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

Case: Jennifer Lind-Barnett and Julie Davis v. Tender Care Veterinary Center, Inc.
Citation: 580 P.3d 573, 2025 CO 62 (Colo. Dec. 8, 2025; reh’g denied Dec. 22, 2025)
Court: Colorado Supreme Court (en banc)
Key Statute: § 13-20-1101, C.R.S. (2025) (Colorado anti-SLAPP statute), especially § 13-20-1101(2)(a)(IV)

1. Introduction

This decision resolves a question of first impression in Colorado: how courts should determine whether speech or conduct falls within the anti-SLAPP statute’s catchall protection for communications “in connection with a public issue or an issue of public interest,” § 13-20-1101(2)(a)(IV). The case arose from a defamation suit brought by Tender Care Veterinary Center, Inc. (“TCVC”) against two individuals, Jennifer Lind-Barnett and Julie Davis (“petitioners”), who posted numerous negative Facebook reviews and related comments about TCVC’s veterinary care and business practices and refused to remove them.

The district court denied petitioners’ special motion to dismiss. A division of the court of appeals affirmed, reasoning that—even if the posts touched on a public issue (consumer information about veterinary services)—their “purpose” was revenge and they did not contribute to broader public discussion. The Colorado Supreme Court reversed, announcing a structured two-step test for the catchall provision and holding that the speaker’s motive is irrelevant to the “public issue/public interest” inquiry.

Key issues presented

  • Interpretive standard: What does it mean for speech to be “in connection with a public issue or an issue of public interest” under § 13-20-1101(2)(a)(IV)?
  • Nexus/contribution requirement: Must the challenged speech contribute to public discussion or debate, and if so, how is that assessed?
  • Motive: May a court consider the defendant’s motive (e.g., animus or “revenge”) when deciding whether the speech fits the catchall provision?

2. Summary of the Opinion

The Court held that Colorado courts must apply a two-step test to determine whether speech or conduct is “in connection with a public issue or an issue of public interest” under the anti-SLAPP statute’s catchall provision, § 13-20-1101(2)(a)(IV):

  1. Step One (Public issue/public interest identification): Determine whether an objective observer could reasonably understand that the challenged speech or conduct, considering content and context, was made in connection with a public issue or issue of public interest—even if it also implicates a private dispute.
  2. Step Two (Relationship/contribution): 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, using contextual factors (audience, speaker, location, purpose).

Critically, the Court additionally held that a defendant’s motive is not relevant to deciding whether the speech is “in connection with a public issue or an issue of public interest” under § 13-20-1101(2)(a)(IV). The Court reversed and remanded for application of the newly articulated test.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

Foundational speech principles

  • Terminiello v. City of Chicago, 337 U.S. 1 (1949): Quoted for the proposition that speech is often “provocative and challenging.” The Court uses this as a constitutional backdrop to explain why anti-SLAPP protections exist: to prevent litigation from chilling uncomfortable speech.
  • Geiser v. Kuhns, 13 Cal.5th 1238, 297 Cal.Rptr.3d 592, 515 P.3d 623 (2022): A central influence. Colorado borrows Geiser’s contextual approach and several formulations: (i) the “objective observer” framing; (ii) recognition that speech can arise from private disputes yet implicate public issues; and (iii) the relevance of contextual factors like speaker identity, audience, location, purpose, and timing. Colorado, however, expressly departs from Geiser on motive (discussed below).

Colorado anti-SLAPP procedure and burden-shifting (background law)

  • L.S.S. v. S.A.P., 2022 COA 123: Cited for the defendant’s initial burden under § 13-20-1101(3)(a) to show the claim arises from protected petition/free speech activity.
  • Rosenblum v. Budd, 2023 COA 72: Cited for the burden shift to the plaintiff to show a “reasonable likelihood” of prevailing once the defendant satisfies the initial showing.
  • Tender Care Veterinary Ctr., Inc. v. Lind-Barnett, 2023 COA 114: The court of appeals decision under review; also cited for procedural framing of the special motion to dismiss.

California anti-SLAPP “public interest” doctrine adopted as persuasive authority

  • FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133, 246 Cal.Rptr.3d 591, 439 P.3d 1156 (2019) ("FilmOn"): The Court treats FilmOn as the primary template for the two-step test. FilmOn’s insistence on “some degree of closeness” between speech and the asserted public interest, and that the speech “must in some manner itself contribute to the public debate,” becomes Colorado’s step-two “relationship/contribution” requirement.
  • Weinberg v. Feisel, 110 Cal.App.4th 1122, 2 Cal.Rptr. 3d 385 (2003): Quoted (via FilmOn) for the notion that the catchall provision demands “some degree of closeness” between challenged statements and the asserted public interest, and for skepticism that a universal definition of “public issue” can be given.
  • Wilbanks v. Wolk, 121 Cal.App.4th 883, 17 Cal.Rptr. 3d 497 (2004): Quoted (via FilmOn) for the “contribute to the public debate” concept.
  • Rivero v. Am. Fed'n of State, Cnty. & Mun. Emps., AFL-CIO, 105 Cal.App.4th 913, 130 Cal.Rptr. 2d 81 (2003): Used (via Geiser) to articulate nonexclusive categories of speech that typically implicates public issues: public-eye persons/entities; conduct affecting many beyond the participants; or topics of widespread public interest.

Other cited authorities affecting the analysis

  • Comstock v. Aber, 212 Cal.App.4th 931, 151 Cal.Rptr. 3d 589 (2012): Cited by the court of appeals for the “protected conduct merely incidental” concept in mixed protected/unprotected conduct cases. The Colorado Supreme Court did not adopt the division’s motive-driven application of this framing and instead required the proper two-step public-issue analysis without motive weighing.
  • In re Marriage of Isbell, No. B173850, 2005 WL 1744468 (Cal. Ct. App. July 26, 2005) (unpublished opinion): Quoted for the proposition that animal welfare is an important societal concern—supporting the Court’s conclusion that consumer information about veterinary services can implicate a public issue.
  • LaFond v. Sweeney, 2015 CO 3: Cited to justify reliance on other jurisdictions’ decisions as persuasive authority when Colorado law is unsettled.
  • McBride v. People, 2022 CO 30; Miller v. Amos, 2024 CO 11; Nieto v. Clark's Mkt., Inc., 2021 CO 48; Blooming Terrace No. 1, LLC v. KH Blake St., LLC, 2019 CO 58: These cases supply the Court’s statutory-interpretation framework: de novo review, plain meaning, and reading the scheme harmoniously to effect legislative intent.
  • Coomer v. Salem Media of Colo., Inc., 2025 COA 2: Cited to illustrate where motive/state of mind matters in defamation doctrine (actual malice), reinforcing the Court’s separation between (i) whether speech concerns a public issue and (ii) whether the plaintiff can ultimately prove defamation elements.
  • Lowell v. Wright, 369 Or. 806, 512 P.3d 403 (2022): Used to support the Court’s motive-irrelevance holding by highlighting the illogic of identical speech receiving different anti-SLAPP treatment based on subjective motivation.

3.2 Legal Reasoning

(a) The statutory problem: undefined “public issue/public interest”

Section 13-20-1101(2)(a) enumerates four categories of protected acts. Subsections (I) and (II) focus on speech in or connected to official proceedings; (III) covers speech in a public place or forum “in connection with an issue of public interest”; and (IV) is a broad catchall covering “any other conduct or communication” in furtherance of petition/free speech “in connection with a public issue or an issue of public interest.” Because Colorado’s statute does not define “public issue” or “issue of public interest,” the Court treats the interpretive task as one of first impression and looks to California’s identical catchall language for persuasive guidance.

(b) The Court’s two-step test (and why it rejects the parties’ extremes)

The petitioners urged an expansive reading (anything “reasonably touches upon” a topic of interest to outsiders); TCVC urged a narrower reading requiring a strong “nexus” to encouraging or facilitating general debate. The Court rejects both extremes and instead adopts a structured two-step inquiry derived from FilmOn/Geiser:

  • Step One: Identify whether an objective observer could reasonably view the speech, in content and context, as connected to a public issue/interest—even if born of a private dispute. The Court emphasizes that speech is rarely about only one topic and that personal experience can serve as a catalyst for speaking on broader issues.
  • Step Two: Evaluate the functional relationship between the speech and the public conversation: did it contribute to public discussion or debate? Context is “critical,” and courts should consider audience, speaker, location, and purpose.

(c) Application error by the court of appeals

The Court agrees with the division’s initial recognition that veterinary-service quality can be a public issue, and it agrees that identifying an abstract public issue is not the end of the inquiry. But it holds the division “strayed” by effectively disqualifying protection because the posts were motivated by animosity and “revenge.” The Supreme Court frames this as an improper “weighing” of private concerns against public ones—an approach incompatible with the statute because speech can be simultaneously private-dispute-driven and publicly significant.

(d) The motive holding: categorical irrelevance at the “public issue/public interest” stage

The Court draws a bright line: motive may matter later (e.g., “actual malice” in defamation when public concern is involved, as noted via Coomer v. Salem Media of Colo., Inc.), but it does not belong in the threshold determination under § 13-20-1101(2)(a)(IV). Colorado expressly rejects the portion of Geiser suggesting motive “may be relevant” at step one if “objectively reasonable.” The Court’s practical concern is administrability and coherence: identical speech should not gain or lose anti-SLAPP protection based on subjective intent.

3.3 Impact

(a) A clearer, more uniform standard for § 13-20-1101(2)(a)(IV)

The decision supplies Colorado trial courts with an explicit framework for the catchall provision—likely reducing inconsistent outcomes in early anti-SLAPP motion practice, especially for modern speech contexts (social media, consumer reviews, community forums) that do not fit neatly within official-proceedings categories.

(b) Stronger protection for consumer-review and community-warning speech—without immunizing defamation

By recognizing that posts about the “quality of services and care at a licensed veterinary facility” can implicate public issues and can “prompt” community discussion, the Court signals that consumer-information speech—particularly when it sparks community engagement—may satisfy step one and step two more often than some defendants or plaintiffs expect. But the ruling does not decide the merits: once a defendant meets the protected-activity threshold, plaintiffs still can proceed by showing a “reasonable likelihood” of prevailing under § 13-20-1101(3)(a).

(c) Motive disputes shift away from threshold protection and into merits-related showings

A major litigation consequence is that plaintiffs can no longer defeat anti-SLAPP protection by characterizing the defendant as vengeful or malicious at the public-issue stage. Motive and state of mind issues instead become relevant (when relevant at all) to the plaintiff’s likelihood of success—e.g., actual malice or other fault standards in defamation. This will tend to focus early hearings on content/context and public-discussion contribution, rather than credibility battles about “why” the defendant spoke.

(d) Increased emphasis on factual context and the “contribution” inquiry

The second step’s “contributed to public discussion or debate” element will likely become the central battleground. Parties should expect evidence and argument about:

  • Audience: public-facing platforms, size and nature of community reach, engagement metrics (comments, shares, reactions);
  • Speaker identity: expertise, community role, organizational affiliation;
  • Location/forum: community pages, business pages, neighborhood networks;
  • Purpose (objective, not subjective motive): whether the communication can reasonably be understood as warning, informing, mobilizing, or otherwise feeding discussion.

4. Complex Concepts Simplified

  • Anti-SLAPP statute: A procedural device designed to quickly dismiss lawsuits that target speech or petitioning activity on matters of public significance, thereby preventing litigation from “chilling” participation.
  • Special motion to dismiss (§ 13-20-1101(3)(a)): A defendant’s early motion that triggers a two-part burden shift: (i) the defendant must show the claim arises from protected activity; (ii) then the plaintiff must show a “reasonable likelihood” of success.
  • Catchall protected activity (§ 13-20-1101(2)(a)(IV)): A broad category covering “any other conduct or communication” furthering petition/free speech when connected to a public issue/interest. This case defines how to evaluate that connection.
  • “Public issue” / “issue of public interest” (as operationalized here): Not a fixed list. Courts ask whether an objective observer could reasonably see a public-facing issue implicated and, separately, whether the speech contributes to public discussion or debate about it.
  • Objective observer: A legal lens that asks how a reasonable person would understand the speech in context, rather than focusing on subjective intent or private motivations.
  • Defamation per se: A defamation category where certain statements are considered so harmful that damages may be presumed (though plaintiffs still must meet other requirements).
  • Actual malice: In some defamation settings involving matters of public concern, a plaintiff may need to prove the defendant spoke knowing falsity or reckless disregard for truth. The Court notes motive/state of mind may matter here—after the protected-activity threshold is satisfied.
  • De novo review: The Supreme Court reviews statutory interpretation without deference to lower courts.
  • Important terminology note (“two-step test”): The Court clarifies that “two-step test” can be used ambiguously in anti-SLAPP cases. Here, it means the test for whether speech is connected to a public issue/interest under § 13-20-1101(2)(a)(IV), not the separate burden-shifting structure under § 13-20-1101(3)(a).

5. Conclusion

Lind-Barnett v. Tender Care Veterinary Center, Inc. establishes a significant new Colorado precedent for anti-SLAPP practice: courts must use a two-step, content-and-context framework to determine whether challenged speech is connected to a “public issue” or “issue of public interest” under the catchall provision, and they must assess whether the speech contributed to public discussion or debate. Equally important, the Court holds that the speaker’s motive is irrelevant to that public-issue/public-interest determination, pushing subjective-intent disputes away from the threshold inquiry and into the plaintiff’s merits-based “reasonable likelihood of prevailing” showing where appropriate.

In the broader legal landscape, the decision strengthens predictable protection for public-facing consumer and community speech—especially online—while preserving space for genuinely meritorious defamation claims to proceed under § 13-20-1101(3)(a).