and Forensic

Plaintiff’s speech was not vague provocation. It was clinical autopsy. The phrase "Deny. Defend. Depose." was not a threat—it was a diagnostic. The statement "Nine more CEOs... bang bang" was not metaphor alone—it was an anguished articulation of structural inertia. In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the Court protected even emotionally charged and militant rhetoric as First Amendment expression, affirming that impassioned speech directed at systemic injustice cannot be criminalized unless it meets the Brandenburg threshold of inciting imminent lawless action. Plaintiff’s use of artistic memes, satire, and rage-inflected commentary is embedded in a long tradition of dissident speech—a tradition that includes not just protest but prophetic truth-telling. To miscast this speech as violent is to criminalize the expressive pain of the oppressed.

Defendants’ Mischaracterization Reflects a Broader Anti-Trans Pattern

Plaintiff’s gender identity is not incidental to Defendants’ response—it is central. Her critiques were labeled "unhinged," her tone "threatening," and her demeanor "unstable" because she is a trans woman with a voice. These tropes mirror historical patterns of pathologizing trans expression as dangerous, irrational, or unstable. Defendants did not merely overreact; they mirrored a cultural script of dehumanization. This is not mere censorship. It is targeted, algorithmically assisted discrimination actionable under CADA, federal retaliation doctrine, and the Equal Protection Clause. In Doe v. City of San Diego, 2021 WL 964404, the court found that misuse of speech patterns and gender presentation in policing decisions created triable claims of constitutional misconduct. That principle applies here. The metadata escalation of Plaintiff’s dissent was not accidental. It was coded in bias.

This Was Not Risk Management—It Was Risk Creation By framing Plaintiff’s protected expression as a security threat, Defendants engineered the very conditions they claimed to fear. They created a law enforcement dossier, not in response to a threat, but in retaliation for a narrative. They placed a reputational target on Plaintiff’s back. They altered the perception of her by every provider who accessed her chart thereafter. This is not only HIPAA misconduct—it is defamation by algorithm. In the digital age, reputational harm is scalable and semi-permanent. Once law enforcement is informed of a "behavioral threat" via PHI transfer, that label becomes institutional fact—unquestioned, unevidenced, and unrevoked. The damage spreads like metadata radiation. It cannot be undone with apologies. The Sword Cuts Deep

This Court must do more than acknowledge Plaintiff’s rights. It must wield her words as proof of their prophetic clarity. She warned the world what would happen if corporate impunity met institutional silence. She was right. The systems reset. The violence continued. The industry absorbed another body without reform. The phrase "Nine more CEOs... bang bang" is not a fantasy. It is the historical pattern of injustice surviving each tragedy untouched. Plaintiff did not invent that truth—she named it. Defendants punished her for that act of naming. That is what this Court must correct.

Conclusion: No Escape Hatch Remains Defendants may no longer hide behind the protective shadow of HIPAA’s emergency disclosure carve-out. The facts have rendered that exception inert. The 35-day delay between Plaintiff’s expression and the disclosure to police makes any assertion of "imminent threat" logically and legally void. Even if one were to presume subjective fear, such fear cannot survive the passage of five weeks without action.

Defendants also cannot appeal to public safety tropes. There was no criminal referral. No incident report. No arrest. No search warrant. No medical intervention. No wellness check. The police did not act because there was no threat to act upon. UnitedHealthcare knew that. They disclosed anyway. Not to save lives—but to silence critique. To discipline expression. To criminalize anguish.

What occurred here is not an exception. It is a metastasis. A corporate entity with state power embedded its administrative prerogatives into the legal and reputational machinery of the state. It flagged a trans whistleblower not because she posed danger, but because she posed a narrative threat. That cannot go unchecked.

The First Amendment forbids this. HIPAA forbids this. Colorado law forbids this. And this Court must not simply decline to endorse Defendants' actions. It must affirmatively condemn them. Not just for the sake of this Plaintiff, but for every future dissident whose metadata may be turned against them.

There is no escape hatch. There is only reckoning. The sword is drawn.