Anti-SLAPP protection

Colo. Rev. Stat. § 13-20-1101 was enacted in 2019.

Law summary

Colorado’s anti-SLAPP statute allows defendants to petition the court to dismiss a lawsuit on the grounds that the contested speech is protected. Once the defendant demonstrates that the speech is protected, the plaintiff must prove that there is “a reasonable likelihood” of prevailing in the lawsuit. If the plaintiff fails to meet this requirement, the case is dismissed. The statute safeguards activities that support the right to petition or free speech, particularly in relation to public issues. These protected activities include:

• Any written or oral statement made before a government proceeding, or any other official proceeding.
• Any written or oral statement made in connection with an issue being considered or reviewed by a government body.
• Any written or oral statement made in a public place or public forum concerning a matter of public concern.
• Any other conduct or communication that furthers the exercise of free speech in connection with a public issue.

Legal actions

Colorado’s anti-SLAPP law defines these steps to protect publishers:

• A defendant can file a “special motion to dismiss” a lawsuit. Such a motion must be filed within 63 days after service of the complaint unless the defendant obtains permission to file it later.
• The court must schedule a hearing within 28 days after the filling of the special motion to dismiss to decide on the motion. The court assesses whether the disputed speech is protected by the First Amendment and involves a matter of public concern. The court also evaluates if the plaintiff has shown a reasonable likelihood of success on the claim.
• If the court finds a reasonable likelihood that the plaintiff will succeed, the lawsuit proceeds as usual. If the court concludes that the plaintiff is unlikely to succeed, the case is dismissed.
• A defendant who prevails on a special motion to dismiss is entitled to recover attorney’s fees and costs (with some exceptions, as stated in 13-20-1101(4)(b)). However, if a court finds that a defendant’s special motion to dismiss is frivolous or solely intended to cause unnecessary delay, it shall award attorney’s fees and costs to the plaintiff.

Helpful cases

Colorado’s anti-SLAPP law is relatively new. Here are three cases that might be helpful to journalists:

Jogan Health LLC et al v. Scripps Media Inc et al (2023)

Jogan Health, L.L.C., which secured state contracts worth millions of dollars to provide testing and vaccination services related to the COVID-19 pandemic, sued reporters from Denver7 and Denver NewsBreak for defamation after they published stories questioning the company’s experience and investigating wage complaints. The court ruled that Jogan Health and its owner, Daniel Dietrich, would not succeed in proving that Denver7 owner Scripps Media and its reporter, Bayan Wang, defamed the company. The judge also indicated that Jogan did not provide a valid reason why NewsBreak Denver reporter Mike McKibbin could not rely on the Denver7 investigation for his own article. The Scripps Media’s motions to dismiss the defamation claims were granted.

Burmeister v. Clark and TEGNA, INC. (2022)

Chad Burmeister sued 9News anchor Kyle Clark for defamation after Clark broadcasted Burmeister’s selfie from the U.S. Capitol during the January 6 riots. However, a Denver judge dismissed the defamation lawsuit against the journalist, citing the anti-SLAPP statute. The judge ruled that Burmeister was unlikely to produce “clear and convincing” evidence showing that the journalist produced the segment about Burmeister’s involvement in the January 6 riot with “actual malice” or that he was aware any of the information used in the broadcast segment and article was false.

Tender Care Veterinary Ctr. v. Lind-Barnett (2023)

Two clients of Tender Care Veterinary Center in Falcon posted negative reviews on social media about their experiences with the veterinary clinic, alleging improper treatment of their dogs, Pinkerbell and Spicy. The posts accused the staff of “malpractice,” being “inept,” “ignorant,” “lacking training,” and using “lies and intimidation.” Tender Care sued for defamation when the posts were not removed. The defendants filed a “special motion to dismiss” under the anti-SLAPP statute, claiming First Amendment protection. The District Court denied the motion, concluding that the conduct did not fall within the protections of the anti-SLAPP statute because the online posts did not address “matters of public interest or a public issue,” allowing the lawsuit to proceed to trial. The defendants appealed, but the Court of Appeals upheld the denial, permitting the defamation case to continue.

Legislative activity

The law has not been revised since its introduction in 2019.

Of note

The Institute for Free Speech gives Colorado’s anti-SLAPP procedures 91 out of 100 points.