Jerry Kopel

"The state can no more censor ideas on the basis of their intellectual or artistic merit than on the basis of their political content."

Supreme Court Justice Donald Kelley, 1973

Donald Kelley died in September at age 87. The former Colorado Supreme Court Justice was also a state senator and we served together in 1965 and 66. One major decision by Justice Kelley in 1973 resolved the issue of flag desecration versus the right of free speech.

Justice Kelley's decision was one which showed great courage, and preceded a similar U.S. Supreme Court decision by 16 years. Perhaps now is the time to publish excerpts.

"The defendant, David Patten Vaughan, was arrested on a public street in Boulder wearing a pair of blue jeans on the seat of which a portion of the American flag had been sewn. In an information filed by the district attorney (Stan Johnson), it was charged that the defendant "did unlawfully, by his acts mutilate, deface and defile a flag of the United States of America with intent to cast contempt thereupon;" contrary to CRS 40-23-3 (1). He was found guilty by Boulder District Court Judge Rex Scott.

Judge Scott was reversed by the Colorado Supreme Court on Oct. 1, 1973. While Justice Kelley quotes from a number of court decisions in reaching his conclusions, it is worth considering words that were his own:

"The flag affixed to the seat of the defendant's pants was a gesture of defiance and dissent to those who revere the flag as a symbol of the blessings of American citizenship, and evidences an intent to communicate an attitude of political antagonism to those who support legitimate authority represented by the flag.

"Just as some citizens paste flag decals on their car windows to indicate their support of certain political philosophies, defendant adorned the seat of his jeans with a flag to indicate his contempt for those things which the flag symbolizes.

"The ideas expressed by defendant's conduct may seem to some to be juvenile and inarticulate, but this does not strip his "speech" of constitutional protection. The First Amendment is not the exclusive property of the educated and politically sophisticated segment of our population; it is not limited to ideas capable of precise explication....

"The state can no more censor ideas on the basis of their intellectual or artistic merit than on the basis of their political content..."

"The section challenged, in effect, limits the expression of ideas about the flag to patriotic expressions acceptable to those charged with the enforcement of the criminal law. It attempts to impress a symbolic orthodoxy upon the people of direct conflict with the fundamental values protected by the First Amendment."

Justice Kelley's sensitivities were also reflected in the controversy in Colorado over fair housing that became a major issue in the House and Senate in 1965. Kelley was on the committee appointed by Gov. Love in 1964 to rewrite Colorado's Fair Housing Law of 1959, which had been declared unconstitutional in part, by the Colorado Supreme Court.

Kelley's Senate bill followed the committee recommendations and it would have continued to exempt owner-occupied housing. As reporter Charlie Roos wrote about it in 1965, "An owner who puts his house up for sale may discriminate against Negroes or any other prospective buyer as long as the owner is still in the house."

The Fair Housing bill I introduced in the House deleted this exemption and also included civil penalties. Kelley could have used his political muscle in the Republican-majority Senate to "stifle" my bill from final passage. He did not. Instead, he worked with Sen. George Brown to reach consensus on language which provided Fair Housing protection in all areas except room rentals in single-family owner or lessee-occupied residences.

* * *

Another former elected official, Ernie Marranzino, who served on Denver City Council, died in September at age 79. The headline in the Rocky Mountain News called him a "visionary" councilman, but the story failed to mention one of his important achievements.

Drive north on Quebec street in Denver someday, and glance at the homes on the west side of the street between 30th and 32d. They are modest residences in well-kept condition, housing families.

They are still standing because Councilman Marranzino fought hard in 1969 and 1970 against well-financed foes who, by their own admissions to federal agents in 1982 (highlighted in a RMN series on Denver City Council improprieties) stepped over the line in attempting to rezone the area as business, remove more than twenty homes, and begin a "strip-zone" approach south on Quebec.

Councilman Marranzino had help from members of the Greater Park Hill Community organization, from attorney George Creamer, and many others in fighting continuous efforts to destroy those homes. But those efforts would have been in vain without a spokesman on city council.

In a Denver Post story, April 9,1970: "Marranzino's opposition to the rezoning ...brought an attempt to recall him from council..." The recall, which sputtered out, was headed by Rev. Dr. Acen Phillips, who lost the election to Marranzino in 1967. The battle over housing on Quebec continued after Marranzino's council term expired in 1971.

Every legislator who fights the good fight deserves some sort of monument. Ernie Marranzino's monument is on Quebec Street, between 30th and 32d.

* * *

The following may be the reason why it took so long for power to be restored to homes in the Denver metropolitan area following the major September snowstorm. From the 7 p.m. newscast on radio 85 KOA, Sept. 22d:

"Public Service Company says if your power is out, leave your porch lights on."


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

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