“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.” So wrote dissenting 10th Circuit judge Harris L. Hartz in the case of VDARE Found. v. City of Colorado Springs, addressing how in 2017 a resort canceled a VDARE event it had booked — after its city, loosely speaking and in the mafia sense, made it an offer it couldn’t refuse.
Journalist Michelle Malkin provided some background on this story, writing:
Do law-abiding American citizens still have the right to gather peacefully to discuss their ideas without fear of government censorship and retribution?
In my adopted hometown of Colorado Springs, the answer is “No” if you believe in strict border control or question whether the U.S. can survive as a nation-state. The answer is “No” if you wish to meet with others to express concern about the unsustainability of current U.S. immigration policy. The answer is “No” if you dare to speak unvarnished truths about the deleterious security and economic impacts of illegal immigrants, Third World and sharia-promoting Muslim refugees, temporary guest workers, chain migration beneficiaries, diversity visa lottery winners, and legions of unassimilated and unvetted visitors and other visa holders from around the world.
In spring 2017, award-winning journalist and former Hoover Institution media fellow Peter Brimelow and his educational nonprofit VDARE reserved the Cheyenne Mountain Resort for a conference on immigration and sovereignty issues. A local far-left gadfly who bragged about wearing her “pink p[***]y hat while driving (her) Prius” launched an online petition condemning Brimelow’s organization as a “hate group.” The petition threatened both the resort and the mayor, bellowing that “the residents of Colorado Springs will not support businesses that profit from hate groups and will not re-elect politicians hospitable to those hate groups!”
Of course, this is not about whether you love or hate VDARE or how you estimate its agenda. Malkin related how the Left views the website, and you can read its mission statement here. For the record, though, the organization is named after Virginia Dare, the first English child born in the New World. And it states that its principles are:
- America is real.
- Demography is destiny.
- The cultural identity of America is legitimate and defensible.
What this is about is whether there’s still a place for dissent in America and whether the First Amendment — which was designed to protect unpopular beliefs — is still operative.
Of course, it’s unsurprising that Colorado Springs Mayor John Suthers folded under the pressure. Note that just a bit more than “four months after VDARE booked the Conference, on August 12, 2017, violence erupted in Charlottesville, Virginia following a controversial political rally,” Reason’s Eugene Volokh reminds us. “The rally, protests, and ensuing violence drew national media attention.”
It was a mere two days later, in this emotionally charged, propaganda-heavy environment, that Mayor Suthers issued a statement on behalf of his city. He said, in part, “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 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,” writes Volokh.
VDARE founder Brimelow wrote about this recently, stating that of “all the litigation that VDARE.com has embarked on,” he “was most confident about” the Colorado Springs case. After all, there “is overwhelming federal case law establishing the principle that local governments must defend the First Amendment rights of even unpopular groups,” Brimelow later wrote. “Our first lawyer even exuberantly undertook to take our case on contingency — i.e., he expected to be paid out the extensive damages for which federal law provides in such civil rights cases. So I was surprised that Mayor Suthers did not immediately settle, thus arrogantly inflicting significant costs on his taxpayers (and of course us); and later that Magistrate Judge Kathleen M. Tafoya and District Judge Christine M. Arguello concurred in dismissing the case.”
“However, I was absolutely thunderstruck when the U.S. Tenth Circuit Court of Appeals upheld this dismissal 2–1 on August 23, 2021 and also quickly refused our petition for an en banc hearing. (Our appellate brief is here.),” he continued. Brimelow has now applied for certiorari to the U.S. Supreme Court.
Brimelow further related that “a noted First Amendment lawyer” wrote him privately, stating, “Essentially, the majority opinion stands for the proposition that the city is free to threaten private entities in order to suppress speech.”
The aforementioned dissenting 10th Circuit justice, Judge Hartz, expressed a similar sentiment. Addressing the mayor’s statement that the city will “not provide any support or resources” to the event, he wrote that 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?’”
Moreover, “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 judge also noted.
Now, I’m no attorney, but it would seem to me that the relevant factors are these:
- Was Mayor Suthers threatening to withdraw all police protection and other government resources, even those normally provided to all citizens?
- Was he just referring to special, non-routine allocation of resources, such as providing an on-sight police presence?
- Is it city policy to provide resources such as an on-sight police presence when there is a credible threat of violence to a gathering?
If number one or three, the city would have been withholding normal services from citizens based on political viewpoint, which would appear to be unconstitutional. If number two, the city might have been legally justified in its actions. This said, it would still have to be considered that the mayor’s public announcement of police-protection denial could have constituted a siccing of the dogs on the resort and VDARE.
Regardless, the big picture is the same: This is all part of an effort — a largely successful one, mind you — to stifle anti-establishment dissent. Just being a Trump supporter, anti-immigration, or anything else “unwoke” is now enough to get you branded a “white supremacist” or “domestic terrorist” (see schools boards vs. parents); in turn, this is used a pretext to make you a muzzled nonperson.
And what’s next? Consider: To exist, a website needs a hosting company to provide its web “infrastructure” — or must have its own server — and a registrar to provide its domain name (e.g., SelwynDuke.com). Will threats to withdraw police protection be used in the future to compel such businesses to drop politically incorrect websites? Note that in deference to social and market pressure, hosting companies have sometimes already dropped anti-establishment websites, with Parler.com a notable victim.
To those supporting this and figuring the censoring beast they feed would never consume them, well, you may want to read Martin Niemöller’s famed “First they came” warning.
