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Seth Brigham Closing Statement

Seth Brigham Closing Statement

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Published by: Michael_Lee_Roberts on Aug 27, 2012
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08/27/2012

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County Court, Boulder County, State of Colorado1777 Sixth St., Boulder, Colorado 80302(303) 441-3750
σ
COURT USE ONLY
σ
 
CITY OF BOULDER, a municipal corporation of theState of Colorado,Petitioner,
v.
SETH R. BRIGHAM,Respondent.
 KILLMER, LANE & NEWMAN, LLPDavid A. Lane, #16422Faisal Salahuddin, #407581543 Champa Street, Suite 400Denver, Colorado 80202Phone: (303) 571-1000Fax: (303) 571-1001dlane@kln-law.com fsalahuddin@kln-law.com Case No.
C00 72012C000175
 Division 7
CLOSING STATEMENT ON BEHALF OF MR. BRIGHAM
Mr. Brigham, through counsel, moves this Court to deny the request for a permanentprotection order pursuant to U.S. Const. amends. I, V, XIV and Colo. Const. Art. II, §§ 5, 10, 24,and 25. As grounds, he states the following:“In every stage of these Oppressions we have Petitioned For Redress in the most humbleTerms: Our repeated Petitions have been answered only by repeated Injury. A Prince,whose Character is thus marked by every act which may define a Tyrant, is unfit to be theRuler of a free People.”T
HE
D
ECLARATION OF
I
NDEPENDENCE
para. 4 (U.S.
 
1776)What is at stake in this matter is a private citizen’s right to petition his government andspeak freely on matters of public concern. While the government may not interfere with the rightto petition,
California Motor Transport Co. v. Trucking Unlimited 
, 404 U.S. 508, 510 (1972);
 Harrell v. Cook 
, 169 F.3d 428, 432 (7th Cir.1999);
Vasquez v. Hernandez
, 60 F.3d 325, 328 (7thCir.1995), it need not grant the petition, no matter how meritorious it is.
Cf 
.
 Linda R.S. v. Richard D
., 410 U.S. 614 (1973).1
 
The First Amendment guarantees “the right of the people ... to petition the Governmentfor a redress of grievances.” U.S. Const. amend. I. The right to petition is cut from the same clothas the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In
United States v. Cruikshank 
, 92 U.S. 542 (1876), the Court declared that this rightis implicit in “[t]he very idea of government, republican in form.”
 Id.
, at 552. And JamesMadison made clear in the congressional debate on the proposed amendment that people “maycommunicate their will” through direct petitions to the legislature and government officials. 1Annals of Cong. 738 (1789).The City of Boulder seeks to enjoin a private citizen, who has been neither convicted norcharged with any crime against a single Petitioner, from contacting his representatives at CityCouncil. In support of their petition to permanently enjoin Mr. Brigham from exercising his stateand federal constitutional rights, they argue that Mr. Brigham “expanded his verbal attacks,”loses his temper, has touched members of the Council and cannot control himself, and thereforeshould be permanently stripped of his ability to contact members of City Council.Petitioners have failed to meet their burden to prove that a permanent restraining ordershould enter. Petitioners failed to address in any of their pleadings the fact that they, thegovernment, seek to keep a private citizen from exercising his fundamental rights. It is thereforeno surprise that Petitioners failed to mention that their request should be scrutinized in thestrictest manner and that their request can only be granted if it is the narrowest means of achieving a compelling governmental interest.
See United States v. Paradise
, 480 U.S. 149(1987).
 
Petitioners have, unfortunately, prosecuted their attempt for a protection order as thoughthis matter was between two former domestic partners. It isn’t. Nothing short of a privatecitizen’s ability to petition his government and speak freely on matters of public concern is atstake.All of Mr. Brigham’s communications pertained to political issues. Petitionerunpersuasively attempted to characterize Mr. Brigham’s communications as “personal attacks.”However, Mr. Brigham’s attacks were political attacks and therefore political speech and worthyof the highest protection by this Court. Petitioner unpersuasively attempted to characterize Mr.Brigham’s past behavior at council meetings as violent, however the contemporaneouscommunications to Mr. Brigham belie their current characterizations.Oddly, on page two of their closing statement, Petitioners claim that Mr. Brigham’sspeech “ranges from fighting words to stalking and is not entitled to protection.” After makingthis assertion, they fail to point out exactly what words were fighting words and what conductconstituted stalking. “‘Fighting words’ which may constitutionally be regulated arethose words which,
by their very utterance,
tend to excite others to unlawful conduct orprovoke retaliatory action amounting to breach of peace.”
People v. Smith,
862 P.2d 939 (Colo.1993)(emphasis added). Petitioners point out that Mr. Brigham used the phrase “fuck you”during a City Council meeting.Assuming
arguendo
this is what they believe to be fighting words, this issue has alreadybeen addressed and put to rest by the Colorado Supreme Court in
Ware v. City and County of  Denver 
, 511 P.2d 475 (Colo. 1973). In
Ware,
the Court addressed the use of the phrase “fuck 2
 
you.” There, the defendant was convicted in the county court for uttering the words ‘fuck you’in violation of a city ordinance. That ordinance provided that “It shall be unlawful for any personto disturb or tend to disturb the peace of others by . . . offensive language, calculated to provokea breach of the peace . . . .” The Colorado Supreme Court reversed holding that the ordinancewas unconstitutionally applied.The
Ware
court cited two U.S. Supreme Court cases in its analysis,
Cohen v.California
¸403 U.S. 15 (1971) and
Street v. New York 
, 394 U.S. 576, (1969). The
Ware
courtquoted
Cohen
in its analysis. In
Cohen v. California
, 403 U.S. 15(1971), the Supreme Courtstated that “while the particular four-letter word being litigated here is perhaps more distastefulthan most others of its genre, it is nevertheless often true that one man's vulgarity is another'slyric. Indeed, we think it is largely because governmental officials cannot make principleddistinctions in this area that the Constitution leaves matters of taste and style so largely to theindividual.”The
Ware
court also found persuasive the following language from
Street 
:“Appellant's words, taken alone, did not urge anyone to do anything unlawful. They amountedonly to somewhat excited public advocacy of the idea that the United States should abandon, atleast temporarily, one of its national symbols. It is clear that the Fourteenth Amendmentprohibits the States from imposing criminal punishment for public advocacy of peaceful changein our institutions.”
Ware
, 511 P.2d at 180 (quoting
Street v. New York 
, 394 U.S. 576, (1969).Petitioners also make the claim that Mr. Brigham’s political conduct may be consideredstalking. However, they also do not state what actions by Mr. Brigham constitute stalking. Onemust ask, are they truly arguing that a citizen who routinely attends government functions isguilty of stalking? If it is true that the lead Boulder prosecutor believes Mr. Brigham’s conductamounts to stalking, why hasn’t he, or District Attorney Stan Garnett, charged Mr. Brigham withstalking? The answer is clear- because Mr. Brigham’s repeated communications with Boulder’selected officials and Boulder government officials is clearly political speech and worthy of thehighest protection the law can afford it.As Petitioners note on page three of their closing statement, Stalking involves severeintrusion on the victim’s personal privacy and autonomy… (emphasis added). In this case,Petitioners have not even alleged, let alone proven, that Mr. Brigham has approached or followedor “stalked” any council members anywhere private. All of Mr. Brigham’s contacts with thesepeople have been in full view of the public and almost always taken place in governmentbuildings during regular hours. Mr. Brigham’s “intrusions” have not been personal, they’ve beenpolitical.
1
Mr. Brigham’s “intrusions” have not been private, they have been public. Finally, Mr.Brigham’s “intrusions” have only infringed on council members autonomy to the extent that Mr.Brigham is calling attention to what he believes is their corrupt behavior and thus disallowingthem to continue their allegedly shady backdoor political dealings.
1
The photo of Ms. Becker’s husband accompanied by Ms. Becker and her child, was taken straight from Ms.Becker’s husband’s website. It was copied and pasted with no alteration. Petitioner attempts to create the impressionthat Mr. Brigham took the photo himself, which would still be protected.
3

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