An open letter to the 10th Circuit on free speech and the First Amendment

By Cory Gaines | Commentary, Colorado Accountability Project

The 10th Circuit of Court of Appeals got it wrong on free speech — an open letter

Similar to what Lincoln said of himself — I’m a slow walker but I don’t walk backwards — I often get busy with life and have to shelve writing projects without letting them go. I wrote back in early May about a decision rendered by the 10th Circuit Court of Appeals on legislative immunity. That newsletter is linked first below. The second link is to the judge’s decision.

At the time, I wrote the clerk of the 10th Circuit Court of Appeals and asked how it was that one could send in feedback to the judges on their decision. The clerk said that you can either email them to [email protected], or mail them to the courthouse at 1823 Stout Street, Denver, CO 80257.

I chose email and I am copying in the email I sent the three appellate judges below as an open letter.

https://coloradoaccountabilityproject.substack.com/p/crisis-journalism-legislative-immunity
https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111398382.pdf

An open letter to Judges Carson, Ebel, and Federico on your 3/10/26 decision on Gays Vs. Groomers et. al. vs. Garcia et. al.

To Judges Carson, Ebel, and Federico,

My name is Cory Gaines. I am a resident of Colorado. I’m writing re. your 3/10/26 decision on Gays Vs. Groomers et. al. vs. Garcia et. al.

I link to that decision here for your (and other readers’) reference. I won’t mince words. Your decision, when stripped of your legal sophistry, is wrongly decided. It misses a rather plain and simple First Amendment Right issue, and carries all the savor of a decision written up after the fact to justify your thoughts on the matter; that is, it doesn’t start from any foundational principle, it merely hides weak justification under heaps of important-sounding words and court case citations.

I followed this case closely in the media, not from any particular interest in transgenderism or deadnaming, but for its implications on the First Amendment. This is a classic case of the powerful occupying positions in the government shutting down speech that they do not like.

And they did so with your full blessing.

The First Amendment makes it about as clear as anything else could. Our government cannot make any law abridging the freedom of speech.

Yet in your capable hands, what is actually a rather simple issue is confounded greatly into a lengthy discussion of legislative immunity, perhaps as a way to nimbly sidestep the real issue: yes, government bodies taking public content have the ability to restrict speech, but mainly with regard to the how and not the what. The legislators mentioned in the suit — per your decision freely admitting through counsel that they intend to continue the practice — engaged in content-based moderation. They did not like the content of the witness’ speech, in particular during the Colorado Senate hearing, and thus shut down what they did not want.

As I read your decision, I was reminded of a doctoral dissertation I heard about in mathematics. In that paper, the candidate sought to prove a mathematical object could be characterized in a certain way, say they sought to show it was a vector. Rather than coming straight at the problem, the candidate spent the bulk of the dissertation showing that this mathematical object was in a certain category of mathematical objects. It being known that all objects in this category were vectors, the rest of the proof fell quickly into place: it follows easily that the object is a vector. Your method is similar. By saying that the adoption of rules and enforcing of same falls under legislative immunity, you then say that a rule shutting up a citizen falls under those same auspices.

I wonder what limits you might put on this process. By simply being clever enough, I could spend as many words as you do showing some other, equally repugnant thing is under legislative immunity and then blithely excuse it. Why golly, just imagine the possibilities for the exercise of government power!

The framers, and many that followed, rightfully saw speech directed to their government as in a special category all its own. They spent the time to specifically mention this in the very first amendment to our nation’s founding document. It’s right there at the top, and yet you missed it.

Your decision puts this tradition on its head. It favors the powerful in government over citizens, no matter how fancy a dress you choose to put on it. I know that decisions to appeal are often as much pragmatic as moral, but I hope that the groups that brought this suit decide to appeal your decision. It’s rare for a decision to scream for review more than yours does.

Cory

Phil Weiser and ActBlue

Act Blue is a big (BIG) Democrat fundraising website. People send money in and tag who they want the money to go to, then the money is routed to that candidate or committee. Their website is linked first below.

ActBlue has also been in the news a lot lately. Congressional Republicans have been investigating them for some time, making a variety of allegations including accusations that the group is funneling foreign money into US elections either intentionally or by being lax about preventing it, as well as accusations of straw donors sending money in.

If these accusations were merely coming from Congressional Republicans, this wouldn’t be a post. Political opponents lob all kinds of allegations at each other. That is nothing new.

The thing is, accusations about ActBlue are starting to leak around the edges, and not just from partisan sources. By way of demonstration, I offer you the Complete Colorado article from March 2025 linked second below. It details how a Fort Collins woman seems to have made an astounding 57000 small donations to ActBlue over a period of 6 years. The High Country Advocate piece linked third is in the same line–oddities in donations to ActBlue vs. who is doing them.

READ THE FULL COMMENTARY AT COLORADO ACCOUNTABILITY PROJECT

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