From L.S.S. v. S.A.P., decided by the Colorado Court of Appeals yesterday, in an opinion by Judge Christina Gomez, joined by Judges Terry Fox and Rebecca Freyre:
In this case, L.S.S. (father) asserted defamation and related claims against S.A.P. (mother) after she reported that he might be sexually abusing their five-year-old child. Mother appeals the trial court's denial of her special motion to dismiss those claims under the anti-SLAPP statute. Applying the framework we outline for considering such motions, we affirm the order and remand the case to the trial court for further proceedings….
The [Colorado anti-SLAPP] statute allows a person (usually a defendant) to file a special motion to dismiss "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States constitution or the state constitution in connection with a public issue." The trial court then "consider[s] the pleadings and supporting and opposing affidavits" to determine whether "the plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim." … In making that [second] determination, "[t]he court does not weigh evidence or resolve conflicting factual claims" but simply "accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." …
[Under Colorado law, i]f a statement concerns a public figure or a matter of public concern [emphasis added -EV], …:
- The plaintiff must prove the statement's falsity by clear and convincing evidence, rather than by a mere preponderance.
- The plaintiff must prove by clear and convincing evidence that the speaker published the statements with actual malice.
- The plaintiff must establish actual damages, even if the statement is defamatory per se. [This provides more protection for libel defendants than the minimum required by First Amendment law. -EV]
The parties agree that this case involves a matter of public concern…. [T]o prevail on his defamation claim father must [thus], among other things, establish actual malice by clear and convincing evidence. Clear and convincing evidence is "evidence that is highly probable and free from serious or substantial doubt." …
