On July 25, Fraser residents, Alan Jensen and Melinda McWilliams filed suit against the Town of Fraser in US District Court. The suit was prepared by attorneys Christopher M Jackson and Alyssa L Levy, of Sherman & Howard LLC and submitted in cooperation with the ACLU Foundation of Colorado. American Civil Liberties Union Foundation of Colorado attorneys, Mark Silverstein and Sara Neel are included in the 18 page submittal.
Background
In January 2017, Jensen erected communicative displays on a flag pole in his yard that protested the election of President Donald Trump and called for action on global warming. Over the following year and a half, he added more displays, until there were eight politically-expressive two-sided displays on his property.
Photo courtesy ACLU
The five large displays—“Save our planet,” “Trump sucks,” “Make America smart again!”, “Impeach the Putin puppet,” and “Gotta vote”—were painted on hollow-core doors that were 2’4” or 2’6” by 6’8”. The ‘Toxic Trump’ display was 30” by 53”. The “Fraser River too” and “The Lying” displays were significantly smaller.
The filing states that in September 2018, Jensen received a letter from Fraser town manager, Jeff Durbin, stating that Mr. Jensen had violated Chapter 19, Article 6, Sections 19-6-250 and 19-6-310 of the Town’s municipal code by erecting the signs and that the Town was taking action after receiving what it characterized as “multiple complaints.” The letter demanded that Jensen provide a “satisfactory response” within one week or face prosecution by the Fraser/Winter Park Police Department. 23. The filing states this was the first time Jensen or McWilliams had been contacted by the town regarding their displays.
On October 26, 2018, Jensen and McWilliams met with the town manager, town planner and assistant town manager. Mr. Jensen and Ms. McWilliams stated that they believed the displays met the Code’s definition of “works of art” and were therefore exempt from regulation. The filing states Town Manager Jeff Durbin conceded that their “Toxic Trump” sign might be a “work of art,” but maintained that the other displays violated the Code. He told Mr. Jensen and Ms. McWilliams that if Mr. Jensen did not comply with the letter, the Town would issue a citation. A follow-up meeting was set for November 12, 2018.
At the meeting on November 12th, Jensen and McWilliams again met with the Town Manager, Town Planner and Assistant Town Manager. Ms. McWilliams stated that Mr. Jensen and she would remove the displays, “under threat of prosecution”, and that she would work with Mr. Jensen to convert the displays into artworks that the Town would consider “works of art.” Jensen and McWilliams showed Town Manager Durbin four conceptual sketches of the works they intended to post (“Proposed Works”):
Photo courtesy ACLU
McWilliams had designed and drawn the four sketches submitted. According to the filing, the town manager told Jensen and McWilliams, they could not post the proposed works because they “will just attract more attention.” Ms. McWilliams then said that she thought “the Town’s actions implicated the First Amendment” to which the town manager replied, “if they were going there, the meeting is over.” The town manager requested Jensen and McWilliams submit a letter detailing their concerns by Friday, November 16.
On November 16, Jensen and McWilliams submitted a letter in response to town manager Durbin’s actions at the November 12 meeting. The letter discussed why the original displays and the Proposed Works were “works of art” under the Code and were protected expression under the First Amendment. The letter also identified other properties with similar pieces that the Town apparently regarded as “works of art”, because otherwise they violate the Code’s size, number, and placement restrictions on “signs.” Finally, the letter noted that Jensen had removed the original displays from the flagpole “due to the Town’s threats of prosecution” and had erected the original ‘Toxic Trump’ display on his shed wall as a “work of art.”
In response, Jensen received a letter from the town manager Durbin, dated November 26, 2018, stating that he disagreed that Jensen’s original displays constituted “works of art,” but that Jensen had corrected the Code violation by removing all of the signs from the flagpole. Manager Durbin also said that the ‘Toxic Trump’ sign was a “wall sign,” not a “work of art,” but stated that the letter would serve as a permit for the sign.
The grounds of the lawsuit state that Jensen and McWilliams want to post the three remaining Proposed Works that they showed the town manager as conceptual sketches at the November 12 meeting, on Jensen’s shed wall. However, the document states, they have refrained from posting the Proposed Works because of Mr. Durbin’s position at the November 12 meeting and in the subsequent November 26 letter that the works were actually “wall signs,” not “works of art,” and therefore posting them would exceed the limit on “wall signs” and violate the Code.
The lawsuit cites a number of claims of unconstitutionality as it pertains to freedom of speech and expression, exempting certain types of expression from regulation based on the content. “Even if the Code were content-neutral, it is not narrowly tailored to advance any possible legitimate interest of the Town. The Code is hopelessly underinclusive, restricting certain signs while not regulating others that would presumably pose similar harms.” It goes on to say “Without any justification, the Code chills peaceful political expression that is squarely protected by the First Amendment and article II, section 10 of the Colorado Constitution.”
Jensen and McWilliams are seeking a preliminary and permanent injunction enjoining Fraser from (1) enforcing Fraser Municipal Code Chapter 19, Article 6 and (2) targeting political speech for increased regulation by changing its classification; a declaratory judgment that the challenged provisions of the Code, on their face and as the Town has been interpreting and enforcing them, violate the First Amendment; the Fourteenth Amendment; and article II, sections 10 and 25 of the Colorado Constitution; Nominal damages under 42 U.S.C. § 1983; an award of Plaintiffs’ costs and reasonable attorney’s fees; and such additional relief as the Court may deem just.
To read the full submittal, visit the article at winterparktimes.com.
On the afternoon of July 25th, a statement was released by town manager Jeff Durbin. “The Town of Fraser respects First Amendment freedom of speech rights. In fact, in 2018 the Town of Fraser rewrote the sign code to avoid any infringement on freedom of speech. We were just notified in regard to this lawsuit. We take this matter seriously and are currently reviewing the complaint. We have no further comment at this time.”
The Winter Park Times will continue to monitor developments and provide updates as they occur. To read the Town of Fraser Municipal Code, visit frasercolorado.com.
