Colorado’s Anti-SLAPP Catchall: Two-Step “Public Issue/Public Interest” Test and Motive-Irrelevance Rule

1. Introduction

In Lind-Barnett v. Tender Care Veterinary Center, Inc., 2025 CO 62 (Colo. Aug. 12, 2025), the Colorado Supreme Court addressed a question of first impression under Colorado’s anti-SLAPP statute, section 13-20-1101, C.R.S. (2025): how courts should determine whether speech or conduct is made “in connection with a public issue or an issue of public interest” under the statute’s catchall provision, § 13-20-1101(2)(a)(IV).

The dispute arose after petitioners Jennifer Lind-Barnett and Julie Davis posted numerous negative Facebook reviews and community-page comments criticizing respondent Tender Care Veterinary Center, Inc. (“TCVC”) for alleged misdiagnoses, malpractice, and unprofessional retaliation. TCVC sued for defamation per se based on many statements. Petitioners responded with a special motion to dismiss under the anti-SLAPP statute. The district court denied the motion. The court of appeals affirmed, reasoning that although veterinary-services reviews can implicate public interest, these posts were primarily private revenge and thus not protected.

The Supreme Court reversed, holding that Colorado courts must apply a two-step test to the “public issue/public interest” requirement in the anti-SLAPP catchall and that a speaker’s motive is irrelevant to that threshold inquiry.

2. Summary of the Opinion

The Court announced a new governing framework for § 13-20-1101(2)(a)(IV):

1. Step One (Objective public-issue implication): Determine whether an objective observer could reasonably understand the challenged speech or conduct—considering content and context—to be made in connection with a public issue or an issue of public interest, even if it also implicates a private dispute.
2. Step Two (Contribution to public discussion): Examine the relationship between the challenged activity and the identified public issue/interest and ask whether the activity contributed to public discussion or debate regarding that issue, again using contextual factors such as audience, speaker, location, and purpose.

The Court further held that a defendant’s motive does not factor into either step of the “public issue/public interest” analysis; motive may matter later (for example, in proving elements like actual malice), but not in deciding whether the speech falls within the catchall’s protected category.

Applying these principles, the Court agreed with the court of appeals that consumer information about veterinary services can implicate a public issue, but it found error in the lower court’s focus on “private grievance” and “revenge” as grounds to deny protection. The case was remanded for the trial court to apply the newly announced two-step test.

3. Analysis

3.1 Precedents Cited

A. Foundational free-speech values motivating anti-SLAPP protection

• Terminiello v. City of Chicago, 337 U.S. 1 (1949): Quoted for the proposition that speech can be “provocative and challenging,” framing the anti-SLAPP statute as protecting speech even when it is uncomfortable or disruptive.
• Geiser v. Kuhns, 515 P.3d 623 (Cal. 2022): Used both rhetorically (the importance of protecting uncomfortable speech) and doctrinally (its anti-SLAPP analytical structure) as a major guide for Colorado’s new test.

B. Colorado anti-SLAPP procedure and burden-shifting background

• L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280 and Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354: Cited for the statute’s burden-shifting structure under § 13-20-1101(3)(a): defendant first shows the claim arises from protected petition/speech activity; then the burden shifts to plaintiff to show a reasonable likelihood of prevailing.
• Tender Care Veterinary Ctr., Inc. v. Lind-Barnett, 2023 COA 114, 544 P.3d 693: The decision under review; the Supreme Court adopts some of its recognition that veterinary-service consumer information may be public-issue-related, but rejects its motive-centered application.

C. The California model: defining “public issue/public interest” and “contribution” requirements

• FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (Cal. 2019) (“FilmOn”): The principal source of the two-step structure adopted by Colorado. The Colorado Court agreed with FilmOn’s insistence on “some degree of closeness” between challenged speech and asserted public interest and that speech must “in some manner itself contribute to the public debate.”
• Weinberg v. Feisel, 2 Cal. Rptr. 3d 385 (Cal. Ct. App. 2003): Quoted (via FilmOn) for the idea that the catchall demands “some degree of closeness” between speech and the public interest invoked.
• Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Cal. Ct. App. 2004): Quoted (via FilmOn) for the “contribute to the public debate” requirement used in step two.
• Rivero v. Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO, 130 Cal. Rptr. 2d 81 (Cal. Ct. App. 2003): Adopted as a helpful taxonomy for identifying public-issue/public-interest speech—e.g., involving a public figure/entity, affecting many beyond the direct participants, or a topic of widespread public interest.

D. Other authorities reinforcing the Court’s boundary lines

• Comstock v. Aber, 151 Cal. Rptr. 3d 589 (Cal. Ct. App. 2012): Relied on by the court of appeals for the “incidental protected conduct” concept; the Supreme Court’s reasoning undercuts the way Comstock was used here by rejecting a simplistic “private animus eclipses public issue” weighing approach.
• In re Marriage of Isbell, No. B173850, 2005 WL 1744468 (Cal. Ct. App. July 26, 2005) (unpublished opinion): Quoted by the court of appeals (and noted approvingly in part) for recognizing animal welfare as an important societal concern, supporting the notion that veterinary care can be publicly significant.
• Lowell v. Wright, 512 P.3d 403 (Or. 2022): Cited for the logic problem of making protection turn on subjective motive: identical speech would receive different treatment depending on animus.
• Coomer v. Salem Media of Colo., Inc., 2025 COA 2, 565 P.3d 1133: Used to illustrate where motive-like concepts properly matter—e.g., “actual malice”—but only at the later merits stage (reasonable likelihood of prevailing).

E. Statutory-interpretation framework

• McBride v. People, 2022 CO 30, 511 P.3d 613; Miller v. Amos, 2024 CO 11, 543 P.3d 393; Nieto v. Clark's Mkt., Inc., 2021 CO 48, 488 P.3d 1140; Blooming Terrace No. 1, LLC v. KH Blake St., LLC, 2019 CO 58, 444 P.3d 749: These cases supply the Court’s canons: de novo review, plain meaning, and harmonious reading of the statutory scheme.
• LaFond v. Sweeney, 2015 CO 3, 343 P.3d 939: Supports consulting other jurisdictions when Colorado law presents an issue of first impression.

3.2 Legal Reasoning

A. The Court’s doctrinal move: importing (but modifying) FilmOn/Geiser

The Court treated California’s identical catchall language as a persuasive template, but it did not adopt California doctrine wholesale. It took the FilmOn architecture—(1) identify the public issue implicated by the content; (2) evaluate the functional relationship between the speech and the public conversation using context—then integrated Geiser’s emphasis that private disputes can still implicate public issues when viewed in context.

The key Colorado-specific modification is explicit: the Court rejects Geiser v. Kuhns to the extent it allows a defendant’s motivation to “inform” step one. Colorado’s rule is categorical: motive is not relevant to the catchall inquiry.

B. Step One: “public issue/public interest” is objective, contextual, and not defeated by private dispute

The Court framed step one as an objective observer test based on content and context. Importantly, it warned against forcing speech into “a single topic,” recognizing that real-world expression often mixes personal narrative, criticism, and broader warnings to the public.

Using the California “characteristics” as nonexclusive guideposts, the Court emphasized that speech tends to implicate public interest where it: (1) concerns a public person/entity, (2) affects many beyond direct participants, or (3) involves a topic of widespread interest; media coverage can be a further indicator. This structure is meant to discipline courts away from both extremes argued by the parties: neither “anything that touches something people might find interesting” nor “only speech that explicitly tries to facilitate a general debate.”

C. Step Two: the “contribution” inquiry, grounded in practical context

The Court retained FilmOn’s insistence that it is not enough to invoke a public issue “in the abstract.” Courts must ask whether the challenged activity contributed to public discussion or debate about the identified issue. It identified relevant contextual factors—audience, speaker, location, purpose—echoing Geiser.

On the facts, the Court signaled how those factors can work for consumer reviews: the audience (large community Facebook groups), the speaker (including one petitioner’s claimed background as a breeder/caregiver), the location/fora (public social media pages), and the resulting engagement (dozens of reactions, over 140 comments) together support an inference that the posts were part of public community information-sharing about veterinary service quality.

D. Motive: excluded at the catchall stage, reserved for the merits stage

The Court’s clean division of labor is the opinion’s most concrete rule. Motive is excluded from determining whether speech is “in connection with” public issues/interests, because:

• Motive does not answer the statutory questions (public-issue implication; contribution to public discussion).
• Motive-based filtering produces inconsistent results for identical speech (reinforced by Lowell v. Wright).
• Motive already has a natural home under § 13-20-1101(3)(a) when the plaintiff must show a reasonable likelihood of prevailing, including through elements like actual malice when required (illustrated with Coomer v. Salem Media of Colo., Inc.).

3.3 Impact

A. A new statewide standard for § 13-20-1101(2)(a)(IV)

This decision supplies what Colorado lacked: an articulated framework for the catchall’s “public issue/public interest” language. Trial courts now have a structured test, and appellate review can more consistently assess whether lower courts conflated public-issue analysis with perceived spite, tone, or animus.

B. Consumer-review and “local community” speech is more likely to receive threshold protection

The Court’s reasoning indicates that consumer-facing speech about licensed services—here, veterinary medicine—can qualify as public-issue-connected even when the immediate trigger is personal dissatisfaction. That principle is likely to extend to other heavily reviewed, public-facing services (health care, trades, childcare, elder care, and similar markets), especially when posted in forums designed for community information-sharing.

C. Motive-based denials of anti-SLAPP protection should diminish

By foreclosing motive at the catchall stage, the Court reduces a common path by which courts deny anti-SLAPP motions: characterizing speech as “revenge,” “personal animosity,” or “private grievance.” After this opinion, those characterizations cannot do the work of defeating threshold protection; instead, they belong (if at all) to the plaintiff’s merits showing under § 13-20-1101(3)(a).

D. Practical litigation consequences

• Earlier sorting of cases: Defendants may more reliably reach the plaintiff’s “reasonable likelihood” burden, rather than being stopped at the threshold by motive-based reasoning.
• More emphasis on contextual evidence: Parties will litigate audience, forum, reach/engagement, and how the speech functioned in public discourse.
• Merits questions deferred, not eliminated: The Court did not decide whether TCVC can show a reasonable likelihood of prevailing; it required the trial court to apply the correct threshold test first, then proceed through the statute’s burden shifting as appropriate.

4. Complex Concepts Simplified

• SLAPP / anti-SLAPP: A “strategic lawsuit against public participation” is a claim filed (often defamation) that is alleged to be aimed at deterring criticism or participation. Anti-SLAPP statutes create an early dismissal mechanism to prevent litigation from chilling protected expression.
• Special motion to dismiss (anti-SLAPP): An early motion where the defendant argues the lawsuit targets protected petitioning/speech activity. If the defendant clears the threshold, the plaintiff must show a “reasonable likelihood” of winning.
• Catchall protected activity (§ 13-20-1101(2)(a)(IV)): A broad category protecting other speech/conduct, but only if it is connected to a “public issue” or “issue of public interest.”
• “In connection with” and “contributed to public discussion”: The Court requires more than a superficial reference to a popular topic; the speech, in context, must function as part of public information-sharing or debate about the identified issue.
• Motive vs. elements like “actual malice”: The Court distinguishes (a) whether speech is the kind anti-SLAPP can cover (motive irrelevant) from (b) whether a defamation plaintiff can win (where the defendant’s state of mind may matter).

5. Conclusion

2025 CO 62 establishes a significant clarification of Colorado anti-SLAPP law: courts applying the catchall provision, § 13-20-1101(2)(a)(IV), must use a two-step, objective, context-sensitive test to determine whether challenged expression is connected to a public issue/interest and whether it contributed to public discussion. Critically, the Court holds that speaker motive plays no role in that threshold inquiry—correcting the court of appeals’ “private grievance/revenge” focus. The decision strengthens the statute’s speech-protective function while preserving the plaintiff’s opportunity to proceed by meeting the separate § 13-20-1101(3)(a) burden to show a reasonable likelihood of prevailing on the merits.