By Jeffrey A. Roberts
CFOIC Executive Director

The Colorado Supreme Court on Monday established a two-step test for determining whether speech or conduct is covered by a 2019 statute designed to protect Coloradans from meritless lawsuits that target free expression.

Reversing a September 2024 Court of Appeals judgment in a defamation case brought by a veterinary clinic against two online critics, the justices in Lind-Barnett v. Tender Care interpreted the “public interest” parameters of the six-year-old anti-SLAPP law:

First, a court must first determine whether an objective observer could reasonably understand that the challenged speech or conduct was made in connection with a public issue or an issue of public interest, even if it also involved a private dispute. Second, it must “ask whether the challenged activity contributed to public discussion or debate regarding that issue.”

A speaker’s motive is not relevant to deciding whether the challenged speech or conduct relates to an issue of public interest, the Supreme Court added.

The Court of Appeals had ruled that the anti-SLAPP law does not protect online criticisms “made primarily for the purpose of airing a private dispute.” A three-judge appellate panel said the “vast majority” of statements Jennifer Lind-Barnett and Julie Davis made about the Tender Care Veterinary Center in Falcon did not involve “a ‘public issue” or an “issue of public interest,” affirming a district court’s denial of their motion to dismiss the case.      

But the appellate court “essentially weighed the petitioners’ private concerns against their public ones. That is not the pertinent test,” wrote Justice Maria Berkenkotter for the Supreme Court. “Plus, there is no reason why speech cannot be made in connection with both a private dispute and a public issue or an issue of public interest.”

Colorado’s anti-SLAPP statute established an expedited process for dismissing civil actions, known as Strategic Lawsuits Against Public Participation, filed against people or news organizations for exercising their First Amendment rights about matters of public interest. When a libel claim fits that criterion, a court can be asked to rule on whether the plaintiff has established “a reasonable likelihood” of prevailing on the claim, potentially halting the case (although an appeal is allowed) before the expenses of the discovery process are incurred.

Tender Care sued Lind-Barnett and Davis in 2022, alleging they had defamed the business by posting negative reviews on Facebook about how their pets had been treated. The posts accused Tender Care of professional “malpractice” and of employing “incompetent” doctors and staff, according to court documents.

Even though the posts “stemmed from perceived inadequate veterinary care for their pets, the posts could reasonably be understood, in context, to implicate a public issue or an issue of public interest regarding the quality of services and care at a licensed veterinary facility,” Berkenkotter wrote.

The broader context reveals how the statements made by Lind-Barnett and Davis “contributed to the public debate on these topics,” she added. Lind-Barnett is an animal breeder and trainer who “sought to spur a broader conversation about quality veterinary services and practices. What’s more, the posts reached an audience of potentially hundreds — if not thousands — of members of the local community. Plus, by garnering more than 140 comments and receiving dozens of reactions, the posts prompted members of the community to consider (Tender Care’s) veterinary practices as well as the quality of veterinary services more broadly.”

Tender Care argued that the motivations of Lind-Barnett and Davis should be a factor in determining whether speech concerns an issue of public interest. “A defendant may well have malicious motive for their speech or conduct,” the Supreme Court decided, “but the challenged activity still may implicate a public issue or an issue of public interest. Similarly, a defendant’s motive for speaking doesn’t answer whether the challenged speech contributes to the public discussion or debate regarding a public issue or an issue of public interest.”

First Amendment attorney Steve Zansberg, who is president of the Colorado Freedom of Information Coalition, represented Lind-Barnett and Davis in the case.

Colorado Springs attorney Ian Speir submitted a friend-of-the-court brief for Public Citizen, a national consumer advocacy organization, and the Public Participation Project, a nonprofit that promotes anti-SLAPP legislation. Denver attorney Katayoun Donnelly submitted a brief for Yelp.

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