Eric Budd, a local political organizer and member of the Boulder Progressives, has petitioned the Colorado Supreme Court to review a ruling in a defamation lawsuit in which a former candidate for the Boulder City Council accuses Budd of defamation and misappropriation.
The request is the latest development in a two-year court battle after Steve Rosenblum alleged Budd and four other organizers with the Boulder Progressives conspired to defame him ahead of the 2021 election, which he narrowly lost. The lawsuit is a proxy for a larger fight over tough campaign tactics that continue to play out in high-stakes local elections.
The defendants have argued the lawsuit is a frivolous attempt to silence free speech. Under a Colorado law designed to prevent such SLAPP lawsuits, or strategic lawsuits against public participation, the Colorado Court of Appeals in August dismissed the claims against all the organizers except Budd.
Prior to the 2021 election, Budd created a Twitter (now X) account in Rosenblum’s name and posted a link in its bio to a blog, called Safer Leaks, 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, though their decision was 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.”
The judges said Rosenblum had a “reasonable likelihood” of winning his defamation and misappropriation claims against Budd if the lawsuit were to go to trial.
Budd’s 18-page petition for a writ of certiorari, filed on Oct. 26, requests that the Colorado Supreme Court review the Court of Appeals ruling. The Supreme Court could dismiss Rosenblum’s claims under Colorado’s anti-SLAPP law, preventing a potentially costly and lengthy trial.
The motion states that if the Court of Appeals ruling stands, it “will create confusion in the future when the same issues inevitably arise, will undermine Free Speech guarantees and chill free exercise of expression, and will undermine the purpose of the Anti-SLAPP statute.”
Budd’s motion argued that creating the Twitter account and adding a link in the bio wasn’t misappropriation because it linked to a blog that criticized Rosenblum. His lawyer has argued that “no reasonable person” would think Rosenblum endorsed the Safer Leaks blog. The motion also argued Budd is not liable for defamation because posting a hyperlink does not constitute “republication.”
Moreover, the motion states that allowing the case to proceed to a trial may result in a decision based on “legally irrelevant factors” that do not fully consider free speech protections.
“It may stifle free expression, because a lack of clarity in the law will create fear among political advocates that their contemplated expression will be determined defamatory and that they may be subjected to a jury trial on the matter,” the filing states. “For exactly these reasons, Courts are to act as a ‘gatekeeper’ to ensure that defamation claims that may restrict Free Speech rights do not go forward.”
Rosenblum will have an opportunity to respond to the petition before the court decides whether to take up the case.
If the Supreme Court decides not to take up the case, Budd faces either going to trial over the claims or negotiating a settlement.