Boulder political activist Eric Budd has petitioned the Colorado Supreme Court to review a defamation lawsuit that former city council candidate Steven Rosenblum filed against Budd and other organizers.
The petition frames the case against Budd as a threat to his First Amendment rights of free speech. It also challenges the Colorado Court of Appeals’ finding that some of the claims against Budd might succeed in trial and that key questions of the case, such as whether Rosenblum had sufficient evidence supporting defamation or whether Budd’s First Amendment privilege could be supported by the facts, should be left to a jury to decide.
Rosenblum, who ran unsuccessfully for Boulder City Council in the fall of 2021, originally filed his lawsuit in Boulder District Court two years ago, claiming that Budd and several other local political organizers had colluded to defame him during his campaign.
The former council hopeful also alleged that Budd, specifically, defamed him and misappropriated his likeness by creating a fake social media account under Rosenblum’s name and using it to share a link to a Safer Leaks blog, which at the time falsely attributed a series of Reddit posts to Rosenblum. The blog has since removed its inaccurate statements but still contains critical statements about Rosenblum as well as other members of the Safer Boulder group, which in June 2020 created a petition calling for Boulder to fully enforce its camping ban and increase police presence in the city.
Attorneys for the organizers have argued the lawsuit was intended to silence legitimate political speech against Rosenblum. But although they filed a special motion to dismiss the case based on a 2019 Colorado law targeting strategic lawsuits against public participation, also known as SLAPP suits, the Boulder District Court denied the motion to dismiss the lawsuit. The case then headed to the state Court of Appeals in March 2022.
In an opinion dated Aug. 3, Colorado Court of Appeals Judge Terry Fox ruled that Rosenblum had established a “reasonable probability of success at trial” on his misappropriation and defamation claims against Budd, but that he had not done so for a claim of civil conspiracy against Budd and fellow defendants Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes and the Boulder Progressives organization. All defendants except for Budd were dismissed from the case at that time.
Because Budd had “reason to know” the link to the blog contained false information, Fox wrote Rosenblum might be able to establish that Budd acted with “actual malice,” which is an essential criterion in Colorado for proving defamation in court.
In a court filing dated Oct. 26, Budd petitioned the state Supreme Court for a writ of certiorari, which asks that court to review the Court of Appeals decision. It also characterizes the original lawsuit against Budd and other organizers a “brazen attack on Mr. Budd’s First Amendment rights and the political process.”
“The COA’s holding that these issues are for a jury to resolve is inconsistent with the decisions of other Colorado Courts, including this one, will create confusion in the future when the same issues inevitably arise, will undermine free speech guarantees and chill free exercise of expression, and will undermine the purpose of the anti-SLAPP statute,” the filing read.
According to the filing, Budd previously asserted that his First Amendment rights allowed him to use Rosenblum’s name and likeness in the context of “a publication concerning a matter that is newsworthy or of legitimate public concern.” He also stated in a previous motion that “no reasonable person” would believe that Rosenblum would endorse a blog that is “highly critical” of him.
Further, the filing stated, there are other, broader free-speech issues at stake in this case, such as the scope of the legal claims that can be brought against people who speak out about public figures and matters of public interest.
When contacted Monday, Budd declined to comment beyond what was stated in the court filing.
