Opinion: The First Amendment and conflicts of interest


Seth Brigham’s recent journey through the legal system points out some of the essential conflicts in how confrontations are dealt with in our society.
To briefly and incompletely summarize Brigham’s situation, he was tossed out of a Boulder City Council meeting a couple of years ago for appearing in his underwear and raising issues about council members’ behavior. He sued over his treatment; the city settled and paid $10,000. This year, some council members apparently felt that Brigham was a threat because of some other incidents, so the city attorney asked the court to issue a temporary restraining order against him.
On Aug. 6, Brigham had his court date about whether the restraining order was to be made permanent. Per the statute (CRS 13-14-102) and as practiced, a temporary restraining order can be issued “ex parte,” meaning that only one side is present to provide information. The real debate is at the permanent order hearing; in this case the judge delayed his decision so that the city could provide more information.
David Lane is Brigham’s attorney, and is known for his First Amendment defenses. I make no claim to have captured exactly what Lane said, but one main point I got was that to the extent that what Brigham said and wrote was protected speech under the First Amendment, it cannot be grounds for a restraining order. Lane referenced Bolles v. People, a Colorado case. Here is a quote from that decision:
“It is therefore axiomatic that as citizens, living under the beneficent protection of the First Amendment, we are entitled to robust debate in a free marketplace of ideas. As such, it must be a fundamental truism that a function of free speech under our system of government is to invite dispute. ‘It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.’ Terminiello v. City of Chicago. In effect, if unsettling, disturbing, arousing, or annoying communications could be proscribed, or if they could only be conveyed in a manner that would not alarm, the protection of the First Amendment would be a mere shadow indeed.”
Another critical point that Lane made was that the council has more appropriate cures than a restraining order. What I got from what he said was that the council should first set clear rules that don’t restrict First Amendment expression, then ask people to leave who disobey them, and arrest them if they violate the law.
This brings me to the substance of the dispute — the apparent failure of council members to disclose conflicts of interest. One of Brigham’s issues is that council members are not adequately acknowledging their business interests and financial relationships. Based on accounts in the Camera and elsewhere, these are legitimate concerns.
Just so it’s clear, the issue is not only whether full disclosure or recusal would have made a difference in the outcome of a particular vote; it’s also about having government be open and accountable. If an informed citizen of Boulder, once made aware of a council member’s particular situation, would reasonably think that the council member might have a conflict of interest, then that situation must be disclosed. If the conflict is significant, the council member should withdraw from voting.
The City Council is going to review Boulder’s disclosure and conflict of interest laws this fall, but they should take two steps immediately. First, before each agenda item, the city clerk should ask the council, “Do any of you have a financial or other personal situation that a reasonable person would think might have the potential to compromise or bias your judgment or objectivity on this item? If so please disclose it. And, if appropriate, recuse yourself.” It would only take a few minutes for council members to provide full and complete disclosure of all potential conflicts of interest. Second, the city should make all council members’ up-to-date disclosure filings immediately accessible by posting them on the city website along with their bios and contact information. The improvement in transparency and trust would be well worth the little time and effort required.

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