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Forced Speech in Colorado

Krist Novoselić • December 27, 2024

The Colorado Supreme Court’s (CSC) recent ruling in Anderson v. Griswold is an attack on political association, and on the fundamentals of Democracy that define America.

The presidential election ballot is required to be cast in November of 2024. The Anderson ruling is not about November’s election. It’s about the March 5th “Super Tuesday” primary in Colorado. The primary is a state administered program. This is when Colorado voters can choose to affiliate with the Republican Party and vote on delegates to the national convention in Milwaukee this summer. According the website Greenpapers, all of Colorado's 37 delegates to the Republican National Convention are allocated to presidential contenders in the state-administered primary.

Anderson places burdens on the 1st Amendment rights of a political party choosing its candidate for the November election. The CSC has effectively inserted itself into the GOP national convention by commanding Colorado GOP delegates to deliver a message the Court wants to articulate.

Forced Speech

The Colorado presidential primary is part of a national party’s process to choose its standard bearer. Colorado, through Anderson, expects its state’s GOP delegation to exclude a preference for a candidate who partisan state officials find distasteful.

It is astounding the CSC expects the Colorado delegation, muzzled by the state, to still have legitimacy at the national GOP convention. How could any Colorado delegate even show up on the convention floor with this millstone hanging around their neck?

The Anderson ruling creates circumstances under which Colorado GOP delegates must express — through omission — the views of partisan state officials. In essence, the Court is vetting the candidates for a group. They’re telling the group who they can-or-cannot stand for public office.

There are legal precedents protecting group expression from state control.

In 1995, the Supreme Court of the United States (SCOTUS) unanimously upheld 1st Amendment protections by striking down government forced speech. In Hurley v. Irish-American Gay, Lesbian And Bisexual Group Of Boston, 515 U.S. 557 (1995) SCOTUS said, “While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.” (579).

Hurley was a case of a private group of veterans in Boston, sponsoring a public parade. An LGBTQ group applied to march in the veteran’s parade. The sponsors denied the request because they did not support LGBTQ values. The Massachusetts Supreme Court upheld the LGBTQ group’s participation in the parade, but SCOTUS eventually overturned this ruling on 1st Amendment grounds. The Court said, “When dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised.” (576)

I personally believe the Boston parade sponsors should have included the LGBTQ group. That said, the veterans group should not have been forced to include groups they do not want to. The key is how the Hurley ruling protects events like pride parades. SCOTUS said, "Parades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration."

The Pride Parade has a lot to say, and is a big deal in Seattle. It is up to the Pride Association, as sponsor of the event, to decide who can-or-cannot march in their annual parade — and not the government. Hurley establishes the right of Seattle Pride to articulate for a community without compromising its message.

A nomination by a political association, like a parade, is the expression of a group’s needs and values. The floor of a political convention is like the drama articulated in Hurley. Delegates are the performers defining subjects and ideas by way of nominating a candidate for the November ballot. This is free speech. On the contrary, Anderson allows the Colorado Supreme Court to force a GOP delegation to become its agent in delivering the Court’s message to the national party. The CSC has stripped autonomy from the Colorado delegates on the floor of the Milwaukee convention.

The State of Colorado, as administrator of the public primary, is abusing its power. Anderson v. Griswold is an attack on political association and members of any and every party should be concerned with the implications of this ruling.

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