“Section 10 (the right of the people to freedom of speech and the right to write and publish whatever they desire on any subject)” was part of the Custer County’s Board of County Commissioners March 17, 2021 resolution titled “The Constitutional Preservation Resolution Designating Custer County to be a Constitutional Preservation County.”
While resolutions have no legal authority, the document was signed by all three commissioners after a speech by Chairman Bill Canda on the importance of the federal and state constitutions, and particularly on the protections of free speech from government interference.
However, Commissioner Bill Canda’s and Kevin Day’s commitment to free speech ended less than a year later on January 19, 2022 when they willfully and knowingly punished the Wet Mountain Tribune for writing and publishing stories they felt were critical of the BOCC.
Every year the BOCC requests bids for the “newspaper of record” for Custer County. This means that the selected newspaper prints and publishes all of the legal notices that are meant to keep the public informed on legal filings and new laws. The Tribune has been the newspaper of record since 1883, except for two years when it was not the lowest bidder. Both of those times, the Tribune came back with a lower bid and won back the newspaper of record designation. In short, there has been a precedent set that the lowest bid wins.
During that January 19 meeting, Commissioners Day and Canda selected the higher legal bid which was double the bid of the Wet Mountain Tribune. During the discussion leading up to the vote, Canda stated, “I cannot imagine supporting a newspaper that bad-mouths how we do business.” He went on to say, “I looked up what we paided the Tribune, and while I cannot find it right here it was around $40,000. I am not going to take good money and chase it after bad.” Commissioner Day agreed with Canda and stated, “It’s hard for me to imagine working with a newspaper, that for a lack of better term, is combative.”
Commissioner Tom Flower, surprised that Canda and Day were refusing the lowest bid in retaliation against the Tribune stated, “This contract is for the legal bids, and the Tribune has never refused to print something that we sent to them. This contract is about legal publishing, not editorial content.” He concluded, “It defies logic and reason to select the highest bidder that has the lowest circulation. These notices are meant to notify the public.”
Since that meeting, the Tribune has reached out to the BOCC repeatedly in an attempt to show how Day and Canda had violated the first amendment rights of the Tribune and to reconsider the matter. The only response from County Attorney Clint Smith was, “Canda and Day both have first amendment rights as well, and they did not pass a law.”
However, the case law that was ignored by Smith, Day, and Canda is overwhelming, stating repeatedly that a government cannot punitively use a valuable financial contract against protected speech.
Last Friday, the Wet Mountain Tribune directed our attorney to file a Federal Lawsuit in the 10th District Court in Denver for the BOCC’s clear violation of our first amendment rights. In the opening email authored and submitted by the well-known first amendment attorney Steve Zansberg that the Tribune has retained, he stated to Smith, “It is firmly established that [w]hen government threatens to revoke a ‘valuable financial benefit . . . in retaliation for speech,’ it serves to ‘chill speech on matters of public concern…’ Board of County Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996). To deny a benefit to those who engage in protected speech ‘is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.’ Speiser v. Randall, 357 U.S. 513, 518 (1958).”
Zansberg goes further in the complaint filed with the Federal Court. “This civil action seeks monetary and injunctive relief for the Defendants’ wanton and willful infringement of the Plaintiff’s free speech rights. The Defendants have retaliated against the Plaintiff after its newspaper, The Wet Mountain Tribune, published a series of news reports that accurately exposed resumé fraud by a county official and otherwise were critical of county government administration. In response to this exercise of the Plaintiff’s free speech rights under the First Amendment, the Defendants exercised their authority, under color of state law, to punish and retaliate against Plaintiff by withdrawing the Legal Notice advertisements of Custer County, Colorado from the Plaintiff, notwithstanding that Plaintiff had submitted a sealed bid for such advertising that was priced lower than the other bidder’s, and its circulation is almost two times greater than that of other bidder. Defendants Canda and Day made it unmistakably clear, in a recorded public meeting, that the only reason they were turning down the lower bid for services provided to the county was their own displeasure with the editorial content of Plaintiff’s newspaper.”
In response to the lawsuit, County Attorney Clint Smith stated that the matter would be referred to the County’s insurance company CTSI.
The Tribune’s full complaint can be found at this link.
– Jordan Hedberg