Two appeals judges warn of diverging interpretations to Colorado’s free speech protection law

Colorado Politics: Two members of Colorado’s second-highest court warned in separate cases on Thursday that they believe judges are drifting away from the legislature’s directive for evaluating whether defamation lawsuits should be dismissed under a 2019 law designed to protect free speech.

More than two years ago, Judges Ted C. Tow III and Michael H. Berger were both involved in one of the first cases implicating Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The General Assembly enacted the law to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government.

Notably, when a defendant files a motion to dismiss under the anti-SLAPP law, judges are supposed to consider whether the allegedly defamed plaintiff has a “reasonable likelihood” of success. To do that, the judges consider the allegations and factual submissions from both sides, unlike a normal motion to dismiss which only takes account of the allegations.

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