Ruling on Boulder defamation lawsuit likely coming soon

Jul. 25—The Colorado Court of Appeals is expected to rule in the coming weeks on a defamation lawsuit filed by former Boulder City Council candidate Steven Rosenblum against local political organizers.

The original lawsuit, filed in Boulder District Court in 2021, claimed that the organizers conspired to defame Rosenblum as he ran for a seat on City Council that fall. But attorneys for the organizers have argued in court filings that the lawsuit is intended to silence Rosenblum's critics.

The case reached the Colorado Court of Appeals in March 2022, days after a Boulder District Court judge denied a motion to dismiss the lawsuit. Oral arguments were heard on July 12, and appellate judges are likely to issue a decision on the case in the near future.

Key allegations and timeline of the case

Rosenblum ran for Boulder City Council in the 2021 municipal election. On Sept. 22, 2021, Rosenblum filed a lawsuit alleging that Boulder organizers Eric Budd, Katie Farnan, Ryan Welsh, Claudia Hanson Thiem, Mark Van Akkeren, SarahDawn Haynes, an anonymous John Doe and the Boulder Progressives had launched an "orchestrated smear campaign" to destroy his reputation. Hanson Thiem was removed as a defendant at a later date.

According to the lawsuit, the "smear campaign" began nearly a year before Rosenblum entered the City Council race. At the time of the initial complaint, Rosenblum was a member of Safer Boulder, a community group that in June 2020 created a petition calling for Boulder to fully enforce its camping ban and increase police presence in the city. In fall 2020, an anonymous person published the Safer Leaks blog, which contains screenshots allegedly showing leaked conversations from Safer Boulder's Slack channel. There is a page about Rosenblum on the blog detailing his interactions with the group.

However, the lawsuit stated the Safer Leaks blog also published a series of "disgusting, horrible, violent, and intolerant" posts from a Reddit user and falsely attributed them to Rosenblum. And defendant Budd was accused of "accosting" Rosenblum about his involvement with Safer Boulder during an interview in the summer of 2021, then subsequently creating a fake social media account for Rosenblum and using it to "amplify the defamatory Safer Leaks blog." The lawsuit also alleges that other fake social media accounts and websites were created by the defendants.

After Rosenblum announced his candidacy, Boulder Progressives published a letter and blog that included several Safer Leaks posts and linked to the Safer Leaks blog site, the suit stated. Once the letter and blog were published, other organizers named as defendants amplified the blog on social media and shared it with local organizations that were considering whether to endorse Rosenblum.

One of the central claims in the suit was that defendants conspired to use the Safer Leaks blog to discredit Rosenblum during his candidacy for City Council. The suit also claimed that defendants misappropriated Rosenblum's name and likeness to defame him by creating fake websites and social media accounts.

On Nov. 24, 2021, two months after the initial complaint, attorneys representing the organizers filed a special motion to dismiss the case on the basis of a 2019 Colorado law targeting strategic lawsuits against public participation, also known as SLAPP suits.

The Boulder District Court judge denied the special motion on Feb. 28, 2022, and the defendants appealed the decision to the Colorado Court of Appeals a week and a half later.

According to the notice of appeal, the motion to dismiss had "demonstrated that the (Boulder Progressives) defendants published no actionable defamation and, to the extent they publicly criticized Rosenblum's candidacy, they published without actual malice."

Other court filings since the notice of appeal state that the only false speech Rosenblum had alleged was the false attribution of the Reddit posts to him, and that the Safer Leaks blog contained a "trove" of information that has been admitted as true. If the organizers' actions were allowed to be framed as a conspiracy, one filing argued, that result "not only chills speech in the ongoing community debate over homelessness and other issues, but will also silence speakers who would truthfully repeat statements by Safer Boulder members and others who seek office or support candidates in future election cycles."

Another filing stated, "It is crystal clear that Rosenblum's true objective was not to obtain monetary compensation for any actual injury to his reputation but instead to harass and silence persons who challenged his fitness for office."

Oral arguments

Oral arguments on the case were heard by three judges with the Colorado Court of Appeals on July 12.

Thomas Kelley, a lawyer representing some of the Boulder Progressives organizers, said there was a lack of evidence of any agreement between the organizers to defame Rosenblum, and that his clients only published correctly attributed quotations and a link to the Safer Leaks blog with a warning that the blog contained some statements — namely, the Reddit statements — that were not made by Rosenblum.

John Culver, an attorney for Budd, said his client's speech was protected political speech made in the context of an election and concerning Rosenblum's fitness for office. He also said the First Amendment protects Budd from any claim that he misappropriated Rosenblum's likeness.

Judge Craig Welling interjected, saying that "newsworthiness" can be a viable defense for using someone's name and likeness, but that may not apply when someone "create(s) the false impression that (Rosenblum) is advocating or endorsing certain positions that are taken on the Safer Leaks blog, and in particular, the Reddit post attribution."

Chris Murray, a lawyer for Rosenblum, argued that the defendants "passed on (information) with reckless disregard for the truth" and that there was evidence of actual malice on their part, but Judge Terry Fox said she felt the conspiracy claim was the "thinnest" claim on the plaintiff's side.

With the oral arguments completed, the appellate judges will issue a decision on whether or not to dismiss the case. It's not clear when the decision will be made, but a court clerk said decisions usually come "a number of weeks" after oral arguments.