The 10th Circuit Court of Appeals heard oral arguments last week in a case that questions whether a statement from the mayor of Colorado Springs led to a loss of First Amendment privileges by the VDARE Foundation.
This case sprang from a public statement issued by Mayor John Suthers in 2017, addressing public events backed by certain groups, and limited support for an event that could prove controversial. That event was set to be a conference organized by the VDARE Foundation, a White Nationalist-led hate group, according to the Southern Poverty Law Center, and taking place at the Cheyenne Mountain Resort.
Suthers’ statement said the city didn’t have the ability to restrict freedom of speech or direct businesses “like the Cheyenne Mountain Resort as to which events they may host” but, the city would not provide support or resources to the event and doesn’t condone hate speech in “any fashion.” The next day, the resort announced it wouldn’t host the conference and cancelled VDARE’s contract.
VDARE argued the statement constituted a refusal to provide city services, including police protection, for the conference due to the group’s “controversial” viewpoints and published content in opposition to immigration policies, according to VDARE’s First Amendment claim.
VDARE alleged the resort was fully aware of who and what VDARE is and stands for, and that the conference could potentially draw media attention and protests.
But the arguments to the 10th Circuit panel focused on the mayor’s words and their effect. VDARE argued that Suthers’ speech caused the cancellation but the organization didn’t provide evidence of that being the case. The city argued that the mayor’s actions were protected by government speech standards. The panel had questions for both.
Frederic Kelly, arguing for VDARE, began his time by saying that “men do not lightly disregard the thinly veiled threats of government officials, and it is chiefly on that basis that I’ll be asking this court to reverse the order of dismissal and remand to the district court for further proceedings.” He argued that the First Amendment poses an obligation on the court to give a complete and independent review that the action wasn’t an intrusion on the organization’s rights. He added that what took place was not actually an intrusion, but actually a depravation.
Questions directed from the panel of judges ranged from whether the mayor and resort had any communication about the conference where the fear of unrest stemmed from. Chief Judge Timothy Tymkovich asked Kelly if anywhere in the record there was evidence that the mayor’s statement caused the cancellation.
In response, Kelly presented a hypothetical situation. He said that if two attorneys in a case were called before a judge, and then told them that he didn’t have the authority to restrict who the attorneys represent. However, then he turned to the defense counsel and said that he wished the defense counsel was “mindful” of who he took as a client. “If our judge said that, would any of us have any question about what his true intentions were?” Kelly asked.
Kelly said both the resort and VDARE were singled out by the mayor for hate speech. When the mayor stated he would not commit any resources to the event, Kelly suggested he was sending a message no different than the hypothetical judge. “What he’s trying to communicate is you’re not going to get a fair trial.”
During rebuttal, Kelly said that the El Paso County Sheriff’s Office released a statement around the same time announcing that deputies wouldn’t be offering services unless requested by local police.
Kelly said he didn’t believe any conversation between the mayor and the resort was necessary for the change of heart, as the resort was named in the statement. This statement was intended to eventually to find its way to the resort.
W. Erik Lamphere, division chief of litigation for the Colorado Springs City Attorney’s Office, said that purely private conduct isn’t actionable under the 14th Amendment, and that principle governed this case. “I see this no different than an elected official exercising their right under the Government Speech Doctrine to speak about public topics,” Lamphere said.
Lamphere said he didn’t see the statement as direct to VDARE and the resort, as it was a statement from an elected official to his constituency in explaining the city’s stance on proactively expending unnecessary resources for a private event. In response to a question about why the mayor made the statement, Lamphere said the purpose was to appeal to the conscience of business owners and to urge them to be mindful of what is done. He described the statement not as an issue of the city not protecting someone or someplace, but that it was not going to “roll out the red carpet” and provide a security detail, Lamphere said.
Government speech cannot be used to stifle a point of view the government disagrees with, according to Kelly. The notion of encouraging inclusiveness went out the window if the government threatens to withhold protection.
Lamphere said that when the resort changed its mind, it used its business judgment and terminated the contract. He added that there is no allegation in the amended complaint that any representative of the city on down had any role in the decision by the resort
“This is something we see businesses do all the time,” Lamphere said. “They’re concerned about their brand and their relationships, guest experiences, and ultimately the bottom line — and ultimately they have to take that into consideration” in maintaining a contract.
Lamphere said that in terms of not providing support or resources for the VDARE event, it was no different from how the city reacts to any other private event held on private property by private individuals. He compared the situation to an abortion clinic, where just because there’s a possibility of protest doesn’t mean the city has to expend resources when something happened.
The city does have an obligation to provide enforcement protections for everyone, according to Lamphere. The same statement in question also stated that the city remained steadfast in enforcement and protection of all individuals and held no indication that VDARE was excluded.
“If there was a credible threat, a credible threat to bodily harm, certainly, the City of Colorado Springs would do what they needed to do,” he said, adding throughout his time that no such threat existed at the time of the statement.
If VDARE had asked for a special event permit, and to have a parade down a city street, then the city would have to act in a neutral capacity, Lamphere said. “But that’s not the case here.”
“It’s the plaintiff’s burden at the motion to dismiss stage to allege a plausible claim — and right now, as district court found, it’s nothing more than labels, illusions and a lot of speculative leaps,” he said. He added it was OK for a government official to target specific ideologies, and that the situation at hand with VDARE and the resort was not a situation where the city had to be neutral.
“It’s a very interesting and important case, and appreciate the participation,” Tymkovich said.