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Federal Appeals Court Rejects Claim of Far-Right Group Whose Event Was Canceled After Violence in Charlottesville


charlottesville via hbo screengrab

A federal appeals court has rejected a lawsuit from a far-right group which alleged that a Colorado mayor violated their First Amendment rights by denouncing their “hate speech” in the wake of violence in Charlottesville, Virginia in 2017, leading to their event’s cancellation.

In a divided 2-to-1 ruling, the U.S. Court of Appeals for the 10th Circuit ruled Monday against VDARE, a website that takes its name from Virginia Dare, the first English child born in the colonies, leading many white nationalists to take her up as an icon. The majority found that the Colorado Springs Mayor John Suthers did not violate VDARE’s free speech rights by skewering them. Rather, the government was merely exercising its own.

The Southern Poverty Law Center describes VDARE as an anti-immigration “hate group” that, in its own words, is “dedicated to preserving our historical unity as Americans into the 21st Century.” VDARE operates a website, publishes books, holds speaking engagements, conferences, and media appearances — all for the purpose of “influenc[ing] public debate and discussion on the issues of immigration and the future of the United States as a viable nation-state.”

The group’s foundation booked an event in March 2017 at the Cheyenne Mountain Resort in Colorado Springs, to be held at a later date. Four months after VDARE booked its event, a white nationalist rally led to violence in Charlottesville, Virginia.

After the fatal violence in Charlottesville drew national media attention, leaders across the country began to speak out against white nationalism. One such leader was Colorado Springs Mayor John Suthers. Suthers issued the following statement on Aug. 14, 2017:

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.

Suthers’ statement continued, pledging that his city would refrain from providing support for VDARE’s event:

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, the Cheyenne Mountain Resort canceled VDARE’s event.

VDARE then sued the City of Colorado Springs and Mayor Suthers individually, alleging that the mayor’s statement violated VDARE’s First Amendment rights and interfered with the organization’s freedom of contract. VDARE lost in the lower courts, then appealed its way up to the 10th Circuit.

The majority of the three-judge panel of the 10th Circuit included Circuit Judges Timothy Tymkovich (a George W. Bush appointee) and Gregory A. Phillips (a Barack Obama appointee).

Judge Phillips — beginning his opinion by asking, “When the government speaks, what can it say?” — systematically dismantled VDARE’s claims for deprivation of free speech and free association rights under the First Amendment.

The majority rejected VDARE’s argument that Cheyanne Mountain Resort’s cancellation amounted to state action. Judge Phillips specifically pointed to the mayor’s acknowledgement in his remarks that the city lacks the authority to restrict freedom of speech or to direct private businesses about which events they may host.

Furthermore, the majority disagreed with VDARE that Suthers’ statement was a “covert veneer,” a “thinly-veiled threat to prosecute VDARE,” or a “heckler’s veto.” Rather, the majority found that the remark “only expresses the City’s views on the need for private businesses to pay attention to the types of events they accept and groups they invite.” The mayor’s statements, wrote Phillips, “contains no plausible threat—let alone a threat of prosecution.”

Next, the majority turned to a secondary issue: whether the government itself has free speech rights. The court was clear that it does. The government, explained Judge Phillips, is entitled to make content-based choices and viewpoint-based decisions. It can choose to fund some programs and encourage certain favored activities, while declining to fund other programs. These choices do not constitute “discrimination,” or even “regulation of speech,” but rather, are simply an expression of the government’s viewpoints.

VDARE has no legal basis to insist that the City of Colorado speak with viewpoint-free neutrality, explained the court. “[W]hether one finds the Statement ‘neutral’ or not doesn’t matter,” wrote Phillips, “because, as discussed, government speech need not be so.”

“Indeed, this core principle, that the government can have views and take strong positions—which it can express through various forms of speech—is at the heart of government-speech doctrine,” he continued.

Lastly, the court ruled that VDARE had not sufficiently proven a causal link between the mayor’s statements and the resort’s cancellation. The only link VDARE alleged is proximity in time, and that simply isn’t enough.

The majority also addressed two secondary matters. First, it agreed with defendants that even if VDARE had made out some of its claims against Mayor Suthers personally, he would be entitled to qualified immunity. Second, it declined to exercise supplemental jurisdiction over the state law tort claim for interference with contract.

Circuit Judge Harris Hartz, a George W. Bush appointee, issued a brief dissent from the majority’s ruling, arguing that VDARE sufficiently pleaded that the mayor’s statement caused the resort of cancel VDARE’s conference.

“I would think,” dissented Hartz, “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.” Hartz argued that Suthers’ statement “implicitly invited violence” by refusing to provide city resources.

Hartz reasoned that because “VDARE espouses views that many find highly obnoxious,” its events could easily “engender protests, counter-protests, and clashes between the two sides.” Therefore, Hartz continued, “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.”

On the day of the 10th Circuit’s decision, VDARE did not comment directly about the ruling, but posted several tweets in line with its anti-immigration messaging.

Counsel for VDARE and the City of Colorado Springs did not immediately respond to request for comment.

Read the ruling below:

(Image via HBO screengrab)

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos