An Aspen judge on Wednesday dismissed the temporary restraining order that the Aspen Skiing Co. obtained against a former ski instructor after he agreed to take down large signs he was towing around town with messages to the company.
The SkiCo obtained the order against Lee Mulcahy of Aspen on Friday after he parked a trailer in front of the company’s headquarters at the Aspen Business Center last week. The order prevented him from coming within 100 yards of company property and the residences of SkiCo executives.
One sign said, “Dear CEOs Be Fair Remember the Alamo,” and the SkiCo contended in its restraining order motion that the message sparked fear in employees.
In Wednesday’s hearing, SkiCo attorney Dave Bellack said that employees worry that Mulcahy’s actions may escalate into violence.
“Remember the Alamo” was a slogan that motivated U.S. soldiers to kill Mexican and Cuban troops out of revenge, Bellack told Judge Erin Fernandez-Ely of Pitkin County Court.
His motion for the restraining order included affidavits from 10 employees who said they feel in danger in the workplace after seeing Mulcahy’s signs.
Mulcahy has long been at odds with his former employer, which fired him in 2011 after he distributed fliers in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies. SkiCo officials say he was fired for work-performance issues unrelated to the fliers.
The company banned Mulcahy from its property, including the ski areas it leases from the federal government, and he responded by suing the company and its owners, Paula and James Crown, contending the ban is overly broad and unconstitutional. He also sued SkiCo CEO Mike Kaplan for libel (both lawsuits are ongoing).
Bellack on Wednesday called James Ward, the company’s director of purchasing who works at the SkiCo’s ABC offices, to testify.
Ward said that, after seeing the sign outside the headquarters, he was “generally concerned” for his well-being and that of his co-workers.
Answering questions from Mulcahy, who represented himself, Ward said, “I don’t know you or what your motives are, but [the Alamo sign] creates a sense of uncertainty.”
Mulcahy apologized to Ward, telling him that his intent was not to make employees feel threatened.
Mulcahy, a self-described artist, said it was ridiculous that SkiCo was accusing him of harassing its staff.
“What is this really about?” he said. “They’re harassing me.”
He reiterated his apology several times, but said he used the Alamo slogan because it represents standing up for freedom against insurmountable odds. Mulcahy said he feels he is “battling Goliath.”
Bellack also called Keith Ikeda to testify. The longtime local law enforcement officer who was once the Basalt police chief is now SkiCo’s security director.
Ikeda said the signs on the trailer are indicative of harassing behavior and also indicate a potential “escalation of behavior” on Mulcahy’s part.
“You’re obsessed with SkiCo’s dealings, and you feel you’ve been wronged,” Ikeda told Mulcahy. “When it goes beyond that obsession and starts escalating, that’s when it gets into potentially violent situations.”
“Art can do that?” Mulcahy asked.
Ikeda said that while he’s not an art critic, “What concerns me is your idea of this war against the SkiCo. You’re the Alamo, SkiCo is the Mexican army; you’re Aaron Burr, and SkiCo is the federal government.”
“Do you think I was trying to massacre the SkiCo?” Mulcahy asked.
“I think you feel you’re the underdog,” Ikeda said. “The references are about killing and massacres.”
But Mulcahy said the signs also had messages about ending war and “peace, love and joy.”
He called three witnesses, friends of his and his family, who portrayed Mulcahy as a “classic pacifist.”
Mulcahy said, as an artist, he tries to create change and wants the SkiCo to laugh at itself as he laughs at himself. But he also called the Crown family that owns the company “war profiteers” who are trying to get a “restraining order on art.”
“They fired me, they smeared me, they banned me,” he said.
Fernandez-Ely, trying to reach a compromise, asked Mulcahy if he would take down the signs and stop “intentionally harassing” the company.
“Yes, ma’am,” he said. “Even though I disagree ... because it’s freedom of expression, SkiCo’s got me by the cojones.”
Bellack said the company would like the temporary restraining order extended to 120 days, if not made permanent.
“I think Mr. Mulcahy’s incoherent ranting is exactly the evidence that Mr. Ikeda describes as a precursor to violent behavior,” he said.
But Fernandez-Ely said one factor needed to extend or make permanent the order — that Mulcahy will continue such behavior — hadn’t been proven. She also said some of the signs were protected free speech.
Fernandez-Ely dismissed the restraining order, but warned Mulcahy that if he again references the Alamo or other violent incidents, she is likely to enforce the order.
“Stop trying to put yourself in their face,” Fernandez-Ely said.