Anti-SLAPP law protects free speech in Colorado

Protecting free speech and defending against First Amendment retaliation

The purpose of Colorado’s anti-SLAPP law

In a democratic society, the ability to voice opinions about government actions and the conduct of public officials is fundamental. However, sometimes those in power try to silence criticism through costly and intimidating lawsuits. Colorado’s anti-SLAPP law can shield those speaking out on matters of public concern.

Colorado joined the ranks of states with strong anti-SLAPP protections in 2019 when Governor Jared Polis signed House Bill 19-1324 into law. “SLAPP” stands for Strategic Lawsuit Against Public Participation. These lawsuits are often legal bullying tactics used to silence critics by threatening them with expensive litigation.

The Colorado General Assembly recognized this problem and enacted the anti-SLAPP statute, noting “that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process.” They stated that the purpose of the law was “to encourage and safeguard the constitutional rights of persons to petition, speak 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.” (C.R.S. § 13-20-1101)

This balancing act helps maintain both free expression and access to justice. The statute protects individuals’ rights to participate in government and speak on matters of public concern while ensuring that truly injured parties can still seek redress through the courts.

SLAPP suits have been used against journalists, environmental activists, consumer advocates, and everyday citizens, like Colorado parents who speak out on matters of public concern involving their schoolchildren. By providing anti-SLAPP protections, Colorado allows journalists to report without fear of financial consequences to their newsrooms and empowers citizens to participate in democratic discourse without fear or intimidation.

How do anti-SLAPP laws work?

Using the special motion to dismiss: A powerful tool for defendants

Colorado’s anti-SLAPP law provides a powerful tool for people who believe they face meritless lawsuits targeting their protected speech. It establishes an expedited process for courts to follow when a defendant files a motion to dismiss a lawsuit based on the fact that they were exercising their constitutional right of free speech or to petition the government.

Here is how this special motion to dismiss works:

1. Filing the motion: A defendant can file a special motion to dismiss within 63 days after being served with the lawsuit. Extensions may be granted with court permission.
2. Showing protected speech: The defendant must demonstrate that the lawsuit is based on their speech or conduct involving a matter of public concern. The law specifically protects statements made before legislative, executive, or judicial proceedings; statements made in connection with issues under consideration by governmental bodies; statements made in public forums about matters of public interest; and other forms of protected speech.
3. Automatic stay of discovery: When a defendant files this special motion, the court issues an automatic stay of discovery, pausing the expensive discovery process until the motion is resolved. This is a crucial protection that prevents plaintiffs from using the discovery process to harass defendants or rapidly drive up litigation costs.
4. Shifting the burden: Once the defendant demonstrates that the case involves protected speech, the burden shifts to the plaintiff to establish “a reasonable likelihood” of prevailing on the claim. This higher standard at an early stage of litigation provides significant protection for defendants.
5. Expedited hearing: The court should hold a hearing on the special motion to dismiss no later than 28 days after it is filed unless the court must schedule it for a later date. This ensures a speedy resolution rather than allowing a SLAPP suit to drag on indefinitely.
6. Attorney fees and costs: If the defendant prevails on the special motion to dismiss, they are entitled to recover attorney fees and costs from the plaintiff. This financial consequence serves as a deterrent against filing frivolous lawsuits intended only to silence protected speech. But if the court finds that a defendant’s special motion was frivolous or solely intended to cause unnecessary delay, it will award attorney fees and costs to the plaintiff instead.
7. Immediate appeal: The order granting or denying the special motion is immediately appealable to the Colorado Court of Appeals. This provides an additional layer of protection for both parties’ rights. (C.R.S. § 13-20-1101.)

The Colorado anti-SLAPP statute has been applied in various contexts, including a recent case before the Colorado Supreme Court examining the “public interest” parameters of the law regarding online reviews of a veterinary clinic. (Tender Care Veterinary Ctr. v. Lind-Barnett)

First Amendment retaliation claims after successful anti-SLAPP motions

An interesting legal scenario arises when a government employee sues a citizen for statements made about that employee’s official actions, and the citizen successfully defends using an anti-SLAPP motion. In such cases, the citizen might have grounds for a First Amendment retaliation claim against the government employee.

While there isn’t a Colorado precedent directly on point, the U.S. Court of Appeals for the Tenth Circuit (which includes Colorado) has provided guidance in cases involving government retaliation for protected speech. In Beedle v. Wilson, the court considered a case where a governmental entity (a public hospital) filed a defamation lawsuit against a private citizen who had criticized it.

The Tenth Circuit recognized that when a governmental entity brings a lawsuit against a citizen for criticizing government actions, First Amendment concerns are implicated. The court determined that such a lawsuit could potentially constitute retaliation that violates the First Amendment and provides grounds for a civil rights claim under law. (42 U.S.C. § 1983)

How First Amendment retaliation claims work using Colorado’s anti-SLAPP law:

1. Protected speech: The defendant’s statements about the government employee’s political or governmental actions would need to constitute protected speech under the First Amendment, which generally protects speech on matters of public concern. The Supreme Court has long held that speech on matters of public concern deserves heightened First Amendment protection, such as in N.Y. Times Co. v. Sullivan, where the court noted the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
2. Adverse action: The government employee’s act of filing a lawsuit against the defendant can be considered an adverse action likely to deter a person from continuing to engage in protected speech. In Beedle, the Tenth Circuit recognized that being subjected to litigation could constitute such an adverse action.
3. Causal connection: The crucial element is demonstrating a causal connection between the defendant’s protected speech and the government employee’s retaliatory action (filing the lawsuit). A successful anti-SLAPP motion can provide evidence of this causal link, as it establishes that the lawsuit targeted protected speech.
4. Improper motive: To succeed on a First Amendment retaliation claim, the defendant must show that the government employee’s primary motive in filing the lawsuit was to retaliate against the defendant for their protected speech, rather than to genuinely seek legal redress for a legitimate harm.

In Colorado, this means that if a government employee sues a citizen for statements about the employee’s political or governmental actions, and the citizen successfully defends using Colorado’s anti-SLAPP law, the citizen may have grounds for a federal civil rights lawsuit.

Such a claim would allege that the government employee’s lawsuit constituted illegal retaliation for the exercise of First Amendment rights. If successful, the citizen could recover damages, attorney fees, and costs beyond what the anti-SLAPP statute itself provides. The Civil Rights Attorney’s Fees Awards Act authorizes courts to award reasonable attorney fees to prevailing parties in civil rights litigation.

It’s worth noting that these retaliation claims face certain legal hurdles. The citizen must prove that the government employee acted under “color of law” rather than in a purely private capacity. As the Supreme Court has held, the under-color-of-state-law element of the code excludes from its reach “merely private conduct, no matter how discriminatory or wrongful.” (Blum v. Yaretsky)

Additionally, various immunity doctrines may protect government officials in certain circumstances. Government officials performing discretionary functions are entitled to qualified immunity unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” (Harlow v. Fitzgerald)

Has your free speech been threatened?

When government employees misuse the legal system to silence criticism of their official actions, the combination of anti-SLAPP protections and potential First Amendment retaliation claims gives citizens powerful legal recourse. They ensure that individuals can speak truth to power without fear of retaliatory litigation designed to silence their voices.

However, while these anti-SLAPP laws shield citizens from legal intimidation tactics, you need an experienced civil rights attorney to help you fight these lawsuits. The Civil Rights Litigation Group understands the expedited process to dismiss meritless lawsuits targeting free speech and the First Amendment retaliation claims that may follow. We believe the law should protect rather than punish those who exercise their constitutional right to comment on matters of public concern. If your free speech rights have been violated, contact us today to see how Colorado’s anti-SLAPP law can protect you.

Call the Civil Rights Litigation Group at 720-515-6165.