Political organizers who were sued by former Boulder City Council candidate Steve Rosenblum for alleged defamation during the 2021 election have filed their opening brief in the Colorado Court of Appeals, setting the stage for what is expected to be a high-stakes and lengthy legal battle over free speech protections.
The legal filing comes in response to a Sept. 22, 2021 lawsuit filed by Rosenblum against several high-profile, politically active Boulderites who ran campaigns against him. The suit accuses them of conspiring to spread false and defamatory information to damage his reputation in the “heat of the 2021 Boulder City Council race.”
The lawsuit targets political organizer Eric Budd and the Boulder Progressives — a candidate committee that helped elect city council candidates running against Rosenblum — plus three of its members. (Budd faces an additional allegation, for which he is expected to file a separate brief later this month.)
Read more: What’s at stake in Steve Rosenblum’s First Amendment lawsuit? The implications go beyond Boulder politics
Earlier this year, Boulder District Court Judge Thomas F. Mulvahill ruled that Rosenblum had demonstrated a “reasonable likelihood” he could win some of the claims asserted in the complaint and allowed it to proceed.
The defendants appealed that ruling to the Colorado Court of Appeals, relying on a new provision under Colorado law that prevents SLAPP suits, or “strategic lawsuits against public participation.” Such lawsuits often use allegations of defamation to intimidate critics, by costing them time and money.
The defendants’ opening brief, filed on Sept. 7, 2022, seeks to overturn the original ruling and require Rosenblum to pay their attorneys fees.
At issue in the suit are campaign tactics used and statements made during last year’s bitter city election.
During that campaign, the Boulder Progressives highlighted Rosenblum’s involvement with Safer Boulder, a local advocacy group that says it is “committed to actively supporting public safety” and backs enforcement of the city’s ban on homeless encampments.
Organizers published, on the Boulder Progressives’ website, a link to an anonymously written blog called Safer Leaks. In 2020, the blog had published what it said were screenshots from Safer Boulder’s internal Slack communications, some discussing harming homeless people. There were screenshots erroneously attributed to Rosenblum. (The blog also contained statements Rosenblum has not denied, the organizers’ attorneys argue.) By linking to the blog, Rosenblum alleged organizers orchestrated a “coordinated smear campaign.”
The defendants claim they should not be held liable for false statements made by the anonymous author of the blog and allege Rosenblum seeks “to harass and silence persons who challenged his fitness for office.”
The Boulder Progressives “acknowledge that deliberate disinformation can also be a threat to the democratic process,” wrote Tom Kelley, a First Amendment lawyer representing the organizers, in the brief. But, he continued, “the constitution limits accountability only to those participants in the political process who knowingly utter calculated defamatory disinformation.”
“Imposing civil money damages … for speech they did not utter and a state of mind they did not harbor would trample their lawfully asserted rights and undermine one of the core tenets of our democracy,” Kelly wrote. “That attempt should be rejected.”
Long road ahead in high-stakes case
The lawsuit is among the first cases appealed under the Colorado anti-SLAPP law that went into effect in 2021, and could potentially set precedent, legal experts previously told Boulder Reporting Lab.
For that reason, the stakes are high.
The case is “an unabashed attempt to bypass the First-Amendment requirements that protect political speech by invoking … vicarious liability,” Kelley wrote in the filing, referring to the legal concept that people may be held liable for someone else’s actions.
The case has implications for political discourse in local elections, too. Stan Garnett, former Boulder County district attorney who is representing Rosenblum, said this is a motivation for his client.
“Part of the reason that Steve feels as strongly about the case as he does is his interest in protecting the integrity of the election process and the public debate that goes into elections,” Garnett told Boulder Reporting Lab.
This week’s opening brief is just the beginning.
“This particular type of case, because of the complexity and sensitivity of issues around the First Amendment, is always going to take longer to get through the court system than some other types of cases,” Garnett said.
Attorneys for Budd requested an extension to file his opening brief on Sept. 14, related to a separate, but related allegation. Budd is co-chair of Bedrooms Are For People, a campaign committee seeking to increase the city’s occupancy limits capping the number of unrelated people who can live together. Last summer, Budd created a Twitter account called “@steveforboulder” and linked to the Safer Leaks blog in the account bio.
Garnett said he will file a response to the opening briefs in the coming weeks.
Attorneys in the case may then request oral arguments.
A ruling is not expected until next year.