The ACLU of Colorado announced today a settlement of a four-year-old legal battle over state regulations that apply to rallies, demonstrations, and other First Amendment activity on the West steps of the Capitol Building and nearby locations administered by the Colorado Department of Personnel and Administration (DPA).  

“Colorado has now revised regulations adopted in 2004 that threatened the right of the public to freely express their views at one of Colorado’s most visible and frequently-used locations for rallies and demonstrations,” said Mark Silverstein, ACLU Legal Director.    “It is vitally important that all Coloradans, regardless of their views, have an equal opportunity to use that location for political speech without the threat of interference by government bureaucrats.   The ACLU is pleased that the State of Colorado has now repaired the regulations that were the subject of our legal challenge.”

The agreement, which dismissed the pending lawsuit, was reached just as the Colorado Court of Appeals was set to hear legal argument Tuesday about the legal validity of four regulations the State adopted in 2004.   

One of the challenged regulations authorized the DPA Director to cancel a rally permit whenever the Department of Homeland Security declared that the ‘level of security’ was heightened.  “Since the ‘level of security’ has been elevated ever since Homeland Security created its color-coded advisory in 2002,” Silverstein said, “the regulation authorized the Director to cancel any and every rally that has been scheduled for the last six years.  The constitutional protections of free expression do not allow a government official to exercise that kind of discretion to deny or prohibit speech.   Although the Director did not actually use that power while this lawsuit was pending, the grant of authority to exercise that power nevertheless violated the Constitution.”   

Under the revised regulation, the Director is not authorized to cancel a rally unless there is a specific threat to the State Capitol grounds and cancellation is necessary to protect the public safety.    Another revision makes it clear that state patrol officers cannot revoke a rally permit unless there is a significant, direct, and immediate threat to public property or public safety.  As adopted in 2004, the original version authorized the state patrol to shut down a rally if any participant was violating a law or a regulation, no matter how minor the violation.  Finally, the DPA relaxed regulations the ACLU challenged that restricted solicitation of donations and selling message-bearing materials like buttons or bumper stickers.

Cooperating attorneys for the ACLU in the Court of Appeals were Kevin Paul and Cynthia Coleman of Heizer | Paul LLP.  Additional information about the case, ACLU v. Gonzalez (originally ACLU v. Wells) is available at:
 http://www.aclu-co.org/docket/200401/200401_description.htm