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December 10, 1998


The American Civil Liberties Union of Colorado (ACLU) filed suit in federal district court today to challenge a Cripple Creek ordinance that forbids union organizers from passing out flyers on public property.


The suit was filed on behalf of union organizer Dean Modecker and Teamsters Local No. 537, which has been organizing workers at several Cripple Creek casinos.


The ordinance bans all "solicitation" on public property unless it takes place on public sidewalks with the permission of the adjoining property owner. According to the lawsuit, Cripple Creek City Attorney Charles Houghton told union organizers that the ordinance applies to their flyers, making distribution illegal unless they secure permission from the casinos that are the targets of their organizing drive. Each violation of the ordinance is punishable by a $500 fine and up to 90 days in jail. According to the lawsuit, Houghton said that each flyer distributed illegally would count as a separate violation of the ordinance.


"The First Amendment protects everyone’s right to engage in free speech along the public right of way, which obviously includes the public sidewalks in a downtown business district," said Jim Hubbell of Kelly, Hagland, Garnsey and Kahn, who filed the case as an ACLU volunteer cooperating attorney with his colleague, Valissa Tsoucaris. "The City of Cripple Creek has no right to censor the Teamsters’ speech, and it certainly has no right to delegate the power of censorship to private property owners."


"The Teamsters have not asked the casinos for permission to pass out flyers on public property, and they have no intention of doing so," Tsoucaris said. "Union organizers do not have to ask the targets of their organizing drive for permission to speak on public property."


In the years since Colorado voters legalized limited-stakes gambling in the historic mining town, casinos have become Cripple Creek’s dominant economic power and the City’s leading source of revenue. "Cities have the power to offer a wide range of economic incentives to private businesses," said Mark Silverstein, ACLU Legal Director. "But the First Amendment is not a bargaining chip. Cities cannot trade in the First Amendment right of the public to engage in free speech on public property. The First Amendment cannot be privatized."


The Teamsters’ organizing efforts have focused on the Midnight Rose Hotel and Casino, one of the town’s largest gambling halls. On November 30, the union filed a complaint with the National Labor Relations Board, charging the casino with unfair labor practices and citing five instances in which the casino allegedly used "fear tactics," including interrogating workers about their union activities and threatending pro-union workers.


According to Modecker, union organizers and suppporters plan to distribute flyers on public property outside the Midnight Rose Hotel on Friday December 11, at 5:30 p.m. The lawsuit asks for an emergency ruling by Friday afternoon, as well as a declaratory judgment, a preliminary injunction, and a permanent injunction.


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