What is happening to the First Amendment and the right to free speech? What has happened to providing some sense of balance in numbers of mainstream media reports? Those are timely questions with respect to a recent pre-election incident that has ongoing ramifications to business professionals in their right to communicate with employees or residents regarding this or any election-related topics.
The State of Colorado Department of Law (state attorney general’s office) issued a cease and desist notice to Edward Bernard (“Bernie”) Pagel that was emailed and hand-delivered on October 23, 2020.
Pagel had issued a memo to his residents. The text of that “Pagel Notice” is shown in the the State of Colorado’s notice as follows.
Please understand IF Joe Biden is elected as our next President, everything you do and have to pay for will change completely.
Everything will be increased. Like paying ALOT more in taxes, utilities, gasoline, new permits, fees and regulations…everything!
This also means YOUR RENT will be increased to cover these expenses. Most likely, rent would DOUBLE in price!
IF the current President is re-elected, WE WILL NOT RAISE THE RENT FOR AT LEAST 2 YEARS!
Voting is your choice and we are not telling you how to vote. WE are just informing our tenants what WE will do according to the election results.
If Trump wins, we all win. If Biden wins, we all lose.
VOTE on November 3, 2020.”
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That memo from Pagel drew a raft of mainstream media reports, as residents went to public officials and others upset about the arguments being made.
CBS4 Denver posted this 15 second video that said in part: “Colorado AG Says Landlord Engaged In Voter Intimidation.”
“Bernie Pagel is accused of distributing notices to tenants that rent would double if Joe Biden was elected president,” said CBS4 Denver’s YouTube page description.
A longer video news segment was produced by ABC affiliate Denver7 – The Denver Channel. Denver 7 said this “Tenants at Fort Morgan trailer park say landlord is telling them how to vote.”
“Tenants at a Fort Morgan trailer park say their landlord is telling them how to vote and threatening them with a rent hike if the election doesn’t go his way. Denver7 Investigator Jennifer Kovaleski has more,” read The Denver Channel’s YouTube page brief.
Note that the land-lease community is reportedly named “Ed Pagel’s Trailer Park.” The Better Business Bureau (BBB) on this date shows “no rating” and “no complaints” for the business. Google has dozens of reviews, with an average of some 2.8 stars as of this date.
The Colorado Department of Law
Whatever one may think of the phrasing of the communication from Pagel to his residents, a common miss by most mainstream media appears is to probe some simple questions. For instance:
- Did Pagel have the legal, free speech right to issue the memo?
- Were Pagel’s arguments, however cumbersome or arguably problematic in their phrasing, correct in saying that costs for residents – and others – would rise under a Biden Administration?
The New York Times 10.22.2020 report on this matter said in part, “Juana Hernandez, whose parents have lived for about 10 years at Pagel’s Trailer Park in Fort Morgan, 80 miles northeast of Denver, said in an interview on Thursday that the notice had been rolled up and stuck in the fence of their $280-a-month lot.
“It’s just really infuriating because most of the people who live in the trailer park are Hispanic,” said Ms. Hernandez, whose parents immigrated from Mexico. “A lot of them, they don’t even have the right to vote. I do think that it is intimidation.” She said her parents were already struggling financially because her father had to stop working at a nearby meat processing plant after getting the coronavirus.”
However authentic the emotion, Hernandez saying that “A lot of them don’t even have the right to vote” – implying that they are not legally in the United States – logically belies the notion that this was “voter intimidation.”
Additional Information from the State of Colorado, MHProNews Analysis and Commentary
MHProNews obtained a copy of the Colorado Department of Law (DOL) Cease and Desist Notice hand-delivered and emailed to “Bernie Pagel.” That state document is linked here. It reads in part as follows.
This letter serves as NOTICE that the Colorado Department of Law
(“Department”) has cause to believe that Edward Bernard (“Bernie”) Pagel has
engaged in, or is currently engaging in, unlawful voter intimidation as defined in
the Colorado Uniform Election Code of 1992 (“Election Code”), Colo. Rev. Stat. § 1-
13-713
Specifically, § 1-13-713 prohibits voter intimidation as follows: It is unlawful for any person directly or indirectly, by himself or by any other person in his behalf, to impede, prevent, or otherwise interfere with the free exercise of the elective franchise of any elector or to compel, induce, or prevail upon any elector either to give or refrain from giving his vote at any election provided by law or to give or refrain from giving his vote for any particular person or measure at any such election.”
Carefully note the phrasing, “to impede, prevent, or otherwise interfere with the free exercise of the elective franchise of any elector or to compel, induce, or prevail…”
How was Pagel’s Notice preventing or compelling a vote? However ham-handed the phrasing may be seen, Pagel specifically said in his memo to residents that “Voting is your choice and we are not telling you how to vote. WE are just informing our tenants what WE will do according to the election results.”
Note the following from the same DOL letter to Pagel.
“Colorado law authorizes the Attorney General to take legal action to enjoin violations of the Election Code and take other actions, potentially including criminal prosecution, to protect the integrity of elections and to prevent voter intimidation.”
Pagel and the state of Colorado were both contacted earlier this morning in order to give them a chance to respond to MHProNews questions about this issue. As of this time, neither has responded. Should a reply come in after this article is published, it may be added as an update to this report, or may be the topic for a follow-up report.
That noted, MHProNews sent the following to officials named in the cease and desist notice to Pagel. It seeks to frame the issues and provides readers – as well as Colorado officials and other interested parties – a context of the colliding issues involved.
Rob Shapiro First Assistant Attorney General and
Assistant Attorney General Emily Burke Buckley,
As you know, publications and media ranging from the New York Times to Fox News has covered your cease and desist notice to Edward Bernard “Bernie” Pagel as a formal response by your office to his memo posted on residents’ doors and home sites at the land-lease community Pagel operates. That notice from your office is attached for our clarity in communications.
By way of introduction, MHProNews is the runaway largest and most read trade media serving the manufactured housing industry. Our readers include professionals, legal, public officials, advocates, media, and others.
That noted, this issue was brought to our attention pre-election. We thought it prudent to hold our report until now, and would value your emailed response to the following. Note that we have reached out this morning to Pagel for his comments too.
As non-attorneys, but having to deal with legal topics on a routine basis, this seems to be a question of free speech rights, not only a matter of purported “voter intimidation.”
Your cease and desist order cites these two cases.
- “Economic coercion can constitute voter intimidation that is not protected by the First Amendment. E.g., United States v. A.T. Beaty, 288 F.2d 653 (6th Cir. 1961) (landowners evicting and refusing to deal in good faith with tenant farmers for purpose of interfering with their voting rights is economic coercion that constitutes voter intimidation)…”
- United States v. Bruce, 353 F.2d 474 (5th Cir. 1965) (landowners ordering insurance collector active in encouraging voter registrations to stay off their property, preventing him from reaching business clients, constituted voter intimidation).
With all due respect to your important office, but how do either of those apply to Pagel and the circumstances in question?
A progressive publication, The Atlantic, did a report on what is arguably a parallel matter, the right of employers to communicate to their employees about election-related issues. Quoting:
“Basically, employers have freedom of speech. That means they can say what they want, including strongly suggesting that employees vote for candidates and sending sample ballots to them. Your boss can’t walk into the voting booth with you, and she can’t pay you to vote for a particular candidate, but often there’s little else he or she can’t do.”
In a more recent employment related matter, the more conservative Jobs Creators Network (JCN) issued a statement in defense of an employer that was likewise advising their workers on the possible post-election impacts of former Vice President Joe Biden being elected.
“Employers have the right to educate their employees about the negative impacts of policy and we believe they have an obligation to do so,” Elaine Parker with JCN stated, per WESH Orlando.
Presumably Parker had legal advice on that point, as did the Atlantic author linked above.
With that backdrop, the following is what MHProNews would value your response to this morning.
- While an argument can be made that Pagel’s Notice could have been better phrased, does possible poor phrasing by Pagel negate his free speech rights?
2. Is the State of Colorado attempting to criminalize election related free speech that threatened no violence?
Those questions from MHProNews to you are framed in a deliberately pointed fashion in order to frame the issue. The ACLU of old would have defended Pagel’s Notice, as a recent article by progressive Attorney and journalist Glenn Greenwald could reasonably be construed to apply to this matter.
Please email your reply to each of the above, you could type your response under each of those two numbered items for our mutual clarity and accuracy in handling.
We’d value your prompt response to those questions.
Before closing, let me note for our mutual clarity that we as trade media have often taken to task truly predatory behavior by several professionals in our industry over the years. I share that to say that we do not blindly defend a manufactured housing industry professional. Right is right and wrong is wrong regardless of who does either.
I’m blind copying an attorney and colleague to document this inquiry. We will report regardless of your reply. I sincerely hope and encourage you to email a prompt reply. Thank you.
Tony”
[…Name and contact information For MHProNews.]
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This Pagel, community, and employment-related matters were brought to the attention of MHProNews pre-election. For a variety of reasons, they were not dealt with until today, when they can be considered with less emotion and perhaps more objective reasoning.
While this matter was in Colorado, other instances in employment that are arguably similar in nature were reported in various states.
Civil rights and constitutional law attorney Alan Dershowitz has long argued a simple test, what he calls putting the shoe on the other foot. Applying that notion to this Pagel/free speech matter, among the related questions that might be asked to bring balance to this concern are these.
- How many state AGs issued cease and desist notices to Black Lives Matter – the nonprofit organization as opposed to the slogan, a local Antifa group, or other violence-prone groups pre-election for arguable voter intimidation?
- Yet, people involved in those movements made public statements of a threatening nature, often in direct connection to the election. See the report linked further below.
Recall that MHProNews reported pre-election that Shut Down DC called for “unrest” in the streets if the election outcome went against Joe Biden. Given well-documented issues of violence, looting, arson, and property destruction that often accompanied these moves, isn’t that a far more clear instance of voter intimidation than what Bernie Pagel’s relatively tame notice to his residents manifest?
Post-election, leftist Public Citizen – in case the courts end up deciding that President Donald J. Trump’s campaign was victimized by levels of voter fraud sufficient to change the election outcome – called for taking to the streets too, a thinly-veiled code for unrest.
While there are no doubt cases of Trump supporters who crossed some legal line, has it not been far more common that leftists to be the source of violence, both pre- and post-election?
The election is over. The winner has not yet been certified, but the issues that this election has raised are far from over.
Agree or disagree with the 45th president and his policies, a recent count of 2020 voting reflects that roughly 10 million more people voted for President Trump and Vice President Mike Pence than in 2016. Given the highly-negative media coverage, the efforts by tech giants to limit, censor, and remove pro-Trump or harmful-to-Biden statements and reports, and months of suppression polls that made it seem like the president had no chance, the outcome was far different than many in mainstream media led the nation to believe.
Democrats lost seats in the House, instead of the poll and expert-predicted “blue wave.” Democrats lost numbers of state races to Republicans too.
But this specific issue of Pagel, Colorado’s Department of Law, and its implications are not about a specific candidate. Rather, they are better considered as principles that should be applied equally across the left-right divide.
The issues that this Bernie Pagel incident raises are many. Some could be summed up as follows.
- How mainstream media framed the issue. Just asking Pagel to comment was not enough. By framing news stories in a fashion that failed any balance to possible defenses that Pagel’s statement may have merited was unjust to him and others in a similar situation.
- Simply accepting the Colorado Department of Law’s cease and desist letter at face value was also problematic. Where were the media and free speech voices spotlighted that raised the question, are some in the Colorado Department of Law attempting to criminalize free speech that is election related?
- However problematically phrased Pagel’s notice might have been, where was the analysis that might point to the notion that his argument that costs would rise under a Biden Administration may or may not have economics-based merit?
- At its heart, this “Pagel Notice” issue had nothing to do with this or that candidate. Rather, it is a question of what is or is not constitutionally -protected free speech. Given that Pagel didn’t threaten to evict a resident based upon a possible vote for Biden, how did the case law cited by Colorado even vaguely apply?
DOL Staff Acting Under Color of Law…?
Did certain Colorado officials engage in an act of official oppression of Pagel’s free speech rights? It is a reasonable question. According to the Department of Justice’s website, dated May 19, 2020 · “Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States. For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority…”
MHProNews will continue to monitor this episode and will do a follow up as warranted.
There is always more to read and more to come. Stay tuned with the runaway number one source for authentic “News through the lens of manufactured homes and factory-built housing” © where “We Provide, You Decide.” © ## (Affordable housing, manufactured homes, reports, fact-checks, analysis, and commentary. Third-party images or content are provided under fair use guidelines for media.) (See Related Reports, further below. Text/image boxes often are hot-linked to other reports that can be access by clicking on them.)
By L.A. “Tony” Kovach – for MHProNews.com.
Tony earned a journalism scholarship and earned numerous awards in history and in manufactured housing.
For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. He’s a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.
This article reflects the LLC’s and/or the writer’s position, and may or may not reflect the views of sponsors or supporters.
Connect on LinkedIn: http://www.linkedin.com/in/latonykovach
Related References:
The text/image boxes below are linked to other reports, which can be accessed by clicking on them.
VP Joe Biden’s Pledges vs. Behavior, What the Biden-Harris Team Said and Does Pre- and Post-Election
“What is Wrong is That We Do Not Ask What is Right;” Sunday Weekly Headlines Review
