Jerry Kopel

Free speech...everyone is for it, if what is said pleases the listener. As Colorado celebrates Labor Day Sept. 1, we should appreciate how the 1997 state legislature helped employees in the public and private sectors by passing HB 1224 the "Freedom of Legislative and Judicial Access Act". The new law was sponsored by Rep. Joyce Lawrence, R-Pueblo and Sen. Don Ament, R-Iliff.

HB 1224 enjoins a public or private employer from "forbidding or preventing" anyone under its control or oversight from testifying before a legislative committee, or speaking to a legislator, or testifying before a court, as long as the free speech doesn't disclose "confidential, proprietary, or otherwise privileged information".

There is a loophole. The legislative committee has to "request or invite" the testimony. So does the individual legislator. So does the court. But the committee or the legislator or the court isn't supposedly going to know what would be said without knowledge PRIOR to the invitation or request, and that could lead to falsifying the series of events leading to the invitation.

This new law provides for criminal penalties and civil damages for violations. The measure had almost no trouble in the Senate, but lots of trouble in the House.

The House passed the bill on third reading, 38 to 27 with 20 of the 27 "no" votes from Republicans. The Senate passed the measure 34 to 0. It went to conference committee after Senate revisions and repassed the Senate 33 to 1 and the House 42 to 23, with 18 of the 23 "no" votes cast by Republicans.

This law was first tried in 1991 as HB 1248, leading Richard Tucker in the Statesman to write "Politics make strange bedfellows. None so strange as the coupling of State Rep. Jerry Kopel, a liberal Democrat from Denver, and Sen. Ray Powers, conservative Republican from Colorado Springs. The unlikely pair teamed guarantee First Amendment rights of free speech to state employees."

HB 1248 passed the House 62 to 0 and then died in Senate Business Affairs 5 to 4, wrote Tucker, after "it was amended by Sen. Mary Anne Tebedo, R-Colorado Springs, to include all employees", and she then cast the deciding vote to kill the measure.

The key in both HB 1224 and the previous HB 1248 is "prior restraint". Both bills provided that employers can't forbid a worker from testifying in advance. But now that HB 1224 is law, it might be useful to strike some of the present language removing all references to the necessity of a "request or invitation" to speak.

A Jan. 19, 1990 Rocky Mountain News story by John Sanko begins: "The superintendent of the Colorado School for the Deaf and Blind was attacked on the Senate floor yesterday for a memo sent to staff members in Colorado Springs warning them not to contact state lawmakers or their aides."

Sponsors might also remove the limitation presently imposed that the right to speak applies only to "action, policy, rule, regulation, practice, or procedure of any person or regarding any grievance relating thereto".

If an employee wants to testify for or against abortion rights or for or against the right to possess guns, and such issue has nothing to do with the job of the employee, but is simply a personal bias of the employer, the language in HB 1224 may not cover the issue, making the employee susceptible to being fired.

When HB 1248 was before Senate Business Affairs in 1991, Rocky Mountain News reporter John Sanko quoted witness James Joy, executive director of the American Civil Liberties Union of Colorado:

"I think there are some people now who honestly feel that they have a right to tell their employees they can't speak up, and they do it on a regular basis". Joy then noted that "Denver police were barred from speaking out on gun-control legislation a couple of years ago."

Do I personally know of a situation where someone was ordered not to testify even though the testimony had nothing to do with performance of his duties? Yes.

On Jan. 14, 1982, Robert Cantwell, then a Denver Police lieutenant and project coordinator of the Colorado Organized Crime Strike Force provided a written report to the House Judiciary Committee based on contact with peers in nine other states that already had lotteries in place.

Colorado was in the midst of a bitter fight on whether to establish a lottery and if so, how the law would be worded. The Cantwell report indicated that eight of the nine states had problems with illegal activities including numbers games using lotto numbers.

I asked Lt. Cantwell to testify at a House committee hearing on the bills introduced. He did not show up. When I later contacted him, he told me he was ordered by his superiors not to testify. I later discovered that the order had come from Mayor Bill McNichols, and was passed down to Lt. Cantwell.

Finally, sponsors should add the "press" which includes all forms of mass communication to those with whom one can speak freely. From a widely distributed Capitol Reporter story in April 1990 by Brian Gallagher under the headline "Fears follow vet-home firing":

"When Dennis Karnowski, superintendent of the Homelake veterans nursing facility in the San Luis Valley was fired for talking to the press, he left behind a gag on state employees and a superior performance record. Because of his high rating, his termination has some state employees afraid to talk to the press for fear of losing their jobs too."

"...Betty Hopper at the state auditor's office said she was leery of her name being used in a story because, she said, people lose their jobs for talking to the Capitol Reporter."


Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

Home  Full archive  Biographies  Colorado history  Colorado legislature  Colorado politics   Colo. & U.S. Constitutions  Ballot issues  Consumer issues  Criminal law  Gambling  Sunrise/sunset (prof. licensing)


Copyright 2015 Jerry Kopel & David Kopel