Summaries of Selected Opinions, 1121 COBJ, Vol. 50, No. 10 pg. 68

PositionVol. 50, 10 [Page 68]

50 Colo.Law. 68

Summaries of Selected Opinions

Vol. 50, No. 10 [Page 68]

Colorado Lawyer

November, 2021


No. 20-1162. VDARE Foundation v. City of Colorado Springs. 8/23/2021. D.Colo. Judge Phillips. First Amendment—Freedom of Speech— Freedom of Association—Retaliation—42 USC § 1983—State Action Nexus Test—Government Speech—Plausibility Pleading Standard.

Plaintiff describes itself as a nonprofit organization that educates the public on the unsustainability of current US immigration policy and the United States' ability to survive as a nation-state. In 2017, plaintiff reserved the Cheyenne Mountain Resort (CMR) in Colorado Springs (City) for a future conference related to its mission. Four months later, violence erupted in Charlottesville, Virginia, during a political rally that drew national media attention. Two days later the City mayor issued a public statement (statement) on behalf of the City noting that while the City did not have authority to restrict freedom of speech or direct private businesses like the CMR as to which events they may host, he encouraged local businesses to be attentive to the types of events they accept. The statement also related that the City did not condone hate speech and would not provide any support or resources for the conference. The next day, CMR issued a statement that it would no longer host the conference, and it cancelled its contract with plaintiff.

Plaintiff sued the City and the mayor (collectively, defendants) alleging violation of its First Amendment freedom of speech and freedom of association rights under 42 USC § 1983, and violation of its Fourteenth Amendment equal protection rights. Plaintiff also alleged a First Amendment retaliation claim based on (1) the characterization of its constitutionally protected activity as hate speech; and (2) intentional interference with its contract, because the statement effectively made contract performance impossible. Plaintiff also filed suit against the mayor in his individual capacity. The district court granted the mayor's motion for qualified immunity.

Defendants moved to dismiss for failure to state a claim. The magistrate judge issued a report and recommendation suggesting the district court dismiss all federal claims and decline supplemental jurisdiction over the state claim. Over plaintiff's objections, the district court adopted the recommendation and further addressed plaintiff's government speech argument.

On appeal, plaintiff argued that defendants intentionally deprived it of its free speech and association rights by announcing their failure to provide resources or support, so the district court erred in dismissing the claim. A 42 USC § 1983 claim requires deprivation of a federally protected right by an actor acting under color of state law. Here, the district court correctly determined that plaintiff hadn't plausibly alleged that CMR's decision to cancel the conference was state action. Further, the Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. The City's statement here was permissible government speech that did not direct CMR to take any action. Accordingly, the district court did not err in dismissing this claim.

Plaintiff also argued that the First Amendment retaliation claim was improperly dismissed because the statement characterizes its speech as hate speech and chills engagement in a constitutionally protected activity. Among other allegations, a First Amendment retaliation claim must allege that the defendant's actions caused an injury that would chill a person of ordinary firmness from continuing to engage in a protected activity. Here, the majority of plaintiff's factual allegations on this claim are unsupported conclusions, so it hasn't plausibly alleged that the City's actions caused it to suffer an injury that would chill a person of ordinary firmness from continuing to engage in a protected activity. Therefore, the court properly dismissed the retaliation claim.

Plaintiff also challenged the grant of qualified immunity. However, because plaintiff failed to plausibly allege a constitutional violation, the mayor is entitled to qualified immunity.

Lastly, plaintiff challenged the district court's decision to not exercise supplemental jurisdiction over the state law tortious interference with contract claim. Because plaintiff didn't plausibly plead any federal claims, the district court did not err.

The order was affirmed.

No. 20-8032. United States v. Harris. 8/24/2021. D.Wyo. Judge Tymkovich. Assimilative Crimes Act—National Parks—Federal Assault Statute.

During a heated argument at a campsite in Yellowstone National Park, defendant pointed a gun and threatened to kill another camper. A grand jury charged defendant with threatening to use a drawn weapon on another, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii), assimilated through the Assimilative Crimes Act (AC A), 18 USC §§ 7(3) and 13. Defendant filed a motion to dismiss, arguing that the grand jury improperly assimilated the Wyoming offense. The district court denied the motion, and defendant was later convicted as charged.

Defendant argued on appeal that the federal assault statute precluded assimilation of the Wyoming statute through the ACA. Before the 1820s, federal enclaves—areas where states ceded jurisdiction over land within their borders to Congress, such as national parks and military bases—were essentially lawless jurisdictions. Congress enacted the ACA to solve this problem by making certain state criminal laws applicable on federal enclaves. The ACA fills gaps...

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