County Court, Boulder County, State of Colorado 1777 Sixth St.

, Boulder, Colorado 80302 (303) 441-3750 CITY OF BOULDER, a municipal corporation of the State of Colorado, Petitioner, v. SETH R. BRIGHAM, Respondent. KILLMER, LANE & NEWMAN, LLP David A. Lane, #16422 Faisal Salahuddin, #40758 1543 Champa Street, Suite 400 Denver, Colorado 80202 Phone: (303) 571-1000 Fax: (303) 571-1001 dlane@kln-law.com fsalahuddin@kln-law.com COURT USE ONLY 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 permanent protection 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 humble Terms: 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 the Ruler of a free People. THE DECLARATION OF INDEPENDENCE para. 4 (U.S. 1776) What is at stake in this matter is a private citizens right to petition his government and speak freely on matters of public concern. While the government may not interfere with the right to 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 (7th Cir.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).

The First Amendment guarantees the right of the people ... to petition the Government for a redress of grievances. U.S. Const. amend. I. The right to petition is cut from the same cloth as 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 right is implicit in [t]he very idea of government, republican in form. Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people may communicate their will through direct petitions to the legislature and government officials. 1 Annals of Cong. 738 (1789). The City of Boulder seeks to enjoin a private citizen, who has been neither convicted nor charged with any crime against a single Petitioner, from contacting his representatives at City Council. In support of their petition to permanently enjoin Mr. Brigham from exercising his state and 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 therefore should 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 order should enter. Petitioners failed to address in any of their pleadings the fact that they, the government, seek to keep a private citizen from exercising his fundamental rights. It is therefore no surprise that Petitioners failed to mention that their request should be scrutinized in the strictest 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 though this matter was between two former domestic partners. It isnt. Nothing short of a private citizens ability to petition his government and speak freely on matters of public concern is at stake. All of Mr. Brighams communications pertained to political issues. Petitioner unpersuasively attempted to characterize Mr. Brighams communications as personal attacks. However, Mr. Brighams attacks were political attacks and therefore political speech and worthy of the highest protection by this Court. Petitioner unpersuasively attempted to characterize Mr. Brighams past behavior at council meetings as violent, however the contemporaneous communications to Mr. Brigham belie their current characterizations. Oddly, on page two of their closing statement, Petitioners claim that Mr. Brighams speech ranges from fighting words to stalking and is not entitled to protection. After making this assertion, they fail to point out exactly what words were fighting words and what conduct constituted stalking. Fighting words which may constitutionally be regulated are those words which, by their very utterance, tend to excite others to unlawful conduct or provoke 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 already been 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 person to disturb or tend to disturb the peace of others by . . . offensive language, calculated to provoke a breach of the peace . . . . The Colorado Supreme Court reversed holding that the ordinance was unconstitutionally applied. The Ware court cited two U.S. Supreme Court cases in its analysis, Cohen v. California403 U.S. 15 (1971) and Street v. New York, 394 U.S. 576, (1969). The Ware court quoted Cohen in its analysis. In Cohen v. California, 403 U.S. 15(1971), the Supreme Court stated that while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. 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 amounted only to somewhat excited public advocacy of the idea that the United States should abandon, at least temporarily, one of its national symbols. It is clear that the Fourteenth Amendment prohibits the States from imposing criminal punishment for public advocacy of peaceful change in 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. Brighams political conduct may be considered stalking. However, they also do not state what actions by Mr. Brigham constitute stalking. One must ask, are they truly arguing that a citizen who routinely attends government functions is guilty of stalking? If it is true that the lead Boulder prosecutor believes Mr. Brighams conduct amounts to stalking, why hasnt he, or District Attorney Stan Garnett, charged Mr. Brigham with stalking? The answer is clear- because Mr. Brighams repeated communications with Boulders elected officials and Boulder government officials is clearly political speech and worthy of the highest protection the law can afford it. As Petitioners note on page three of their closing statement, Stalking involves severe intrusion on the victims personal privacy and autonomy (emphasis added). In this case, Petitioners have not even alleged, let alone proven, that Mr. Brigham has approached or followed or stalked any council members anywhere private. All of Mr. Brighams contacts with these people have been in full view of the public and almost always taken place in government buildings during regular hours. Mr. Brighams intrusions have not been personal, theyve been political. 1 Mr. Brighams intrusions have not been private, they have been public. Finally, Mr. Brighams 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 disallowing them to continue their allegedly shady backdoor political dealings.

The photo of Ms. Beckers husband accompanied by Ms. Becker and her child, was taken straight from Ms. Beckers husbands website. It was copied and pasted with no alteration. Petitioner attempts to create the impression that Mr. Brigham took the photo himself, which would still be protected.

It is simply not stalking to appear at political events and criticize political leaders. It is simply not stalking to uncover information about a politicians finances, and their spouses finances, and confront them with the information. By e-mailing local politicians and law enforcement officers repeatedly, Mr. Brigham does not transform protected political speech into stalking. Indeed, in our very Declaration of Independence our founders made reference to their repeated petitions. If Petitioners had their way, the founders would probably have needed to be restrained because they too repeatedly complained. As discussed above, any measure to infringe on Mr. Brighams fundamental rights must survive strict scrutiny. The relief sought is not the narrowest way to achieve a compelling governmental interest. Petitioner points out the Kirkwood tragedy. However, even Petitioners expert agreed that there is no evidence to suggest that Mr. Brigham poses this kind of threat. Thus their reference to Kirkwood is unavailing, unpersuasive and borders on hysteria. The narrowest method to keep City Council members and City staff members safe is to enforce the law. If Mr. Brigham threatens someone, then he should be arrested. If Mr. Brigham assaults someone he should be arrested. If City Council is afraid Mr. Brigham will assault someone at a City Council meeting, a police officer would be able to stop such an assault. Further, if Petitioner believes Mr. Brigham, or anyone else could bring a gun to the Municipal Building, they should install a metal detector and keep guns out. Enjoining Mr. Brighams First Amendment rights is not the narrowest method to achieve any governmental interest. Conclusion This restraining order is nothing more than retaliation against Mr. Brigham because Mr. Brigham has exposed several council members for failing to disclose important information that voters in Boulder have a right to know. This Court must deny Petitioners request. Petitioner has not met its burden. Petitioner seeks relief that unconstitutionally restricts Mr. Brighams rights under the United States and Colorado Constitutions. Petitioner seeks this relief despite failing to allege a single threat by Mr. Brigham. Rather, Petitioner relies on a psychologist who simply takes anecdotal evidence and makes conclusions unsupported by science without regard for the First Amendment. If Mr. Brigham breaks the law he should be arrested. If Mr. Brigham is disruptive he should be removed. If Mr. Brigham threatens someone, then the threat should be investigated to determine whether it constitutes a true threat or merely political hyperbole. If City Council is afraid Mr. Brigham could bring a weapon to the Municipal Building, they should install a metal detector to prevent weapons from entering the building. However, to permanently ban Mr. Brigham from contacting his elected officials is an unconstitutional restraint on his freedom of speech and freedom to petition his government. WHEREFORE, For these reasons, as well as for reasons set forth in previously filed pleadings as well as in oral argument of counsel, this Court should forthwith deny Petitioners motion.

Respectfully submitted,

______________________________ DAVID A. LANE #16422 FAISAL SALAHUDDIN #40758 KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Suite 400 Denver, Colorado 80202 Phone: (303) 571-1000 Fax: (303) 571-1001 dlane@kln-law.com fsalahuddin@kln-law.com CERTIFICATE OF MAILING I certify that a true, accurate and complete copy of the foregoing was emailed on August 24, 2012 and/or placed in the U.S. mail to the following: Thomas Carr City Attorney CarrT@bouldercolorado.gov

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