The Colorado Court of Appeals has issued a pivotal ruling in the defamation lawsuit by a former candidate for the Boulder City Council, Steve Rosenblum, dismissing his claims against all but one of the political organizers named in the lawsuit.
The ruling, posted on Aug. 3, comes after Rosenblum filed a lawsuit in September 2021 against five local organizers and the Boulder Progressives, an organization that endorses candidates and ballot measures. The suit accused them of sharing a link to an anonymous blog that contained derogatory comments about homeless people, which were falsely attributed to Rosenblum.
Rosenblum alleged this amounted to a conspiracy to defame him ahead of the 2021 election, which he narrowly lost.
In many ways, the lawsuit is a proxy for a larger fight over tough campaign tactics that have become a feature of high-stakes elections. The case is also a flashpoint in the debate over addressing homelessness and public safety, both of which are shaping up to be prominent issues in this year’s city election. Rosenblum and the defendants are on opposite political sides.
The ruling dismissed a claim by Rosenblum that the organizers conspired with an anonymous author of a blog, called Safer Leaks, to damage his reputation. The judges made this decision based on a lack of evidence showing an “agreement” among them, apart from a “shared political ideology.”
The opinion is a major win for the Boulder Progressives, which is gearing up for the 2023 election in which five seats on the Boulder City Council, including city mayor, are up for grabs.
“We are excited that our organization — and all Boulder residents — can feel confident in the rights of people to ask questions, share information, and hold candidates accountable for the things they say and do,” the organization said in a news release on Thursday.
The ruling was less favorable for Eric Budd, perhaps the most well-known organizer named in the lawsuit. Depending on how the parties proceed, Budd could end up having to defend himself at a protracted and costly trial.
Prior to the 2021 election, Budd created a Twitter account in Rosenblum’s name and posted a link in its bio to the Safer Leaks blog that included statements falsely attributed to Rosenblum. In his lawsuit, Rosenblum argued this amounted to misappropriation and defamation.
The judges ruled in favor of Rosenblum on this claim, albeit based on a relatively narrow set of circumstances.
“Here, the defamatory communication was the ‘account + link’ combination, which together created a false appearance of recognition or endorsement,” Judge Terry Fox wrote. “Had Budd just posted the link without the false attribution, the outcome might be different.”
Moreover, the judges said that Budd knew some of the statements in the blog were false and therefore acted with “actual malice” — a legal term meaning with knowledge the information was false or in reckless disregard of the truth. This distinction is necessary to overcome longstanding First Amendment protections established under the 1964 U.S. Supreme Court case, New York Times Co. v. Sullivan.
As a result, the judges determined that Rosenblum demonstrated a “reasonable likelihood” of winning on these claims, and therefore the case should go to trial.
“While we are disappointed that the Court did not dismiss all of Rosenblum’s claims, we are pleased that the Court dismissed his baseless conspiracy claim and awarded fees against him,” John Culver, the lawyer representing Budd with the Lakewood-based firm Benezra and Culver, told Boulder Reporting Lab. “We think that is an important win for free speech.”
The stakes are high for Budd. Rosenblum is seeking damages exceeding $100,000, according to court filings. A trial would allow Rosenblum and his lawyers to gather more evidence through depositions and discovery, costing both parties time and money in court.
Budd, who lost a bid for city council in 2017, helped lead the 2021 campaign for an unsuccessful ballot measure to raise the city’s occupancy limits on how many unrelated people can live together. Last year, he helped pass a ballot measure to move city council elections from odd years to even years, starting in 2026, to increase voter turnout. Last week, the Boulder Progressives announced he is serving on the organization’s board.
“The court clearly affirmed the right of people to engage in public discourse and elections,” Budd told Boulder Reporting Lab. “I fully plan and look forward to continuing advocacy and campaign work.”
Stan Garnett, former Boulder County district attorney who is representing Rosenblum, described the opinion as “long and complicated” but “favorable” on certain claims.
“To the extent that the finding was as strong as it was against Eric Budd, that’s the core of what this lawsuit is about, and that’s a very good ruling for Steve [Rosenblum],” Garnett said.
Rosenblum could petition for a rehearing or a review by the Colorado Supreme Court. If those requests are denied or not pursued, Rosenblum will have to pay the organizers for attorneys fees they incurred while fighting the case.
The case landed in the state Court of Appeals because defendants took advantage of a 2019 Colorado law designed to discourage frivolous lawsuits intended to silence critics, known as SLAPP suits, or strategic lawsuits against public participation.
In her opinion on Rosenblum’s claim that the organizers conspired with the author of the blog, Fox wrote that it’s “the exact type of litigation” that could have a “chilling effect” on constitutionally protected free speech. The other judges, Craig Welling and Eric Kuhn, concurred with the opinion.
Steve Zansberg, a First Amendment lawyer who used to work at the same firm as Kelley, said the Colorado Court of Appeals has written only four opinions regarding Colorado’s anti-SLAPP law. All set precedent for how future cases are decided.
Zansberg said the Rosenblum opinion does not break much new ground in terms of precedent. But he said it did describe a new process for how attorneys fees are awarded when defendants prevail on some claims, but not others. In an unusual move, the judges deferred to the lower courts to determine whether Budd is eligible for attorneys fees related to the conspiracy claim against him that was dismissed.
“It was a fairly nuanced analysis,” Zansberg said of the overall opinion. “It’s a novel set of facts and a novel ruling.”
Some aspects of this ruling make no sense. The court says the fact that Budd acknowledged in his initial filing that the Reddit account was not Rosenblum means that he had “actual knowledge” of his claims’ falsity.
First off, this is exactly the kind of finding of fact that the court acknowledges it’s not supposed to do at this appellate stage. Procedurally, it did the right thing by remanding this issue for fact-finding. But stating this conclusion of fact in an appellate opinion still puts the trial judge or jury in the position of contradicting a statement already issued by a higher court. So the appellate court has essentially robbed the trial judge or jury of their ability to fact-find on this issue. This goes beyond mere prejudicing of the fact-finder against Budd; the trial court or jury has reason to believe that it is simply prohibited from finding that Budd did not have “actual knowledge” necessary to sustain a defamation claim.
Second, just because Budd knew at the time of his initial filing that his earlier claims about Rosenblum were false does NOT mean that he knew or even should have known that they were false at the time they were published. But the relevant time period of the defamation defendant’s state of mind is the time of publishing, not the time the defamation case began.
I hope Mr. Budd gets a fair shake at trial. I fear the appellate court may have foreclosed that possibility.