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Tuesday, September 10, 2019

Shouting Down a Speaker Isn't "Lawful Activity"

By Eugene Volokh - September 10, 2019 at 07:59AM

In Oransky v. Martin Marietta Materials, Inc., 2019 WL 4242670 (D. Colo. Sept. 6, 2019), Paula Oransky was fired by Martin Marietta Materials, Inc. She sued, claiming (among other things) that the firing violated a Colorado statute that barred firing employees for any "lawful [off-duty] activity"—in this case, her actions at a community meeting involving Anadarko Petroleum, an MMM customer. (For more on how state statutes limit employer retaliation for employee speech, see this article of mine.) The court held against her, partly because her actions weren't lawful:

Ms. Oransky resides with her family in Erie, Colorado. On September 27, 2017, Anadarko hosted a "Community Forum" in Erie to discuss its plans for oil and gas development in the area. Ms. Oransky attended the forum, where she met and briefly chatted with an Anadarko official with whom she was acquainted through her work.

During the forum, Ms. Oransky—who is concerned about health and environmental consequences associated with oil and gas development—and others protested Anadarko's activities. Ms. Oransky led protesters in a series of call-and-response chants to the effect of "We demand you [Anadarko] leave our community!" and "No drilling, no wells!," among others. The protestors succeeded in causing the forum to be cancelled early. After the protest, Ms. Oransky bragged in an online message that she "helped shut down the meeting." All of the protest activities, as well as the aftermath, were recorded on video and posted on the protestors' public Facebook page … .

MMM's motion first challenges whether Ms. Oransky can show that her protest activities at the forum were "lawful." MMM argues that Ms. Oransky's disruption of the forum constituted violations of Colorado state laws—e.g. Colo. Rev. Stat. § 18-9-108 (prohibiting persons from "disrupting lawful assembly" via "physical action, verbal utterance, or any other means")—as well as provisions of the Erie, Colorado municipal code—e.g. Erie Mun. Code § 7-6-5(N) (prohibiting any "use or attempt to interfere with the use of any … space or facility within parks or recreation facilities … reserved for any other person or group by a permit").

Ms. Oransky responds that no citations were issued by police as a result of the protest and that no one else was attempting to speak at the time when the protest occurred. [But a Colorado Supreme Court precedent interpreting the Colorado off-duty-lawful-activities statute] effectively disposes of Ms. Oransky's contention that her conduct cannot be considered unlawful simply because she was not charged with a crime. In [that case], there was no suggestion that the employee [who had been fired for using marijuana off-duty] had been charged by federal authorities with possession of marijuana; indeed, the Supreme Court noted in a footnote that federal authorities had expressly indicated an unwillingness to enforce federal laws against persons like the employee who were otherwise complying with state medical marijuana laws.. Nevertheless, the Supreme Court concluded that the employee's use of marijuana was unlawful because it was nominally prohibited by law, regardless of whether the law was actually being enforced against him. By the same reasoning, the question here is not whether a police officer actually cited Ms. Oransky with a state or local criminal violation, but whether an officer could have done so.

Colo. Rev. Stat. § 18-9-108 provides that "a person commits disrupting lawful assembly if, intending to prevent or disrupt any lawful meeting, procession, or gathering, he significantly obstructs or interferes with the meeting, procession, or gathering by physical action, verbal utterances, or other means." [Another Colorado Supreme Court precedent] interprets that statute in two significant respects. First, it indicates that, in determining whether a person intended to disrupt a gathering, the factfinder must consider the nature of the meeting, the "implicit customs and usages or explicit rules germane to a given meeting"—i.e. that outdoor events tolerate more disruption than indoor ones, and that political conventions might expect "prolonged, raucous, boisterous demonstrations" whereas funeral services would not—and the extent to which the person "was aware that his conduct was inconsistent with the customs of the assembly and whether he thereby intended his conduct to disrupt the assembly significantly." Second, it suggests that a "significant disruption" to the event must occur….

There is no dispute that the forum was a lawful meeting organized by Anadarko. It was held indoors, in a community room in the town's Community Center, and scheduled to run from 5:00 p.m. to 7:00 p.m. In publicizing the forum, Anadarko explained that its purpose was to invite community members to "meet the Anadarko employees working on these planned activities, learn more about oil and natural gas development, and ask any questions you may have about our operations." As such, the "implicit customs" of such meetings might encompass heated exchanges between individual residents and Anadarko representatives on a one-to-one basis, and perhaps protests and picketing outside the venue, but it would be unreasonable to conclude that such meetings are customarily expected to tolerate groups of 30 or more individuals holding up signs and chanting loudly so as to make other discussions between interested residents and Anadarko representatives impossible.

It is also undisputed that Ms. Oransky fully understood and expected that her conduct and that of the protesters acting in concert with her would disrupt the meeting. In an e-mail sent to protesters just hours before the meeting, Ms. Oransky laid out her plans and expectations. She intended that protesters initially enter the forum shortly before 6:00 p.m. and blend in with legitimate attendees: "Everyone should be looking at the displays, asking general questions to the Anadarko reps to kill time … Do not protest at this time." Other protesters in an e-mail chain that included Ms. Oransky also stated that they would have to "sneak banners in" to the forum..Ms. Oransky's e-mail indicated that at 6:00 p.m., she should give a signal to the protesters and they would begin chanting and displaying signs. Her e-mail makes clear that Ms. Oransky understood and expected that these actions would be disruptive enough that the protesters would be ejected from the forum: "Likely, … we will be asked to leave, which we will do." These facts underscore that Ms. Oranksy knew that her actions and those of the group she was leading would be unwelcome at the forum and would have the effect of disrupting it.

The record is also undisputed that Ms. Oransky's conduct did indeed significantly disrupt the forum. Approximately 2½ minutes after Ms. Oransky's group began chanting—roughly at 6:02 p.m.—a representative of the Community Center announced that the facility was closing and that everyone had the leave the building. Ms. Oransky took credit for that announcement immediately telling a videographer "we closed it down!"

Ms. Oransky is more demure in her response brief, arguing that it is possible that the closure was not a result of her leading the chanting inside the forum room but rather a response to other protesters who were gathered in the hallway or outside the building. But the record is clear that Ms. Oransky was instrumental in the recruitment and instructing of those protesters as well. In a September 17 e-mail exchange, an individual named Theresa contacted Ms. Oransky and asked if she would like as many as 100 protesters from a Boulder-based organization to attend the September 27 forum and protest, and Ms. Oransky responded "I'd be all for that idea." Another participant in the same e-mail chain later advised Theresa that "Paula"—Ms. Oransky—"is going to organize the Anadarko meeting it terms of any noise we need to make outside, etc. We are going to entrust Paula to take on this task." In her e-mail on the day of the forum, Ms. Oransky gives specific instructions to both protesters who would be inside the forum room and "people outside" as well (whom she stated "we will use … as an important secondary event, almost a diversion").

In this sense, when Ms. Oransky boasted that "we closed it down," it is clear that she is referring to all of the protesters that she was directing, both inside and outside the venue. Thus, even if, as Ms. Oransky argues, the forum was cut short because of protesters in the hallway or outside the building, rather than as a result of Ms. Oransky personally leading the chanting inside the forum room, it remains undisputed that the entire protest operation was directed by Ms. Oransky and that the disruption of the forum was the result of her actions.

Under such circumstances, the Court finds that there is no genuine dispute of fact in the record and that, on the undisputed facts presented herein, Ms. Oransky's conduct on September 27 could have been deemed to constitute a violation of Colo. Rev. Stat. § 18-9-108, such that she cannot establish that her activities were "lawful." As a result, MMM is entitled to summary judgment on her statutory claim….

The court also concluded that, in any event, Oransky's actions would have fit within two exceptions to the statute, for activities that "reasonably and rationally relate[] to the employment activities of a particular employee or particular group of employees" (rather than all of the employer's employees), or activities where disciplinary action "is necessary to avoid a conflict of interest" with the employee's liability to the employer. Oransky, the court stressed, wasn't just an average MMM employee, but rather was responsible for maintaining relationships with customers, including Anadarko. These exceptions raise separate and complicated questions, I think, and ones that are peculiar to the particular Colorado law (though they may also be influential in North Dakota, which has a very similarly worded statute). But the point about shouting down not being "lawful activity" may be relevant to many other kinds of disputes as well.


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