After alleging he’d been banned from commenting on the city of Aspen’s Facebook page, Lee Mulcahy — alongside five other plaintiffs, including his mother, Sandy Mulcahy — is suing the municipality, claiming a violation of First Amendment rights.
In the 22-page complaint, for which city attorney Jim True entered an appearance with Pitkin County District Court on behalf of the government this week, Mulcahy seeks injunctive relief — in this case, unblocking Mulcahy from commenting on the Facebook page and assurances that those comments will not be removed from administrators.
Additionally, the suit names the Aspen-Pitkin County Housing Authority as a defendant, pointing to the entity’s decorum policy overseeing citizen public comment as one also infringing on free speech rights.
“APCHA has recently instituted a new public comment policy that smacks of Russia or China. As discovered in an open records request, the public comment policy was written by the police and forwarded to APCHA,” Mulcahy, who is representing himself and fellow plaintiffs, wrote in the complaint.
It goes on to highlight specific wording in the guidelines — such as “courteous,” “free of intimidation” and “professional or respectful manner” — as vague and overly broad.
“The policy's effects are thereby far broader than intended or than the Colorado Constitution’s Bill of Rights allows,” the complaint goes on.
Mulcahy points to an Aug. 1, 2018 APCHA meeting during which then-Chair Ron Erickson, according to a transcript, tells Mulcahy he can’t criticize the entity. In the exchange, Erickson asks Mulcahy to remove his hat.
“Yes, your highness,” Mulcahy is recorded as saying.
“I think that that’s an inappropriate comment and I don’t expect to hear that from you any more during the public comments,” Erickson retorted.
When Mulcahy subsequently followed with, “You said I couldn’t criticize you two weeks ago,” Erickson allegedly replied, “You can’t criticize us.”
It’s that last statement that Mulcahy uses as the linchpin to his most recent complaint against the entity. He goes on to describe APCHA as an “all-powerful organization” that manages more than 3,000 housing units, noting Aspen’s year-round population is about 6,800.
“Can you imagine? That creates a lot of silence,” Mulcahy said in a phone interview Friday. “I think it would be a great victory for all little people if they get busted for violating our most sacred right: our right to free speech.”
That right, he continued, extends online to social media platforms — hence the lawsuit naming the city, as well.
“When I found the case law that basically said the government cannot silence critics on their Facebook page — the case is after 2016,” Mulcahy said. “A political official … [they] can’t even ban people. You can’t silence your critics on your government page.”
Mulcahy emphasized Friday that he “loves” and “is devoted to this community,” framing his work as an artist as part of “a long history of … making great contributions to this community.”
It’s that work as an artist that has become a point of contention in a dispute between APCHA and Mulcahy. The governing body first sued him in 2015 for allegedly not meeting the required 1,500 hours of annual work in Pitkin County in order to qualify for deed-restricted housing. Mulcahy vehemently denies the allegation and has challenged the finding at every legal level, up to the U.S. Supreme Court.
The lawsuit, which was served to City Manager Sara Ott on Sept. 3, is the latest in his legal battle.
“We’re open to a global settlement on everything instead of tying up the court’s time on all this,” he wrote to Mayor Torre in an email Wednesday, on which Ott was copied.
True, who said Friday he’s investigating the factual merits behind the case, has 21 days since filing his appearance to decide his next maneuver, which could range from filing a motion to dismiss the case to defending it.
“In the next approximate 21 days, I have to file a motion to dismiss — which is very possible — or I have to answer,” he said. “Right now, I’m not sure what my next step is, but it’s in court to date.”