Lee Mulcahy appeal denied over ban from Aspen Institute property
A district judge this week upheld a Pitkin County judge’s ruling that prohibits Edward “Lee” Mulcahy from entering the Aspen Institute’s Aspen Meadows campus or having contact with its representatives.
Judge Daniel Petre ruled that County Judge Erin Fernandez-Ely’s decision in the case last year was not overly vague nor did it infringe on Mulcahy’s rights of free speech.
Mulcahy posted a comment on the Aspen Institute’s Facebook page in November 2012 that was interpreted by officials there to be a threat. He wrote, “Hey elites, you’ve divided us long enough. Be fair to us little people OR you’re gonna have pitchforks and guns at your door. Yea, some of us white trash at occupy aspen (sic) believe in the N.R.A. too. #Remember the Alamo. Raise your glass to the Old Aspen.”
Shortly after that comment was posted, the Aspen Institute filed for a restraining order. Fernandez-Ely granted it. Mulcahy appealed that his first argument was that the order was unconstitutionally vague. Petre said the trial court’s order clearly prohibits Mulcahy from coming within 100 yards of the Aspen Meadows and other Institute property, with the exception of going to Christ Episcopal Church of Aspen. It also spells out Mulcahy’s responsibilities when he encounters Aspen Institute officials elsewhere in Aspen.
“A person of ordinary intelligence can read the protection order and understand its terms and conditions,” Petre wrote in his ruling. “Therefore, the protection order is not void for vagueness.”
Petre also ruled against Mulcahy’s claim that the protection order infringes on his rights to free speech. He said Mulcahy’s comment on Facebook constituted a “true threat” in the eyes of the law, whether or not Mulcahy meant to make a threat.
“The legal test is whether a reasonable speaker or reasonable recipient would perceive the statement as a threat of harm,” Petre wrote.
He noted that Fernandez-Ely’s hearing showed that several employees of the Aspen Institute testified that they feared for their safety after reading Mulcahy’s comments.
“In its findings, the trial court found that Defendant intended to threaten bodily harm by making an explicit reference in the posting to ‘guns at the door,’ in addition to the implicit incitement of revolution against those whom the Defendant identifies as the ‘elites’ in Aspen,” Petre wrote.
He concluded that a “reasonable person” could perceive the Facebook posting as a genuine threat of harm. Therefore, the posting was not constitutionally protected free speech, Petre ruled.
The ruling was filed Monday.
Mulcahy also has a lawsuit pending against the Aspen Skiing Co. over its decision to ban him from its property and federal land it leases for its ski areas. The Skico case was unaffected by Petre’s decision in the Aspen Institute case.
Mulcahy, who is the Libertarian candidate in the Senate District 5 race this fall, released a statement regarding the ruling against his appeal.
“People know I’m David fighting Goliath, so to be banned by the Aspen Institute is a badge of honor in Basalt, Salida, Buena Vista, Gunnison, Leadville, Gypsum and all the surrounding towns that resent Aspen’s limousine liberalism,” Mulcahy wrote. “More importantly, I’m real sorry to those that said they’re scared and ask for their forgiveness by my poor word choice. This is all a big misunderstanding — I don’t even own a gun.”
He claimed his language in the Facebook posting was a metaphor and a prediction of revolution rather than an actual “credible threat.” He said he was told that an “inside joke” at the Aspen Institute at the time of the initial trial was that all you had to do to earn a promotion was to claim fear over his comments on Facebook.
Mulcahy said he is considering filing an appeal of Petre’s decision with the Colorado Court of Appeals.
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