VDARE Foundation v. City of Colorado Springs, 11 F.4th 1151

Background

VDARE, a nonprofit that organizes conferences on immigration and national‑identity issues, reserved Cheyenne Mountain Resort in Colorado Springs for a March 2018 conference.
On August 14, 2017 (two days after Charlottesville), Mayor Suthers issued a public statement: he said the City lacked authority to restrict private speech or tell private businesses which events to host, encouraged businesses to be "attentive" to events they accept, and announced the City would not provide any support or resources to the event and did not condone hate speech.
The Resort canceled its contract to host VDARE’s conference the next day; VDARE alleges the City’s statement forced that cancellation but pleads no direct communication from the City to the Resort or a stated reason from the Resort.
VDARE sued under 42 U.S.C. § 1983 for deprivation of First Amendment speech/association rights and for First Amendment retaliation, and asserted a state tort claim for intentional interference with contract; it sued the City and Mayor Suthers (individually).
The district court dismissed the federal claims for failure to state a claim and declined supplemental jurisdiction over the state tort claim; the Tenth Circuit affirmed the dismissal of federal claims and the decision not to exercise supplemental jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Resort’s cancellation is attributable state action under § 1983 (nexus test)	The Mayor’s statement effectively coerced or significantly encouraged the Resort to cancel, so the Resort’s act should be treated as state action	The City made no threats or orders, gave no follow‑up coercive acts, and lacked regulatory/contractual control over the Resort; mere influence or public criticism is insufficient	The complaint fails to plausibly plead the requisite coercion/significant encouragement; Resort’s cancellation is not state action
Whether the Mayor’s public statement is actionable private‑speech suppression versus protected government speech	Statement was a ‘‘thinly veiled threat’’ targeted at VDARE that chilled private speech and withdrew municipal protection	The statement was government speech (Mayor speaking for the City), historically and publicly attributable to government and under gov’t control; government may express disfavored views	The Statement is government speech and thus not subject to First Amendment restrictions on government regulation of private speech; it was not plausibly a coercive threat
First Amendment retaliation (chill, causation, motive)	Statement calling VDARE ‘‘hate speech’’ and announcing withdrawal of resources chilled VDARE and caused injury (Resort cancelled), showing retaliatory motive	Allegations are speculative/conclusory; temporal proximity alone and protected government speech are insufficient to establish causation or that a person of ordinary firmness would be chilled	Retaliation claim fails: VDARE did not plausibly plead objective chill or causation linking the City’s statement to the Resort’s cancellation
Qualified immunity and state tort claim (intentional interference)	Mayor may be liable individually; state claim should proceed if federal claims survive	Mayor asserts qualified immunity; district court declined supplemental jurisdiction over state tort claim after dismissing federal claims	Because federal claims fail, Mayor is entitled to qualified immunity; court declines to exercise supplemental jurisdiction over the state tort claim

Key Cases Cited

Jackson v. Metro. Edison Co., 419 U.S. 345 (government must have exercised coercive power or provided significant encouragement for private conduct to be state action)
Blum v. Yaretsky, 457 U.S. 991 (state action requires coercion or significant encouragement; regulation/approval alone insufficient)
Rendell‑Baker v. Kohn, 457 U.S. 830 (receipt of government funds/contracts does not automatically make private action state action)
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (government permission/approval of private choice cannot alone create state action)
S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (government subsidy/assistance does not ipso facto create constitutional responsibility)
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (state commission’s threats, police follow‑ups, and implied prosecutions constituted coercive state‑sponsored censorship)
Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015) (three‑factor test for government speech: history, public perception, government control)
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (government may speak for itself and choose content when it is the speaker)
Rust v. Sullivan, 500 U.S. 173 (1991) (government may selectively fund or express programs it favors without violating speech clause)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard; courts use judicial experience and common sense)
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead facts plausibly suggesting liability)
Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991) (government letters criticizing private publications without threats are protected speech)
R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85 (3d Cir. 1984) (municipal expressions of disfavor that lack enforceable threats do not render private action state action)
X‑Men Security v. Pataki, 196 F.3d 56 (2d Cir. 1999) (legislators’ accusatory letters without control over contract awards were protected speech)
Hammerhead Enters. v. Brezenoff, 707 F.2d 33 (2d Cir. 1983) (public official’s entreaties to merchants were non‑coercive political speech)