What you need to know about the SLAPP lawsuit in Colorado.
A SLAPP lawsuit, or a “strategic lawsuit against public participation,” is essentially a lawsuit that Big Money, like corporations or the super-rich, will often file against news organizations or other persons exercising their First Amendment rights in order to stifle speech or otherwise prevent unfavorable information from reaching the public.
For instance, when the New York Times began reporting on the Harvey Weinstein allegations, his attorney threatened to sue, stating, in part, “The New York Times published today a story that is saturated with false and defamatory statements about Harvey Weinstein . . . . We are preparing the lawsuit now.” When the Weinstein legal team threatened to sue the New York Times, their stock fell 2.5% in a single day! Of course, we all know how Mr. Weinstein’s criminal case turned out. But you can’t say they didn’t try.
SLAPP lawsuits aren’t intended to assert legitimate claims on the part of a plaintiff. The very point of a “strategic lawsuit against public participation” is to tie up a would-be defendant for reporting facts that the “plaintiff” doesn’t like getting out to the public, or for a plaintiff to gain an economic advantage over a defendant in a lawsuit to shut that person up.
Imagine you’re a person who has legitimately been harmed by a famous person, or a corporation, you tell a reporter your story, they report that story, and then the offending person sues you and/or the news outlet for millions of dollars, alleging defamation. The catch is that there was no defamation because you were telling the truth and they were reporting it. That’s a SLAPP suit in a nutshell.
Anti-SLAPP Laws and Colorado
Under the First Amendment, issues of public interest are meant to be heard and debated.
In June 2019, Governor Polis signed H.B. 19-1324 into law. You can find the text of the law here.
In passing the law barring SLAPP suits, the Colorado General Assembly said:
“The purpose of the anti-SLAPP law is to encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury.”
In other words, the purpose of Colorado’s anti-SLAPP law is to encourage free speech under the First Amendment, but to also protect the rights of victims, e.g. defamation and sexual assault plaintiffs, to file legitimate lawsuits in court.
Statements Protected Under Colorado’s Anti-SLAPP Law
The goal is to protect free speech.
Colorado’s anti-SLAPP law is designed to safeguard one’s First Amendment rights, while also protecting the rights of individuals who have actually been libeled, slandered, or otherwise harmed by the statements of another person.
It’s a bit long-winded, but there are four types of statements that the law considers an “act in furtherance of a person’s right of petition or free speech under the United States constitution or the state constitution in connection with a public issue.” These are:
- Any written or oral statement or writing made before a legislative, executive, or judicial proceeding or any other official proceeding authorized by law;
- Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;
- Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or
- Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Remember the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Colorado’s anti-SLAPP law is basically just trying to flesh out what those First Amendment rights look like, especially the right to “petition the Government for a redress of grievances.”
How does Colorado’s anti-SLAPP law work?
Plaintiffs have to show that there is a reasonable likelihood that they will prevail on their claims.
Let’s say a plaintiff files a defamation claim against a would-be defendant for a statement that the defendant said in a public hearing. For example, let’s say an environmentalist makes a snarky comment on an oil-and-gas company’s Facebook page and the company, in retaliation, files a defamation lawsuit against the environmentalist.
Now, assuming that the statement that the environmentalist made was in a “place open to the public or a public forum in connection with an issue of public interest,” the plaintiff in this case, the oil-and-gas company, would have to show that it is reasonably likely that it will prevail on its defamation claim, OR the court will dismiss it.
How does a Colorado court determine if a lawsuit is a “strategic lawsuit against public participation?”
It’s a case-by-case review based on the totality of the evidence presented to the court.
Colorado law says that, “the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based,” to determine if the claim or counterclaims will survive an anti-SLAPP motion.
Basically, this means that the court will look at all of the facts alleged by the plaintiff and the defendant in their complaint, answer, response, etc.., and any sworn statements from witnesses included in the case, to determine if the plaintiff’s case or the defendant’s counterclaims can go forward.
These cases can get pretty complicated really quickly which is why we always recommend you hire an experienced defamation/First Amendment attorney to help you out.
What happens if the court denies an anti-SLAPP motion?
If you lose your anti-SLAPP motion, you better seriously consider settlement.
First, if a court denies the anti-SLAPP motion, it has necessarily found that the plaintiff has established a reasonable likelihood that the plaintiff will prevail on the claim. And the fact that the court did not dismiss the SLAPP suit (at least what is being termed a “SLAPP suit”), is not admissible evidence at trial.
That said, if a court has found that, “the plaintiff is reasonably likely to prevail on his/her claim,” you better start talking about settlement with your lawyer immediately. While a jury could make an opposite determination at trial, the universe, and definitely the judge, is probably sending you a message.
What happens if the court grants an anti-SLAPP motion?
If you win your anti-SLAPP motion, you get your attorney fees.
One of the points of this law is to level the playing field.
Going back to our example, let’s say the court found that the oil-and-gas company had no business filing a defamation lawsuit against our intrepid environmentalist, and that the court granted the defendant’s motion to dismiss, effectively finding that the oil-and-gas company’s lawsuit was a SLAPP suit.
In that case, the defendant would be entitled to recover the his/her attorney fees and costs. If you’ve ever litigated a case, you know those fees and costs can get into the tens of thousands of dollars pretty quickly.
However, if the courts finds that the defendant’s anti-SLAPP motion to dismiss is frivolous, or is solely intended to cause unnecessary delay, the court must award costs and reasonable attorney fees to a plaintiff prevailing on the anti-SLAPP motion.
In other words, if you’re a named defendant in a defamation lawsuit, you better be sure that you’re being sued – not because there’s any merit to the case – but because the plaintiff is trying to stifle your speech and assert its economic advantage over you in an effort to shut you up.
*NOTE: A defendant who survives a motion to dismiss may not be entitled to attorney fees if the case involves certain sections of the Colorado Open Records Act. These cases are rare.
How much time do I have to file an anti-SLAPP motion?
63 days after you’ve been served with a complaint, or a later date if the court deems it “proper.”
The Colorado anti-SLAPP statute gives you 63 days after you’ve been served with a complaint to file a motion to dismiss the plaintiff’s SLAPP suit. Now, in most cases, you’ll only have 21 days or 35 days, depending, to answer the SLAPP suit. Therefore, don’t confuse the time period to answer a lawsuit with the timeframe to file an anti-SLAPP motion.
The court can, in its discretion, move the date to file your motion to dismiss to a later date, but your lawyer has to move the court to do so prior to the 63-day deadline or you could be prevented from filing it at a later date.
Also, the motion must be scheduled for a hearing not more than 28 days after the service of the motion unless the court needs more time to schedule it on its docket.
Once a motion to dismiss a SLAPP suit is filed, the case is frozen in time.
All discovery proceedings, including interrogatories, depositions, requests for admission, etc. are stayed upon the filing of a motion to dismiss a SLAPP suit. This essentially freezes the case in time, and the case remains frozen until the court issues its order. Note that the court can always order that specific discovery continue if it wants.
What if I don’t agree with the court’s decision?
You can file an “interlocutory appeal.”
Interestingly (or not), if you don’t agree with the court’s decision to grant/deny the motion to dismiss the SLAPP suit, you can appeal this decision to the Colorado Court of Appeals without a final determination on the merits of the case.
In legalese, this is called an “interlocutory appeal.” Essentially, you aren’t forced to wait until a jury has rendered its verdict before you can appeal the court’s decision to deny/grant the motion to dismiss.
There are certain lawsuits that Colorado’s anti-SLAPP law does not apply to.
- An action brought by or on behalf of the state or any subdivision of the state enforcing a law or rule or seeking to protect against an imminent threat to health or public safety;
- Any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:
- The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member;
- The action, if successful, would enforce an important right affecting the public interest and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and
- Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter
There are some other, more narrow exceptions relating to the financial industry that do not apply in most consumer plaintiff cases. If you’re interested in those, I would encourage you to read the language of the law here.
Don’t let Big Money bully you.
If you are speaking out on behalf of the public interest, and Big Money is trying to sue you into eternity just to shut you up, you might be in SLAPP suit territory.