Bare nipples at Boulder city council meeting: David Lane takes on Seth Brigham's cause

To protest an ordinance that might have criminalized women who publicly bare their nipples, Boulder's Seth Brigham stripped to his boxers at a February city council meeting -- and was promptly arrested.

Four months later, David Lane, fresh from winning a $5.9 million settlement for Tim Masters, has taken up Brigham's cause.

Trespassing and obstructing-a-peace-officer charges leveled at Brigham were subsequently dropped and Boulder Mayor Susan Osborne read a statement at an early March meeting expressing regret about her role in the incident -- specifically cutting off Brigham because she thought he might launch into a personal attack on another council member.

But Brigham says he's never received a formal apology for the arrest, and he thinks the council continues to impinge on free speech at meetings.

"They're cutting people's speaking time to two minutes, because they say there are too many people -- but that's not the people's fault," Brigham says. "I think the public-comment period is the most important part of the meeting, but they seem to think it's the least important part. They'd rather not be confronted by a lot of people who might be unhappy."

He adds that at a recent meeting, he was "approached by a police officer, who asked what I was planning to do. What did he expect me to say? 'I'm going to strip down and show you my genitalia'?"

At that same session, Brigham says Boulder Police Chief Mark Beckner "followed me out. I asked, 'Are you going to arrest me?,' and he said, 'Not this time.' He was joking, but something like that shows me they still haven't gotten the message."

They should have by now. Lane's letter to Mayor Osborne, dated June 10 and on view below, lays out what are described as a series of actions that violated Brigham's rights and requests a meeting to discuss potential action. The missive concludes with the threat of a lawsuit if the situation isn't resolved to Brigham's satisfaction.

Brigham says he'll follow Lane's guidance regarding what happens next -- but he's clearly concerned about what he sees as ongoing limitations to speakers at meetings. "Nothing's changed in the council chambers as far as the council respecting public speakers," he argues.

Here's Lane's letter to Mayor Osborne:

RE: Seth Brigham v. The City of Boulder

Dear Mayor Osborne:

Mr. Seth Brigham has retained Killmer, Lane & Newman, LLP to represent him with respect to his wrongful arrest without probable cause on February 16, 2010 during his attempt to engage in protected political speech before the Boulder City Council. I have advised Mr. Brigham that it appears his unlawful arrest caused by the Boulder City Council violates both state and federal law, and that he likely has meritorious legal claims against the City of Boulder.

I. Factual Background

As you know, on February 16, 2010, Mr. Brigham appeared before the Boulder City Council during a public comment session wearing nothing but his boxer shorts in an effort to communicate his concerns on a variety of political issues, including but not limited to campaign contributions to Council Member Suzy Ageton, Council Member George Karakehian's "open door policy" concerning his business on the Pearl Street Mall, and the City of Boulder's recent focus on public nudity issues. Mr. Brigham's speaking in only his boxers was largely symbolic, in order to assist in making his points. Mr. Brigham was recognized as a speaker who would be addressing the Boulder City Council prior to any comments he made.

Less than a minute into Mr. Brigham's comments, he was interrupted many times, and Deputy Mayor Ken Wilson caused scratching noises over the microphone system, effectively drowning out Mr. Brigham's ability to speak. Thereafter, Mr. Karakehian directed Boulder Police law enforcement officer Sterling Ekwo to remove Mr. Brigham. Mr. Brigham's microphone was turned off, and without any warning or communication from officer Ekwo, Mr. Brigham was immediately placed into handcuffs, and escorted outside. Mr. Brigham was charged with Obstruction and Trespassing, and transported to the Boulder County Jail. On February 25, 2010, all criminal charges against Mr. Brigham were dismissed on motion by Boulder's Office of the City Attorney.

II. Legal Standard

The United States Constitution and the Colorado Constitution protect the right of freedom of speech and assembly for all citizens. The First Amendment of the United States Constitution provides that "Congress shall make no law... abridging the freedom of speech... or the right of the people peaceably to assemble and to petition the government for a redress of grievances." Article II, Section 10 of the Colorado Constitution further provides that: "No law shall be passed impairing the freedom of speech, every person shall be free to speak, write or publish whatever he will on any subject..."

Political speech in particular holds a "high rank" in the "constellation of freedoms guaranteed by both the United States Constitution and our state Constitution." Bock v. Westminster Mall Co., 819 P.2d 55, 57 (Colo. 1991). The Colorado Supreme Court noted in Bock that:

The United States Supreme Court and this court have been extraordinarily diligent in protecting the right to speak and publish freely. Whether this is because free speech has been conceived as a means to the preservation of a free government or as an end to itself, the results have been the same. Free political speech occupies a preferred position in this country and this state.

Id. The Colorado Supreme Court in Bock goes on to state:

Those who won our independence... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth;... that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American Government.

Bock, 819 P.2d at 57, citing Whitney v. California, 274 U.S. 357, 375 (1927).

The Colorado Constitution provides an even broader protection for free speech than does the United States Constitution. Bock, 819 P.2d at 58-60. Article II, Section 10 of the Colorado Constitution contains "an affirmative acknowledgement of the liberty of speech, and therefore [is] of greater scope than that guaranteed by the First Amendment." Id. at 59. The United States Supreme Court and Colorado Supreme Court have been extraordinarily diligent in protecting the right to speak and publish freely, and free political speech occupies a preferred position in this country and this state.

My understanding is that certain members of the Boulder City Council have publically defended their decision to remove Mr. Brigham by suggesting that Mr. Brigham was allegedly discourteous and personally attacking a member of the Boulder City Council. Even if this were true (which the video proves it is not), this would still not legally justify Mr. Brigham's forcible removal before the Boulder City Council while he was engaging in politically protected speech.

The Colorado Supreme Court recognized in Bolles v. People, 189 Colo. 394, 398 (1975), that a crucial function of free speech under our system of government is to invite dispute. "If unsettling, disturbing, arousing, or annoying communications could be proscribed... the protection of the First Amendment would be a mere shadow indeed." Id.; see also Houston v. Hill, 482 U.S. 451, 462 (1987)("'Speech is often provocative and challenging.... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience. Certainly, nothing Mr. Brigham said could be construed as tending "to incite an immediate breach of the peace" or "inherently likely to provoke a violent reaction." See Cohen v. California, 403 U.S. 15, 20 (1971) and C.R.S. § 18-9-106(1)(a).

The First Amendment does not require that Mr. Brigham be courteous when addressing his elected political leaders. Additionally, Mr. Brigham's First Amendment rights may not be abridged even if he were making personal attacks on his elected officials (if allegations of improper campaign contributions could be construed as a personal attack). Boulder's elected officials may not wield the overwhelming power of the government to curtail First Amendment rights each time their feelings are hurt by a public attack.

When viewed objectively, the video of Mr. Brigham during the public comment session unequivocally demonstrates that he was not engaging in any unlawful behavior which would have legally justified the Boulder City Council's curtailment of his protected political speech or his arrest. The Boulder City Council's direction to law enforcement to remove and/or arrest Mr. Brigham constitutes unreasonable restriction on speech, and violates Mr. Brigham's rights pursuant to the First and Fourth Amendments of the United States Constitution and Article II, Section 10 of the Colorado Constitution.

As stated, the Fourth Amendment requires probable cause that an individual has committed a crime prior to being arrested. 'Disturbing the Police' is not a crime, nor is 'Disturbing the City Council.' "A police officer violates an arrestee's clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause." Olsen v. Layton Hills Mall, 312F.3d 1304, 1312 (10th Cir. 2002). That right was clearly established at the time of Mr. Brigham's arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Guffey v. Wyatt, 18 F.3d 869, 872 (10th Cir. 1994). ("The right to be free from arrest without probable cause is a clearly established constitutional right.").

III. Conclusion

The actions of Mr. Brigham before the Boulder City Council on February 16, 2010 constituted classic political speech. Certainly, the First Amendment necessarily requires that every member of a democratic society must be able to address their elected leaders on any issue they feel important without fear of arrest. Political speech at a town meeting occupies the highest order of protected speech in our nation. To remove Mr. Brigham from the microphone because members of the council did not appreciate his comments and to arrest him is plainly violative of the Constitutions of the United States and the State of Colorado.

Please be advised that Mr. Brigham is very determined to secure a fair resolution of this matter. Absent a resolution in this matter, he will file a civil rights case in the United States District Court for the District of Colorado. If you are interested in discussing this matter, please have your representative contact me by the close of business on June 25, 2010. I look forward to hearing from you.


Killmer, Lane & Newman, LLP

David A. Lane

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