The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's Tenth Circuit opinion in VDARE Found. v. City of Colorado Springs, written by Judge Gregory Phillips and joined by Chief Judge Timothy Tymkovich:
VDARE describes itself as a nonprofit organization that educates the public on two main issues: (1) the unsustainability of current U.S. immigration policy, and (2) the United States' ability to survive as a nation-state. VDARE carries out its mission through its website, books, public-speaking engagements, conferences, debates, and media appearances. It alleges that though it seeks to "influence public debate and discussion on the issues of immigration and the future of the United States as a viable nation-state," it has "never advocated violence or any form of illegality."
Around March 2017, VDARE reserved the Cheyenne Mountain Resort … in Colorado Springs for a future conference … featuring guest speakers and activities related to its mission. VDARE alleges that the Resort knew of VDARE's mission as well as the potential for media attention and possible protests that could arise from the Conference.
Over four months after VDARE booked the Conference, on August 12, 2017, violence erupted in Charlottesville, Virginia following a controversial political rally. The rally, protests, and ensuing violence drew national media attention. Two days later, on August 14, 2017, Mayor John Suthers, speaking on behalf of the City of Colorado Springs …, issued the following public statement:
The City of Colorado Springs does not have the authority to restrict freedom of speech, nor to direct private businesses like the Cheyenne Mountain Resort as to which events they may host. That said, I would encourage local businesses to be attentive to the types of events they accept and the groups that they invite to our great city.
The City of Colorado Springs will not provide any support or resources to this event, and does not condone hate speech in any fashion. The City remains steadfast in its commitment to the enforcement of Colorado law, which protects all individuals regardless of race, religion, color, ancestry, national origin, physical or mental disability, or sexual orientation to be secure and protected from fear, intimidation, harassment and physical harm.
The next day, August 15, 2017, the Resort issued a statement announcing that it would no longer be hosting the Conference and cancelled its contract with VDARE. In its Amended Complaint, VDARE doesn't allege that the City had any direct involvement with the Resort's decision to cancel the Conference. Nor does it allege what, if any, reasons the Resort provided when it informed VDARE that it was cancelling the Conference.
Rather, VDARE alleges that before the City's Statement, the Resort had been actively communicating and coordinating with VDARE about logistics and safety in connection with the Conference. Further, it alleges that sometime after the Resort cancelled the Conference, Mayor Suthers "publicly expressed satisfaction that the Conference had been cancelled." …
VDARE alleges that the City's "announcement that [it] would not provide any municipal resources or support of any kind, including basic police, fire, ambulance, parking and security services, meant that participants in the Conference, the Resort's patrons and employees, and innocent bystanders would potentially be subjected to serious injury or death in the event that they were threatened or attacked by protestors." VDARE further alleges that the City "targeted" it under the City's "Hate Speech Policy," which was "not content-neutral either facially or in its application" and "targeted events, groups, and individuals for disfavored treatment based on the content of their speech." From this, VDARE claims that it was "deprived of its ability to lawfully and peaceably assemble with its invited guest speakers, readers, supporters, and other interested persons." …
The panel majority concluded that government speech that condemns speakers, and urges private entities not to provide a place for them to speak, doesn't violate the First Amendment unless it is sufficiently coercive of those private entities. (That seems to me like a correct statement of the law, given the cases I've canvassed in this post.) And the court concluded that this statement wasn't coercive; here's an excerpt (though the opinion is long and deals with other matters as well):
VDARE points to the fourth sentence in the Statement, which states that the City "will not provide any support or resources to this event, and does not condone hate speech in any fashion." This, VDARE argues, encouraged "a heckler's veto." Moreover, VDARE argues that the surrounding circumstances—including the "natural import" of the Statement, its timing, and basic fairness—show that the Resort cancelled the Conference because of the Statement and its lack of "reassurance that the City would protect [its] properties and keep the peace." We disagree with VDARE that this is a plausible interpretation of the last line of the City's Statement.
First, the "surrounding circumstances" included the violent protests that occurred in Charlottesville only three days before the Resort's cancellation. VDARE's allegations don't acknowledge that the Resort may have cancelled its contract after observing news coverage of that event. This likelihood matters because under Ashcroft v. Iqbal, we can't infer that the Resort's cancellation is attributable to the City based on just the possibility of its being so. Iqbal provides that it isn't sufficient for a plaintiff to plead facts that are "merely consistent with" a defendant's liability and that such facts "stop[ ] short of the line between possibility and probability." …
Second, VDARE speculates that regardless of what future circumstances would have unfolded, the City would have allowed the "breakdown of law and order." But VDARE hasn't plausibly alleged that the City was declaring that it would not intercede with police or fire personnel if faced by the mayhem that VDARE envisions. That's just its subjective interpretation, and an implausible one too. What VDARE wanted, it had no right to demand—municipal resources to monitor a private entity's private event.
Third, VDARE doesn't plausibly allege that the Statement was significantly encouraging or coercive. VDARE doesn't allege that the City followed up on its Statement with any actions. This too contrasts with Bantam Books, in which the Commission followed up on its threatening notices with visits from police officers so that distributors "reasonably understood" that they had to comply with the notices. Indeed, the threat of imposing criminal sanctions, and how it was continually reinforced, is what led the Supreme Court in Bantam Books to conclude that the Commission's tactics amounted to a state-sponsored system of prior restraints.
And fourth, … nothing in the Amended Complaint plausibly alleges that the City used its power to control the Resort's independent decision-making process….
Judge Harris Hartz dissented:
I agree with so much of the panel majority opinion that my dissent can be brief. My difference with the majority centers on the import of the third sentence of Mayor Suthers's announcement: "The City of Colorado Springs will not provide any support or resources to this event, and does not condone hate speech in any fashion." …
The most reasonable, perhaps the only reasonable, construction is that the sentence conveyed, and was intended to convey, that no police or fire protection would be provided for the VDARE conference at the Resort. What other "support or resources" would the City ordinarily provide? As counsel for VDARE stated at oral argument, "What else could the Mayor be conveying?"
And, according to specific allegations in the Complaint, that is how the public interpreted the Mayor's statement. One television station allegedly reported, "Colorado Springs Mayor won't commit city assistance to upcoming white nationalist conference," and said that the local sheriff's office announced that its "deputies would not be participating either unless their presence is requested by the Colorado Springs Police Department for some reason." Certainly, at this stage of the proceedings we should adopt that interpretation in determining whether the Complaint states a cause of action. This interpretation is not merely "consistent with" the Mayor's language; I question whether any other interpretation would be plausible.
Defendants contend that this statement by the Mayor was merely an expression of a particular point of view, which is protected from liability as government speech…. There is no violation of the First Amendment protections of free speech when the government favors particular content, or even a particular viewpoint, so long as it is the government that is speaking.
But the government-speech doctrine does not create an immunity for whatever the government chooses to say. For example, "the Free Speech Clause itself may constrain the government's speech if, for example, the government seeks to compel private persons to convey the government's speech." And if the government cannot seek to compel favored speech, it surely cannot punish or seek to deter speech based on its (constitutionally protected) content or viewpoint.
A government effort to punish or deter disfavored speech is what VDARE adequately alleges. And the City accomplished its purpose. The Complaint plausibly alleges that the Mayor's statement caused the Resort to cancel the VDARE conference. The majority opinion opines that the statement was not "significantly encouraging or coercive." I must respectfully disagree.
I would think that most businesses would be strongly inclined to forgo a customer if they were told that they would lose police and fire protection if they did business with the customer. And the Mayor's announcement did much more. It implicitly invited violence. It is one thing to refuse to provide police protection. It is quite another to announce far in advance that police protection will not be provided.
VDARE espouses views that many find highly obnoxious. Any of its activities could engender protests, counter-protests, and clashes between the two sides. The Complaint alleges that VDARE has never espoused violence. Assuming that to be true, as we must in considering a motion to dismiss, the Resort would have little reason to fear violence from hosting a VDARE conference. After all, the Resort is on private property. It has no obligation to allow protesters on its grounds. Barring access to protesters should suffice to keep the peace. But an announcement that there would be no law-enforcement presence is an open invitation to those inclined to violence, as protesters, counter-protesters, or whatever.
The majority opinion raises the possibility that the Resort canceled its contract with VDARE because of the recent violence in Charlottesville, saying that VDARE's nexus argument is not plausible because it has not excluded that possibility. But I would think it more plausible that the Charlottesville violence enhanced the coercive force of the Mayor's announcement by highlighting the danger to the Resort from the denial of police protection, particularly when that denial is publicly announced in plenty of time for bad actors to make plans. Besides, if it was so likely that the Resort would cancel its plans because of what happened in Charlottesville, why would the Mayor bother making an unnecessary announcement regarding an event that would not be occurring?
The majority opinion also appears to fault VDARE for not including in the Complaint any excuse given by the Resort for canceling the contract. But VDARE should not be bound by an unsworn statement by the Resort when the Resort may have various interests in being less than candid. I am not suggesting that VDARE has definitively proved the necessary nexus. But I would say that the Complaint makes a more than plausible claim of nexus….