Colorado Springs Mayor’s Comments Don’t Infringe Hate Group Rights; 10th Circuit Sides with Lower Court in Controversial Contract Cancellation

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A panel of the 10th Circuit Court of Appeals sided with the lower courts in finding that statements from the Colorado Springs mayor didn’t infringe on a so-called hate group’s rights under the constitution. / Law Week file.

“When the government speaks, what can it say?” This first line of a recently released opinion from the 10th Circuit Court of Appeals precisely sums up the issues arising out of a case involving a resort, a controversial so-called hate group and a statement from an elected official on a national far-right rally.

The case, VDARE v. City of Colorado Springs, is based on whether or not a statement from Colorado Springs Mayor John Suthers led to a loss of First Amendment privileges by the VDARE Foundation, which is described in the opinion as a nonprofit “educating the public on two main issues,” the unsustainability of current U.S. immigration policy and the country’s ability to survive as a nation-state. The Southern Poverty Law Center categorized VDARE as an “anti-immigration hate website.”

Back in 2017, VDARE planned a conference at the Cheyenne Mountain Resort, located in Colorado Springs. Reservations were made, featuring guest speakers and activities related to the mission of the organization, according to the opinion. VDARE alleged that the resort was aware of VDARE’s mission and a potential for media attention and protests of the conference.

At oral arguments, 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.

Roughly four months after the reservations were made, the controversial Charlottesville rally took place involving protests and violence which gathered national media attention. Two days later, Mayor Suthers, “speaking on behalf of the City of Colorado Springs,” issued a public statement about the proposed VDARE event.

As previously reported by Law Week, Suther’s statement encouraged local businesses to “be attentive to the types of events they accept and the groups that they invite to our great city.” According to the statement, 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.”

The statement noted the city wouldn’t 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 canceled VDARE’s contract.

In an amended complaint, VDARE didn’t allege that the city had “any direct involvement with the Resort’s decision to cancel the conference,” or that the reasons the resort provided the organization for canceling the event.

“Rather, VDARE alleges that before the City’s Statement, the Resort was actively communicating and coordinating with VDARE about logistics and safety in connection with the conference,” the opinion states, adding that after the conference was canceled Suthers expressed satisfaction over the event’s cancellation,

VDARE alleged three claims against the city. First, that the city violated their rights to freedom of speech and association under the First Amendment and their equal protection rights under the Fourteenth Amendment. Second, that the city retaliated against it in violation of the First Amendment by classifying the organization’s activity as hate speech and urging local business to “be attentive to the types of events that they accept and the groups that they invite.” And finally, that the city intentionally interfered with the contract by effectively making the contract’s performance impossible.

The city moved to dismiss VDARE’s complaint for failure to state a claim, which was in turn referred to a magistrate judge who issued a recommendation suggesting that the district court dismiss all federal claims and decline to exercise supplemental jurisdiction over the state claim.

The 10th Circuit panel affirmed the findings of the lower court’s decision and the magistrate’s recommendation. Penned by Judge Gregory Phillips, the opinion examined the limits of protected speech by government officials and whether the mayor’s statement impacted the contract’s cancellation. The panel consisted of Chief Judge Timothy Tymkovich and Judges Phillips and Harris Hartz.

For the first claim, the panel determined that they agreed with the city. In the recommendation, the magistrate limited analysis to whether the resort’s canceling the contract should be considered a “state action.” Since most rights in the Constitution protect against infringement “only by governments,” the recommendation found VDARE hadn’t alleged a sufficient nexus between the contract cancellation and the statement.

The district court concluded that there were no factual allegations that the city coerced or encouraged the resort’s decision, and further that the city’s statement was “permissible government speech under the ‘government-speech’ doctrine.”

On the second argument, the opinion notes the district court’s ruling that the statement was permissible government speech and the defendants in the case were entitled to speak for themselves and to express their own views, including “disfavoring” certain points of view.

“Before addressing whether the City’s Statement was plausibly threatening, we note that the district court never ruled that the City’s Statement was ‘a neutral expression of government policy,’” the opinion states. Instead, the court stated that the defendants are entitled to speak for themselves and express their own views.

Under the Government Speech Doctrine, recognizes that a government entity “is entitled to say what it wishes” and to select the views that it wants to express, according to the Legal Information Institute of Cornell Law School. As a result, when the government speaks, it’s not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination. The reason being that the government couldn’t function if the government couldn’t favor or disfavor points of view in enforcing a program.

While the district court acknowledged the mayor’s statement expressed a view that business should be attentive to who they invite to Colorado Springs, “whether one finds the speech ‘neutral’ or not doesn’t matter because, as discussed, government speech need not be so.”

The core principle that the government can have views and take strong positions in various forms is the “heart” of the Government Speech Doctrine, according to the opinion.

“In sum, the Statement didn’t plausibly exceed the bounds of constitutionally permissible speech by threatening the Resort,” the opinion states. Also, the district court and circuit panel agreed that VDARE didn’t argue that the city’s actions caused it to suffer an injury that would “chill a person of ordinary firmness from continuing to engage in protected activity.”

While VDARE argued that the statement was a “thinly veiled threat,” the opinion states that it didn’t explain why the mayor’s words were a threat — especially when the statement wasn’t directed at the organization or municipal resources.

“The majority of VDARE’s “factual allegations” on this claim aren’t facts, but unsupported conclusions,” the opinion states. One example provided by the panel was VDARE’s claim that the city’s actions made it impossible to conduct future conferences, discussions and events in Colorado Springs. 

“This is a conclusion,” the opinion states, later adding, “In short, we find VDARE’s Amended Complaint to be filled with legal conclusions rather than facts from which these conclusions plausibly flow.”

The final claim by VDARE is a state tort claim for intentional interference with contract, according to the opinion. Both the panel and the district court concluded that VDARE didn’t plead any plausible federal claims, and both courts declined to exercise supplemental jurisdiction.

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