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November 23, 2011 02:17 AM UTC

Lawsuit Filed in Federal Court to Prevent Suppression of Speech in Denver

  • by: Danny the Red (hair)

( – promoted by Colorado Pols)…

A lawsuit was filed today to prevent the use of disproportionate policing to suppress Occupy Denver.

The news outlets will discuss the conduct, but I thought I would take a little time to explain what the first amendment means and how and when it can be limited.  

Before we get to what the government is trying to limit, normally referred to as either Track 1 Communicative Impact (what the expression means) vs. Track Two Non-communicative Impact (how the expression is done), it is useful to discus how we determine the government’s true purpose because Track 1 analysis enjoys almost perfect protection and Track 2 analysis enjoys less protection.

When you hear people talk about “time, manner, place” restrictions they are generally talking about Track 2 analysis.

Government, knowing that track 1 enjoys almost unlimited protection, will rarely admit that its goal is to suppress speech based on content.  

Justice Kagan when she was a mere attorney noted this in a paper when she wrote

First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine

comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.…

The government knows that if there was an ordinance that said “No one is allowed to criticize the 1%” that would be illegal on its face, but a law does not need to be facial invalid to be improper.

Equal protection through the 14th amendment has many applications, the most relevant in this context is how ordinances that are facial valid can be invalid because they are used to suppress a fundamental right.  Under equal protection two persons must be treated the same when they are similarly situated.  However, this isn’t just on a statute’s face, but on its application as well.  If a statute is administered in a purposely discriminatory way it can be determined to be a violation of equal protection as applied.

We are most used to seeing Equal Protection used in race cases.  History on this goes all the way back to Yick v. Hopkins in 1886 in which an otherwise facially valid law was used to grant permits to all of the white applicants and none to the 200 Chinese applicants.

This clear violation of equal protection in Yick and its brethren can only be understood if the analysis of law as applied.  Which brings us to Occupy Denver and the conduct of the government.

In Mayor Hancock’s own words “protesters should expect a consistent police presence.” Consistent with what? Ticketing people selectively for, honking horns, setting items on the sidewalk, stopping momentarily to give a donation or any other of petty offense based on their affiliation with or support of Occupy Denver’s message is an impermissible violation of equal protection.  Perhaps the Mayor meant inconsistent or constant, both of which would be improper: the law must be applied to all if it can be applied to any.

In fact, this obviously disproportionate application of police power attacks even the generally permissive track 2 time manner and place restrictions.  If the goal is to suppress the speech, all actions of the government are called into question, even if they appear legitimate on the surface.

We have all laughed at the honk and wave hypocrisy, but the threat to democracy and the constitution is real.


20 thoughts on “Lawsuit Filed in Federal Court to Prevent Suppression of Speech in Denver

      1. is an army of David Lanes.

        While he takes them on in court, we all need to go after them on the flanks. Right now, we (western slope environmental subversives) are engaging Hickenlooper and the O&G folks on this worthless “fracking rule”.

        The EPA has discovered the “smoking gun” in Pavilion, Wyoming. I contend the imminent clamping down by the EPA is the cause of Hickenloopers’ haste in pushing through this bogus rule.

        The COGCC hearing is set for Dec. 5th, so it is critical that interested persons submit a comment to the COGCC, pronto. Just go to the website for instructions and to read the draft. It is quite clear that the “trade secret loophole” means that this is much pomp and circumstance, and to intentionally mix a metaphor, it signifies nothing. It is a public hearing, I might add.

        A number of legislators are now onto this, but the citizens who are concerned about their drinking water and the air they breathe need to respond quickly and treat the governor like he is treating the OWS folks…harrass him.

        Coupled with his selection of the mayor of Ft. Lupton as the new commissioner, is there any doubt about Hickenloopers’ intentions?

        Western Colorado Congress has applied to the COGCC for “party” status, so that we may testify at the hearing. In fact, we have drafted our own proposal which calls for full public disclosure of all chemicals injected into the ground.

        Of particular concern to front range residents should be the practice of selling of your water rights to energy companies to be used for “fracking” wells.

        The OWS people have the right idea, I wouldn’t be too surprised to see a “mic check” at the COGCC hearing…

        That might even be a hint.

          1. I am working with a new board of directors for the Western Colorado Congress of Mesa County. They are a feisty bunch and have been doing the lions’ share of the work in creating and promoting this draft rule.

            In particular, Claudette Konola and Benita Phillips have been “nose to the grindstone” on this issue. The value of the hard work of so many Coloradoans, in standing up for our community and its’ environment, cannot be underestimated.

            Margaret Mead was right.    

  1. That there is disproportionate deployment of police presence seems to be without question.  I mean, I’m sure that the military style vehicles with squads of riot police are normal for your average parade of similar size to the weekly and largely harmless Occupy marches, right?

    To be more accurate, the only other times I’ve seen massive deployments of police here in Denver were (a) the Iraq war protests, and (b) the solidarity marches against Wisconsin’s anti-worker measures.  The anti-choice rally that was held around the same time as (b) didn’t draw any noticeable police presence; neither did a pro-choice march.  I’m beginning to notice a pattern to what the police consider to be “dangerous”.

      1. (it was part of my job to organize the opposition) and I almost never saw police there. One or two at a Perlmutter “Government in the Grocery” in Brighton, and maybe a couple when Nancy Pelosi came to town to visit a health clinic — that’s about it. At the Perlmutter event, I saw tattooed, sleeveless big guys with yellow “Don’t Tread On Me” signs packing heat. One pushed a little SEIU organizer and told her to go home to Mexico (she was actually from New Jersey). They were pretty scary.  

        1. for Democrat events is because they know that’s where the trouble starts. Tea partiers don’t cause problems, they fix them.

          See how easy it is if you only believe?

    1. Colorado has the notorious distinction of having called out the National Guard on it’s own more times per year since statehood than any other state.

      That and being upstream form everyone are kind of our things.

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