Strategic Lawsuits Against Public Participation have become an all-too-common tool for intimidating and silencing critics from exercising their First Amendment rights. A litigant, such as a subject of a news story, may want to sue a news outlet to force the outlet to incur costs defending itself in court. An anti-SLAPP law is meant to provide a remedy from SLAPP suits. Having anti-SLAPP protections in place is essential for newsgathering because it allows journalists to report without concern for the financial consequences to their newsroom.
Colorado’s new anti-SLAPP law allows defendants to file a special motion to dismiss a case when they believe the case is a frivolous SLAPP suit. Notably, there is a provision that allows a defendant to have an immediate interlocutory appeal — a defendant may press pause on a lawsuit and directly appeal to a higher state court before discovery in the lawsuit can begin, which helps prevent the costly discovery process.
The new law also creates an expedited timeline to resolve the legal dispute. Once the special motion to dismiss is filed within 63 days of the original complaint, a hearing must happen within 28 days and the court then decides whether the plaintiff has a substantial likelihood to prevail on their initial claim. If the plaintiff cannot meet this burden, the special motion to dismiss is granted.
In addition, the law allows defendants who prevail on the special motion to dismiss to recover attorney fees and court costs. Colorado’s anti-SLAPP law helps people like Pete Kolbenschlag. Kolbenschlag, an environmental activist who testified in support of the law, was sued after posting comments critical of an oil and gas company on a news outlet’s website. While the case against him was eventually dismissed, the judge’s decision to award attorney fees to Kolbenschlag is still on appeal. Had Colorado’s anti-SLAPP law been in place when Kolbenschlag was sued, his case would have already been resolved.
Principal sponsors of the legislation include Representatives Lisa Cutter and Shannon Bird, along with Senator Mike Foote. The anti-SLAPP law passed with strong support, with a vote of 60-2 in the House and 35-0 in the Senate.