One of the tenets of American democracy is that public participation is fundamental to self-government. Recognizing this tenet, the United States Constitution—and the various state constitutions—protect an individual’s rights of petition and free speech.
Despite these rights being enshrined in state and federal constitutions, ordinary individuals have increasingly faced retaliatory lawsuits simply for speaking out politically. In 1989, researchers coined the term “SLAPP” for these lawsuits, which stands for “strategic lawsuits against public participation” and described these lawsuits as litigation utilized to send a message that there is a “price” to pay for civic engagement—that price being an expensive retaliatory lawsuit as a meritless attempt at chilling participation in government.
SLAPP lawsuits can target a wide variety of political activity, including reporting violations of law, writing government officials, attending public hearings, circulating petitions and lobbying for legislation. The public interests implicated by these activities are likewise varied, ranging from zoning, health and safety, and environmental protection to public education, animal welfare, and taxation.
After recognizing the growing threat that these SLAPPs posed, numerous states adopted anti-SLAPP statutes—laws specifically designed to protect a citizen’s right of petition and free speech when faced with such lawsuits. These statutes provide a framework for courts to determine early in litigation whether the plaintiff is complaining of a legitimate legal wrong or simply bringing a frivolous case to chill the defendant’s exercise of constitutional rights.
Colorado enacted its own version of an anti-SLAPP statute in July 2019, codified as section 13-20-1101, C.R.S., to address and reduce abuse stemming from SLAPP litigation. In enacting this statute, the Colorado General Assembly found and declared “that it is in the public interest to encourage continued participation in matters of public significance and that this participation should not be chilled through abuse of the judicial process.” The purpose of Colorado’s anti-SLAPP statute is “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury.”
Defendants may invoke the anti-SLAPP defense when faced with a civil action for acts or omissions “in furtherance of the person’s right of petition or free speech” under the United States Constitution or Colorado Constitution “in connection with a public issue.” Some activities protected by Colorado’s anti-SLAPP statute include:
- Any written or oral statements made before a legislative, executive, judicial, or other official proceeding authorized by law;
- Any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law;
- Any written or oral statement made in a place open to the public or a public forum in connection with an issue of public interest;
- Any other conduct or communication in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
As a relatively new statute, Colorado appellate courts have not yet had the opportunity to provide guidance on specific activities covered by the anti-SLAPP statute. However, there is a potential that a broad range of activities fall under this statute’s protections.
If an individual’s actions fall under the purview of the anti-SLAPP statute, Colorado law affords the defendant an opportunity to file a special motion to dismiss early in the case using a Denver civil lawyer. Upon filing a special motion to dismiss under the anti-SLAPP statute, the lawsuit is subject to dismissal unless the court determines that the plaintiff has established a reasonable likelihood that the plaintiff will prevail on his or her claim—a higher burden that the plaintiff would not otherwise bear at this stage of the proceedings. If the court determines that the plaintiff has met this burden, then the case continues its normal course. If, however, the plaintiff cannot meet that burden, the prevailing defendant is entitled to recover his or her attorney fees and costs.
Because the Colorado anti-SLAPP statute allows a defendant to recover attorney fees and costs, it can be a powerful tool when facing a retaliatory lawsuit simply for exercising constitutional rights. Thus, given the burden that plaintiffs bear, it is likewise important that they be prepared to meet that burden so that their legitimate lawsuits can proceed, avoiding early dismissal and the possibility of being held responsible for the defendant’s attorney fees and costs.