Vdare Found. v. City of Colo. Springs

• Citation: 11 F.4th 1151
• Decision Date: 23 August 2021
• Docket Number: No. 20-1162,20-1162
• Parties: VDARE FOUNDATION, Plaintiff - Appellant, v. CITY OF COLORADO SPRINGS; John Suthers, Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

11 F.4th 1151

VDARE FOUNDATION, Plaintiff - Appellant,

v.CITY OF COLORADO SPRINGS; John Suthers, Defendants - Appellees.

No. 20-1162

United States Court of Appeals, Tenth Circuit.

FILED August 23, 2021

Frederick C. Kelly, Law Offices of Frederick C. Kelly, Goshen, New York (Glen K. Allen, Glen K. Allen Law, Baltimore, Maryland, with him on the briefs), for Plaintiff-Appellant.

W. Erik Lamphere, Division Chief-Litigation, City Attorney's Office, Colorado Springs, Colorado, for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, HARTZ, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

When the government speaks, what can it say? VDARE Foundation, Inc. alleges that the City of Colorado Springs improperly spoke through a public statement issued by its Mayor and, in so doing, violated VDARE's First Amendment rights. The public statement, which was issued two days after the Charlottesville protests, denounced "hate speech" and relayed that the City wouldn't be providing municipal resources for VDARE's upcoming private conference in the City. The day after the Mayor issued the statement, a private resort in the City cancelled its contract to host VDARE's upcoming conference. VDARE alleges, under 42 U.S.C. § 1983, that the City's statement left the resort with no choice but to cancel the conference and thus (1) violated VDARE's rights to freedom of speech and freedom of association, (2) constituted First Amendment retaliation, and (3) tortiously interfered with VDARE's contract with the resort. The district court dismissed VDARE's federal claims for failing to state a claim. After that, it declined to exercise supplemental jurisdiction over the state tort claim. VDARE appeals. We affirm.

BACKGROUND

I. Factual Background¹

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." Appellant's App. at 7.

Around March 2017, VDARE reserved the Cheyenne Mountain Resort (the "Resort") in Colorado Springs for a future conference (the "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 (the "City") (collectively, "Defendants"), 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.

Id. at 8 (the "Statement").

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." Id. at 9.

II. Procedural Background

In its Amended Complaint, VDARE asserts three claims against Defendants. First, under 42 U.S.C. § 1983, VDARE alleges that Defendants violated its rights to freedom of speech and freedom of association as guaranteed by the First Amendment and that they violated VDARE's equal protection rights as guaranteed by the Fourteenth Amendment.

Specifically, 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." Id. at 11. 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." Id. 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." Id.

Second, VDARE alleges that Defendants retaliated against it in violation of the First Amendment by characterizing its "constitutionally protected activity as ‘Hate Speech,’ and urg[ing] local businesses to ‘be attentive to the types of events that they accept and the groups that they invite.’ " Id. at 17–18. Here, VDARE again emphasizes the part of the City's Statement stating that the City would not "provide any support or resources to this event." Id. at 18. VDARE alleges that the City's decision "would chill a person of ordinary firmness from continuing to engage in this type of ... activity." Id. And due to the City's "expressed disapproval" of VDARE's speech, VDARE claims that it hasn't attempted to arrange another conference in Colorado Springs. Id.

Third, VDARE alleges that Defendants intentionally interfered with its contract by "effectively ma[king] performance of the contract impossible." Id. at 19–20. On this point, VDARE claims that Defendants "were specifically aware of the Resort's contract with [VDARE]" and that Mayor Suthers later "expressed satisfaction that the Resort had cancelled its contract to host [the] Immigration Reform Conference." Id. at 19.

Based on these claims, VDARE seeks (1) compensatory, punitive, and "presumed" damages; (2) a declaration that "Defendants’ conduct violated Plaintiff's First Amendment rights and intentionally interfered with their contract with the Resort"; and (3) an injunction "forbidding Defendants from denying municipal services to entities or events based on their controversial viewpoints and affiliations." Id. at 22.

Defendants moved to dismiss VDARE's Amended Complaint for failure to state a claim. The district judge referred this motion to a magistrate judge. The magistrate judge issued a report and recommendation (the "Recommendation"), suggesting the district court dismiss all federal claims and decline to exercise supplemental jurisdiction over the state claim. Despite VDARE's objections to the Recommendation, the district judge adopted the Recommendation, further addressing an argument on "government speech" that VDARE insisted the magistrate judge had missed. Three days later, the district judge entered a final judgment, from which VDARE has timely appealed. We exercise jurisdiction under 12 U.S.C. § 1291.

III. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted).

"We review de novo the [district court's] grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim." Gee v. Pacheco , 627 F.3d 1178, 1183 (10th Cir. 2010) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim "has facial plausibility" if the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). A plaintiff must allege sufficient facts to "nudge[ ] [his] claims ... across the line from conceivable to plausible." Id. at 680, 129 S.Ct. 1937 (second alteration in original) (internal quotation marks omitted) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ).

"The plausibility standard is not akin to a ‘probability requirement[.]’ " Id. (quoting Twombly , 550 U.S. at 556, 127 S.Ct....