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Contributed by: Jan Jackson on 6/3/2008

Freedom of speech.

In America, freedom of speech is one of our most cherished Constitutional rights.

"Bad guys" in our country today hate, loathe and despise We The People's right to freedom of speech. So, when someone says something bad guys don't like or don't want anybody but them to know, it appears that they will say or do almost anything to silence We The People, i.e., to take that right away from us.

Will today's lower courts stop the bad guys from doing that? It appears not. Recently, three egregious lawsuits have been filed by lawyers with, or so it appears, questionable motivations to -- in effect -- "gag" those who are called "whistleblowers". That is, their lawsuits were filed to -- or so it appeared to logical and reasonable Americans, and in one of the cases, others throughout the world -- silence people who were in the process of revealing to the public what they believed were wrongdoings which they believed were happening in certain organizations. Those whistleblowers were also revealing what they believed were wrongdoings to those in positions of authority who would be able to do something about it, if violations of the whistleblowers' Constitutional rights were indeed happening.

One of those lawsuits was filed against an internationally known whistleblowing organization known as "Wikileaks." Another was filed against the American Homeowners Resource Center (AHRC), a nationally known and respected internet-based web site where homeowners who live in homeowners associations (HOAs) can get together anddevelop facts-and-law solutions to the very serious problems they say they are experiencing in their HOAs. And yet another lawsuit was recently filed against three homeowners who live in an HOA in Frisco, Texas.

Due to national and international public outcries against such violations of our Constitutional freedoms, the Wikileaks and Frisco HOA lawsuits were almost immediately either withdrawn or settled out of court. The owner/editor of AHRC, and the state leaders of the three million homeowners throughout our nation who visit the AHRC web site regularly, are still fighting tooth and nail against that lawsuit.

Here in Colorado, a whistleblower named Jan Jackson has been publicly revealing wrongdoings that she believes are happening in her own and other HOAs throughout our nation. Many unconscionable tactics, she claims, have been used to try to silence her and other HOA homeowners. Her own HOA and its lawyer have finally accomplished their goal of silencing her (see below) through a lower court decision she and her attorney and others all believe was done to her through what is legally called a court "error."

What "price" are We The People -- or any one of We The People -- willing to pay for our rights to freedom of speech and all of our other Constitutional and legal rights? Some Americans are willing to pay whatever "costs" they have to -- in blood, sweat and tears -- to keep our rights intact. Some pay the ultimate "cost" for trying to protect their country's freedoms and liberties by fighting in wars in foreign lands. Others pay their freedom and liberty costs right here at home as a result of their political and legal "wars" with those who would try to take their Constitutional and legal rights away from them.

Read on, especially "IV: INJUNCTION" (see excerpt taken from her attorney's Colorado Court of Appeals "Opening Brief" directly below) which silences, completely, Jan Jackson's Constitutional right to free speech as it regards possible future wrongdoings in her own HOA.

"The first numbered paragraph bans Jackson from stating even the name of the Association, the names of "past and present board members," and the names of BLM property owners. Jackson cannot even refer to her own property owners association by name. Nor can she refer to the directors (present or past) of the Association by name. Nor any owner. The ban of paragraph 1 is total. She cannot, no matter what the circumstances, "in any manner or forum," refer by name to the Association or by name to any of its past or present directors or BLM owners.

"Paragraph 2 bans her "in any manner or forum," even "indirectly," from making certain statements, even if true. She cannot, now, even mention the undisputed fact that the Association (but no names - paragraph 1 still applies) did not have, never did have, and did not have as of trial, "legal" water storage rights for Lake Jordan. Or mention the assault unquestionably committed on her.

"Paragraph 3 (also subject to paragraph 1) bans Jackson from "[c]ommunication by any means, including . . . in person with . . . [the BLM] owners, and . . . board members which in any way alleges criminal conduct, civil wrongs, or mental . . . conditions by any past or present board member of the . . . Association" (emphasis supplied). Jackson cannot even talk to her friends who also are owners in BLM - and contrary to the impression the Association wants to make, Jackson does have friends among the owners - or even talk to her husband (he is an owner), in a face-to-face casual conversation over dinner about any perceived possible improper goings-on, including those concerning Lake Jordan and the assault committed on her, even if brought up initially by her dinner companion(s). She can only smile.

"Those three paragraphs are not limited to just new matters. She cannot even mention known and undisputed facts of past matters without violating this injunction. All she can really say - but without naming names - is that everything is just dandy in her unnamed subdivision run by an unnamed association by unnamed directors. As Jackson would say in one of her publications, "Can anyone spell free speech?"

The following is just one small section of Jan Jackson's Colorado Court of Appeals "Opening Brief" which was filed by her attorney in the month of May in the year 2008. This section of the Opening Brief legally addresses her (and all American citizens) Constitutional right to freedom of speech.

5. Qualified Privilege

A property owners association holds significant power over the affairs of its subdivision and serves "quasi-governmental functions." As stated in Woodard v. Board of Directors of Tamarron Association of Condominium Owners, Inc., 155 P3d 621, 624 (Colo. App., 2007): "'This duty [of homeowners' associations to enforce covenants in good faith] has been imposed in recognition of the power held by homeowner[s'] associations, the quasi-governmental functions they serve, and the impact on value and enjoyment that can result from the failure to enforce covenants.'"

It is not just the owners in BLM who have an interest in what the Association does. The public also does. As stated in Diversified Management, Inc., v. The Denver Post, Inc., supra - a libel case - "The matters involved here are alleged widespread and ongoing land-development schemes of questionable propriety. Not all of the lots were sold; consequently, the 'public' contained a number of potential buyers who had an abiding interest in the matter. As a result, we believe the trial court was correct in treating this case as one involving a private figure [the corporate plaintiff] in a matter of public or general concern" (at 1108).

Although all of the lots in BLM have been sold, because all can be resold by their current owners, the "public" contains a number of potential buyers who have an abiding interest in how the Association exercises its quasi-governmental functions. An owner in BLM such as Jackson has a qualified privilege to comment on how the Association exercises it quasi-governmental functions. See Arrington v. Palmer 971 P2d 669 (Colo. App., 1998); Vol. 3, pp.515-516 (Jackson's trial brief). As such, the Association must prove actual malice "with convincing clarity." Reddick v. Craig, 719 P.2d 340, 343 (Colo. App.,
1985). That proof is lacking here. See, Tr., Vol. 1, p. 74 through Vol.3, p. 106 (Jackson's day-and-a-half cross examination).

6. Standard of Review

Only the rules for libel per se apply. Libel per quod rules do not apply. Nor do the rules for slander except to the extent they also apply to libel. The threshold question is whether a statement is, in fact, defamatory. As stated in Churchey v. Adolph Coors Company, 759 P2d. 1336, 1341 (Colo., 1988). "A cause of action for defamation requires, at a minimum, publication of a false statement of defamatory fact." If that threshold test is not met, it is not, as a matter of law, defamatory.

"Whether a writing is libelous per se is a legal question to be resolved as a matter of law by the court." Inter-State Detective Bureau, Inc., v. The Denver Post, 484 P2d 131, 133 (Colo. App., 1971). "Whether a particular statement constitutes fact or opinion is a question of law." Brooks v. Paige, 773 P.2d 1098, 1100 (Colo. App., 1989). Because the evidence of claimed defamation consists entirely of documents, and because the issues involve only legal conclusions based on those documents, this court is not bound by the trial court's conclusions and conducts a de novo review. See C Bar H, Inc., v. Board of Health in and for Jefferson County, 56 P3d 1189, 1192 (Colo. App., 2002). "In evaluating an article which is said to be libelous per se, the court must interpret the article alone, without the aid of inducements, colloquialisms, innuendos, and explanatory circumstances." Inter-State Detective Bureau, Inc., v. The Denver Post, supra. "Although a particular comment might appear on its face to be a statement of fact, when considered in context it may otherwise be revealed to be mere hyperbole, not intended to be understood in its literal sense." Brooks v. Paige, supra, at 1100.

"However, 'Once a court needs to speculate concerning the meaning the statement purports to convey, . . . [it enters] the area of opinion as opposed to factual assertion.'" Brooks v. Paige, supra, at 1101 (brackets in original).

Colorado has adopted a three-part analysis to differentiate fact from opinion:

"(1) the way the assertion is phrased; (2) the context of the entire statement; and (3) the circumstances surrounding the assertion, including the medium through which the information is disseminated and the audience to whom the statement is directed." Wilson v. Meyer, 126 P3d. 276, 280 (Colo. App., 2005).

7. The "Illustrative" Publications Themselves

The above principles require the illustrative articles, in their entireties, to stand on their own before this court. Taken in context, they either are libelous on their faces or they are not. They are either fact or opinion. Anything Jackson (or anybody else) said on the stand about the content of documents that speak for themselves does not change what the documents themselves say ( see, e.g., Tr. Vol. 4, p. 9, ll.15-20 - Mr. Ledford also had trouble remembering things past) . Select words and sentences ("particular comments") do not change content. The sheer volume of the documents also must be taken into account. Under the Association's view, nearly everything Jackson ever published about the directors "libeled" the Association somehow. That sheer volume, all of it, every single exhibit, is to be taken literally as fact - against the Association. Which begs the question - was it fact? Or was it criticism - Jackson's opinion (strongly voiced), of how the directors were running BLM, Jackson's home in which she has an abiding interest? That is the simple question before this court. If this court needs to speculate about the Boolean answer to that question, it necessarily must come down on the side of opinion. Brooks v. Paige, supra.As stated in The Denver Publishing Company v. Bueno, supra (at fn. 9), to be libel per se, in addition to stating a false fact, the "remarks must fall into one of four categories . . . .(a) a criminal offense . . . (b) a loathsome disease . . . (c) [a] matter incompatible with his business trade, profession, or office . . . (d) serious sexual misconduct." Jackson's publications fall into none of these categories.

In its order the trial court took "particular comments" out of context and on the basis of those particular comments alone proclaimed the entire publication libelous - i.e., a false statement of fact directed at the Association (App., p. 3). Libel cannot be predicated on selected words. The context controls. Brooks v. Paige, supra. Furthermore, when considered in their entireties, none of the illustrative publications is libelous. All are opinion. In addition, all fall outside the four categories necessary for a publication to be libel per se.

Other than the assault committed on her (a true fact, discussed below), the Association does not claim Jackson accused it (or the directors) of a crime (Tr., Vol. 4, p. 22, l. 12, to p. 23, l. 7). Defamation per se requires a (false) statement of a "criminal offense chargeable by indictment or by information . . . . It is true that the word 'crook' is derogatory, but the word does not in and of itself impute the commission of a crime." Cinquanta v. Burdett, 388 P.2d 779, 780 (Colo., 1964). See also, Inter-State Detective Agency v. Denver Post, Inc., supra, at 133. Similarly, the words "sickie," "terrorists," "sleaze," and "scum," when considered in context, are not defamation but rather were words of "imaginative expression" and were "not to be taken literally." Arrington v. Palmer, supra, at 672, commenting on Keohane v. Stewart, 882 P.2d 1293 (Colo., 1994). The word "paranoid," in context, is "merely rhetorical hyperbole and cannot reasonably be viewed as an assertion of medical fact." Wilson v. Meyer, supra, at 280

When the phrase "loathsome disease" is typed into a computer search of Colorado cases, only six cases appear. Of those six, only one, a case not selected for publication 1, Fort v. Holt, 508 P2d. 792 (Colo. App., 1973), discusses "loathsome disease" in the context of mental illness. Said the court (at 793), "However, the allegation that at one time a person had been mentally ill does not constitute an imputation that one has a loathsome disease." Other than Wilson v. Meyer, supra, this is the only case in Colorado discussing this topic. There is no case in Colorado stating that mental illness falls into one of the four per se categories (and the only one it could fall into is a "loathsome disease, " mental illness certainly not being a "crime," a term also discussed in Fort v. Holt, which applied, at 794, the rule in Cinquanta, supra, to a slander per se claim).

The illustrative exhibits, as is clear from their faces, are couched in "speculative and conjectural language," "imaginative expression," "rhetorical hyperbole" ( Arrington v. Palmer, supra, at 673) and in "terms of apparency" ( Brooks v. Paige, supra, at 1101). Read in their entireties, the publications, from the language used, are not meant "to be taken literally" but instead are what they purport to be - opinions expressing Jackson's criticisms of how the directors are running BLM.

The audience to whom the publications were directed also must be taken into account. Most of them (Exs. v, w, y, cc, dd, ff, jj, and all the cited pages of mm) were postings on the American Homeowners Resource Center (AHRC) or the Colorado HOA News, web-based forums for expressions concerning matters related to property owners associations (Tr., Vol 1, p. 112, ll 6-11), or e-mails to the BLM membership (the two e-mails in Ex. nn). These are people who have an interest in property owners associations generally (e.g., the AHRC) or in BLM specifically (the owners).

The following words (and derivatives of them ) - "appear," "seem," "may," "might," "think," "if," "indication," "believe," "probably," "observation," "impression," "in my opinion," "feel," as well as editorial comment symbols ( e.g., Ex. mm, pp. 9 and 84, [words "grin" and "sigh" between bracket-type symbols], rhetorical questions ( e.g., title of Ex. ff - which is the same document as Ex. ee), and words in quotation marks - are replete throughout these publications.

These publications are more akin to those in Sall v. Barber, 782 P.2d 1216 (Colo. App., 1989) - ironically cited by the trial court as authority for its order - than to statements considered in true defamation cases . Sall v. Barber lines up with Arrington v. Palmer, Brooks v. Paige, and Reddick v. Craig to form the fours sides of the square within which this court must decide this issue.

And at least one, Ex. cc, is directed at Gary Ledford (identified only as a "wealthy California developer" - see, e.g., Tr., Vol. 4, p. 53, ll. 21-25), who at the time of the publication, July 3, 2005 (well before May 21, 2006), was just an owner. He did not become a director until the following September (Tr., Vol. 1, p. 11, l. 17, to p.18, l. 17). How this exhibit "libeled" the Association is unexplained. See Reddick v. Craig, supra, at 343 .

Moreover, the Association admits it did not have (and as of trial still did not have) adjudicated water storage rights for Lake Jordan. Tr., Vol. 4, p. 86, ll. 17-19. It attempts to parse words in stating that its lack of "adjudicated" rights is not "illegal." Tr., Vol. 3, p. 195, l. 10, to p. 201, l. 12. However, when a water user does not have a "legal" right to use water, "illegal" is a proper description. In re: Water Rights of Elk Dance Colorado, LLC, 139 P.2d 660 (Colo., 2006)(well was "illegal" when users did not have a proper permit - at 663). Also, the assault committed on the 70 year old Jackson by a board member ( see Tr., Vol. 2, pp. 148-149, Vol. 4, pp. 40-44, 48-49, 123-127, and 130, and attachment to Ex. S) is a fact that is an embar-rassment to the Association but not is disputed by the Association ( Id.). But that did not stop the Association, at trial, from carping on Jackson for referring to it in her publications when she was cross examined for a day-and-a-half.

The Association does not like the fact that one of its board members at the time (but no longer a board member) committed an assault on Jackson in front of witnesses. Nor does it like its embarrassments (including the "illegal" lake) being known outside the "family" ( e.g., Ex. mm, p. 71). But her criticisms of the Association - which criticisms began with the fence and led to the "closure" assessment against her - are just that - critical opinions - and are well-founded.

IV.
INJUNCTION

The Association's second counterclaim (Vol. 1, pp. 12-13), never amended, sought injunctive relief against Jackson. The five paragraphs of that counterclaim asserted that Jackson interfered with the "functioning of the Board of Directors in management of Association affairs" ( Id., ¶ 13). The prayer asked for an injunction "enjoining the Plaintiff from specifically naming the Association or its board members . . , enjoining her from threatening or implying [civil or criminal matters] . . , enjoining her from disruptive conduct at . . . meetings. . ."
(Id. p. 13).

The Association is the only counterclaimant. To the extent the Association asks for injunctive relief for anyone other than itself (except possibly the directors when clearly acting in director capacities), the Association lacks standing to seek such relief. Pueblo School District No. 60 v. Colorado High School Activities Association, 30 P.3d 752 (Colo. App., 2001).

The injunction entered by the trial court is in the Appendix at page 5. The first three numbered paragraphs enjoined speech ("Publication," "Publication" and "Communication"). No conduct (other than pure speech) is enjoined. The fourth numbered paragraph mandated her to request removal of prior posted publications and to file with the court proof of her compliance with that mandate, which she did (Vol. 4, pp. 612-651). The injunction did allow her (last paragraph) to seek Association and/or court approval should she desire to say something that facially could be prohibited by numbered paragraphs 1, 2, or 3. The final sentence of that last paragraph then read (emphasis added), " No publication which is otherwise prohibited above shall occur without prior court approval."

The first numbered paragraph bans Jackson from stating even the name of the Association, the names of "past and present board members," and the names of BLM property owners. Jackson cannot even refer to her own property owners association by name. Nor can she refer to the directors (present or past) of the Association by name. Nor any owner. The ban of paragraph 1 is total. She cannot, no matter what the circumstances, "in any manner or forum," refer by name to the Association or by name to any of its past or present directors or BLM owners.

Paragraph 2 bans her "in any manner or forum," even "indirectly," from making certain statements, even if true. She cannot, now, even mention the undisputed fact that the Association (but no names - paragraph 1 still applies) did not have, never did have, and did not have as of trial, "legal" water storage rights for Lake Jordan. Or mention the assault unquestionably committed on her.

Paragraph 3 (also subject to paragraph 1) bans Jackson from "[c]ommunication by any means, including . . . in person with . . . [the BLM] owners, and . . . board members which in any way alleges criminal conduct, civil wrongs, or mental . . . conditions by any past or present board member of the . . . Association" (emphasis supplied). Jackson cannot even talk to her friends who also are owners in BLM - and contrary to the impression the Association wants to make, Jackson does have friends among the owners - or even talk to her husband (he is an owner), in a face-to-face casual conversation over dinner about any perceived possible improper goings-on, including those concerning Lake Jordan and the assault committed on her, even if brought up initially by her dinner companion(s). She can only smile.

Those three paragraphs are not limited to just new matters. She cannot even mention known and undisputed facts of past matters without violating this injunction. All she can really say - but without naming names - is that everything is just dandy in her unnamed subdivision run by an unnamed association by unnamed directors. As Jackson would say in one of her publications, "Can anyone spell free speech?"

The trial court's "balancing" of Jackson's free speech rights guaranteed by both the Colorado and the federal constitutions is no balance at all. The injunction is a gag order. The entire last paragraph process likely would take at least thirty days. Given the Association's attitude toward Jackson, there is no reason to believe that the Association will respond sooner than the allotted 30 days - and then with a likely "no." She then would be left to the mercy of the court as to how much longer she would be kept waiting - even for a true statement. Jackson's hands are absolutely tied by this overarching injunction. What the Court entered was totally unbalanced. No injunction, especially one enjoining speech, should ever have been entered. It is noteworthy that the Association did not ask for a temporary restraining order or a preliminary injunction. The Association's claim of "irreparable harm" is hollow. It was content to wait years before making its case.

As stated in Langlois v. Board of County Commissioners of the County of El Paso, 78 P.3d 1154, 1158 (Colo. App., 2003), A party seeking a permanent injunction must show that: (1) the party has achieved actual success on the merits; (2) irreparable harm will result unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause to the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. [Citations omitted.] Jackson was enjoined only from "Publication" and "Communication." The publications are discussed above. They are not defamatory. But even if they were, the Association, as is demonstrated by its defamation counterclaim, has a remedy at law for true libel. One would think that if the Association truly were concerned about what Jackson was publishing, and if it truly believed it had been libeled with no adequate remedy at law, it would have acted much, much sooner.

The Association has failed to satisfy even one of the four elements to be entitled to a permanent injunction. Given the word "and" in front of the fourth element, a failure to satisfy even one dooms a request for a permanent injunction.

The first element is not satisfied because the Association has not shown success on the merits - i.e., the publications are defamatory on their faces. The second element is not satisfied because no irreparable harm will result. If the Association in the future claims defamation, it does have a remedy at law - sue for defamation. The third element is not satisfied because the harm accruing to Jackson far outweighs the sensitivities of the directors of a quasi-governmental entity who occupy offices they purposely sought. The fourth element is not satisfied because this injunction does affect the public interest. Diversified Management v. The Denver Post, supra; Woodard v. Tamarron Association of Condominium Owners, Inc., supra.

"The first principle of a free society is an untrammeled flow of words
in anopen forum." - Adlai Stevenson.

"Only the suppressed word is dangerous." - Ludwig Borne.

"Criticism of government finds sanctuary in several portions of the
1st Amendment." - Hugo Black.

"Free speech is intended to protectthe controversial and even
theoutrageous word, and not just comforting platitudes too
mundane to need protection." - Colin Powell.

Although the Association alleged interference with ". . . management of Association affairs," it offered no evidence of interference. It offered only speculation about the increased cost of obtaining water rights and the increased costs of insurance. When asked directly if increased insurance costs could be attributed to anything Jackson did, the answer was "No." Tr, Vol. 4, p. 90, l. 19, to p. 91, l. 4. For the water rights, the Association (as of trial) had not yet even applied for water rights (Tr., Vol. 4, p. 85, ll. 7-11). Mr. Ledford offered no evidence - none - that Jackson did anything to hinder an application process that is totally under the control of the board of directors. Tr., Vol. 4, pp. 50-106. Nor did anyone else.

Jackson's right of free speech has been improperly enjoined. This court must dissolve the injunction.

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CONTRIBUTOR INFO

Jan Jackson

Florissant , CO

Jan Jackson has posted 534 stories and 38 comments since joining on 9/14/2005. Jan Jackson 's average story rating is 4.5.

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