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More than a year after former Boulder City Council candidate Steve Rosenblum filed a lawsuit accusing local organizers of conspiring to defame him, he has made his first argument in defense of his case in the Colorado Court of Appeals.
The judges will decide whether the case has merit — which would allow it to proceed toward a trial — or dismiss it as a frivolous attempt at chilling free speech.
In a Nov. 23 filing, Rosenblum’s lawyers drilled down on the central premise of the lawsuit — that several politically active Boulderites, who ran campaigns against him in the 2021 election, allegedly conspired to spread false and defamatory information to damage his reputation. Rosenblum lost his bid for Boulder City Council.
The organizers include Eric Budd and the Boulder Progressives — a candidate committee that helped elect city council candidates running against Rosenblum — plus three of its members.
In the lead up to the 2021 election, Rosenblum sued them after they published links to a blog that contained statements erroneously attributed to Rosenblum.
The lawsuit is among the first cases appealed under Colorado’s anti-SLAPP law, which went into effect in 2021. The case could potentially set precedent, legal experts previously told Boulder Reporting Lab. The latest filing comes after many of the same organizers involved in the lawsuit claimed victories “across the board” in the November 2022 election.
The organizers argue the case is about defending the right to free speech. Rosenblum argues it is about unfair campaign tactics.
“By and large, I think Boulder politics play out pretty well,” Stan Garnett, former Boulder County district attorney who is representing Rosenblum, said in an interview. “They just need to make sure that the process is fair and the debate is fair. And that’s what this lawsuit is about.”
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 Sept. 2021 complaint and allowed it to proceed. But the defendants appealed the case under the new anti-SLAPP law. SLAPP suits, or strategic lawsuits against public participation, often involve allegations of defamation to intimidate critics, by costing them time and money in court.
To not toss out the case, the appellate court judges would have to find that Rosenblum has shown a “reasonable likelihood of prevailing.” The defendants have argued he has not, in part due to First Amendment protections. Rosenblum has argued he has.
Rosenblum singles out Budd
In his most recent attempt to make that case, Rosenblum’s lawyers spent most of their 53-page filing targeting Budd for his role in creating a Twitter account under the name “@steveforboulder.” Rosenblum argued this amounts to misappropriation of his name and likeness.
Rosenblum also argued that Budd should be held liable for defamation for providing a link in the Twitter bio to a blog that included “several disgusting and inflammatory comments” by a Reddit user falsely attributed to Rosenblum. The blog also included what the anonymous author said were screenshots from a private Slack channel. Rosenblum has not denied making some of those comments.
Argument over misappropriation
In a Sept. 14, 2022 filing, Budd argued that Rosenblum’s claim should be thrown out because Budd did not gain “a personal benefit from the creation of the Twitter account” and that his “conduct was privileged under the First Amendment.”
“The Twitter account was created for purposes of public advocacy and bringing awareness to Rosenblum’s qualifications as a candidate,” his lawyers wrote.
Budd’s lawyers cited several court rulings on issues related to Instagram and Twitter accounts impersonating other people. Also, they argued, “no reasonable person could infer that candidate Rosenblum actually endorsed the content of a blog that harshly criticized Rosenblum’s character and fitness for office, even going as far as to liken Rosenblum to white supremacists.”
In response to Budd’s arguments, lawyers for Rosenblum, in their latest court filing, argued Budd did benefit from the Twitter account and therefore is not protected from liability for misappropriation.
“Budd made the fake Twitter account for his own purpose, using the value associated with Rosenblum’s name to disparage Rosenblum and demean a city council candidate that he opposed,” Rosenblum’s lawyers wrote. “Moreover, had Budd truly intended to engage in ‘public advocacy’ and to raise ‘awareness’ about Rosenblum’s candidacy, he didn’t need to make the imposter Twitter account: he could have published a hyperlink to the Blog on his own public Twitter page with more than 7,600 followers.”
His lawyers argued the Twitter profile linking to the blog, albeit critical of Rosenblum, had the effect of “deceiving a public audience” at a time when Rosenblum was just starting to campaign.
“Any reasonable person viewing the fake Twitter page would not have any other campaign or election-related Twitter page to look at or compare to the fake Twitter page,” they wrote.
Argument over defamation
Regarding the allegations of defamation, Budd has said he should not be held liable because “posting a hyperlink [to a blog in a Twitter bio] alone cannot constitute republication of defamatory material,” according to his filing. He also argued he is immune under the federal Communications Decency Act. “The CDA is broadly construed and intended to promote internet speech and applies to the individual users of an ‘interactive computer service,’” the filing said.
Rosenblum’s lawyers argued that even without the link, “publication of the fake Twitter account itself was a defamatory publication.” They said Budd “substantively altered the Blog” by connecting it to a Twitter account that impersonated Rosenblum.
“Rosenblum does not seek to hold Budd liable strictly for republication of the hyperlink,” the lawyers added, “but for communicating the false message to readers that Rosenblum published the hyperlink himself, thereby endorsing the content.”
Looping in the Boulder Progressives
Members of the Boulder Progressives also linked to the anonymous blog from the organization’s website. The link to the blog is still there, but the website includes a disclosure stating that the blog includes “some screenshots from a Reddit account that Boulder Progressives agrees is not Steven Rosenblum.” (The blog’s author took down the comments in mid-August, stating “we are not confident in the connection” between the statements by the Reddit user and Rosenblum.)
By publishing links to the blog, too, Rosenblum has argued Budd, the Boulder Progressives, and the anonymous author of the blog “conspired to defame” him.
The Boulder Progressives have argued the organizers did not spread false information about Rosenblum with “actual malice” — meaning, with knowledge the information was false or in reckless disregard of the truth. Without proof of malice, the organizers’ lawyers said in a Sept. 7 legal filing, they are protected under an interpretation of the First Amendment established under the 1964 U.S. Supreme Court case, New York Times Co. v. Sullivan. They have argued trying to hold them liable for defamation by implicating them in a conspiracy seeks to “end-run” the First Amendment.
In his latest argument, Rosenblum’s lawyers cited a 1999 Texas Court of Appeals case, Bunton v. Bentley, in which a cable television show host and co-host were sued by a district court judge for defamation and conspiracy to defame. In 2002, the Texas Supreme Court did not find the co-host liable for defamation, though judges agreed it was a “close one.”
The “Texas Court of Appeals neatly adopted a conspiracy theory under Texas law that is the same that Rosenblum offers here,” Rosenblum’s lawyers wrote.
In response to a request for a comment on Rosenblum’s latest filing, lawyers representing the defendants declined or did not respond in time for publication.
The defendants can respond to Rosenblum’s brief before judges weigh in. The decision is expected sometime in 2023.