Free Speech

Shouting Down a Speaker Isn't "Lawful Activity"

"Approximately 2½ minutes after Ms. Oransky's group began chanting ... a representative of the Community Center announced that the facility was closing and that everyone had the leave the building. Ms. Oransky took credit for that announcement immediately telling a videographer 'we closed it down!'"

|The Volokh Conspiracy |

In Oransky v. Martin Marietta Materials, Inc., 2019 WL 4242670 (D. Colo. Sept. 6, 2019), Paula Oransky was fired by Martin Marietta Materials, Inc. She sued, claiming (among other things) that the firing violated a Colorado statute that barred firing employees for any "lawful [off-duty] activity"—in this case, her actions at a community meeting involving Anadarko Petroleum, an MMM customer. (For more on how state statutes limit employer retaliation for employee speech, see this article of mine.) The court held against her, partly because her actions weren't lawful:

Ms. Oransky resides with her family in Erie, Colorado. On September 27, 2017, Anadarko hosted a "Community Forum" in Erie to discuss its plans for oil and gas development in the area. Ms. Oransky attended the forum, where she met and briefly chatted with an Anadarko official with whom she was acquainted through her work.

During the forum, Ms. Oransky—who is concerned about health and environmental consequences associated with oil and gas development—and others protested Anadarko's activities. Ms. Oransky led protesters in a series of call-and-response chants to the effect of "We demand you [Anadarko] leave our community!" and "No drilling, no wells!," among others. The protestors succeeded in causing the forum to be cancelled early. After the protest, Ms. Oransky bragged in an online message that she "helped shut down the meeting." All of the protest activities, as well as the aftermath, were recorded on video and posted on the protestors' public Facebook page … .

MMM's motion first challenges whether Ms. Oransky can show that her protest activities at the forum were "lawful." MMM argues that Ms. Oransky's disruption of the forum constituted violations of Colorado state laws—e.g. Colo. Rev. Stat. § 18-9-108 (prohibiting persons from "disrupting lawful assembly" via "physical action, verbal utterance, or any other means")—as well as provisions of the Erie, Colorado municipal code—e.g. Erie Mun. Code § 7-6-5(N) (prohibiting any "use or attempt to interfere with the use of any … space or facility within parks or recreation facilities … reserved for any other person or group by a permit").

Ms. Oransky responds that no citations were issued by police as a result of the protest and that no one else was attempting to speak at the time when the protest occurred. [But a Colorado Supreme Court precedent interpreting the Colorado off-duty-lawful-activities statute] effectively disposes of Ms. Oransky's contention that her conduct cannot be considered unlawful simply because she was not charged with a crime. In [that case], there was no suggestion that the employee [who had been fired for using marijuana off-duty] had been charged by federal authorities with possession of marijuana; indeed, the Supreme Court noted in a footnote that federal authorities had expressly indicated an unwillingness to enforce federal laws against persons like the employee who were otherwise complying with state medical marijuana laws.. Nevertheless, the Supreme Court concluded that the employee's use of marijuana was unlawful because it was nominally prohibited by law, regardless of whether the law was actually being enforced against him. By the same reasoning, the question here is not whether a police officer actually cited Ms. Oransky with a state or local criminal violation, but whether an officer could have done so.

Colo. Rev. Stat. § 18-9-108 provides that "a person commits disrupting lawful assembly if, intending to prevent or disrupt any lawful meeting, procession, or gathering, he significantly obstructs or interferes with the meeting, procession, or gathering by physical action, verbal utterances, or other means." [Another Colorado Supreme Court precedent] interprets that statute in two significant respects. First, it indicates that, in determining whether a person intended to disrupt a gathering, the factfinder must consider the nature of the meeting, the "implicit customs and usages or explicit rules germane to a given meeting"—i.e. that outdoor events tolerate more disruption than indoor ones, and that political conventions might expect "prolonged, raucous, boisterous demonstrations" whereas funeral services would not—and the extent to which the person "was aware that his conduct was inconsistent with the customs of the assembly and whether he thereby intended his conduct to disrupt the assembly significantly." Second, it suggests that a "significant disruption" to the event must occur….

There is no dispute that the forum was a lawful meeting organized by Anadarko. It was held indoors, in a community room in the town's Community Center, and scheduled to run from 5:00 p.m. to 7:00 p.m. In publicizing the forum, Anadarko explained that its purpose was to invite community members to "meet the Anadarko employees working on these planned activities, learn more about oil and natural gas development, and ask any questions you may have about our operations." As such, the "implicit customs" of such meetings might encompass heated exchanges between individual residents and Anadarko representatives on a one-to-one basis, and perhaps protests and picketing outside the venue, but it would be unreasonable to conclude that such meetings are customarily expected to tolerate groups of 30 or more individuals holding up signs and chanting loudly so as to make other discussions between interested residents and Anadarko representatives impossible.

It is also undisputed that Ms. Oransky fully understood and expected that her conduct and that of the protesters acting in concert with her would disrupt the meeting. In an e-mail sent to protesters just hours before the meeting, Ms. Oransky laid out her plans and expectations. She intended that protesters initially enter the forum shortly before 6:00 p.m. and blend in with legitimate attendees: "Everyone should be looking at the displays, asking general questions to the Anadarko reps to kill time … Do not protest at this time." Other protesters in an e-mail chain that included Ms. Oransky also stated that they would have to "sneak banners in" to the forum. Ms. Oransky's e-mail indicated that at 6:00 p.m., she should give a signal to the protesters and they would begin chanting and displaying signs. Her e-mail makes clear that Ms. Oransky understood and expected that these actions would be disruptive enough that the protesters would be ejected from the forum: "Likely, … we will be asked to leave, which we will do." These facts underscore that Ms. Oranksy knew that her actions and those of the group she was leading would be unwelcome at the forum and would have the effect of disrupting it.

The record is also undisputed that Ms. Oransky's conduct did indeed significantly disrupt the forum. Approximately 2½ minutes after Ms. Oransky's group began chanting—roughly at 6:02 p.m.—a representative of the Community Center announced that the facility was closing and that everyone had the leave the building. Ms. Oransky took credit for that announcement immediately telling a videographer "we closed it down!"

Ms. Oransky is more demure in her response brief, arguing that it is possible that the closure was not a result of her leading the chanting inside the forum room but rather a response to other protesters who were gathered in the hallway or outside the building. But the record is clear that Ms. Oransky was instrumental in the recruitment and instructing of those protesters as well. In a September 17 e-mail exchange, an individual named Theresa contacted Ms. Oransky and asked if she would like as many as 100 protesters from a Boulder-based organization to attend the September 27 forum and protest, and Ms. Oransky responded "I'd be all for that idea." Another participant in the same e-mail chain later advised Theresa that "Paula"—Ms. Oransky—"is going to organize the Anadarko meeting it terms of any noise we need to make outside, etc. We are going to entrust Paula to take on this task." In her e-mail on the day of the forum, Ms. Oransky gives specific instructions to both protesters who would be inside the forum room and "people outside" as well (whom she stated "we will use … as an important secondary event, almost a diversion").

In this sense, when Ms. Oransky boasted that "we closed it down," it is clear that she is referring to all of the protesters that she was directing, both inside and outside the venue. Thus, even if, as Ms. Oransky argues, the forum was cut short because of protesters in the hallway or outside the building, rather than as a result of Ms. Oransky personally leading the chanting inside the forum room, it remains undisputed that the entire protest operation was directed by Ms. Oransky and that the disruption of the forum was the result of her actions.

Under such circumstances, the Court finds that there is no genuine dispute of fact in the record and that, on the undisputed facts presented herein, Ms. Oransky's conduct on September 27 could have been deemed to constitute a violation of Colo. Rev. Stat. § 18-9-108, such that she cannot establish that her activities were "lawful." As a result, MMM is entitled to summary judgment on her statutory claim….

The court also concluded that, in any event, Oransky's actions would have fit within two exceptions to the statute, for activities that "reasonably and rationally relate[] to the employment activities of a particular employee or particular group of employees" (rather than all of the employer's employees), or activities where disciplinary action "is necessary to avoid a conflict of interest" with the employee's liability to the employer. Oransky, the court stressed, wasn't just an average MMM employee, but rather was responsible for maintaining relationships with customers, including Anadarko. These exceptions raise separate and complicated questions, I think, and ones that are peculiar to the particular Colorado law (though they may also be influential in North Dakota, which has a very similarly worded statute). But the point about shouting down not being "lawful activity" may be relevant to many other kinds of disputes as well.

NEXT: Justice Ginsburg Speaks Sensibly about Judicial Confirmations

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  1. Once again, freedom of assembly gets remarkably short shrift. No shrift, actually, in this court’s analysis. There is no attempt to check whether Colorado law, for instance, attempts on its face to over-burden the 1A right of assembly.

    What the decision amounts to is announcement of a doctrine that freedom of assembly can be suspended for anyone who assembles in opposition to . . . what, exactly? That part remains vague. But clearly, when major corporations initiate public meetings, the public is on notice that its participatory role is confined to listening respectfully to the corporate pitch men.

    1. “Once again, freedom of assembly gets remarkably short shrift. No shrift, actually,”

      Huh? The lawsuit claims that she was unlawfully interfering with the assembly of others.

      1. In part, by assembling with like-minded individuals.

        1. Weird statement. What does “like-minded” have to do with it? Does that mean you applaud antifa, or the communists and nazis of 1930 Berlin, and give them priority over the peacefully assembling people they disrupt?

          1. Actually, that’s exactly what it means. He applauds people who shut down speech he disagrees with. It’s an increasingly common viewpoint on the left: “Error has no rights”, where “error” just means disagreement with the left.

            1. Go ahead, TwelveInch, answer the question. On what basis is a Colorado statute permitted to trump the 1A?

              Public venue. Controversial issues. Counterpoint. In that circumstance, shouted disagreement is not disruption. It is what ought to be be expected.

              1. “Go ahead, TwelveInch, answer the question. On what basis is a Colorado statute permitted to trump the 1A?
                Public venue.”

                Public venue, sure? Not a public forum. This was “a community room in the town’s Community Center”, a quintessential limited public forum. Her opponents reserved it for their use from 5:00 to 7:00, she could reserve it any time she wanted.

              2. When the intent of the shouted disagreement is to disrupt and shut down…. It is disruption.

            2. Brett, prior to the Vietnam War, the custom in this nation was that people in power enjoyed unfettered access to public forums, while enjoying also the privilege of denying public forums to others. Opponents of the Vietnam War fairly quickly realized that such an arrangement neither honored their supposed constitutional rights, nor afforded them any useful chance of parity in the debate.

              On that basis the Free Speech movement was founded at Berkeley—against forceful suppression and legal opposition, of course. Likewise, speakers like Henry Kissinger, who had been accustomed to oracular status on public podiums, found themselves instead confronted then and there. It was a good thing that happened. The nation was better for it then, and remains so now.

              If the concept of a hecklers’ veto is a useful one, and I think it is under appropriate circumstances, it cannot be tossed around so indiscriminately that it takes us back to the former situation—where public speech and meaningful public assembly were held as private privileges by the powerful. It will be much better to err on the side of a robust interpretation of the right of assembly—and to accept some chaos along with it—than to trend back to the time when “disruptive” assemblies, even in public, or sometimes especially in public, were regarded as presumptively unlawful.

              1. “while enjoying also the privilege of denying public forums to others.”

                Paula Oransky and her ilk were the ones denying the forum to others. The right to assembly has never given anyone the right to go wherever they want, say whatever they want, and in whatever manner they want.

              2. Who’s tossing the concept of the heckler’s veto around indiscriminately? This is a textbook example of it, she organized a bunch of people to show up for the specific purpose of keeping people from speaking in a venue they’d reserved, and then bragged about shutting it down.

                If the term is to have any application AT ALL, this is an example of it.

                1. No, it is not. Because it was a publicly-owned venue, to which the public had been invited. Those circumstances provide no warrant for restricting the speech of members of the public who attend.

                  A textbook example of the heckler’s veto, one where I would support enforcement, would be in a lecture hall on the campus of a private university. The purposeful character of the university is in that instance not at all the same as the purposeful character of the public hall in the former instance.

                  1. “Because it was a publicly-owned venue, to which the public had been invited. Those circumstances provide no warrant for restricting the speech of members of the public who attend.”

                    That’s not true at all.

                    1. How odd, then, that the opinion countenances that very option.

                      ‘As such, the ‘implicit customs’ of such meetings might encompass heated exchanges between individual residents and Anadarko representatives on a one-to-one basis[…]”

                    2. Is that all the opinion says? Or does the opinion go on to say that “it would be unreasonable to conclude that such meetings are customarily expected to tolerate groups of 30 or more people holding up signs and chanting loudly so as to make other discussions between interested residents and Anadarko representatives impossible”? So no, no the opinion does not countenance the claim that simply because it’s in a public building and the public have been invited, that “provide[s] no warrant for restricting the speech of members of the public who attend.”

                      But hey, at least you opened the opinion this time. That’s good for you. We can work on actually understanding it later.

            3. “He applauds people who shut down speech he disagrees with”

              Yeah, no. You have this habit of assigning to me the opinion you’d like to disagree with.

        2. “In part, by assembling with like-minded individuals.”

          Well, let’s see:

          “There is no dispute that the forum was a lawful meeting organized by Anadarko. It was held indoors, in a community room in the town’s Community Center, and scheduled to run from 5:00 p.m. to 7:00 p.m.”

          So her like-minded individuals could have reserved the room from 4:00 p.m. to 5:00 p.m., or from 7:00p.m to 8:00 p.m. and had their own assembly.

          1. Indeed. But time and place are the essence of freedom of assembly. If the folks who oppose Anadarko think their use of assembly works best by going to the public place where an assembly addressing their very concerns is being held, how can they be forced to assemble elsewhere, at some other time, without burdening their right? They did not want “their own” assembly, they wanted to address the Anadarko assembly. You suggest, apparently, that freedom of assembly should not encompass that. On what constitutional basis?

            1. Let’s not be silly. It’s not that the opponents were denied their turn to speak; it’s that the opponents denied everyone else their turn to speak.

              What’s the Newspeak word for ‘freedom of speech means shouting down the speech of others’?

              1. Absaroka, answer my question. If the folks who oppose Anadarko think their use of assembly works best by going to the public place where an assembly addressing their very concerns is being held, how can they be forced to assemble elsewhere, at some other time, without burdening their right?

                1. Because the right to assemble doesn’t give you the right to disrupt assemblies of other people that aren’t taking place in the public square.

                2. I spent my honeymoon night in a cabin in a state park. As with the people who organized the meeting here, I arranged to use the cabin for the night, including the ability to invite some people to attend – for example my bride – and to exclude others – for example everyone else.

                  I had, during the arranged period, the ability to include or exclude anyone I like for any reason. I could invite the wedding party in for a glass of champers, and then expel any whose behavior I didn’t like, at any time, or expel all of them at 10 PM, or not invite any of them.

                  Your suggestion that the fact the public owned the cabin means I had to allow all comers on any terms is bizarre, even by your standards.

                  1. Absaroka, you are getting a little like Nieporent. You claim tendentiously that I said something I did not. That is not much different than lying about what I say. If you want to tell people what I say, feel free to quote what I say.

                    For a more grown-up approach, stop presenting far-fetched scenarios you dreamed up as if they were conclusions I advocate. Now, how about answering my question? Here it is for the third time:

                    If the folks who oppose Anadarko think their use of assembly works best by going to the public place where an assembly addressing their very concerns is being held, how can they be forced to assemble elsewhere, at some other time, without burdening their right?

                    1. “You claim tendentiously that I said something I did not.”

                      No he didn’t. He merely pointed out how stupid your formulation of the right to assembly is.

                    2. You may think you are paraing carefully and presenting a cute argument, but it is quite illogical at its base. You then complain when this fact is pointed out to you.

                3. Colorado’s law says that the people who reserve a space and organize an assembly control the agenda and speakers.

                  If someone else has a different viewpoint they can organize their own assembly.

                  Allowing people to crash and disrupt organized events invites violence and reduces the opportunity of all of us to assemble and speak our views.

                  Colorado’s law certainly passes any level of constitutional scrutiny.

                4. In terms of assembly, the right protected by 1A is the right to peacefully assemble.

                  There is nothing remotely peaceful about assembling for the explicit purpose of shouting down someone else’s speech.

            2. “They did not want “their own” assembly, they wanted to address the Anadarko assembly. You suggest, apparently, that freedom of assembly should not encompass that. On what constitutional basis?”

              On the basis that the freedom of assembly has never given anyone the right to go wherever they want, say whatever they want, and in whatever manner they want.

            3. They did not want “their own” assembly, they wanted to address the Anadarko assembly.

              No; they wanted to shut down the Anadarko assembly.

          2. “So her like-minded individuals could have reserved the room from 4:00 p.m. to 5:00 p.m., or from 7:00p.m to 8:00 p.m. and had their own assembly.”

            Sure they could have. They also could have all stayed home. And Anadarko could have decided to conduct their meeting in Hawaii instead of Colorado.

            “Could have” is a very powerful phrase, if not particularly helpful in this instance.

        3. Well, it’s kind of a bad idea to have opposing groups assembling in the same physical space at the same time. So it might then be a good idea to say that if someone is assembling in an area, we ought not to interfere with it.

          Consider the other 1A provision by analogy — Catholics have the right to conduct services. But they probably don’t have the right to try to conduct them at the same place/time as the Baptists.

          1. I don’t think that would actually be problematic so long as the Baptists agreed. The problem here wasn’t the being in the same place, the problem here was WHY they were in the same place: Oransky’s group were there specifically to disrupt the meeting.

          2. If the place chosen is a public place? On what basis do you assert that?

            1. The space was “reserved”; For the duration of the reservation, it wasn’t a public place.

              1. Brett, the public owned the space, and the public was specifically invited.

                1. “Brett, the public owned the space,”

                  Which was then reserved by a particular group for a particular purpose. Which is not at all controversial.

                  “and the public was specifically invited.”

                  Which still doesn’t turn it into a public forum.

                  1. “Which is not at all controversial.”

                    Ah. So there was no controversy, and there’s nothing to talk about.

                    1. Are you suggesting that there is something controversial about private groups reserving public spaces for their own use?

                    2. “Are you suggesting that there is something controversial about private groups reserving public spaces for their own use?”

                      No. Are you?

                    3. No, you can tell because I specifically said that there wasn’t.

                2. “Brett, the public owned the space, and the public was specifically invited.”

                  This makes it a limited public forum, reserved for the use a specific group during that specific time. There just isn’t an issue here, no matter how bad Stephen wishes there were.

                3. Stephen,

                  Taken to it’s logical end, the government can essentially tell people “You have the right to assemble…sure. But we can send a representative there with a bullhorn to drown out anything you want to hear. And trying to shut that down is eliminating our right to free speech.”

                  1. Armchair, read your comment again. In the second sentence, “we” seems to refer to the government, which I doubt you intend. When I can understand what you are saying, I may venture to respond.

                4. Most convention Halls are publicly owned, are you going to apply the same “rules” to to the GOP and Democratic conventions?

                  Or is our public discourse going to completely devolve in to brawls between the Proud Boys and Antifa, not fighting to decide who gets heard, but to decide who gets shouted down last.

                  1. Kazinski, the public is not invited to the political conventions. They are explicitly barred, in fact.

                    In the Anadarko case we are considering here, the invitation to the public strikes me as what makes the difference. Had Anadarko reserved a publicly owned space for an entirely private meeting to deal with corporate business, I would not be making these arguments. My resistance is to practices which privilege some views in actual public policy discussions, and bar others, during assemblies conducted before the public.

                    However, I do insist that public spaces adjacent to convention halls must be available for public assemblies. Of course, one of the more conspicuous and habitual violations of the right of assembly has been to bar the public from those areas too.

                    1. “In the Anadarko case we are considering here, the invitation to the public strikes me as what makes the difference.”

                      As has been pointed out numerous times, it doesn’t. You can invite the public to things and still expect them to behave like adults.

                      “My resistance is to practices which privilege some views in actual public policy discussions, and bar others, during assemblies conducted before the public.”

                      This doesn’t privilege any views. Anadarko has no more right to disrupt a meeting scheduled by Paula Oransky than Paula Oransky has to disrupt one scheduled by Anadarko.

                    2. “Anadarko has no more right to disrupt a meeting scheduled by Paula Oransky than Paula Oransky has to disrupt one scheduled by Anadarko.”

                      I’m sure that if Oransky had reserved the room and announced ‘Everyone come and help plan to defeat Andarko’ that Mr. Lathrop would be defending Andarko if they bussed in Andarko employees, random street people, etc, to shout over everyone at Oransky’s meeting.

                    3. Absaroka, I would be pleased if that happened, because it would bode well for my campaign on behalf of a robust right of assembly. My opinion is that confirming a robust right of assembly counts for more than the outcome of any particular public confrontation.

                    4. Bring back the Pinkertons!

      2. TIP: you’re thinking of the old, antiquated kind of assembly, where it meant the government couldn’t stop you from assembling with other people who wanted to assemble with you.

        The new right of assembly is for me to assemble with anyone I choose, at any place or time, whether they people I want to assemble with want to assemble with me or not.

        For example, if my brass ensemble wants to play rousing Sousa marches all night long in your honeymoon suite, that’s our choice; you don’t get to exclude us.

        Or maybe it’s a little more limited – that it’s a right that private citizens can enforce against corporations. So, for example, my friends and I can sit in on the daily editorial meeting at a corporation like the New York Times, and give them our opinions on what they should cover, preferably using call/response chants as a means of facilitating the dialog.

        1. Absaroka, you are unable to distinguish between public venues and private venues? I do not suggest the anti-Anadarko people enjoy any right to access the Anadarko board room.

          1. You are suggesting that if the Chess Club reserves a room in the community center from 5 to 7 to play chess, they can’t stop the Barbershop Quartet Club from coming in and singing while they try to play chess? That the City Council meeting – which is a public meeting if anything is – can’t enforce a rule that people speak only during their allotted 3 minutes at the mike?

            1. He is arguing nonsense as he usually does.

    2. On the contrary, this decision affirms the right of everyone else to peaceably assemble and quells her attempts to unilaterally disrupt everyone else’s rights.

      As the old saying goes, my right to swing my fist ends at the tip of your nose. Oransky’s right to assemble ended at the point that she willfully disrupted others’ rights.

      1. Rossami, only by presuming your conclusion can you offer that argument. You give priority to one party over the other, and then burden your disfavored party. The argument could be turned around, with as little sense. In a public place, the right of assembly ought to apply alike to everyone.

        To put it another way, on what basis do you assert that Anadarko enjoys a right to take over a community center to present an argument to the public that it demands be heard without disagreement?

        1. “You give priority to one party over the other,”

          Yes, you give priority to the party that reserved the room and arranged the meeting. That’s pretty simple.

          1. He needs a picture to understand. I like how he accuses others of presuming their conclusions and not himself.

            1. It’s not that he doesn’t understand. It’s that the heckler’s veto is too useful to the left for him to admit he understands.

        2. Rossami, only by presuming your conclusion can you offer that argument. You give priority to one party over the other,

          Yes: the party that reserved the room first. That’s a reasonable time, place, and manner restriction.

          To put it another way, on what basis do you assert that Anadarko enjoys a right to take over a community center to present an argument to the public that it demands be heard without disagreement?

          They reserved the room.

          1. No, Nieporent. Time and place restrictions can be applied reasonably to speech without too much burdening the right. Publishing affords a work-around.

            Freedom of assembly is different. Time and place are the essence of the right. And as for manner, the only restriction on manner is stated in the 1A. The assembly must be conducted in a “peaceable” manner.

            Freedom of speech and freedom of assembly are not the same.

            1. “No, Nieporent. Time and place restrictions can be applied reasonably to speech without too much burdening the right. Publishing affords a work-around.”

              How can something protected by the freedom of press provide a work-around for the (alleged) denial of the freedom of speech?

              And with all your talk about the lofty standards of publishers and their critical role as gatekeepers, I’m a little surprised you would claim that’s an adequate work around.

              “Freedom of assembly is different. Time and place are the essence of the right.”

              Having people willing to assemble with you is even more essential. Forcing unwilling people to assemble with you is not part of the right.

            2. Time and place are the essence of the right.

              That isn’t even close to correct. The essence of the right is the right to gather with other people. Many authoritarian countries ban unauthorized gatherings, public or private; merely attending a meeting can get one arrested. The freedom of assembly prevents that.

              It does not protect the right to assemble in a specific space at a specific time regardless of what that space is being used for. You can’t hold a parade at 3:00 a.m. in a residential neighborhood. You can’t gather in the right lane of the NJ Turnpike near Exit 8. You can’t go to Citi Field and hold an anti-abortion protest during a Mets game. And you can’t shout down a speaker at a community center at a time that has been reserved by that speaker.

            3. “Freedom of assembly is different.”

              Here’s the relevant text from 1A.
              “or the right of the people peaceably to assemble”

              Assembling to shout down another speaker in a space (even a public space) that the other speaker has reserved is in no way, shape, or form peaceably assembling.

              1. I doubt you can find any legal precedent for that assertion. Probably plenty of precedents saying you can’t shout people down, or something similar. Saying that shouting someone down is not peaceable? That one you are going to have to show me.

                1. Have you provided any legal precedents for any of your ridiculous assertions?

                  1. Not a one – but “he’s been saying for years” that everyone else is wrong, so what else is new?

                    Don’t get him started on fair use — he doesn’t get that — or defamation — he doesn’t get that, either.

                    1. Nieporent, apparently in this case I am right. No one is citing any precedents.

                      I am not a lawyer. Of course, I don’t cite the law much. Except in the few areas where I actually have layman’s legal experience, I try not to cite the law at all. Mostly I argue on policy grounds, where everyone gets a say. Sometimes, in cases where history plays an important role, I cite history, because I have more (and much better) history experience than most people. But note, I never claim to be a historian.

                      Fair use and defamation happen to be areas where I do have a modicum of layman’s legal experience. Enough to convince me that you make arguments in those two areas on the basis of little actual legal experience, and more on the basis of what you think sounds plausible to you as a lawyer, or even on the basis of what agrees with you as an ideologue. Arguments like yours are why half the lawyers lose their cases.

                      Are you even a litigator, Nieporent? How much time do you spend in court? I may have spent notably more time in court (as a journalist) than you have as a lawyer. I am betting you never actually tried a defamation case in your life. I should probably give odds. How about you cite me a defamation case you tried and won.

                    2. I cite history, because I have more (and much better) history experience than most people.

                      You’re a legend in your own mind. You think you know more about history, and philosophy, and firearms, and law than most people, despite the fact that you’re routinely wrong about all those things.

                      If you really limited your commentary to policy, then I’d just say that your positions were dumb and move on. (To be clear: I do say that about your positions.) But you routinely make assertions based on your mistaken ideas about what the law is. (One of the first google results: http://volokh.com/2013/08/16/nice-new-fair-use-decision/)

                      Dressing up “Having been sued a lot” as “layman’s legal experience” is clever, and by “clever” I mean “not at all clever.”

                      Oh, and while “proving myself to Stephen Lathrop” falls right below “learning the kazoo to win a talent show in Wichita Falls” on my list of priorities, yes, I am a litigator, and have been trying cases for a couple of decades. And my arguments here (and in court) on subjects like fair use and defamation are based on actual legal precedent, not “things Stephen Lathrop wishes were true.”

          2. “They reserved the room.”

            And then invited the public to enter it.

            1. And? You can enter a school play as a member of the public. If you start screeching over the play, you will be ejected.

              1. “Ejected” and “fired” are different things.

                1. I mean, that’s indisputably true, but irrelevant to this discussion.

                2. The first establishes whether what she was doing was legal. It wasn’t.

                  That it was illegal made it a valid basis for firing her.

        3. No, I don’t presume the conclusion. You’re not thinking it through clearly. Intent matters.

          To continue the old analogy, my right to swing my fist ends at the tip of your nose but fault is going to be evaluated very differently if you deliberately moved your face into the way despite my intent and effort to not hit you. This is especially true if you brag both before and after the fact about your intention to set up the situation.

          I will also dispute your characterization of the Anadarko meeting. You assert that “it demands to be heard without disagreement”. Nothing in the facts of this case support that extreme interpretation. They asked to be heard, participated in an hour of civil back-and-forth and stopped devoting resources only when their ability to be heard was completely shut down.

          1. Rossami, “civil back-and-forth,” is not the standard for which manner of assembly the public is entitled to. “Peaceable assembly,” is the standard.

            And you are doing it again. You have characterized Anadarko’s contribution as “civil back-and-forth,” ceding it an entitlement in preference to the obstructive protests of Anadarko’s critics, whom you seem to be suggesting should be completely shut down.

            Critics who remain peaceable, including harsh, persistent, obstructive critics, have as much right in public fora as anyone else. Nor does the critics’ message have to shape itself to become analogous to the message of those they criticize—for instance by accepting the opponents’ agenda, and arguing it pro or con. The critics are free to insist, loudly, obnoxiously, and at length, if they choose, that the agenda itself, and even the opponents themselves, are illegitimate, and should receive no acceptance in respectable public debate. Critics who choose to do that must do so peaceably, and then take their chances with public support, or public censure, either of which may follow.

            It would be particularly bad if critics were to judge correctly that vehement, exclusionary protest against particular opponents were the right tactic, and judge correctly that the public would actually support that tactic, only to discover that government, against their constitutional right, stifled such efforts. Still worse would be any general government diktat that any particular peaceable tactic is always off limits.

            There is no reason to suppose that seemingly measured debate is by that reason a morally superior approach. Moral monstrosity, when it enjoys sufficient power—and especially when it enjoys the power to foreclose confrontation with opponents—will reliably find ways to present itself publicly as open and measured, while using its power less visibly to stifle opposition. A robust right of assembly can stand against that, and indeed, will likely prove the most efficacious countermeasure available in such cases. This nation’s own history shows that by countless examples, as does history unfolding all over the world today.

            1. Why do Paula Oransky and her ilk get to decide that the members of the Erie community who were there to engage in a civil back and forth with Anadarko weren’t entitled to do so? What makes Paula Oransky so special that she gets to override the freedom of association rights of everyone else in the room? You only want freedom of assembly for the most obnoxious.

        4. “To put it another way, on what basis do you assert that Anadarko enjoys a right to take over a community center to present an argument to the public that it demands be heard without disagreement?”

          The community center is not a traditional pubic forum. The property owner can permit whoever it wishes to “take over” the community center so long as they don’t discriminate on viewpoint.

    3. – “But clearly, when major corporations initiate public meetings, the public is on notice that its participatory role is confined to listening respectfully to the corporate pitch men.”

      Because the only alternative to “listening respectfully to the corporate pitch men” is to shout speakers down with the intention of completely shutting down the event. And exercising your freedom of assembly requires you to interfere with others exercising that same right.

      Parody…something, something…no longer possible…something…

    4. Once again, Lathrop reveals himself as hostile to not just the right to keep and bear arms, but to the right to free speech and assembly too.

      1. No Kevin, I am arguing for a more robust interpretation of the right of assembly. Unlike the folks agreeing with this decision—who take sides as to which party enjoys the right, I suggest the right applies alike to everyone.

        And I go farther. For too long the right of assembly has been treated legally as weaker analogue of the right of speech. The reasoning goes that if speech can be constrained according to time, place, and manner, so too can assembly. I suggest that is nonsense. Time and place are the very essence of the freedom of assembly. Without too much burdening the right, time and place cannot be constrained with regard to any venue generally available to the public. The one constraint which does apply is stated in the right itself. Assembly must be “peaceable.”

        Once you understand that, you ought to be able to grasp that when assemblies take place in a public venue, no party owns the right exclusively.

        1. “For too long the right of assembly has been treated legally as weaker analogue of the right of speech. The reasoning goes that if speech can be constrained according to time, place, and manner, so too can assembly.”

          That wouldn’t make it any weaker.

          “I suggest”

          One way to tell nonsense is coming? Stephen Lathrop makes a suggestion.

          “Unlike the folks agreeing with this decision—who take sides as to which party enjoys the right, I suggest the right applies alike to everyone.”

          No you don’t. You suggest that the right only belongs to the most obnoxious. Because your formulation allows obnoxious morons like Paula Oransky to disrupt peaceable assemblies.

          1. The left finds the power to shout down others too valuable to relinquish, especially since nobody else is doing it to the left. I suggest that Stephen would probably view the matter differently if right-wingers were routinely bursting into left-wing events and shouting down the speakers.

            “You suggest that the right only belongs to the most obnoxious. ”

            Because he, reasonably, assumes his allies will be the most obnoxious.

            1. Of course the quote is not mine, just to make that clear. Otherwise, of course a right which belongs to everyone belongs alike to obnoxious people.

              How I would view “the matter” under different circumstances, would depend on the circumstances. For meetings held in public places, to which the public was invited, to discuss public policies, I have no power to approve or disapprove if right wingers participate. It’s just part of what happens. We have rights in this country. Right wingers have them no less than obnoxious people.

              Brett, your typical paranoid assumptions of bad faith from your opponents always seem misplaced. I do not argue in favor of rights I do not expect to see applied alike to everyone.

              1. “Otherwise, of course a right which belongs to everyone belongs alike to obnoxious people.”

                No, under your formulation it only belongs to the most obnoxious people. Other people are only allowed to hold events with the permission of the obnoxious people.

          2. One way to tell nonsense is coming? Stephen Lathrop opens his mouth.

            FIFY.

        2. No Kevin, I am arguing for a more robust interpretation of the right of assembly.

          So Lathrop wants the government to fine websites millions of dollars so that ordinary people can’t publish their thoughts on them, and wants to allow people to shut down other people’s meetings by yelling and screaming. Seems like the only constant is that he wants less speech.

          1. DN, I have never suggested government fine websites. That is a fabrication by you. And of course, what you call yelling and screaming is just your term for other people’s speech, which you seem to want restricted.

            1. DN, I have never suggested government fine websites.

              Yes, you have. That’s what your quest to repeal § 230 amounts to. Do you still pretend not to grasp that?

              You want the government to threaten Facebook or Twitter or Reason.com with massive liability if these sites do not prevent people from speaking.

              1. Nieporent, that is nonsense, founded in your singular (and notably peculiar) insistence that private editing is censorship. If § 230 were repealed, which I do urge, no power of government would thus be created to fine social media. Instead, the companies you name would have to guard against civil suits for damages—damages for which they could be found liable only after proof by their private party victims in civil court. No government fines.

                How those companies would choose to cope with that change would be entirely up to them. Because the post-§ 230 world would be almost exactly like the already-existing regime which governs the liability of ink-on-paper publishers, it might be that social media companies would emulate methods now in time-honored and uncontroversial use. They would certainly be free to do so.

                By the way, your repeated reliance on “amounts to,” tendentiousness in describing what I advocate is obnoxious. Not much different than lying about what I say, actually. When you want to tell others what I say, feel free to quote what I say.

                1. Instead, the companies you name would have to guard against civil suits for damages—damages for which they could be found liable only after proof by their private party victims in civil court. No government fines.

                  There is no “instead.” Damages are a government fine. Just because the money is transferred to a private party instead of the general treasury does not mean that state action is not involved.

                  How those companies would choose to cope with that change would be entirely up to them.

                  That’s double bs; “don’t let the public post, or go out of business” is a Hobson’s choice. And this isn’t some unforeseeable side effect; your express purpose in repealing § 230 is to force them to prevent the public from posting.

                  You have said it repeatedly: you want the government to force website owners to act as gatekeepers to suppress speech. That is censorship, to everyone on the planet other than you.

                  1. Nieporent, you are lying about what I said. Quote me, if you think otherwise.

                    By now everyone understands your argument on this subject depends on tortured, tendentious, ideological distortions of the meaning of such terms as, “censorship,” “suppress speech,” “Damages are a government fine,” etc.

                    It is not speech suppression, now or ever, if I am a private publisher, and you bring me a proposed contribution, which I decline to publish. You remain free to take your contribution elsewhere, and see it published there, or to publish it yourself. Speech suppression would prevent your ability to do that. I oppose speech suppression.

                    I have never once said, I want the government to force website owners to act as gatekeepers to suppress speech. Quote me, or stop lying.

                    1. I have never once said, I want the government to force website owners to act as gatekeepers to suppress speech.

                      You have said it scores if not hundreds of times here. In every thread where Internet defamation is discussed. You have campaigned for the end of § 230, and issued paeans to the good old days when defamation law required publishers to act as gatekeepers to prevent the general public from speaking. You want more liability — speech suppression — for defamation.

                    2. You have campaigned for the end of § 230, and issued paeans to the good old days when defamation law required publishers to act as gatekeepers to prevent the general public from speaking.

                      You really are a damned liar. I never said that. I have repeatedly said the opposite—that repealing § 230 would improve the opportunity for the general public to speak, by multiplying forums in which work can be published, and by forestalling political pressures to have government censor the internet. You may disagree. That does not unsay what I said.

                      And you quoted nothing.

                    3. You really are a damned liar. I never said that.

                      I won’t call you a liar; I’ll just call you too dumb to understand what you’re saying. § 230 is what gives the public the opportunity to speak. There are a well-nigh infinite number of forums in which the public can publish works, and that’s all because of § 230. Meanwhile, you have repeatedly whined that the Internet doesn’t work more like the offline world in which publishers act as gatekeepers to keep people from speaking.

                      And the “political pressures” are all in your head.

                    4. On every single topic where it’s at issue, you come down in favor of less free speech. You have argued:

                      • For broader defamation liability;
                      • For there to be more professionals acting as gatekeepers to keep people from publishing stuff of which you disapprove;
                      • For a very narrow fair use doctrine (if at all);
                      • That public schools should not be governed by the 1A (because you think it unfair that private schools aren’t);
                      • That the general public’s rights under the 1A should be restricted compared to those of the institutional press.

                      (All of those I remember; I think you also denigrate Citizens United, but as I’m not sure, I will not include that on my list.)

                    5. Oh, and of course that people should be able to shout down speakers so that they can’t be heard.

  2. Also, how do we know when a speaker has been “shouted down?” In this case, it seems that the measure is, it occurs when the speaker, after a quite short interval in the face of embarrassing protest, gives up. On what basis does the court attribute such a quick departure to Mrs. Oransky, instead of to the speaker?

    1. In order to attribute departure to the speaker, your logic requires a built-in assumption that the speaker is not allowed to determine what their time is worth. In order to express their right to assembly, they must weather slings and arrows and waste their time. IANAL but I don’t think adding qualifications to natural rights is a winning argument.

    2. I think it would have to do with the nature of the assembly, who was invited and the implied rules. People are allowed (even encouraged) to shout at a basketball game but not at a chemistry lecture.

    3. The speaker may have known, from prior experience, that the protesters wouldn’t stop until the speaker left.

      After repeatedly experiencing that, it’s pretty reasonable to not waste time waiting for them to finish protesting.

    4. Also, how do we know when a speaker has been “shouted down?”

      We hold a hearing, and then a finder of fact, after listening to the evidence, finds that the speaker has been shouted down.

      1. And after the speaker makes a quick decision to quit, we discuss everything in the passive voice, to obscure whose initiative the shutdown was.

    5. Damn Stephen,
      Does it hurt being that ignorant?
      Or just normal for a Progressive?

  3. Am I confused? The company shutdown the meeting voluntarily after ONLY 2.5 minutes?!

    It seems to me that lawful action against Oransky could make sense in the context ONLY if the protest continued throughout most — perhaps ALL — of the time allotted for the meeting. God knows meetings like like this tend to be unproductive waste of time for many participants… the loss of 2.5 minutes does not justify shutting it down.

    But 2.5 minutes… that meeting was not shut down by Oransky despite her proudly taking credit. The meeting was voluntarily shutdown by the company.

    I don’t trust the judgement of the court in this case. I hope the decision — based on the preceived shutdown — is appealed because this needs to be cleared up.

    1. Yes, you’re confused: The meeting was scheduled from 5-7, her group started their planned disruption at 6, when the meeting was already half over.

      And if there were enough people present disrupting the proceedings, it would make sense to stop it at that point, because by the time you’d gotten rid of them, your scheduled time would be up. So they cut their losses.

    2. “But 2.5 minutes… that meeting was not shut down by Oransky despite her proudly taking credit.”

      Well, let’s see. Oransky says she shut down the meeting, and the company says that the shut down the meeting…

      In any event, the statute only requires that the person “disrupt” the meeting.

      1. Go ahead, TwelveInch, answer the question. On what basis is a Colorado statute permitted to trump the 1A?

        Public venue. Controversial issues. Counterpoint. In that circumstance, shouted disagreement is not disruption. It is what ought to be be expected.

        1. It isn’t a public venue, because the room was reserved.

          And Oransky, by her own admission, wasn’t there to speak, she was there to keep others from speaking.

          Your defense of the heckler’s veto is contemptible.

          1. “It isn’t a public venue, because the room was reserved.”

            It was open to the public. Hence, a public venue.

            1. That’s not the legal definition of a public venue.

            2. Nope. It was not a traditional public forum, and it was reserved for the specific purpose of allowing Anadarko to present its message to the public.

              1. TwelveInch, it was a community center for pity’s sake. I am pretty sure that if government is licensing a publicly-owned forum for speech, it damn well better not be saying what that speech will or will not express. Nor should government be allowed to say only advocates of one side of a particular question are permitted to be heard.

                1. For pity’s sake, instead of wasting everyone’s time, learn just a little bit about the law.

                  1. Don’t be silly. That would entail learning.

                2. “I am pretty sure that if government is licensing a publicly-owned forum for speech, it damn well better not be saying what that speech will or will not express.”

                  Sigh. It can’t. But it can set neutral criteria to determine who gets to use the room.

                  So if I reserve the room at 3:00 p.m. on Saturday to give a speech on why taxes are too high, and I invite the public, then you can use the same process to reserve the room for some other time to give your speech on why taxes are too low.

                  But if you try to show up at 3:00 p.m. on Saturday and give a louder speech contradicting mine, the community center can remove you, and you can be punished for trespassing, creating a disturbance, etc.

                  1. TwelveInch, you confess in one sentence that the government may not control speech in a public assembly. You then go on to describe a work-around, positing a formula to permit government to do exactly that. I understand it does not feel like that to you; you think they are different issues. Experience shows they are not.

                    1. For pity’s sake, instead of wasting everyone’s time, learn just a little bit about the law.

                    2. “You then go on to describe a work-around, positing a formula to permit government to do exactly that.”

                      Double sigh. Once the room gets reserved, the guy who reserved it gets to use it. Yes, in my hypo you gave a louder speech contradicting mine. But you would also be disturbing my speech if you attempted to give a louder speech expressing the same viewpoint as me, or a speech on a completely different topic.

                      You can do some research if you want, it’s not like there’s any shortage of cases about reserving publicly owned meeting rooms and the like.

                3. That is unmitigated nonsense.

                4. Nor should government be allowed to say only advocates of one side of a particular question are permitted to be heard.

                  At a time and place, yes. (Because otherwise no people can be heard.)

                  1. No, Nieporent. The objection here is that demonstrators were heard, when they should not have been.

                    1. No, the objection here is that the demonstrators made it so that nobody else could be heard, even though the demonstrators weren’t the people who reserved the room and arranged the meeting. Again, why does Paula Oransky get to decide whether or not other residents of Erie Colorado should be able to discuss their concerns with Anadarko?

    3. I suspect that O&G companies have significant experience with protesters, and understand that the protesters won’t stop until the meeting is closed.

      If that’s the case, how much time do they need to waste making sure this group of protesters behaves in the same way as all the prior protesters?

    4. “Am I confused? The company shutdown the meeting voluntarily after ONLY 2.5 minutes?!”

      According to the opinion, it was a representative of the community center that made the announcement shutting down the event. While it’s possible that was done at the company’s behest, it’s also possible that they simply decided the Erie, Colorado, community center didn’t have the capacity to deal with trying to maintain order with 30 protestors intent on disrupting the event.

    5. The point you are missing is that she was suing against losing her job, customer relations for MMM, which included the company she was protesting. If her actions were legal then she might win her job back however since her actions were illegal then she had no chance to win her job back.

      IOW she is an idiot!

  4. As it should be. Freedom speech does not extend to disrupting or preventing the speech of others. Some commenters here seem to disagree with this concept, disagree with the several laws against disruption, and are apparently happy, even gleeful, that the speech of those they disagree with is shut down.

    Stephen has this exactly backwards, supporting the “freedom of assembly” of those bent on disrupting this assembly.

    Dan is confused in sever dimensions. The “lawful action against Oransky” was no such thing, she sued her former employer for firing her, and lost. She was never charged with anything. She lost her job, and rightfully so, for agitating against, in a very public way, a company with which she was tasked, in her employment, to foster good relations. No ambiguity here.

  5. “Colo. Rev. Stat. § 18-9-108 provides that ‘a person commits disrupting lawful assembly if, intending to prevent or disrupt any lawful meeting, procession, or gathering, he significantly obstructs or interferes with the meeting, procession, or gathering by physical action, verbal utterances, or other means.'”

    This seems susceptible to an as-applied challenge on first/fourteenth amendment amendment grounds. It’s content-based restriction of speech. Since she didn’t get any chance to litigate on that specific topic, the court shouldn’t have hand-waved it away.

    The company invited the public to come to the meeting, and then discovered that they didn’t want to hear what the public had to say about them. This strikes me as different from, say, political gatherings where, say party politicians and donors gather, and non-party protesters gather… the non-party protesters weren’t actually invited to the gathering.

    1. I don’t see how it’s content based: It’s based entirely on the intended effect of the action, which doesn’t have to be speech, and entirely agnostic about the content of the speech if speech is used. Ms. Oransky could have disrupted the meeting by loudly agreeing with Anadarko, by loudly disagreeing, by reciting times tables… It’s the disruption that’s targeted here, not the speech.

      “The company invited the public to come to the meeting, and then discovered that they didn’t want to hear what the public had to say about them.”

      You seem to be conflating people conspiring to shut down the meeting, with “the public”. I’ll grant you that the conspirators were a part of the public; They were a part of the public determined to keep the rest of the public from participating in the conversation.

      I will give you this: Not everyone is willing to come out and openly endorse the heckler’s veto, the way you are. It’s good to have evil around that’s willing to take off the mask, to remind people of what we’re facing.

      1. In line with Brett’s point, recall that Kramer’s date, Toby, was just as disruptive with her vocal agreements to Jerry’s bit, as she was with her booing and hissing. https://www.youtube.com/watch?v=v-2nLY-hXP4

        (Bonus trivia: that clip was the most risque of any Seinfeld scene, greatly outdoing Elaine’s cleavage scene or even that of the heiress to the Oh Henry! candy bar fortune.)

      2. “You seem to be conflating people conspiring to shut down the meeting, with ‘the public’. I’ll grant you that the conspirators were a part of the public”

        Gosh, you seem to be conflating people conspiring to shut down the meeting with “the public”.

        1. Gosh, you seem to be conflating people conspiring to shut down the meeting with “the public”.

          No, he’s trying to explain to you the difference between some grains of sand and a beach.

    2. “Since she didn’t get any chance to litigate on that specific topic, the court shouldn’t have hand-waved it away.”

      She’s litigating that specific topic. But she’s doing it in a forum where the burden’s on her.

    3. The company invited the public to come to the meeting, and then discovered that they didn’t want to hear what the public had to say about them.

      The company invited the public to come to the meeting under the normal social rules that individuals take turns voicing their concerns, do not attempt to interrupt others and generally act within the bounds of decorum appropriate for a meeting of this type in this place.

      To hold to the contrary is to also imply that because the public is invited to a church service, they must be permitted to play the accordion (god’s least favorite instrument, natch) in the pews. An invitation is usually circumscribed to “attend and participate but do not try to change the way the assembly runs”, and also the usual “and please leave if asked nicely”.

      1. “The company invited the public to come to the meeting under the normal social rules that individuals take turns voicing their concerns, do not attempt to interrupt others and generally act within the bounds of decorum appropriate for a meeting of this type in this place. ”

        You don’t get out in public much, do you?

  6. After the protest, Ms. Oransky bragged in an online message that she “helped shut down the meeting.” All of the protest activities, as well as the aftermath, were recorded on video and posted on the protestors’ public Facebook page … .

    I’m reminded of a Chevy Chase movie where he robs a bank and stumbles and stares up into a security camera. One cop viewing it later said “My wedding photos didn’t turn out this clear.”

  7. Shouting down speakers is unamerican, illiberal and uncivilized.

    Pay attention to who supports it, and how vigorously and how often they support it. It’s good to know the values of people.

  8. How did the Tea Partiers get away with it?

      1. If you can’t recall events (Tea Party disruption of events during 2009’s health care debates and town halls, for example) or perform basic research, I do not expect you to be part of a productive debate.

        1. And if the tea party guys got fired for illegally doing any of that, they shouldn’t be able to sue their employers either.

          1. The point is that it appears they should have been arrested, at least in Colorado.

            I am confident the Volokh Conspiracy would have defended them, though.

            1. ?? Oransky wasn’t arrested.

              1. You didn’t read the post.

        2. Kirkland: If you can’t recall events … or perform basic research…

          Shorter Kirkland: I don’t have any specific incidents or events I can point to, so I’ll make s**t up.

          Fairly common for the left:

          Violence at Boston Common rally detailed at arraignments

          Quote:
          As many as 2,000 “hostile” protesters surrounded police, some throwing bottles filled with urine and punching and spitting at cops as they tried to escort participants from Saturday’s “Free Speech Rally” out of Boston Common, according to police reports filed in court yesterday.

          The reports filed for the arraignment yesterday of 18 of the 33 people who were arrested Saturday indicate a large-scale outbreak of violence in what was otherwise widely hailed as a peaceful protest by 40,000 counterdemonstrators.

          1. If you are not familiar with the Tea Partiers’ systematic disruption of events a decade ago, you are severely uninformed.

            Get an education, clinger.

    1. Reading difficulties again, RAK? See the article above. Specifically where it says “the factfinder must consider the nature of the meeting, the “implicit customs and usages or explicit rules germane to a given meeting”—i.e. that outdoor events tolerate more disruption than indoor ones, and that political conventions might expect “prolonged, raucous, boisterous demonstrations” whereas …”

      The implicit customs and usages germane to the political rallies at with the Tea Partiers protested are quite different from the customs and usages common to corporately-hosted meetings in small-town community centers.

      1. The events the Tea Partiers disrupted (by calculated means, using methods prescribed in writing from Tea Party central) were not political rallies. Many were constituent town halls arranged by elected officials and candidates.

        Other than that, great comment. Get an education.

        1. “constituent town halls arranged by elected officials and candidates”

          In other words, political rallies.

          1. You seem unfamiliar with standard English, although you seem fluent in clinger.

  9. While I agree that political speech during off duty hours should not be a fireable offense.

    yet that rule should not protect your employment when you Bad mouthing your employer’s customer.

    1. Especially a customer you apparently have direct contact with.

    2. “that rule should not protect your employment when you Bad mouthing your employer’s customer.”

      Although a pro-life person working for Planned Parenthood and going directly from their shift to the protest outside would be kind of entertaining.

      1. Should a company that is a Planned Parenthood vendor fire an employee that yells at women — boorishly or not — near a Planned Parenthood facility?

        Should the result hinge on whether the protester asserts that sweet, cuddly but still omnipotent eight-pound, six-ounce newborn baby Jesus told him to do it?

        1. “Should a company that is a Planned Parenthood vendor fire an employee that yells at women — boorishly or not — near a Planned Parenthood facility?”

          If they think it will affect their business relationship, absolutely.

        2. I’m violating my Don’t Respond to Trolls Rule here, but FYI Rev, not all those opposed to abortion do so for religious reasons, but rather from moral clarity. There are atheists who are opposed to abortion. If you need religion to tell you that killing unborn human beings is wrong, then you need religion.

          1. I doubt your assertion. It’s mostly superstition, a bit of partisan tribalism, and some misogyny.

            1. It’s mostly superstition, a bit of partisan tribalism, and some misogyny.

              You nailed your problem

  10. Sounds right to me. I’ve protested my share of such gatherings and always assumed that I could be charged. Civil disobedience requires a cost/benefit analysis. If the cause is important enough then you’ll risk arrest. The fact that the space was properly reserved is just the icing on the cake.

    1. Really, the biggest problem is that she was the customer relations lead for the company that was a major supplier for the organization being protested.

      It takes a special sort of stupid for that. “Oh hi, yeah, I was shouting out your company and calling them names yesterday. Now buy my company’s product”.

  11. Here is leftist politics 101 in 2019. The left abandoned all principle. All they care about is power. You are a racist when that is an argument they can use to get power. You are a bigot when that is something they can use to argue to get power. When the act in a manner that is bigoted (such as Arthur Cuckland hating on religious people) or racist (such as hating white people for simply being white) that is not such because it gets them no power.

    They think it is fine to show up and shout down a random speaker they don’t agree with because that is power. If a bunch of right wingers do the same well that is a violation of the First Amendment, fascism, blah blah blah. Doesn’t really matter what they say because the translation is “we don’t like that because it takes away our power”.

    The modern left just wants to rule you with raw power. That is all. Conduct yourself accordingly.

    1. Good comment. I agree. There’s an interesting thing going on in this regard now, the right making the left eat some of their own shit, cancel-culture style, with Breitbart digging up dirt, past racist tweets, for example, of left wing journos. They are freaking out, saying it’s an attack on a free press. Ha, ha, ha.

  12. “a Colorado statute that barred firing employees for any “lawful [off-duty] activity””

    I would imagine that this statute would have exceptions, but still, the idea of creating yet another reason to sue your former employee doesn’t seem like Progress.

    There are presumably employers which want to regulate their employees’ whole lives out of general principle, but in general they tend to regulate employee behavior off the job only if it actually affects the company. Dietary habits which increase the cost of an employee’s insurance, social-media posts which embarrass the company, etc.

    Instead of laying down a one size fits all rule, why not let the employers, the ones who actually stand to lose money if they err in either direction – too much or too little tolerance – why not let the employer propose conditions of work to the employee, based on the company’s needs and the need not to drive away talented people with unduly-onerous restrictions?

    If there’s an actual employment contract, written by the company, then I’d be for reading ambiguous language in the contract in the employee’s favor. But if it’s at-will, of of there’s specific language in the contract about not doing things off the job to embarrass the company, or to keep a healthy lifestyle, then revising those employment relationships shouldn’t be the government’s business.

    1. If the print was readable, no one would sign a contract with a company which wanted to regulate what they ate (!).

      1. In this job market, it would probably be a bad idea for a company to attempt that much micromanagement. A company in that situation may be cutting itself off from good (if hungry) talent. And this would be true in the absense of a law.

        In contrast, Colorado’s law means they’re debating whether a company gets to fire someone who criticizes that company’s customers.

        1. Actually, per the case, if she’d just “criticized” the customer, she’d probably have prevailed. She lost the case because she went beyond “criticism” and illegally disrupted their event.

          1. Like I said, the legal system shouldn’t even be discussing this issue. Unless her employment contract allows her to criticize customers, they ought to be able to fire her for doing so, even peacefully and in an orderly fashion.

  13. I think she still would have been fired even if she had only held up a disparaging sign. She was protesting her company’s client. The company was lucky that she was actually disruptive so the court had a good case for dismissing her argument.

    1. The court noted that there is an exception to the statute which permits firing for lawful conduct related to things like customer relations.

  14. First Amendment speech has long been interpreted as subject to time, place, and manner restricts, which easily include not disrupting other people’s speech.

    As the Court noted, there were several ways that the protesters here could have lawfully protested, including asking individual tough questions during the question and answer session and picketing outside. They could also have worn t-shirts or similar expressing their views.

    But holding one’s own counter-rally in a room where someone else had gotten a permit to speak is not protected by the First Amendment.

    The Constitution provides for an ordered liberty. Order means speakers take turns talking, and the permit holder controls the agenda for a given meeting. It does not require a free-for-all where speakers are permitted to shout down each other.

    1. First Amendment speech has long been interpreted as subject to time, place, and manner restricts, which easily include not disrupting other people’s speech . . . . The Constitution provides for an ordered liberty.

      ReaderY, which is fine, while you are talking about speech. My point has been that we are talking about a different 1A right, the right to peaceable assembly. I have been pointing out for years that those two rights have been carelessly conflated, by nearly everyone. EV does it. Courts do it. Your comment seems to do it too.

      I can find no evidence that the founders did it, or intended any such muddling of two quite different rights. For that reason, I suppose that “ordered liberty” may be a fine concept. It may indeed be applicable to both speech and assembly. But I ask, what reason is there to show you can apply the same order alike to these two separate liberties?

      You cannot do it on the basis of the founders’ examples. The assemblies used by them as they strove to launch our nation ran the gamut, from extremely ordered, to hardly peaceable at all. The Boston Tea Party was every bit as much a founders’ assembly as was the Constitutional Convention in Philadelphia.

      Prior to the revolution, colonists held numerous assemblies which might have appeared well-ordered by some standards, but not by those of their own government, which called some of those assemblies illegal, or even treasonous. I cannot bring myself to suppose that when the founders ratified the 1A, they had excluded from mind all those previous assemblies—including the radically disruptive, mob-like assemblies they held amidst revolutionary fervor, during which they burned down the houses of Tories, or applied tar and feathers to some Tories personally. Probably, the founders took it as sage, cautionary reflection on their own conduct, when they added that word, “peaceable,” to the right decreed in the Constitution.

      But I do not think by adding, “peaceable,” to the 1A, the founders could have meant thereby to drain the notion of assembly of all its disruptive political power. Not when they made such conspicuous use of assemblies—peaceable and nearly otherwise—to found a new nation.

      But what of history since? Has it changed the founders’ meaning of assembly, restricted it, and domesticated it to live within the constraints of a corporate board room? Hardly. Within the context of early 19th century times, what was abolitionism but a vast blossoming of ungovernable assemblies? Across the nation, Frederick Douglass, for years, crisscrossed from one village green to the next, from one library to the next, from one public hall to the next, and in every place for only one purpose, to foment then-illegal action against slavery. It was a time when there were even illegal politics regarding slavery, laws which Douglass joyously broke, as he denounced them to everyone who would listen. And also to hostile mobs who had no intention of listening, but instead resorted to violence—violence which to many at the time, probably to a majority, counted as defending “ordered liberty.”

      In fairness, Douglass, too, made no secret of his own intention to incite violence, on behalf of justice. And Douglass too took part in violence. When John Brown’s raid struck Harper’s Ferry, Douglass was waiting in Maryland nearby, for what purpose nobody knows. He and Brown had discussed the upcoming raid at the home of Douglass in New York. An example of a small assembly, amounting to conspiracy, for which Douglass could have been hanged. Douglass had to flee the country, with federal marshals only hours behind in pursuit. Not too long afterward, Douglass returned, and post-Civil War, resumed his always-contested advocacy on behalf of black liberty. Eventually, he did it even in the South. Always, constantly, in the name of liberty writ large, and in defiance of “ordered liberty.”

      In the process, Douglass became one of the best known figures in the world, and according to at least one historian, the most-photographed person in the 19th century. Such was the power of assembly even during the century following the founding era.

      And such was its disruptive power in ending Jim Crow, during the 20th century. And likewise, always and everywhere, it was a power contested as outside the bounds of “ordered liberty.”

      Protests during the Vietnam War—including highly confrontational and disruptive protests against particular speakers in reserved venues—were a more recent demonstration of the political power of confrontations—confrontations supported by the right to assembly. Those too, were denounced as against “ordered liberty.” And those too, were squarely within the meaning the founders had lived, and undoubtedly intended.

      If you check your own opinions, I suggest even you may find nothing among them which asserts shouting speakers down is conduct outside “ordered liberty,” if it occurs in the actual public square. Such conduct offends decorum, not the law.

      The danger the Vietnam history disclosed most recently, but which has always applied, is that people in power use elastic juggling to subtract from public venues nearly every opportunity at which the powerful may be confronted by assemblies. The powerful seem to fear the political power of assemblies far more than they fear the political power of mere speech. Perhaps they should. I say the founders intended that, and wisely decreed it.

      American citizens should strive to keep it that way. Whenever the powerful find it convenient to address the public personally, in whatever public or quasi-public venues the powerful may choose, American citizens must be at liberty—once again, liberty writ large, not “ordered liberty”—to assemble and confront. That is a political power which citizens cannot afford to concede—and its necessity will always grow in proportion to increases in power among the adversaries which citizens confront.

      The powerful will never be at a loss to find venues to make their points to the citizenry. But the powerful are also not at a loss to contrive a critical shortage of venues in which the citizenry get to make points back. It is up to the citizenry to enlarge the scope for that, and freedom of peaceable assembly is the right which empowers them to do it.

  15. I hope Prof. Volokh will jump in here and correct me if I’m wrong. This is not a first amendment issue. This was a privately conducted or “produced” event, at a municipally owned or run venue for which the organizers procured a permit, and to which they invited the public to participate. That participation does not include preventing the intended conduct of the event from taking place. There is no government involvement in the speech here, and the protesters don’t have a right to do what they did.

  16. Aside from the legal issues:

    “During the forum, Ms. Oransky—who is concerned about health and environmental consequences associated with oil and gas development—and others protested Anadarko’s activities.”

    I wonder how she and the other protesters got to the meeting. I’m guessing they didn’t walk.

  17. I should hope the First Amendment would be interpreted this way in all 50 states, without any need for a law like Colorado’s. The organizers of a speech event, who own or have paid to use the facility, clearly have rights of both speech and assembly that trump those of somebody who came in for the purpose of disrupting the event, and doing that should be both civilly and criminally actionable.

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