Does City's Saying It "Will Not Provide Any Support or Resources" to Controversial Political Event on Private Property Implicitly Threaten Withdrawal of Police Protection?

No, say two Tenth Circuit judges in a case involving the VDARE Foundation; yes, says a dissenting judge.

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….

Comments

[DaivdBehar]

The police are the agents of the prosecutor. They are thugs with the prupose of generating massive income to the city from fines of middle class people violating fake, nitpicky, garbage rules. They have almost nothing to do with protecting the public. The public is on its own.

Bring weapons, protect yourself and your event.

When immunity is ended, it should end for discretion as well, the failure to protect.

[DaivdBehar]

Take away discretion? Heck yes. Yhese people are the worst. 4000 times black men were lynched in front of a lit of witness, and discretion allowed it. No prosecution, or even investigation. Prodecutors are political hacks making decisiond based on bias, self interest, feelings, political advantage. They are garbage allowing 90% ofcommon law crimes to go unanswered and 100% of internet crime to go unanswered, all 100 million of them.

The lawyer talks of viewpoint discrimination. No one is getting police protection. They are agents of a toxic garbage profession. Areas under control of organized crime are safer.

[DaivdBehar]

Crime is the biggest failure of the lawyer profession. Yet, Eugene refuses to acknowledge this failure. That makes him a denier. Deniers have an agenda, his is rent seeking, taking $trillion and returning nothing of value.

[DaivdBehar]

Discretion = immunity to kill Trump Supporters.

If the life of a career criminal, addict, overdosing thug is worth $27 million, the life of Ashli Babbitt should be worth $100 million.

[Absaroka]

From the dissent: "It is quite another to announce far in advance that police protection will not be provided."

ISTM that it would be wrong for a Mississippi sheriff in the 1960's to announce "those northern civil rights people can come down here and try and register voters if they want, but this county will not provide any support or resources to them", wink, wink to the KKK. Governments are supposed to provide support, like police protection, to one and all regardless of whether the politicos currently in power agree or disagree with the opinions at hand.

[Longtobefree]

And what would the fine Mayor say if the resort, or VDARE, announced it had hired the People's Militia of Colorado to provide 'medical services' for the event? Or if he found out that there would be sidearms provided for any attendee who might feel threatened?

[Brett Bellmore]

This sort of targeted withdrawal of the law's protection, in order to leave a disfavored group vulnerable to private attack, was exactly what the 14th amendment's equal protection clause was drafted to prohibit. I don't know how a government could more clearly threaten an EPC violation than was done here, without going to the length of citing the EPC by name.

And mentioning Charlottesville is ironic, because that city more or less pioneered the modern revival of that Jim Crow classic.

[Aktenberg78]

Again, these people are traitors. They should be gassed.

[jdgalt1]

Spot on about the EPC. But what Charlottesville demonstrated was the same kind of false-flag attack designed to smear everyone on the Right as happened January 6, both at the hands of the corrupt FBI. If law enforcement doesn't stomp this out good and hard, we will need an insurrection to get our country back.

[Jason Cavanaugh]

"If law enforcement doesn’t stomp this out good and hard, we will need an insurrection to get our country back."

You guys already tried that on the 6th. You're welcome to try again if you like, though your unlawful rebellion will be doomed to fail.

Why? Because America isn't "your" country, and you aren't patriots.

[Brett Bellmore]

Please. In your fantasies that was an insurrection. Nobody but the cops even brought guns.

I know that the left enjoy these, "The right revolts, and we get to strafe them with fighter aircraft, and bomb their towns from 50,000 feet." fantasies. Even the current President indulges in those pleasant daydreams.

But you have no idea what it would actually be like if you ever pushed the right too far. It certainly wouldn't be like your dreams, that's for sure.

Not mine, either: Nobody wins if we have a revolution, even if my side lost less, we'd be damaged goods for a couple generations.

[apedad]

"But you have no idea what it would actually be like if you ever pushed the right too far."

I have an idea since you guys tell us all the time; see Aktenberg78 above.

[Brett Bellmore]

If most of the right were anything like him, we'd have had that war a decade or more ago. The people you need to worry about are the people who are nothing like him.

[apedad]

OOOOOO! Like those secret groups out on the Arizona/Utah border?

You guys are JOKES.

FUCKING JOKES.

BRING IT ON FUCKING CRYBABY LOSERS.

YOU'RE LOSERS AND THE ONLY THING YOU HAVE LEFT IS VIOLENCE - AND YOU HAVEN'T GONE FULL NUTSO ON THAT BECAUSE YOU WILL DIE.

SO YOU WILL KEEP TAKING IT UP THE ASS AND THERE IS NOTHING YOU CAN DO ABOUT IT.

[Michael P]

Big words from the totalitarian faction that applies "punching fascists" to include stabbing journalists and ambushing random citizens in their cars, that fired the only shot on January 6th, and couldn't tolerate open discussion of Hunter Biden's laptop.

At least Rev A K doesn't have a broken caps lock key.

[Aktenberg78]

They like to talk about how most GDP is produced in blue cities and counties. As though a software engineer writing code for Instagram is equivalent to producing food, clean water, and energy.

The blue cities would freeze and starve in a heartbeat if the heartland cut them off.

[Hank Ferrous]

There are counseling and medication options available for folks with such an obvious set of health issues as yours. If you're done with the histrionics, you could seek help.

[Aktenberg78]

A decade? We've been a lawless, extraconstitutional nation since at least Roe v. Wade. The left has gotten even more blatant since then.

[Sarcastr0]

Brett - it's not just that ahole. jdgalt talked about it. Jimmy has talked about a great reset. And of course Ed with his Trucker's Crusade.

You don't seem so into it, but there's no shortage of keyboard militiamen on here.

[Brett Bellmore]

I'm not into it because my line hasn't been crossed yet, and because I realize civil war would be horrible for everybody. Like I said, nobody wins that war, some people just lose less.

But everybody has their line in the sand, and having a line in the sand doesn't mean you're an evil monster. It just means you're not a slave waiting for his shackles to be applied.

I worry that the left alternates between believing that they can push forever without things blowing up in their faces, and hoping for a blowup so that they can stop pussy footing around.

As stupid as it would be to have a civil war because a faction in the government crossed a line in the sand, it would be stupider still to have one because nobody had warned them where it was. So be happy when your foes tell you where their lines are.

[Sarcastr0]

Sure - everyone should have a line.

And no, there is no one outside the fringe on the left (though I will admit plenty of them) who wants to foment CW2. The right, though, *as an institution* has been pussyfootting around that kind of violent populism since the 1990s.

[Brett Bellmore]

Rather, the left has been pushing right up to the edge of the right's lines in the sand since the 90's. Attacking the 2nd amendment, attacking religious liberties, coming up with insane things like transgenderism, and forcing everybody to humor the delusions.

[Aktenberg78]

No, the left doesn't explicitly want to foment CW2. Rather, they want to crush the right, economically and culturally. That's what removing statues is about. Tt's about telling people that they can't honor their ancestors. That's what the bathroom fights are about. The left supports it solely because we hate it.

[Hank Ferrous]

'There is no one outside the fringe on the left,' your evidence is lacking, although you do at least say that there are plenty of them. The number of left-leaning sorts who are vocal about violently disposing of their ideological opponents is equally high. You also equate populism with the right, a recent laughable claim made by the left-leaning types. As for the 'left' and civil war, you may want to take a look at history, the groups and people the 'left' and progressives still idolize. Your claim that these people 'fringe' elements doesn't bear up given the amount of media fanfare, music, film adulation given to them. This said, yes, there is little point to a right-leaning person pointing out to a left-leaning sort that actions can have shit consequences, even as stupid as an uprising. Witness the all-caps tantrum above.

[Sarcastr0]

I equate violent populism with the right.

You can see it around here. You can see it in where the White Supremacists are. You can see it Charlottesville. You can see it in so much of the right apologizing for Jan 06. You can see it in the right lionizing Kyle Rittenhouse.

It's not exclusive, but the problem is absolutely asymmetrical when it comes to parties mainstreaming violent populism.

Brett, the left pushes. That's how progress works. You push back the same as they do. You've been pretty effective on 2A. And religious liberties have been *expanding* beyond Smith for a while now.

So no, I don't think talking about rebellion and insurrection and civil war 2 are legitimate, they're unamerican crap and the right should start policing itself before they pull more crap.

[Sarcastr0]

Sorry - equate is too strong. But the right is the party playing footsie with that.

[Michael P]

It takes a very short memory to say the right is the only side playing footsie with violent populism, considering the affiliation of the literal mobs that marched around last year, demanding people do what they say (or else).

[Sarcastr0]

Your conflating protests with 'mobs' doesn't really change who is talking about violent insurrection.

[Absaroka]

"conflating protests with ‘mobs’"

My taxonomy goes something like:

'protest': signs, banners, chanting
'mob': arson, throwing stuff, lasers in eyes

Based on that he extensive video from, inter alia, the Portland Fed Bldg looks pretty 'mob' to me.

(I don't get the optics of downplaying this. It's a 'should I believe you or my lying eyes' kind of thing. The 'protesters' were posting the video themselves, hours of it, night after night. The routine deflections aren't persuasive.)

[Brett Bellmore]

Ideally, the country just peacefully breaks up, and then we sort populations and go on as smaller, but still large by international standards, countries.

But as much as I really wish we could resolve it that way, the very essence of the problem is that your side of the fight feels morally entitled to rule our side whether we like it or not. Morally obligated, even, to crush our resistance.

So I don't see it ending peacefully, much as I wish for that. But I'm certainly not looking forward to the coming civil war, the America I grew up in is dead either way.

[Sarcastr0]

I think we're fine as a union as it is. Being in a republic means you're unhappy about politic about half the time.

But the subject here is is not those on the right that are so patriotic they want to end America, but rather those calling for political violence. And even after Jan 06, all I see this coming from is the right.

[Brett Bellmore]

Being in a federation means you get left the hell alone most of the time. That decisions get made at the most local level possible.

The problem here is you want to transform a federation into a unitary state.

[Aktenberg78]

What if political violence is the only way to bring about the dissolution?

[Aktenberg78]

No, we're not fine as a union. A country where 50% hates the other 50% is not "fine."

[Hank Ferrous]

Not for nothing, but 'your' in-group seems pretty determined to sort and separate people by characteristics; this isn't a recipe for a congenial or lasting union. I don't know what will occur, but the separatists are not the folks who are being labeled as such. As for you only seeing calls for violence coming from the right, this is because you are biased.

[Sarcastr0]

Hank, if you want to argue secession because the other side is not colorblind, go ahead. I don't think that's going to fly.

Brett - That ship sailed in 1861.

[Aktenberg78]

Whose country is it? The property of the 100 million parasitic third worlders you've imported since 1965?

[Martinned]

This sort of targeted withdrawal of the law’s protection, in order to leave a disfavored group vulnerable to private attack, was exactly what the 14th amendment’s equal protection clause was drafted to prohibit.

Wait, equal protection clause? Don't you mean privileges & immunities? Or due process? Last I checked, ideology is not now, nor has it ever been, a suspect classification.

[Dan Schiavetta]

“Planned shrinkage” returns. Only this time it’s against white people so suddenly it’s not I.k.

[Jimmy the Dane]

That is sure some nice free speech you got there....be a shame if some violent protesters showed up to cancel it....

[Estragon]

Jimmy! What happened to the great restoration?? August is almost up! Don’t tell me— now it’ll be by year end, right? Don’t forget to sign up for a recurring donation

[Jimmy the Dane]

Oh it's coming....

[Estragon]

Yep, it’s just around the corner you starry eyed dreamer

[Aktenberg78]

"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):"

This is obscene. The government has no business urging private businesses to not host events. ANY government speech is by definition coercive, and anyone who argues otherwise is a dishonest fool.

[Krayt]

Paperwork can get delayed, approvals denied, applications to build held up, licenses for your statiom not renewed.

"Regulation by raised eyebrow" is a real thing. The assumption should be the politician is up to censoring until proven otherwise.

And my usual, for a thousand years the shoe was on the other foot. Nobody learned, least of all the downtrodden, doing the trodding now.

[Aktenberg78]

None of this will end until bullets are flying. I relish the day when the civil war starts.

[Hugo S. Cunningham]

The Spanish Left were eager for revolution in 1936, and deliberately provoked a civil war. But it did not turn out the way they planned. "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes."

[Aktenberg78]

The Spanish left is nowhere near as competent and well prepared as the American right.

[Estragon]

Oh yeah, you’re so prepared. I thought the election was stolen? Why are all you losers sitting around whining on the internet then? Don’t worry, MyPIllow says trump will be back at the end of the year— I guess august was too soon

[Brett Bellmore]

Aktenberg78, if you were at all competent in this context, you'd keep your pie hole shut, instead of telling the secret police who to put up against a wall first. Like the NSA doesn't know who's posting under that name.

The people the left have to worry about are the ones who aren't making noise.

[Aktenberg78]

Even assuming they do, there are millions of people like me, and there are many people like me in the military and in police forces.

[Estragon]

millions of people like you— all talk on the internet, no action. And obsessed with what homosexuals do in private. I’ll take my chances with you and corporal “birther” bellmore.

[Brett Bellmore]

If we have a civil war, even if you like the people who win, America as we knew it is dead, and we won't be a world power again for generations.

China may even move into the vacuum to create a world dictatorship.

War is sometimes the least awful option, but it's always awful.

[Aktenberg78]

Perhaps. But I'd rather have an America with half the land and half the people, even if artificial measures like GDP per capita are lower.

[Hugo S. Cunningham]

But what if this diminished America is ruled by the side you oppose? Or if the side you favored has changed out of recognition? Civil War is a game of chance, where the house (one of the Four Horseman) takes a huge cut out of any winnings you were hoping for.

[Aktenberg78]

Ruled by the side composed of third world Hispanics, criminal blacks, transgenders, and white girly men who work in finance or bigtech? I'll take my chances.

[Estragon]

Welcome back from Hungary tucker! Did you enjoy your trip? Orban seems like a swell guy

[Krayt]

This very web site noted the unconstitutionality of New York saying, hey banks, providing services to gun maker lowers your reputation and we consider reputation when offering contracts, wink wink.

And this skips waggling fingers behind the back.

[M L]

"Does City's Saying It "Will Not Provide Any Support or Resources" to Controversial Political Event on Private Property Implicitly Threaten Withdrawal of Police Protection?"

Just going by the headline alone, the answer is obviously yes.

The rest of the post doesn't show otherwise.

[cmcc_aus]

Let us suppose that VDARE's meeting had gone ahead (perhaps because the facility had allowed iy, or perhaps they held a rally in a public space. If they were attacked by Antifa, and the police were nowhere in sight, did not respond to calls, would the injured parties have a claim against the city under the Civil Rights Act of 1870? And if suchb a claim were brought, would it be dismissed on the basis of Qualified Immunity?
As Absaroka said earlier in the comments, this looks like it's parallel to either Mississippi in the 1960's, or much of the South during reconstruction, so is in fact what the Civil Rights Act of 1870 was intended to cover.
And as to qualified immunity, that doctrine evolved from the theory that the cop on the beat can't be expected to know all the case law. But more recently we get to the question whether administrators and executives, who don't need to make split-second judgments, should get good legal advice. (And recently wasn't there a case against the Univ. of Iowa where a religious group on campus charged 1A discrimination, and the court is letting the case go to trial and possible personal damage claims against university officials who should have known better?

[Mike Adamson]

I didn't take the Mayor's statement as a refusal to respond to calls but as a denial of a proactive police presence at the event.

[Cal Cetín]

Wouldn't it be best to take such a claim to trial? Is it so clear at this stage that there's no case?

[Mike Adamson]

I'm looking at it from the perspective that I can't expect the police to hang out at my place in case something happens but that I can expect them to respond to a request for assistance should trouble arise. It seems fairly straight forward but then IANAL.

[Cal Cetín]

I say, let the mayor and his officials explain what they mean...at a trial.

But the appeals court didn't agree.

[Commenter_XY]

I agree. Perhaps there will be a request to rehear the case en banc. The issues raised are important. Can the government permissably control speech by explicitly threatening to withhold money, staff, equipment?

Hopefully, we have not heard the last word on the matter.

[Brett Bellmore]

We probably have; Too few people in a position to let this go further don't utterly despise VDARE. And the sort of principles that would push them to take the case anyway are not at all common.

Certainly, the DOJ isn't going to litigate this blatant EPC violation, when it's their political opposition being oppressed.

[Tempe Jeff]

The Business Owner, and Taxpayer who provides jobs in the Community; can't afford to 'take' the Statement of the Mayor otherwise. You, yourself certainly can without risk.

[Milhouse]

How could the mayor have meant that there would be no proactive police presence at the event? Who ever expected that in the first place, and why? Is it the police's common practice to show up to random events just because?

[Kenneth Almquist]

That's my reading too, and it seems to me that the evidence cited in the dissent actually supports that interpretation:

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.”

The quote from the sheriff's office seems to reflect an understanding that they might be called upon under certain circumstances.

If the city normally provided proactive police presence at events like the one VDARE was trying to stage, but decided not to do so for the VDARE event because they didn't like VDARE's views, that would in my view be unconstitutional viewpoint discrimination. But VDARE doesn't allege this particular fact pattern. Instead, they claim that the city was saying that it would, among other things, not supply “basic police, fire, ambulance, parking and security services.” I have to agree with the majority here: it's implausible that the the city was saying that if the conference center caught fire, the fire department wouldn't respond if the fire happened while the convention was in progress, or that the an attendee of the conference had a medical emergency the city would refuse to dispatch an ambulance.

[Brett Bellmore]

As implausible as if a group they didn't like got a parade permit, and so when violent protesters showed up, they had the police force the group together with the protesters, instead of keeping them apart, to create a violent pretext for canceling the event?

As implausible as if some lunatics took over part of a town, terrorizing the inhabitants, and the local police were ordered to leave them alone, and instead provided the lunatics with logistical support?

You need to recalibrate that implausibility meter a bit after the last few years.

[Michael P]

Why is that implausible?

It is very plausible that the city or state would allow violent protesters to come in contact with the conference-goers, and have the police sit idly while violence unfolds, waiting until they can invoke the riot act to tell everyone to disperse (and then prosecute approximately zero violent criminals). That's a game plan that has been used over and over since Charlottesville.

[Brett Bellmore]

As the dissent said, WHAT proactive police presence? None had been requested!

[Cal Cetín]

"Here's a controversial group meeting in our fair city - I'm worried about another Charlottesville. What can I say to calm the waters and make sure that the Charlottesville situation doesn't repeat itself? Oh, and I don't want to intimidate the venue owner into cancelling the event, that would be wrong. Let me write out a statement laying down my take on the situation..."

[Ed Grinberg]

This is just like colleges and universities that encourage "heckler's vetoes".

[Titus PUllo]

The State knows nothing but tyranny..

[Brophy]

Which political parties do the majority judges affiliate with? Which political party does the minority judge affiliate with?

[Michael P]

Federal judges are formally nonpartisan. Can you make an argument about the substance of the ruling, rather than deciding whether to support or oppose it based on who appointed the judges? (Or making an argument of the form that President XYZ appointed such-and-such judge, and this is a classic example of them getting the law right/wrong.)

[ReaderY]

The difficulty here is that you get a Cruikshank situation. The 14th Amendment secures no rights to people against private persons, only against states.

So if the sheriff wants to join the lynch mob nad bring the entire police force with him,, as long as they take their badges off and make clear they are acting only as private persona, not as agents of the state, it’s all good. That’s how Cruikshank left things.

It aeems to me that if you announce you aren’t providing police protection, you are openly inviting vigilantes to do whatever violence they want. And the meaning of your announcements is their ordinary meaning to an ordinary person, including the wink-winks.

[Commenter_XY]

ReaderY...Thanks for that case cite. Just read a summary, and learned something new today (heck, not even 5am yet).

[ChicagoTom]

What was preventing VDARE or any of these businesses from providing their own private security?

I guess I dont understand the problem here.

Police say "go ahead and have your rally, but we will not act as your private security force."

There is nothing there to implicate that they would not respond to calls for assistance or reports of crimes. Just that they are not going to be there in advance and make sure nothning goes down.
Wouldn't VDARE be able to provide their own private security to maintain a perimeter on private property?

[Brett Bellmore]

"There is nothing there to implicate that they would not respond to calls for assistance or reports of crimes. "

You're a funny guy, you know that? Just got back from hiding in a cave for the last few years, and the first thing you do is comment here?

Maybe you better bring yourself up to speed on what's been going on in the last few years in terms of the police leaving people local governments don't like without protection when they're attacked by rioters.