VDARE Foundation v. City of Colorado Springs

Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 23, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

VDARE FOUNDATION,

Plaintiff - Appellant,

v. No. 20-1162

CITY OF COLORADO SPRINGS; JOHN
SUTHERS,

Defendants - Appellees.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-03305-CMA-KMT)
_________________________________

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
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 2

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 Background 1

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

1
These facts are largely derived from VDARE’s First Amended Complaint. At
this posture, they are accepted as true and viewed in the light most favorable to
VDARE. See Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
2
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 3

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

3
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 4

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,

4
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 5

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

5
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 6

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 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (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

6
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 7

556). A plaintiff must allege sufficient facts to “nudge[] [his] claims . . . across the

line from conceivable to plausible.” Id. at 680 (second alteration in original) (internal

quotation marks omitted) (quoting Twombly, 550 U.S. at 570).

“The plausibility standard is not akin to a ‘probability requirement[.]’” Id.

(quoting Twombly, 550 U.S. at 556). “[I]t asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of entitlement to relief.” Id.

(internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).

Under the Rule 12(b)(6) analysis, we “begin by identifying pleadings that,

because they are no more than conclusions, are not entitled to the assumption of

truth.” Id. at 679. “When there are well-pleaded factual allegations” remaining, we

“assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Id. While “[t]he nature and specificity of the allegations

required to state a plausible claim will vary based on context,” Safe Streets All. v.

Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (citation omitted), the court need

not accept “conclusory allegations without supporting factual averments,” Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citations omitted).

DISCUSSION

VDARE raises two First Amendment claims and one state tort claim. Its first

claim alleges a violation of its rights to freedom of speech and freedom of

association. As we will discuss next, to successfully plead this claim through § 1983,

7
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 8

VDARE must plead that any allegedly unconstitutional conduct that injured VDARE

was state action. VDARE’s second claim is for First Amendment retaliation—a claim

that hinges on satisfying several rigorous elements. We will address each of these

two claims in turn and then address supplemental jurisdiction last.

I. Freedom of Speech and Freedom of Association Claim

VDARE’s first claim is that Defendants, acting under color of law,

intentionally deprived VDARE of its First Amendment rights to freedom of speech

and freedom of association. According to VDARE, “Defendants’ announcement that

they would not provide any municipal resources or support of any kind, including

basic police, fire, ambulance, parking and security services” deprived it of its First

Amendment rights, which in turn caused VDARE to lose revenue from the planned

Conference and resulted in negative publicity. Appellant’s App. at 11, 13. VDARE

also claims that the City’s refusal to “provide any support or resources” has “made it

impossible for VDARE to conduct future conferences, discussions and events in

Colorado Springs,” because Defendants have made clear that VDARE “enjoy[s] a

disfavored status under the law.” Id. at 13.

In addressing this claim, the Recommendation limited its analysis to whether

the Resort’s cancelling of the Conference could be considered state action. After

noting that most rights in the Constitution are protected against infringement only by

governments, the Recommendation concluded that VDARE hadn’t alleged a

sufficient nexus between the Resort’s cancellation and the City’s Statement for the

Resort’s conduct to be deemed state action. So it recommended that the district court

8
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 9

dismiss the claim.

In its objections to the Recommendation, VDARE argued that the

Recommendation had failed to consider whether the City’s Statement itself, if taken

as a “threat” or a “warn[ing]” to “local businesses” not to contract with VDARE,

could support the claim. Id. at 61. Otherwise stated, VDARE argued that the

Recommendation focused only on whether the Resort’s cancelling the Conference

could be deemed a constitutional violation as opposed to the City’s issuing the

Statement advising that it wouldn’t provide any support or resources for the

Conference. Id. at 53.

In response, the district court separately assessed (1) the Resort’s cancellation

and (2) the City’s Statement. First, it ruled that the Resort’s cancellation was not

plausibly pleaded as state action, because it contained no factual allegations that the

City had coerced or significantly encouraged the Resort’s decision. Second, it

concluded that the City’s Statement itself was permissible government speech under

the “government-speech” doctrine and that the City was merely expressing that it

“would not devote any support or resources to Cheyenne Resort, a private party

hosting a private organization’s event on private property.” Id. at 90–91.

VDARE contends that the district court erred in two ways. First, it asserts that

the district court failed to apply the correct formulation of the “nexus test” in

determining whether VDARE had plausibly alleged state action. Second, it claims

that the district court wrongly “separat[ed] the Cheyenne Resort’s cancellation and

the Defendants’ statements into an artificial dichotomy” and didn’t sufficiently

9
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 10

consider the importance of context. Appellant’s Opening Br. at 12.

Defendants respond that (1) the district court correctly determined that

VDARE hadn’t plausibly alleged that the Resort’s decision to cancel the Conference

was state action, and (2) the City’s Statement was “permissible government speech

which in no way directed Cheyenne Resort to take any action.” Appellees’ Answer

Br. at 3. For the following reasons, we agree with Defendants.

A. § 1983 and State Action

A claim pleaded under § 1983 requires “(1) deprivation of a federally

protected right by (2) an actor acting under color of state law.” Schaffer v. Salt Lake

City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) (citation omitted). Because the

second element requires an actor to act “under color of state law,” “the only proper

defendants in a Section 1983 claim are those who represent the state in some

capacity, whether they act in accordance with their authority or misuse it.” Gallagher

v. “Neil Young Freedom Concert,”, 49 F.3d 1442, 1447 (10th Cir. 1995) (internal

marks, brackets, and citations omitted). Therefore, to succeed on a § 1983 claim

based on the Resort’s cancellation, VDARE must plausibly allege that the Resort’s

decision to cancel the Conference amounts to state action. See id.

We have previously considered four tests delineated by the Supreme Court to

determine whether private parties should be deemed state actors when conducting a

state action analysis: (1) the nexus test, (2) the symbiotic-relationship test, (3) the

joint-action test, and (4) the public-function test. Id. at 1448–57. Here, VDARE relies

on the “nexus test,” arguing that because the real message of the City’s Statement

10
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 11

was “that the Cheyenne Resort should cancel VDARE’s conference,” the Resort’s

decision to cancel the Conference should be treated as state action. Appellant’s

Opening Br. at 13. We conclude that VDARE hasn’t satisfied the nexus test.

1. Legal Standards for the Nexus Test

Under the nexus test, a plaintiff must demonstrate “‘a sufficiently close nexus’

between the government and the challenged conduct such that the conduct ‘may be

fairly treated as that of the State itself.’” Gallagher, 49 F.3d at 1448 (quoting

Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). In other words, the City is

responsible for the Resort’s private decisions “only when it has exercised coercive

power or has provided such significant encouragement, either overt or covert, that the

choice must in law be deemed to be that of the [City].” Id. (quoting Blum v. Yaretsky,

457 U.S. 991, 1004 (1982)). “The test insures that the state will be held liable for

constitutional violations only if it is responsible for the specific conduct of which the

plaintiff complains.” Id. (citation omitted).

In Gallagher, we reviewed a number of general principles regarding the nexus

test derived from Supreme Court cases. Id. at 1448. For instance, we noted that “the

existence of governmental regulations, standing alone, does not provide the required

nexus.” Id. (citing Blum, 457 U.S. at 1004; Jackson, 419 U.S. at 350). We also noted

that “the fact that a private entity contracts with the government or receives

governmental funds or other kinds of governmental assistance does not automatically

transform the conduct of that entity into state action.” Id. (citing Rendell-Baker v.

Kohn, 457 U.S. 830, 840–42 (1982); S.F. Arts & Athletics, Inc. v. U.S. Olympic

11
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 12

Comm., 483 U.S. 522, 544 (1987)). Likewise, we explained that the “[m]ere approval

of or acquiescence in the initiatives of a private party is not sufficient to justify

holding the State responsible for those initiatives under the terms of the Fourteenth

Amendment.” Id. (alteration in original) (quoting Rendell-Baker, 457 U.S. at 1004–

05); see also Am. Mfrs. Mut. Ins. v. Sullivan, 526 U.S. 40, 54 (1999) (“[P]ermission

of a private choice cannot support a finding of state action.”). Similarly, we observed

that a state’s subsidizing the operating costs of a private facility or having broad

involvement in the administrative side of a private process is also insufficient to

satisfy the test. Id.; see also Blum, 457 U.S. at 1011; Am. Mfrs. Mut. Ins., 526 U.S. at

54; S.F. Arts & Athletics, 483 U.S. at 544 (“The Government may subsidize private

entities without assuming constitutional responsibility for their actions.”).

In short, the following factors do not alone satisfy the nexus test: (1) state

regulation of private functions, Blum, 457 U.S. at 1004; (2) state contracts with

private entities, id.; (3) receipt of state funds or other types of assistance, Rendell-

Baker, 457 U.S. at 840–42; (4) state approval of private decisions, Am. Mfrs. Mut.

Ins., 526 U.S. at 54; (5) state subsidization of private costs, Blum, 457 U.S. at 1011;

(6) private use of certain state procedures, Am. Mfrs. Mut. Ins., 526 U.S. at 54, and

(7) broad involvement of state officials in the administration of private processes, id.;

Blum, 457 U.S. at 1010. Though VDARE argues that “significant encouragement”

short of coercion can sometimes satisfy the test, Appellant’s Opening Br. at 15–16,

the dispositive question is always “whether the State has exercised coercive power or

has provided such significant encouragement, either overt or covert, that the choice

12
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 13

must in law be deemed to be that of the State.” Am. Mfrs. Mut. Ins., 526 U.S. at 52

(emphases added) (citations and internal quotation marks omitted).

2. VDARE’s Reliance on Bantam Books v. Sullivan

VDARE argues that “[t]he facts in this case closely resemble those in Bantam

Books, Inc., v. Sullivan, 372 U.S. 58 (1963).” Appellant’s Opening Br. at 14. Bantam

Books considered state action in a state censorship context. There, a Rhode Island

commission had begun threatening distributors with legal sanctions unless they

suppressed publications that the Commission found objectionable. See id. at 15–18.

VDARE contends that, as in that case, the City’s Statement—when considered in full

and in the context of the surrounding events—significantly encouraged the Resort’s

behavior, thereby rendering the Resort’s decision to cancel the Conference state

action. We disagree.

In Bantam Books, the Court reviewed the actions of an entity created by the

Rhode Island Legislature, namely, the “Rhode Island Commission to Encourage

Morality in Youth.” 372 U.S. at 59. That Commission was responsible for reviewing

and educating the public about printed materials containing “obscene, indecent or

impure language, or manifestly tending to the corruption of the youth,” as defined by

the State’s general laws. Id. It was also authorized “to investigate and recommend the

prosecution of all violations of [the relevant] sections” of the State’s general laws

and to “encourage morality in youth by (a) investigating situations which may cause,

be responsible for or give rise to undesirable behavior of juveniles, (b) educate the

public as to these causes and (c) recommend legislation, prosecution and/or treatment

13
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 14

which would ameliorate or eliminate said causes.” Id. at 60 n.1.

Within this role, the Commission drew up lists of objectionable books and

magazines on official Commission stationary, which it then provided to book or

magazine distributors. Id. at 61. In addition, it served multiple notices that threatened

criminal action against vendors who circulated the listed publications. Id. at 62–63.

Typical notices stated that the Commission had “reviewed” publications and

“by majority vote” declared which ones were “completely objectionable” for sale,

distribution, or display for youths. Id. at 62 n.5. The notices relayed that the “Chiefs

of Police” had been given the names of the objectionable publications, and the

notices reminded recipients of the Commission’s duty to recommend to the Attorney

General the prosecution of purveyors of obscenity. Id. The notices also stated that the

Attorney General would “act” for the Commission in the case of “non-compliance.”

Id. Then the notices would thank recipients for their “cooperation.” Id. After sending

the notices, the Commission often had local police officers visit the distributors to

learn what actions the distributors had taken to comply with the notices. Id. at 63.

The Supreme Court ruled that the Commission’s system was unconstitutional

and amounted to state-sponsored censorship. Id. at 72. The Court explained that

though the Commission lacked authority to regulate or suppress content, it had done

so anyway by using “the threat of invoking legal sanctions and other means of

coercion, persuasion, and intimidation” to deliberately suppress publications deemed

“objectionable.” Id. at 66–67 (footnote omitted). The Court further noted that though

the plaintiff was “‘free’ to ignore the Commission’s notices, in the sense that his

14
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 15

refusal to ‘cooperate’ would have violated no law,” his “compliance with the

Commission’s directives was not voluntary.” Id. at 68 (“People do not lightly

disregard public officers’ thinly veiled threats to institute criminal proceedings

against them . . . . The Commission’s notices, phrased virtually as orders, reasonably

understood to be such by the distributor, invariably followed up by police visitations,

in fact stopped the circulations of the listed publications.”).

Bantam Books provides VDARE little help. In Bantam Books, the Supreme

Court described the Commission’s notices as “instruments of regulation” “phrased

virtually as orders” that contributed to a “form of effective state regulation

superimposed upon the State’s criminal regulation of obscenity.” Id. at 68–70. The

Court found that the Commission’s regulatory system (its notices, blacklists, police

visitations, and implied criminal sanctions) “create[d] hazards to protected freedoms

markedly greater than those that attend reliance upon the criminal law.” Id. The

City’s Statement differs markedly from such a system.

3. R.C. Maxwell v. Borough of New Hope

About two decades after the Supreme Court’s decision in Bantam Books, the

Third Circuit applied that case to a situation in which the government had exerted

deliberate pressure on a private party to terminate a private business relationship. In

R.C. Maxwell Co. v. Borough of New Hope, a case on which Defendants rely, the

plaintiff leased commercial billboards from Citibank in the Borough of New Hope,

Pennsylvania. 735 F.2d 85, 86 (3d Cir. 1984). The billboards advertised alcoholic

products as well as businesses located outside of the Borough. Id. at 86–87. Because

15
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 16

the Borough viewed itself as a historic town with a “quaint atmosphere,” the

Borough’s Council grew frustrated by the billboards’ content and size and sent

several letters to Citibank. Id. at 86.

The letters advised Citibank that the Borough sought its “personal assistance”

in removing the billboards at the end of their leases and that it hoped Citibank would

do so by a professional agreement rather than through more expensive “legal

procedures.” Id. at 86 n.2. The letters also mentioned that though this was a

“courteous request,” the town was near enacting a zoning ordinance prohibiting such

advertising and that a federal agency might also soon require the billboards’ removal.

Id. Unlike in Bantam Books, the letters contained no threats of criminal prosecution

and expressed a clear desire to avoid legal proceedings. See id. And though the letters

didn’t say that the Council could proscribe the billboards’ contents, their size, or

Citibank’s right to own them, they expressed the Council’s strong desire for the

billboards to be removed because of their “offensive” size and their “unsightly”

content. See id. at 86–87.

After receiving the letters, Citibank agreed to remove the billboards,

explaining that it was “concerned as to how it [was] seen” by the community in

which it own[ed] land.” Id. at 87 (citation omitted). Further, Citibank admitted that it

wanted to stay in the “good graces” of the Council in case Citibank might later

choose to develop land or engage in other business endeavors in the Borough. Id.

(citation omitted). Citibank then repeatedly ordered the plaintiff to remove the

billboards by the end of the plaintiff’s year-to-year tenancy, but when the time came

16
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 17

to do so, the plaintiff refused. Id. So Citibank successfully sued the plaintiff in

Pennsylvania state court to remove the billboards. Id. After that, the plaintiff sued the

Borough in federal court, arguing under Bantam Books that the Borough had

“coerced” Citibank into removing the billboards, which violated plaintiff’s First

Amendment rights. Id. Ultimately, the two cases were consolidated in federal court,

and the court ruled against the plaintiff-lessee in both actions. Id.

On appeal, the Third Circuit affirmed the order granting summary judgment to

the Borough for the alleged First Amendment violation. Id. In so doing, the court

commented that, unlike in Bantam Books, the Borough’s two letters were “devoid” of

“any enforceable threats,” and thus “amounted to nothing more than a collective

expression of the local community’s distaste for the billboards.” Id. at 88–89. It

further concluded that “[t]he [F]irst [A]mendment is not ordinarily implicated when

private actors [impose] restrictions on expression; indeed, in many instances the

[F]irst [A]mendment has been held to guarantee private actors the right to make such

restrictions.” Id. at 87 (listing cases).

Put simply, the Third Circuit acknowledged that private businesses may

restrict private expression. See id. And it further noted that because businesses care

about their public image, they may be influenced by public sentiment without being

coerced by the government. See id. at 89 (“Businesses are naturally sensitive to their

images in the community. If we were to apply constitutional standards to every

private action intended to conform to civic sentiment, we would erode the ambit of

private action greatly.”). With this case juxtaposed to Bantam Books, we now assess

17
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 18

VDARE’s argument that the City’s Statement provided such significant

encouragement as could satisfy the nexus test.

4. Application of the Nexus Test to the Resort’s Cancellation

VDARE argues that its situation is akin to that described in Bantam Books.

Based on the cases above, we disagree. Unlike in Bantam Books, nothing in the

City’s Statement plausibly threatens the Resort with legal sanctions. Indeed, the first

line of the Statement states the opposite: “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.” Appellant’s App.

at 8 (emphasis added).

We find that this sentence is more comparable to the communications in R.C.

Maxwell and another case, Penthouse International, Ltd. v. Meese, 939 F.2d 1011

(D.C. Cir. 1991), rather than to those in Bantam Books. In Penthouse, several public

officials serving as members of the United States Attorney General’s Commission on

Pornography accused multiple major American companies of selling pornographic

material. Id. at 1012–13. Pursuing their mission “to determine the nature, extent, and

impact on society of pornography in the United States,” the Commission sent letters

to corporations such as Time Inc. and Southland Corporation (owner of the 7–Eleven

chain) on Justice Department stationary. Id. The letters stated that “the Commission

received testimony alleging that your company is involved in the sale or distribution

of pornography. The Commission has determined that it would be appropriate to

allow your company an opportunity to respond to the allegations prior to drafting its

18
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 19

final report section on identified distributors.” Id. at 1013.

In response, Southland advised the Commission that it had “decided to stop

selling adult magazines in light of the public concern about the effects of

pornography,” and it “urge[d] that any references to Southland or 7–Eleven be

deleted from [the Commission’s] final report.” Id. (alternations in original). In

arriving at this decision, Southland noted a telephone call to its Vice President from a

member of the Commission, who stated that the content of Playboy and similar

magazines was “linked to child abuse” and that the Commission intended to comment

about this link in its published report. Id.

Playboy Enterprises, Inc. and Penthouse International Ltd. then filed lawsuits

(later consolidated) seeking to (1) permanently enjoin the Commission from

disseminating what they termed a “blacklist” to censor or suppress their magazines,

and (2) obtain money damages for a deprivation of their First Amendment rights. See

Playboy Enters., Inc. v. Meese, 746 F. Supp. 154, 155 (D.D.C. 1990), aff’d sub nom.

Penthouse, 939 F.2d 1011. After the district court granted the defendants’ summary

judgment motions on both claims, Penthouse appealed, and the D.C. Circuit assessed

the Commissions’ letters under the holding of Bantam Books. See Penthouse, 939

F.2d at 1014–15. The court concluded that, unlike in Bantam Books, the letters

“contained no threat to prosecute, nor intimation of intent to proscribe the

distribution of the publications.” Id. at 1015 (“It may well be that the Commission

came close to implying more authority than it either had or explicitly claimed.

Nevertheless . . . we do not believe that the Commission ever threatened to use the

19
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 20

coercive power of the state against recipients of the letter.” (citation omitted)).

So too here. The City’s first sentence acknowledges its lack of authority to

restrict freedom of speech or to direct private businesses about which events they

may host. See Appellant’s App. at 8 (“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.”).

Next, VDARE points to the second sentence in the City’s Statement to argue

that the first sentence was a “covert veneer.” Appellant’s Opening Br. at 13. The

second sentence states: “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.”

Appellant’s App. at 8. We agree with the district court that this sentence contains no

threat and 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. See id. at 88.

Notably, this sentence doesn’t name VDARE or express any “distaste” for VDARE’s

speech, as did the Council’s letters to Citibank in R.C. Maxwell, stating that the

billboards were “unsightly” and ill-suited to the Borough’s aesthetic. 735 F.2d at 86.

VDARE next turns to the third sentence in the Statement: “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.” Appellant’s App. at 8. VDARE

contends that this too was a “thinly-veiled threat to prosecute VDARE and those who

20
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 21

cooperated with it” and that “Mayor Suthers’ statement not only ‘encourage[d]’

pariah treatment for VDARE but exercised ‘coercive power’ to that end.” Appellant’s

Opening Br. at 18–19.

We disagree. As with the first two sentences in the Statement, this sentence

contains no plausible threat—let alone a threat of prosecution. It’s a statement of

Colorado law. As the district court concluded, it isn’t analogous to the direct

warnings and threats contained in the notices in Bantam Books. See supra,

Discussion, Part I.A.2; cf. Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996) (“In

the context of a government prosecution, a decision to prosecute which is motivated

by a desire to discourage protected speech or expression violates the First

Amendment and is actionable under § 1983.” (emphasis added) (citation omitted)).

Another case, X-Men Security, v. Pataki, 196 F.3d 56 (2d Cir. 1999) serves as

a helpful comparator. There, a subsidized housing complex located in a crime-ridden

part of New York City employed plaintiffs, X-Men Security, Inc., a private security

company. Id. at 60. A majority of X-Men’s employees were of “Black African

American descent” and “followers of the Islamic Religion.” Id. (citation omitted).

Questioning the propriety of employing X-Men under a government contract, two

New York politicians campaigned to prevent the housing complex from renewing its

contract with X-Men. Id. at 61–62. In a letter they wrote to the housing

commissioner, they “accused [X-Men] . . . of hating Jews, women, Catholics and

others.” Id. at 61. They added that awarding X-Men a contract would “subsidize[] the

21
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 22

activities of a hate group and help[] fund the racist and anti-Semitic goals of Louis

Farrakhan and the Nation of Islam.” Id.

Facing this pressure, the housing complex terminated X-Men’s month-to-

month contract, awarding it instead to a company that hadn’t even submitted a bid.

Id. at 62 (citation omitted). X-Men then sued a host of defendants, including New

York State officials, asserting claims based on freedom of religion and association,

due process, and equal protection. Id. Though the district court partially dismissed

the complaint, it kept alive the First Amendment retaliation claim against the

officials. Id. at 63.

The Second Circuit unanimously reversed the district court’s First Amendment

retaliation ruling. Id. at 72. Assessing whether the language in the letter could color a

First Amendment claim, the court concluded that “the legislators were not the

decisionmakers” and had “no power to control the award of contracts.” Id. at 68. So

even though the letter accused X-Men of being part of a “hate group” and practicing

racism, the court concluded that it wasn’t threatening. Id. at 71 (“We see neither in

this letter nor in any of the other allegations of the complaint any semblance of

threat, coercion, or intimidation by the legislators.”). The same is true here. The City

made clear that it lacked any power to control the Resort’s events.

Finally, 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.” Appellant’s App. at 8. This, VDARE argues,

22
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 23

encouraged “a heckler’s veto.” Id. at 20. 2 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.” Id. at 20–23. 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. See

supra, Background, Part I. 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 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.” 556 U.S at 678 (quoting Twombly, 550 U.S. at 557).

Indeed, the circumstances in this case are reminiscent of a case in which a

New York City public official sent letters to department stores critiquing a satirical

boardgame at a time that coincided with public controversy over the subject of the

game. See Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33 (2d Cir. 1983). In

2
A “heckler’s veto” is “[t]he government’s restriction or curtailment of a
speaker’s right to freedom of speech when necessary to prevent possibly violent
reactions from listeners.” Heckler’s Veto, Black’s Law Dictionary (11th ed. 2019).

23
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 24

Hammerhead, the Human Resources Administrator of New York City had urged

several department stores to refrain from carrying a board game named “Public

Assistance—Why Bother Working for a Living.” Id. at 34–37. The Administrator

sent at least thirteen national department stores a letter on official stationery urging

them not to carry the game. Id. at 36–37. The letters stated that “[b]y perpetuating

outdated myths, . . . [the] game does a grave injustice to taxpayers and welfare clients

alike.” Id. at 36 n.2. It concluded: “Your cooperation in keeping this game off the

shelves of your stores would be a genuine public service.” Id.

After several department stores stopped carrying the game, the game’s creators

sued the Administrator, the Mayor, and several New York City entities, alleging that

the letter violated their First Amendment rights and was libelous, defamatory, and

tortiously interfered with contractual relations. Id. at 38. The Southern District of

New York disagreed and ruled that “the letter was not censorship; it was an appeal to

conscience and decency.” Hammerhead Enters., Inc. v. Brezenoff, 551 F. Supp. 1360,

1370 (S.D.N.Y. 1982), aff’d, 707 F.2d 33. The Second Circuit affirmed, reasoning

that the letter was “nothing more than a well-reasoned and sincere entreaty in support

of [the public official’s] own political perspective.” Hammerhead, 707 F.2d at 38.

And it concluded that despite the letters and other similar pressure tactics aimed at

specific stores, the subsequent “decision to cancel [selling the game] . . . may have

been spurred by the continuing controversy in the press or by business reasons

wholly unrelated to the . . . letter.” Id. at 37.

24
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 25

Here too, VDARE’s Conference subjects overlapped with worrisome events to

a business owner. So absent factual allegations that the Resort cancelled the

Conference because the Resort felt that the City had directed it to do so, VDARE

hasn’t plausibly alleged that the Resort’s conduct was state action.

Second, VDARE speculates that regardless of what future circumstances

would have unfolded, the City would have allowed the “breakdown of law and

order.” Appellant’s Opening Br. at 20. 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.

372 U.S. at 68; see also Hammerhead, 707 F.2d at 37 (finding no coercion or

censorship present where the Administrator “took no further steps to trace the

consequences of his correspondence,” “did not investigate whether any merchants

were in fact carrying the game,” and did not “contact any government agency which

might have regulatory power over [the] department stores.” (footnote omitted)).

Indeed, the threat of imposing criminal sanctions, and how it was continually

25
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 26

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. See

372 U.S. at 68–69.

And fourth, as noted, nothing in the Amended Complaint plausibly alleges that

the City used its power to control the Resort’s independent decision-making process.

See X-Men, 196 F.3d at 68, 71 (explaining that the public officials who sent letters

criticizing X-Men didn’t violate the First Amendment when they had “no power to

control the award of contracts” and only exerted “pressure” in the form of speech).

In sum, the allegations don’t show that the City ever threatened or ordered the

Resort to take any action akin to what the Commission did to distributors in Bantam

Books. Nor does it allege that the City sent police officers to intimidate anyone as in

Bantam Books. 3 Likewise, VDARE hasn’t pleaded that the Resort and the City were

intertwined through regulatory, administrative, financial, or contractual regimes, such

as those discussed in Blum and its progeny or in Gallagher, which could have given

the City direct influence over the Resort. As well, VDARE’s allegations don’t

compare to the facts in R.C. Maxwell, Hammerhead, X-Men, or Penthouse, cases in

which a government official directly communicated with a private third party in an

effort to pressure that party to take a specific action.

3
Similarly, VDARE’s reliance on Marcus v. McCollum, 394 F.3d 813 (10th
Cir. 2004), is misplaced. That case also involved the physical presence of police
officers, who told plaintiffs that they would “go to jail” if they didn’t keep their
“mouth[s] shut.” Id. at 817 (citation omitted).
26
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 27

In sum, we agree with the district court that “for unconstitutional state action

to exist, state law must direct and/or state agencies and officials must commit

conduct that directly violates a party’s [F]irst [A]mendment rights.” Appellant’s App.

at 92. The City didn’t engage in such conduct here. Thus, we conclude that VDARE

hasn’t plausibly alleged that the Resort’s cancellation of the Conference was state

action. 4

B. Government Speech

Having concluded that the Resort’s decision to cancel the Conference doesn’t

plausibly constitute state action, we now turn to VDARE’s second argument—that

the City’s Statement itself violated VDARE’s First Amendment rights. On this issue,

the district court ruled that the City’s Statement was “permissible government

speech” and that Defendants were “entitled to speak for themselves [and] express

their own views, including disfavoring certain points of view.” Id. at 88.

VDARE argues that the district court “insulated” the City’s Statement from a

4
This section of VDARE’s Amended Complaint also alleges that Defendants’
actions violated its “rights to . . . equal protection of the laws as guaranteed by the
Fourteenth Amendment.” Appellant’s App. at 11. The magistrate judge recommended
dismissing this claim due to VDARE’s “cursory” pleading. Id. at 45–46. Neither
party objected, and the district court adopted the Recommendation. On appeal,
VDARE makes a single passing reference to equal protection, stating that “[w]hen a
First Amendment and equal protection claim are intertwined, the First Amendment
provides the proper framework for review of both claims.” Appellant’s Opening Br.
at 30 (citations omitted). This perfunctory mention of equal protection doesn’t
present a proper argument on appeal. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.” (citations omitted)). If anything, VDARE’s statement is a concession that it
isn’t raising a separate equal protection argument requiring separate analysis. Thus,
we don’t further address it.
27
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 28

First Amendment challenge by characterizing it as a “neutral expression of

government policy.” Appellant’s Opening Br. at 23. As before, it adds that “[t]he

Mayor’s words were less a ‘statement’ than a thinly veiled threat” that were “directed

specifically at VDARE,” and the words had the distinctive features of “adjudication,”

such as “accusing and then convicting VDARE of hate speech,” and then “imposing

the punishment of pariah status and withdrawal of municipal resources.” Id. at 23–24

(citation omitted).

Defendants first counter that VDARE waived or forfeited its challenge to the

district court’s ruling on this issue by first raising it on appeal. They also argue that

the district court properly applied the government-speech doctrine, under which a

government may “interject its own voice into public discourse” and participate in the

“marketplace of ideas.” Appellees’ Response Br. at 20–21. We address each

argument in turn.

1. Waiver or Forfeiture

The City argues that VDARE has waived or forfeited its challenge to the

district court’s government-speech analysis. VDARE responds that the government-

speech doctrine “appeared, more or less sua sponte . . . in the District Court’s

decision.” Appellant’s Reply Br. at 14–15. And, it explains, when a district court

independently rules on an unraised issue, “the appellant may challenge that ruling on

appeal on the ground addressed by the district court.” Id. at 15 (quoting Tesone v.

Empire Mktg. Strategies, 942 F.3d 979, 991–92 (10th Cir. 2019)).

28
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 29

We agree with VDARE. “[W]aiver is the intentional relinquishment or

abandonment of a known right,” which “comes about when a party deliberately

considers an issue and makes an intentional decision to forego it.” Tesone, 942 F.3d

at 991 (alteration in original) (citations omitted). And forfeiture occurs when an

appellant presents an argument on appeal that “simply wasn’t raised before the

district court.” Id. (citation omitted). The forfeiture rule, however, doesn’t apply

“when the district court explicitly considers and resolves an issue of law on the

merits” because “[a]ppellate courts can reach issues that were . . . ‘passed upon’ by[]

the lower court.” Id. at 991–92 (first alteration in original) (citations omitted). “[A]

court ‘passes upon’ an issue when it applies ‘the relevant law to the relevant facts.’”

Id. at 992 (citation omitted).

Here, VDARE neither waived nor forfeited its argument on government

speech. It didn’t waive this argument because nothing shows that VDARE ever

“intentionally relinquished” its position on it. Quite the opposite. Because the

Recommendation didn’t address whether the Statement itself was permissible speech,

VDARE objected to the Recommendation.

As to forfeiture, though VDARE didn’t present its current government-speech

argument to the district court, the issue came to the fore only in the district court’s

ruling. So while the City is right that VDARE didn’t “ask the district court to

reconsider its ruling” under Fed. R. Civ. P. 59(e), Appellees’ Answer Br. at 18, the

forfeiture rule doesn’t apply when, as here, the district court “passe[d] on” the issue

by applying the relevant law to the facts of this case. Tesone, 942 F.3d at 992

29
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 30

(citation omitted).

Having said that, our review “is subject to the same standard of appellate

review that would be applicable if the appellant had properly raised the issue.” Id.

(citing United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003)).

Here, that standard of review is de novo because the district court held that VDARE

didn’t plausibly plead a First Amendment claim based on the City’s Statement, and

we “review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state

a claim.” Gee, 627 F.3d at 1183 (citation omitted). With this standard established, we

now address the merits of the parties’ government-speech argument.

2. The Statement is Government Speech

VDARE first argues that “the District Court never articulated the three-factor

test set forth by the Supreme Court; it simply asserted, as a bald conclusion, that the

Mayor’s threat was protected by the government speech doctrine.” Appellant’s

Opening Br. at 26. We disagree.

To determine whether certain communication is government speech, we assess

the following: (1) whether the forum has historically been used for government

speech; (2) whether the public would interpret the speech as being conveyed by the

government; and (3) whether the government has maintained control over the speech.

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 209–10

(2015) (citation omitted). Though the district court didn’t articulate the three Walker

factors, neither party disputes that the City’s Statement satisfied them: (1) it was

delivered as government speech; (2) it was perceived as being conveyed by the

30
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 31

government; and (3) it was controlled by the government. See id.

3. Viewpoint Neutrality

VDARE’s second argument on this issue is that the district court erred by

seeking to characterize the Statement as “a neutral expression of government policy”

rather than as a “thinly veiled threat.” Appellant’s Opening Br. at 23. Threats, it

argues, are not constitutionally protected speech.

On this, we note that “[t]he Free Speech Clause restricts government

regulation of private speech; it does not regulate government speech.” Pleasant

Grove City v. Summum, 555 U.S. 460, 467 (2009) (citations omitted). This is because

“[a] government entity has the right to ‘speak for itself.’” Id. (quoting Bd. of Regents

of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)). “[I]t is entitled to say

what it wishes,” id. at 467–68 (quoting Rosenberger v. Rector and Visitors of Univ.

of Va., 515 U.S. 819, 833 (1995)), “and to select the views that it wants to express,”

id. at 468 (citations omitted); see also Nat’l Endowment for Arts v. Finley, 524 U.S.

569, 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of

government to favor and disfavor points of view . . . .”). “Indeed, it is not easy to

imagine how government could function if it lacked this freedom.” Summum, 555

U.S. at 468.

The doctrine goes so far as to hold that “[w]hen the government speaks, . . . it

is constitutionally entitled to make ‘content-based choices,’ and to engage in

‘viewpoint-based funding decisions.’” Wells v. City & Cnty. of Denver, 257 F.3d

1132, 1139 (10th Cir. 2001) (citations omitted). Hence, in Rust v. Sullivan, 500 U.S.

31
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 32

173 (1991), the Supreme Court held that “[t]he Government can, without violating

the Constitution, selectively fund a program to encourage certain activities it believes

to be in the public interest, without at the same time funding an alternative program

which seeks to deal with the problem in another way.” Id. at 193. In so doing, it

explained, “the Government has not discriminated on the basis of viewpoint; it has

merely chosen to fund one activity to the exclusion of the other.” Id.; see also

Rosenberger, 515 U.S. at 833 (“[W]hen the government appropriates public funds to

promote a particular policy of its own it is entitled to say what it wishes.” (citation

omitted)). At the same time, “the government may not regulate speech based on its

substantive content or the message it conveys.” Rosenberger, 515 U.S. at 828

(citation omitted). That is, “[i]n the realm of private speech or expression,

government regulation may not favor one speaker over another” or “[d]iscriminat[e]

against speech because of its message.” Id. (citations omitted).

Before addressing whether the City’s Statement was plausibly threatening, we

note that the district court never ruled that the City’s Statement was “a neutral

expression of government policy.” Rather, it stated that “Defendants are entitled to

speak for themselves, express their own views, including disfavoring certain points

of view” and that “Defendants merely expressed themselves and their views on the

need for private local businesses to pay attention to the types of events they accept

and the groups that they invite to their City.” Appellant’s App. at 88.

This isn’t the same as ruling that the Statement was “neutral.” The district

court acknowledged that the Statement expressed at least one view—that businesses

32
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 33

should be attentive about whom they invite to the City. But whether one finds the

Statement “neutral” or not doesn’t matter 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. See Walker, 576 U.S. at 207

(“[G]overnment statements (and government actions and programs that take the form

of speech) do not normally trigger the First Amendment rules designed to protect the

marketplace of ideas . . . . Were the Free Speech Clause interpreted otherwise,

government would not work.” (citation omitted)). Having concluded that the City’s

Statement didn’t need to be neutral, we address VDARE’s argument that it was

unconstitutional as a “thinly veiled threat.” Appellant’s Opening Br. at 23.

VDARE argues that the City’s Statement was a “thinly veiled threat” and that

“[w]hat is a threat must be distinguished from what is constitutionally protected

speech.” Id. (quoting Watts v. United States, 394 U.S. 705, 707 (1969)). VDARE

argues that the Statement was a threat because it “had the distinctive features of an

adjudication, accusing and then convicting VDARE of practicing hate speech, then

imposing the punishment of pariah status and withdrawal of municipal resources.” Id.

But VDARE doesn’t explain why the Mayor’s words were a threat, especially when

the Statement was neither directed at VDARE nor involved municipal resources to

which VDARE has shown it was entitled. And the City’s Statement is unlike the

speech at issue in VDARE’s cited cases, for instance those cases in which courts

assessed threats to the United States President’s life, Watts, 394 U.S. at 708, and

33
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 34

threats to use violence against government officials, Nielander v. Bd. of Cnty.

Comm’rs, 582 F.3d 1155, 1168 (10th Cir. 2009).

Nor does VDARE explain how the Statement had “the distinctive features of

adjudication.” Presumably, VDARE is invoking the discussion from Bantam Books in

which the Supreme Court concluded that the Commission’s system functioned as a

system of prior restraints because the Commission could effectively ban publications

for purchase without using any judicial processes. See 372 U.S. at 70–71. For

example, the Court there noted that the Commission didn’t provide notice, an

opportunity to be heard, or a means for judicial review of publications it listed as

“objectionable.” See id. The instant situation isn’t comparable. The City never

formally banned VDARE from expressing a single view as the Bantam Books

Commission did through its statutory mandate. See id. Moreover, we’ve already

explained why we agree with the district court that nothing in the City’s Statement

was plausibly a threat, order, mandate, or exercise of control over a private entity’s

decision-making process. See supra, Discussion, Part A.2.

In sum, the Statement didn’t plausibly exceed the bounds of constitutionally

permissible speech by threatening the Resort. See Penthouse, 939 F.2d at 1016

(“[W]e know of no case in which the [F]irst [A]mendment has been held to be

implicated by governmental action consisting of no more than governmental criticism

of the speech’s content.” (alteration in original) (citation omitted)); X-Men, 196 F.3d

at 71 (concluding that legislators’ allegedly discriminatory and false statements in

letters were themselves protected speech because “[w]hat the legislators [were]

34
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 35

alleged to have done [was] to express their views. The only concrete acts ascribed to

them [were] attending meetings, making statements, and writing letters.”);

Hammerhead, 707 F.2d at 35 (explaining that when an individual chooses to engage

in speech that elicits a reaction, it can’t use the First Amendment as both a shield and

sword: “The right to free speech guarantees that every citizen may, without fear of

recrimination, openly and proudly object to established government policy. It does

not immunize the challengers from reproach.”).

II. First Amendment Retaliation Claim

VDARE’s second claim is for First Amendment retaliation. Specifically,

VDARE alleges that the City’s intent to retaliate against it is evinced by the part of

the Statement that characterizes VDARE’s speech as “hate speech” and the part that

urges local businesses to “be attentive to the types of events that they accept and

groups they invite.” Appellant’s App. at 18. VDARE further claims that in stating

that the City wouldn’t provide any support or resources for the event, the City

intended to “chill a person of ordinary firmness from continuing to engage

in . . . constitutionally protected activity.” Id. Finally, VDARE claims, because of the

City’s “expressed disapproval of [VDARE’s] speech and [its] expressed intention to

take action against [VDARE’s] speech, [it] has not attempted to arrange another

conference to engage in such activity in Colorado Springs.” Id.

To state a claim for First Amendment retaliation, a plaintiff must allege (1)

that it was engaged in constitutionally protected activity, (2) the defendant’s actions

caused it to suffer an injury that would chill a person of ordinary firmness from

35
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 36

continuing to engage in that protected activity, and (3) the defendant’s actions were

substantially motivated as a response to [its] protected conduct. McBeth v. Himes,

598 F.3d 708, 717 (10th Cir. 2010) (citations omitted). Of these, the second

element—the “person of ordinary firmness” element—is a “vigorous standard.”

Eaton v. Meneley, 379 F.3d 949, 956 (10th Cir. 2004) (citation omitted). Not only is

it assessed objectively, but it is also “substantial enough that not all insults in public

debate become actionable under the Constitution.” Id. (citation omitted).

The district court dismissed this claim, concluding that VDARE’s speculations

and conclusory allegations didn’t plead a plausible claim. Specifically, it concluded

that VDARE’s “deficient allegations” were “insufficient to establish the second

element of its retaliation claim” because “VDARE’s conclusory and speculative

allegations [were] insufficient to show a causal connection between Defendants’

Statement and Cheyenne Resort’s cancellation of the Conference.” Appellant’s App.

at 98. Because the district court found that VDARE had not plausibly alleged the

second element, it didn’t address the other elements. Id.

We similarly conclude that VDARE hasn’t plausibly alleged that the City’s

actions caused it to suffer an injury that would chill a person of ordinary firmness

from continuing to engage in protected activity. The majority of VDARE’s “factual

allegations” on this claim aren’t facts, but unsupported conclusions. As an example,

VDARE states: “Defendants’ actions have made it impossible for VDARE to conduct

future conferences, discussions and events in Colorado Springs, as Defendants have

made clear their position that VDARE, its sponsors and other associated individuals

36
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 37

enjoy a disfavored status under the law.” Id. at 18–19. This is a conclusion. It doesn’t

explain why, as a factual matter, it became “impossible” for VDARE to conduct

future conferences at other venues in Colorado Springs or how VDARE now

experiences a “disfavored status under the law.” Likewise, though VDARE alleges

that it wouldn’t have been provided city services if it “attempted to host a conference

or other gathering in the City,” this too is speculation. See id. VDARE cannot expect

us to assume that it enjoys a “disfavored status under the law” absent factual

allegations suggesting, for example, that another entity received such resources.

In short, we find VDARE’s Amended Complaint to be filled with legal

conclusions rather than facts from which these conclusions plausibly flow. But

“naked assertion[s] devoid of further factual enhancement,” Iqbal, 556 U.S. at 678

(alteration in original) (internal quotation marks and citation omitted), do not “raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and

footnote omitted). Because many of VDARE’s causation claims “are no more than

conclusions, they aren’t entitled to the assumption of truth.” Iqbal, 556 U.S. at 679.

Even so, VDARE argues that it has satisfied the causation element by alleging

that “[t]he Mayor singled out VDARE for invidious treatment and condemned it for

promoting ‘hate speech’ . . . pursuant to an official ‘Hate Speech’ policy.”

Appellant’s Opening Br. at 29. We disagree. The Statement didn’t mention VDARE,

and VDARE hasn’t alleged that the City ever communicated with it or the Resort or

treated it differently than groups with different speech content, such that it was

“singled out.” Again, the court cannot just adopt VDARE’s subjective interpretation

37
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 38

of the Statement. See McCook v. Spriner Sch. Dist., 44 F. App’x 896, 905 (10th Cir.

2002) (“Both sides mistakenly assume the ‘chill’ standard is subjective, which it is

not.” (citation omitted)).

Next, VDARE argues that it plausibly alleged causation because “[i]n his long

list of those whom he would protect—‘all individuals regardless of race, religion,

color, ancestry, national origin, physical or mental disability, or sexual orientation’—

[the Mayor] pointedly omitted those who engaged in dissident speech.” Appellant’s

Opening Br. at 29. But this too is just a subjective interpretation of a sentence that

simply relays Colorado law and doesn’t exclude anyone.

Finally, VDARE argues that “[a]s a result of the Mayor’s threat, the Cheyenne

Resort cancelled VDARE’s conference because it knew full well, as anyone would,

that it could not cope with violent protesters without the benefit of basic police

protection.” Id. But the Amended Complaint lacks even one sentence providing the

factual reason that the Resort gave VDARE for cancelling its contract—something

that VDARE would surely know.

Indeed, all agree that the Resort cancelled the contract three days after what

VDARE describes as “the pandemonium and violence that had washed over

Charlottesville, Virginia.” Id. at 6. Even if the Resort possibly cancelled the contract

in part due to the Statement doesn’t mean that VDARE has plausibly pleaded

allegations that the Resort was compelled to do so at the City’s behest, as is required

for a constitutional violation. See supra, Discussion, Part I.A. “The plausibility

standard . . . asks for more than a sheer possibility that a defendant has acted

38
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 39

unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops

short of the line between possibility and plausibility of entitlement to relief.” Id.

(internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).

The only alleged fact that arguably supports a showing of causation is the

temporal proximity of the Resort’s cancelling the contract and the City’s issuing the

Statement. But that lone allegation doesn’t alter our conclusion for several reasons.

First, as noted already, VDARE must allege more than that the Statement possibly

influenced a third party’s business decision, which as we have discussed, government

speech may do. See, e.g., R.C. Maxwell, 735 F.2d at 89 (“We conclude that [a private

third party’s] desire to create a receptive climate for any future [business] plans does

not rise to the level of state-coerced action.”).

Second, “mere temporal proximity” is “insufficient, without more,” to establish

the elements of retaliation. Baca v. Sklar, 398 F.3d 1210, 1221 (10th Cir. 2005) (citation

omitted). Here, VDARE’s need for additional factual allegations is particularly

critical because though there is proximity between when the Statement was issued

and when VDARE was allegedly chilled in exercising its speech, the occurrence of

deadly protests in Charlottesville, which made national headlines and likely affected

local businesses’ decisions, occurred contemporaneously. Cf. Maestas v. Segura, 416

F.3d 1182, 1189 (10th Cir. 2005) (“[E]vidence of intervening events . . . tend to

undermine any inference of retaliatory motive and weaken the causal link.”).

39
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 40

Third, as demonstrated by R.C. Maxwell and other similar circuit decisions, the

City’s Statement is itself protected speech that must be egregious to be plausibly

retaliatory. In Suarez Corp. Industries v. McGraw, the Fourth Circuit concluded that

when the alleged retaliatory act is public speech, the bar for finding retaliation is

elevated because “there is an interest in having public officials fulfill their duties,”

and “a public official’s own First Amendment speech rights are implicated.” 202 F.3d

676, 687 (4th Cir. 2000).

This high bar for retaliation is consistent with our precedent. For example, in

Eaton, we held that a sheriff’s running criminal-background checks against those

who petitioned to remove him from office wasn’t retaliation. 379 F.3d at 956. We

explained that “the nature of political debate is rough and tumble,” and “Plaintiffs in

public debates are expected to cure most misperceptions about themselves through

their own speech and debate.” Id. Similarly, in Phelan v. Laramie Cnty. Cmty. Coll.

Bd. of Trs., we found no retaliation when a board of trustees censured one of its

members by publicly announcing that she had violated its ethics policy. 235 F.3d

1243, 1247–48 (10th Cir. 2000). There, we reiterated that “the government

may . . . interject its own voice into public discourse,” and that “[t]he crucial question

is whether, in speaking, the government is compelling others to espouse or to

suppress certain ideals and beliefs.” Id. at 1247 (citations omitted)).

Here, VDARE hasn’t plausibly alleged that the City’s issuing the Statement

alone prevented VDARE from expressing its views. At all times, VDARE remained

“very much free to express [its] views publicly.” Eaton, 379 F.3d at 956 (internal

40
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 41

quotation marks and citation omitted). Accordingly, VDARE has not alleged a

plausible First Amendment retaliation claim.

III. Qualified Immunity

In addition to the City of Colorado Springs, VDARE filed suit against Mayor

John Suthers in his individual capacity. The Mayor claims that he is entitled to

qualified immunity. We agree.

“In resolving a motion to dismiss based on qualified immunity, the court

considers (1) whether the facts that a plaintiff has alleged make out a violation of a

constitutional right, and (2) whether the right at issue was clearly established at the

time of the defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d 1185, 1188

(10th Cir. 2013) (citations and internal quotation marks omitted). Because it’s the

plaintiff’s burden to satisfy this “strict two-part test,” we may grant qualified immunity

if a plaintiff fails under either prong. Dodds v. Richardson, 614 F.3d 1185, 1191 (10th

Cir. 2010) (citation and internal quotation marks omitted). We review de novo the

district court’s grant of qualified immunity. See Keith, 707 F.3d at 1187.

Because we conclude that VDARE hasn’t plausibly alleged a constitutional

violation against any of the defendants, VDARE can’t meet its burden on the first prong.

As a result, we needn’t reach the second prong regarding clearly established law. Hesse v.

Town of Jackson, 541 F.3d 1240, 1244 (10th Cir. 2008) (“If the court concludes no

constitutional right has been violated, no further inquiry is necessary and the defendant is

entitled to qualified immunity.”). Accordingly, we conclude that Mayor Suthers is

entitled to qualified immunity on those claims.

41
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 42

IV. Intentional Interference with Contract

VDARE’s final claim is a state tort claim for intentional interference with

contract. Recognizing that “[f]ederal courts are courts of limited jurisdiction,”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), the district

court declined to exercise supplemental jurisdiction over this claim. Since we too

conclude that VDARE didn’t plausibly plead any federal claims, we decline to

exercise supplemental jurisdiction over this claim. See Smith v. City of Enid, 149

F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been dismissed, the

court may, and usually should, decline to exercise jurisdiction over any remaining

state claims.” (citations omitted)).

CONCLUSION

For the foregoing reasons, we affirm.

42
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 43

20-1162 – VDARE Foundation v. City of Colorado Springs, et al.

HARTZ, J., Circuit Judge, dissenting

I respectfully dissent. In my view the Complaint adequately alleges that the City,

because it objected to the views of VDARE, intentionally caused the Cheyenne Mountain

Resort to cancel the reservations for the VDARE conference.

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.” Aplt. App. at

8 (emphasis added).

The Supreme Court opinion in Ashcroft v. Iqbal instructs us to use our “judicial

experience and common sense” in assessing whether a complaint states a plausible claim.

556 U.S. 662, 679 (2009). In this case the first step of that process is to construe the

Mayor’s sentence. 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?” Oral Arg. at 7:23–25. 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
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 44

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.”

Aplt. App. at 9 & n.2 (emphasis added). 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. Under

the government-speech doctrine, “[w]hen government speaks, it is not barred by the Free

Speech Clause from determining the content of what it says.” Walker v. Tex. Div., Sons

of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015). The doctrine is usually invoked

when the question is whether the control that the government exercises over a particular

forum (in Walker, license plates) constitutes government regulation of private speech

(which cannot discriminate on the basis of content) or is no more than the government

determining what content it wishes to convey itself. See, e.g., id. at 206–07. 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. See, e.g., id. at 219–20.

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.” Id. at 208. And if the government cannot seek to

2
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 45

compel favored speech, it surely cannot punish or seek to deter speech based on its

(constitutionally protected) content or viewpoint. See Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 61–63 & n.5 (1963) (state decency commission notified magazine and book

distributors that it had found particular publications to be objectionable for sale and noted

that it could recommend obscenity prosecution to the attorney general); cf. Chernin v.

Lyng, 874 F.2d 501, 502–03, 506–08 (8th Cir. 1989) (employee of meatpacker entitled to

due-process hearing even though firing was by private employer, since government told

employer it would have to fire employee to obtain government inspection services).

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.” Maj. Op. at 25. 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,

3
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 46

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.

For similar reasons, VDARE’s First Amendment retaliation claim is also

plausible. I would think it beyond debate that a person of ordinary firmness would be

chilled from speaking if he could not depend on first responders protecting him from

4
Appellate Case: 20-1162 Document: 010110565027 Date Filed: 08/23/2021 Page: 47

violence. We have recognized that “allegations of physical and verbal intimidation,

including a threat by a deputy sheriff to shoot” a speaker “would surely suffice under our

precedents to chill a person of ordinary firmness from continuing” to exercise his First

Amendment rights. Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir. 2007); see

Perez v. Ellington, 421 F.3d 1128, 1132 (10th Cir 2005) (holding that chill requirement

was satisfied by rushed imposition of tax assessments and delay in removing tax liens

after their abatement). I do not join the majority in discounting to insignificance the

effect on the Resort of the prospect of uncontrolled violence.

I should add, however, that I agree that the Mayor is entitled to qualified

immunity.

5