Defining “Public Issue” Under Colorado’s Anti‑SLAPP Statute: The Two‑Step Test and the Irrelevance of Motive in Lind‑Barnett v. Tender Care Veterinary Center

Defining “Public Issue” Under Colorado’s Anti‑SLAPP Statute: The Two‑Step Test and the Irrelevance of Motive in Lind‑Barnett v. Tender Care Veterinary Center

I. Introduction

In Jennifer Lind‑Barnett and Julie Davis v. Tender Care Veterinary Center, Inc., 2025 CO 62 (No. 24SC8), the Colorado Supreme Court delivered a significant opinion on the scope of Colorado’s anti‑SLAPP statute, section 13‑20‑1101, C.R.S. (2025). The case involves online consumer reviews of a veterinary clinic, a subsequent defamation lawsuit by the clinic, and the consumers’ attempt to invoke anti‑SLAPP protections to have the suit dismissed at an early stage.

At the core of the decision are two closely related questions:

  • What does it mean for speech to be made “in connection with a public issue or an issue of public interest” under section 13‑20‑1101(2)(a)(IV)?
  • May courts consider a speaker’s motive when deciding whether speech falls within that “public issue / public interest” category?

Justice Berkenkotter, writing for the en banc Court (with Justice Hart not participating), adopts a structured two‑step test—drawn heavily from recent California Supreme Court jurisprudence—to determine when speech is sufficiently connected to a public issue or public interest to trigger the anti‑SLAPP statute’s protection. At the same time, the Court makes an explicit doctrinal choice to reject motive as a relevant factor at that threshold stage, marking a deliberate divergence from California’s approach.

The case also has a clear practical dimension. The amici include Public Citizen, the Public Participation Project, and Yelp Inc., underscoring the importance of this decision for online speech, consumer reviews, and the growing use of anti‑SLAPP laws to protect public participation in matters of communal concern. The Court’s ruling will shape how Colorado courts handle early dismissal motions in defamation and related suits arising from online commentary about businesses and services.

II. Factual Background and Procedural History

A. The Underlying Disputes

1. Lind‑Barnett’s experience with Tender Care Veterinary Center (TCVC)

In January 2022, petitioner Jennifer Lind‑Barnett—described as a “long time breeder, trainer, sitter and caregiver” for animals in Colorado—took a 16‑day‑old puppy, Pinkerbell, to Tender Care Veterinary Center, Inc. (“TCVC”) for emergency care. The puppy could not nurse and had an elevated respiratory rate. TCVC’s veterinarian examined the dog and attributed the issue to constipation, advising home care. The next morning, Pinkerbell remained ill. A second veterinary clinic diagnosed pneumonia and successfully treated her.

Believing TCVC had misdiagnosed and mishandled the case, Lind‑Barnett requested a refund, which TCVC refused. She then posted a lengthy, sharply critical review on TCVC’s Facebook page. Among other things, she accused the clinic of:

  • Incompetence and cruelty;
  • Malpractice in nearly causing the puppy’s death;
  • Retaliation and intimidation (including threatening a client with a lawyer for speaking out).

She urged others to avoid the clinic, characterizing her review as a warning to the community.

2. Davis’s experience and engagement on community Facebook pages

Roughly a month later, petitioner Julie Davis brought her dog, Spicy, to TCVC for symptoms including difficulty walking and imbalance. TCVC diagnosed a “resolved seizure” and discharged the dog. When symptoms persisted, Davis sought treatment at another clinic, where Spicy was diagnosed with vestibular disease and treated.

Around this time, Lind‑Barnett reposted her original review on her own Facebook page and multiple local community Facebook groups covering the Falcon, Black Forest, Peyton, Calhan, and surrounding areas. Davis encountered these posts and added comments describing:

  • What she described as a misdiagnosis and alarming lab values at TCVC;
  • Her outrage that the dog had been discharged despite “near fatal” potassium levels;
  • Concerns about the clinic’s professionalism, business practices, and treatment of critical feedback.

Both women’s posts criticized TCVC’s quality of care and its alleged hostility toward dissatisfied clients.

B. Community Response

Across the various Facebook pages, their posts:

  • Garnered dozens of reactions;
  • Generated over 140 comments; and
  • Prompted some community members to thank them for “warning” others and to share their own experiences with the clinic.

A typical commenter framed Lind‑Barnett’s post as “exactly what this page is for—sharing information about our community” and suggested that it “may save lives.” In other words, the conversation extended beyond a bilateral dispute and became a community discussion about local veterinary care.

C. The Defamation Suit and Anti‑SLAPP Motion

After demanding that the posts be removed and being rebuffed, TCVC filed a defamation per se action, alleging:

  • 104 defamatory statements by Lind‑Barnett; and
  • 10 defamatory statements by Davis.

Lind‑Barnett and Davis responded by filing a special motion to dismiss under Colorado’s anti‑SLAPP statute, section 13‑20‑1101, arguing that their speech:

  • Recounted their first‑hand experiences with a licensed veterinary clinic; and
  • Addressed issues of veterinary quality and consumer safety—subjects of public concern and public interest.

The district court denied the motion, finding:

  1. The case involved “a private business dispute,” not a public issue or matter of public interest; and
  2. Even if anti‑SLAPP did apply, TCVC had shown a reasonable likelihood of prevailing on its claims.

The petitioners appealed.

D. The Court of Appeals’ Decision

A division of the Colorado Court of Appeals affirmed. It reasoned that:

  • Facebook is a “public forum” for anti‑SLAPP purposes, but not all public‑forum speech is about a public issue.
  • The content of the posts did touch on a potential public issue—consumer information about veterinary services and animal welfare—but
  • The posts did not, in the division’s view, “contribute to any broader public discussion” about pet health care or any wider public concern (e.g., systemic issues in veterinary care, oversight of vets, access to care).

Crucially, the division framed the petitioners’ purpose as essentially vindictive: “to exact some revenge by putting [TCVC] out of business.” From that, it concluded:

  • The statements primarily reflected personal animus and a private business dispute;
  • Any references to broader veterinary diagnostic issues were merely “incidental” to this private feud; and therefore
  • The statements were not made “in connection with” an issue of public interest for purposes of the anti‑SLAPP statute.

The petitioners then sought certiorari, and the Colorado Supreme Court granted review on three questions, including (1) the supposed “nexus requirement,” (2) the relationship between “matter of public concern” in defamation law and “public interest” under anti‑SLAPP, and (3) the relevance of motive in the anti‑SLAPP public‑interest inquiry.

III. Summary of the Supreme Court’s Opinion

The Colorado Supreme Court reverses the Court of Appeals and clarifies three key points:

  1. Two‑step test for “public issue / public interest” (catchall provision). To determine whether speech is “in connection with a public issue or an issue of public interest” under section 13‑20‑1101(2)(a)(IV), courts must apply a two‑step test:
    • Step One: Would an objective observer, considering the content and context of the speech, reasonably understand it as made in connection with a public issue or issue of public interest, even if it also arises from a private dispute?
    • Step Two: What is the relationship between the challenged speech and the identified public issue? Did the speech, in its context (speaker, audience, location, purpose), contribute to public discussion or debate on that issue?
  2. Rejection of motive at the threshold “public issue / public interest” stage. A defendant’s subjective motive (including spite or desire for revenge) is not relevant to the question whether speech is “in connection with” a public issue or public interest. Motive may matter later—for example, when evaluating “actual malice” in a defamation claim—but it does not define whether the statute applies in the first place.
  3. Misapplication by the Court of Appeals. The Court concludes that the division erred by:
    • Effectively balancing the “private” versus “public” motivations of the petitioners, and
    • Focusing on the petitioners’ desire for revenge, instead of objectively examining the content, context, audience, and actual community conversation generated by the posts.
    The Supreme Court holds that the petitioners’ posts could reasonably be understood, in context, to implicate a public issue—the quality of care and practices at a licensed veterinary facility, which affect the animal‑owning public. However, the Court stops short of deciding the motion itself. It remands for the trial court to apply the newly articulated two‑step test and then, if the statute applies, to proceed to the second statutory phase (whether TCVC has shown a reasonable likelihood of prevailing on the merits).

IV. Detailed Analysis

A. Statutory Framework and the Role of the Catchall Provision

Colorado’s anti‑SLAPP statute aims to “encourage continued participation in matters of public significance” and to prevent the use of litigation to chill constitutionally protected petitioning and speech. Section 13‑20‑1101(2)(a) identifies four types of protected “act[s] in furtherance of a [defendant’s] right of petition or free speech”:

  1. Statements made in official proceedings;
  2. Statements made in connection with issues under consideration by government bodies;
  3. Statements made in a public forum on an issue of public interest; and
  4. The catchall: “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.”

This case centers on the fourth, catchall provision, section 13‑20‑1101(2)(a)(IV). That subsection does not define “public issue” or “public interest,” and Colorado had not previously articulated a governing test. The Court steps into that gap.

Separately, section 13‑20‑1101(3)(a) provides the burden‑shifting mechanism:

  1. The defendant must first show the claim arises from protected acts under 13‑20‑1101(2)(a); if not, the motion fails.
  2. If that threshold is met, the burden shifts to the plaintiff to demonstrate a “reasonable likelihood” of prevailing on the claim. If the plaintiff cannot make that showing, the case is dismissed at an early stage.

A notable point in footnote 1 of the opinion is terminological clarity: the Court expressly states that it will use “two‑step test” to refer only to the substantive “public issue / public interest” inquiry under subsection (2)(a)(IV), not to the overall burden‑shifting framework under subsection (3)(a). This matters for practitioners reading and citing anti‑SLAPP cases.

B. Precedents and Authorities Shaping the Opinion

1. Colorado cases applying the anti‑SLAPP statute

  • L.S.S. v. S.A.P., 2022 COA 123, 523 P.3d 1280. The Court cites L.S.S. for the standard that the defendant bears the initial burden to show the claim arises from protected acts, and then the burden shifts to the plaintiff to demonstrate a “reasonable likelihood” of success. It also notes that Colorado courts have already looked to California law for guidance because the statutes “closely resemble” one another.
  • Rosenblum v. Budd, 2023 COA 72, 538 P.3d 354. This case is referenced for its articulation of the burden‑shifting standard—once a defendant shows coverage under the statute, the plaintiff must show a reasonable likelihood of prevailing to avoid dismissal.
  • Tender Care Veterinary Ctr., Inc. v. Lind‑Barnett, 2023 COA 114, 544 P.3d 693. This is the Court of Appeals’ decision under review. The Supreme Court agrees with the division’s recognition that veterinary services can implicate public interest but criticizes its analysis for:
    • Importing a “revenge” motive into the public‑interest inquiry;
    • Effectively requiring that the speech relate to an abstract, policy‑level debate about animal care, rather than recognizing the public aspect of concrete consumer experiences; and
    • Weighing “personal animosity” against “public contribution,” rather than asking whether the speech, in context, can reasonably be understood to implicate a public issue and contribute to public discussion.
  • Coomer v. Salem Media of Colorado, Inc., 2025 COA 2, 565 P.3d 1133. Cited to illustrate that when speech involves a matter of public concern in defamation law, the plaintiff must prove “actual malice” (knowledge of falsity or reckless disregard). The Supreme Court uses this to show where motive (or more precisely, mental state) is relevant—at the merits stage of a defamation claim, not the threshold anti‑SLAPP “public interest” stage.

2. California anti‑SLAPP cases as persuasive authority

The Court explicitly looks to California’s nearly identical anti‑SLAPP statute and its case law for guidance, as it has done in previous cases. Two California Supreme Court decisions are especially influential:

  • FilmOn.com Inc. v. DoubleVerify Inc., 439 P.3d 1156 (Cal. 2019). FilmOn provides the structural template for Colorado’s new two‑step test. There, the California Supreme Court:
    • Examined speech about whether online content included adult or infringing material; and
    • Held that although such topics are, “in the abstract,” matters of public interest, confidential reports prepared for paying clients and not shared more broadly were too “tenuously tethered” to any public conversation to merit protection under the catchall provision.

    FilmOn emphasized that:

    • Identifying a public issue in the abstract is not enough; courts must examine the functional relationship between the speech and ongoing public discussion.
    • The catchall requires “some degree of closeness” between the statement and the asserted public interest; speech must “in some manner itself contribute to the public debate.”
    Colorado adopts this analytical structure.
  • Geiser v. Kuhns, 515 P.3d 623 (Cal. 2022). In Geiser, protestors picketed outside the CEO of a real‑estate company’s home after the company evicted a long‑term tenant couple. The California Supreme Court framed the picketing as implicating public issues about real‑estate and eviction practices, not just a private landlord‑tenant dispute. It stressed:
    • The importance of context: who spoke, where, when, and about what; and
    • The notion that speech inspired by personal harm can still raise broader public issues (e.g., a harassment victim’s story may simultaneously be about her own experience and about workplace harassment generally).
    Colorado’s opinion draws heavily on Geiser for the idea that:
    • Speech rarely concerns a single, neatly isolated topic;
    • Private disputes can often intersect with matters of public interest; and
    • A motion fails at step one only when speech “cannot reasonably be understood as implicating a public issue.”

The Colorado Supreme Court also cites, through Geiser, other California authorities that help identify patterns of “public interest” speech:

  • Rivero v. American Federation of State, County & Municipal Employees, 130 Cal. Rptr. 2d 81 (Cal. Ct. App. 2003). Often cited for the three non‑exhaustive categories of public‑interest speech:
    1. Speech about a person or entity in the public eye;
    2. Conduct that could directly affect a large number of people beyond the participants; and
    3. Topics of widespread public interest.
  • Weinberg v. Feisel, 2 Cal. Rptr. 3d 385 (Cal. Ct. App. 2003). Emphasizes the need for “some degree of closeness” between speech and a public issue and considers whether the issue has received broad media attention as an indicator of public interest.
  • Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Cal. Ct. App. 2004). Highlights that it is not enough merely to talk about a subject of widespread interest; speech must itself “contribute to the public debate.”
  • Comstock v. Aber, 151 Cal. Rptr. 3d 589 (Cal. Ct. App. 2012). Cited by the Court of Appeals below for the notion that if a complaint rests on both protected and unprotected conduct, anti‑SLAPP protections do not apply where the protected conduct is merely “incidental” to the unprotected conduct. While the Colorado Supreme Court does not directly repudiate that principle, it implicitly undercuts the division’s application of it, emphasizing that courts must analyze speech in context rather than simply declaring “personal animus” to eclipse all public‑interest elements.

3. Other persuasive authority

  • Lowell v. Wright, 512 P.3d 403 (Or. 2022). The Oregon Supreme Court case is cited for a thought experiment: if two speakers say exactly the same words in exactly the same manner to the same audience, but one is motivated by personal animus and the other is not, it would be irrational to treat their speech differently for anti‑SLAPP purposes. The Colorado Court uses this logic to justify excluding motive from the threshold “public issue” inquiry.
  • Terminiello v. City of Chicago, 337 U.S. 1 (1949). Quoted at the outset to highlight that free speech often is “provocative and challenging” and that constitutional tradition protects even uncomfortable or inconvenient expression, setting a liberty‑protective tone for the opinion.

C. The Court’s Legal Reasoning

1. Canonical approach: text, purpose, and consistency

The Court applies ordinary rules of statutory interpretation: it focuses on the text of section 13‑20‑1101(2)(a)(IV), considers the statute’s overall purpose (protecting participation in matters of public significance without insulating baseless suits), and seeks a construction that produces a consistent, harmonious statute. Because “public issue” and “issue of public interest” are undefined and ambiguous, the Court looks to analogous California precedents for persuasive guidance.

2. The Two‑Step Test Explained

a. Step One – Objective observer, content, and context

At step one, the question is:

Would an objective observer, considering the content and context of the challenged speech, reasonably understand it as made in connection with a public issue or issue of public interest, even if it also arises from a private dispute?

Key features:

  • Objective observer standard. The focus is not on the speaker’s or plaintiff’s subjective characterization, but on how a reasonable, informed outsider would understand the speech in its real‑world setting.
  • Content and context both matter. Courts should not abstract away from the circumstances; they must consider:
    • The subject matter (e.g., quality of veterinary care);
    • The identity and role of the speaker (e.g., an experienced animal caregiver);
    • The audience (e.g., large local community Facebook groups); and
    • The broader conditions or debates into which the speech falls.
  • Private disputes can still implicate public issues. The Court explicitly rejects any rule that private origins of a dispute disqualify speech from anti‑SLAPP protection. Often, personal experiences are the vehicle through which systemic or public issues become visible.
  • Low threshold for step one. The Court, quoting Geiser, notes that an anti‑SLAPP motion fails at step one only when the expressive activity, “viewed in context, cannot reasonably be understood as implicating a public issue.” This is a relatively speech‑protective standard.

The Court also adopts California’s recognition that while a comprehensive definition of “public issue” is unlikely, certain recurring patterns help:

  • Speech about people or entities in the public eye;
  • Speech about conduct potentially affecting a large number of people; and
  • Speech on topics of widespread public interest (sometimes indicated by media coverage or significant community discussion).
b. Step Two – Contribution to public discussion

At step two, the focus shifts to the relationship between the speech and the identified public issue:

Does the speech, in its actual context (speaker, audience, location, purpose), functionally contribute to public discussion or debate on that public issue or public interest?

Key elements:

  • Functional relationship (“nexus”). Borrowing from FilmOn, the Court requires “some degree of closeness” between the speech and the public issue. Abstract subject‑matter overlap is not enough; speech must be part of—or at least meaningfully related to—public discourse, not merely a private, confidential, or commercial exchange.
  • Contextual factors to consider. Courts should examine:
    • Speaker: Who is speaking (e.g., a concerned citizen, a business competitor, an advocacy group)?
    • Audience: How broad is the audience? Is the speech directed to the public at large or only to a private client?
    • Location / forum: Is the speech made in a public forum (like open social media groups or public sidewalks) or in a closed, private setting?
    • Purpose and timing: Does the timing align with ongoing public issues or controversies? Is the speech framing itself as a warning, a call to debate, or merely a private negotiation?
  • “Contribution” is fact‑intensive. Whether speech “contributes to the public debate” is not a formalistic question; it depends on how the speech operates in the real world. For example, a confidential analyst report to a single paying client (as in FilmOn) is less likely to qualify than public postings that spark communal exchanges, comments, and warnings.

This step is the principal filter that prevents the catchall from swallowing virtually any speech—by insisting on actual participation in or contribution to public discourse.

3. Motive Is Irrelevant at the Threshold “Public Issue” Stage

One of the opinion’s most consequential doctrinal choices is its explicit rejection of motive as a relevant factor when deciding whether speech is “in connection with a public issue or an issue of public interest” under section 13‑20‑1101(2)(a)(IV).

The Court’s reasoning is straightforward:

  • Same words, same audience, same setting—different motives? If two individuals say the identical thing in the identical way to the identical audience, it would be illogical to treat one statement as public‑issue speech and the other as non‑public simply because one speaker is more vindictive. The Oregon Supreme Court’s Lowell v. Wright illustrates this point and is expressly relied upon.
  • Motive does not answer the right question. Whether speech is “in connection with” a public issue is about:
    • The nature of the topic and its relationship to public discourse, not
    • The speaker’s inner psychology.
    A malicious motive does not change the fact that speech may concern systemic police misconduct, public health, or—in this case—veterinary quality that affects a community.
  • There is a proper place for motive: the merits. Motive or subjective mental state is highly relevant when determining “actual malice” in defamation, or when assessing whether the plaintiff can meet the “reasonable likelihood of prevailing” standard in section 13‑20‑1101(3)(a). The Court specifically notes that where the allegedly defamatory statements involve a matter of public concern, plaintiffs ultimately must prove, among other elements, that the defendant published with actual malice. That is where questions about recklessness, ill‑will, or disregard for truth properly belong, not at the initial coverage stage of the anti‑SLAPP analysis.
  • Divergence from California on this point. The Court expressly departs from the California Supreme Court’s suggestion in Geiser that a speaker’s motivation “may be relevant” (if objectively reasonable) to the public‑issue inquiry. Colorado declines to follow that part of Geiser, treating motive as not relevant at all.

By removing motive from the threshold analysis, Colorado reduces the risk that trial courts will conduct mini‑trials into subjective intent just to decide whether the anti‑SLAPP statute applies, and it avoids allowing a negative view of the defendant’s attitude to shrink statutory protection.

4. Application to the Petitioners’ Online Reviews

The Court does not conclusively resolve the petitioners’ anti‑SLAPP motion but gives strong guidance suggesting the speech fits within the statute’s protective ambit.

Step One – Public issue or public interest?

  • The Court agrees with the Court of Appeals that “consumer information about veterinary services implicates a public issue,” noting that animal welfare is an important societal concern.
  • Petitioners’ posts were not purely private: they discussed diagnostic accuracy, quality of care at a licensed veterinary facility, alleged malpractice, and alleged intimidation of clients who speak out.
  • Given Lind‑Barnett’s background in animal care and the nature of the comments, an objective observer could reasonably see the posts as implicating the quality and safety of veterinary services for the broader pet‑owning public.

Step Two – Contribution to public discussion?

  • Speaker: Lind‑Barnett presented herself as an experienced animal professional; Davis spoke as another affected client.
  • Audience and forum: Posts were made not only on TCVC’s own Facebook page but also in multiple community Facebook groups for the Falcon and Black Forest area, reaching potentially hundreds or thousands of local residents.
  • Actual public response: The posts generated over 140 comments,:
    • Some thanking Lind‑Barnett for “warning” the community;
    • Others sharing additional experiences or concerns; and
    • Framing the information explicitly as community‑oriented (“This is exactly what this page is for”).
  • Public‑spirited framing by participants: Even though petitioners were plainly angry and critical, some community members understood and treated the posts as serving a public‑informational function.

The Supreme Court faults the Court of Appeals for downplaying this community conversation and focusing instead on petitioners’ perceived desire for revenge. It emphasizes that:

  • Even if animosity was present, that does not erase the public‑interest dimension of the speech;
  • Speech can serve both private and public aims simultaneously; and
  • The relevant inquiry focuses on what the posts did in context—here, catalyzing a broader discussion about TCVC’s practices and veterinary care more generally.

Accordingly, the Supreme Court holds that the division misapplied the legal standard and wrongly factored motive into the threshold inquiry. It remands for the trial court to:

  1. Apply the two‑step test to determine whether the posts are covered by section 13‑20‑1101(2)(a)(IV); and, if so,
  2. Proceed to the second statutory phase and require TCVC to show a reasonable likelihood of prevailing on its defamation claims (including, where applicable, proof of falsity, harm, and actual malice).

V. Complex Concepts Simplified

1. What is a SLAPP and an anti‑SLAPP statute?

  • SLAPP stands for “Strategic Lawsuit Against Public Participation.” It describes lawsuits—often defamation, interference, or similar tort claims—filed not primarily to win on the merits, but to:
    • Intimidate, silence, or punish people for speaking out on matters of public concern; and
    • Force them to incur significant legal costs as a deterrent to further speech.
  • Anti‑SLAPP statutes create a special early‑stage procedure allowing defendants to:
    • Show that the lawsuit targets their protected speech or petitioning on public issues; and
    • Force the plaintiff to demonstrate, at an early stage, a reasonable likelihood of success before full discovery and trial.
    If the plaintiff cannot meet this burden, the case is dismissed and the defendant often can recover attorney fees.

2. What is the “catchall” provision and why does it matter?

Some anti‑SLAPP provisions protect only speech directly related to government proceedings or formal politics. Colorado’s statute, however, includes a catchall category: “any other conduct or communication” furthering free speech or petition rights “in connection with a public issue or an issue of public interest.”

This catchall is broader. It reaches, for example:

  • Consumer reviews about unsafe business practices;
  • Public advocacy about local environmental or housing issues; and
  • Grassroots online organizing around community safety concerns.

The challenge—and the subject of Lind‑Barnett—is defining when speech truly relates to a public issue rather than being just a private quarrel.

3. “Public issue” or “issue of public interest”

The Court deliberately avoids a rigid definition but offers helpful guideposts:

  • Issues affecting many people beyond the immediate parties (e.g., the quality of care at a local clinic used by many);
  • Topics that are widely discussed or are inherently public (e.g., public health, environmental hazards, consumer safety);
  • Matters concerning people or entities “in the public eye,” which could include local institutions with a broad consumer base, not only celebrities or politicians.

The focus is not on how grand or “policy‑oriented” the issue sounds, but on whether it realistically matters to the public and is—or reasonably could be—the subject of community interest and discussion.

4. “Objective observer” standard

Instead of asking what the speaker or target intended or felt, courts ask: how would a reasonable, neutral observer see the speech in its context? This:

  • Prevents a party from manipulating the classification by asserting their subjective view;
  • Promotes uniformity; and
  • Aligns with the idea that legal protection often turns on how speech functions in the world, not on the internal state of mind of the speaker.

5. Defamation, “defamation per se,” and “actual malice”

  • Defamation is a false statement of fact that harms someone’s reputation.
  • Defamation per se refers to categories of statements considered so inherently harmful (e.g., allegations of professional incompetence, crime, or moral turpitude) that the plaintiff does not need to prove specific economic damages to proceed.
  • Actual malice is a heightened fault standard applicable when the plaintiff is a public official/figure or when the speech involves a matter of public concern. It means:
    • The defendant knew the statement was false, or
    • Acted with reckless disregard for whether it was true or false.

In anti‑SLAPP proceedings involving defamation, “actual malice” questions typically arise at the second statutory stage: can the plaintiff show a reasonable likelihood of proving the required elements (including, if required, actual malice)? That is separate from the threshold question of whether the speech concerns a public issue.

VI. Impact and Implications

A. Clarification and Expansion of Anti‑SLAPP Protections

The decision solidifies Colorado’s interpretive framework for the catchall provision and is likely to have substantial practical consequences:

  • Broader coverage of consumer and online speech. Online reviews and social‑media posts that:
    • Address quality and safety concerns about businesses providing essential services (veterinarians, doctors, daycare facilities, contractors, etc.); and
    • Are disseminated in public or semi‑public forums and generate community discussion
    are now more clearly within the protective scope of Colorado’s anti‑SLAPP statute, assuming they reasonably implicate public issues and contribute to public debate.
  • Reduced likelihood of dismissing speech as “purely private” based on hostility. Courts can no longer discount speech from anti‑SLAPP protection simply because it is angry, vengeful, or personally motivated. If the speech has a genuine public‑interest dimension and contributes to public discussion, it qualifies. This will particularly matter in:
    • Neighborhood disputes with broader safety or environmental implications;
    • Whistleblowing by disgruntled former employees; and
    • Consumer complaints where a business alleges defamation in response.
  • More structured judicial analysis. The two‑step framework obliges trial courts to:
    • Explicitly identify the alleged public issue;
    • Explain how, and whether, the speech implicates that issue; and
    • Analyze the functional relationship between the speech and public discussion.
    This should produce more predictable, transparent rulings and reduce ad hoc or impressionistic decision‑making.

B. Divergence from California on Motive—and Possible Ripple Effects

By explicitly rejecting motive as relevant at the coverage stage, Colorado:

  • Creates a slightly more speech‑protective framework than California’s current approach;
  • Aligns itself with the reasoning of Oregon’s Lowell v. Wright; and
  • Potentially influences other states evaluating how much subjective intent should matter in anti‑SLAPP analysis.

For Colorado litigants, this means:

  • Defendants do not need to prove altruistic motives to invoke anti‑SLAPP protection; and
  • Plaintiffs cannot defeat anti‑SLAPP coverage simply by arguing that the defendant acted in bad faith or out of spite—those contentions properly arise at the merits stage.

C. Guidance for Practitioners and Lower Courts

The opinion offers concrete instructions that practitioners can leverage:

  • For defendants filing anti‑SLAPP motions:
    • Clearly articulate the public issue your speech implicates (e.g., quality of local medical or veterinary care, safety of consumer products, housing practices).
    • Emphasize context: the size and nature of the audience, the public forum, community responses, and how your speech was part of a broader conversation or served as a warning to others.
    • Resist addressing motive at the coverage stage; instead, reserve motive‑related arguments for any subsequent merits disputes (e.g., whether the plaintiff can show actual malice).
  • For plaintiffs opposing anti‑SLAPP motions:
    • Focus on undermining the public‑issue characterization (e.g., the speech is about a unique, idiosyncratic incident with no reasonable public ramifications) and/or
    • Argue at step two that the speech is too tenuously related to any public discussion (for example, confidential, one‑to‑one communications with no broader dissemination).
    • Save motive‑based arguments for the second statutory stage, where you must show a reasonable likelihood of proving fault (including actual malice, as applicable).
  • For trial courts:
    • Separate the inquiry into:
      1. Coverage under section 13‑20‑1101(2)(a), using the two‑step public‑issue test; and
      2. The plaintiff’s likelihood of success under section 13‑20‑1101(3)(a).
    • Refrain from weighing or speculating about the speaker’s motives at the first stage.
    • Make explicit findings on:
      • The putative public issue or interest;
      • Why an objective observer would or would not see the speech as related to that issue; and
      • How the speech functioned (or failed to function) as part of public discussion.

D. Unresolved and Emerging Questions

While the opinion answers central questions, it leaves others partly open:

  • Relationship between “matter of public concern” in defamation and “public interest” under anti‑SLAPP. One certiorari question asked whether the same standard applies to both. The Court does not squarely equate them. Instead, it:
    • Uses defamation “public concern” doctrine (and cases like Coomer) to illustrate where actual malice and motive enter; but
    • Develops its own, slightly different two‑step test for “public issue / public interest” under the anti‑SLAPP catchall.
    Practically, there will be significant overlap, but the tests are not expressly identical.
  • Interplay between subsection (2)(a)(III) and (2)(a)(IV). The decision focuses on the catchall, but the same or similar analysis is likely to inform the interpretation of “issue of public interest” in subsection (III), which explicitly references public forums (like Facebook). Future cases may clarify:
    • When speech in a public forum can rely on (III) alone; and
    • How (III) and (IV) interact in online‑speech cases.
  • Boundary between consumer disputes and public issues. This case makes clear that consumer speech can qualify as public‑interest speech when it:
    • Addresses quality and safety issues relevant to many consumers, and
    • Is shared in a public forum and prompts community dialogue.
    Future litigation will likely refine where that line falls in more marginal scenarios (e.g., a one‑off email to a few friends about a poor restaurant meal that does not implicate safety).

VII. Conclusion

Lind‑Barnett v. Tender Care Veterinary Center, Inc. 2025 CO 62 sets a foundational precedent for Colorado’s anti‑SLAPP jurisprudence. The Court:

  • Adopts a structured two‑step test—drawn from, but not identical to, California law—for determining when speech is made “in connection with a public issue or an issue of public interest” under the catchall provision of section 13‑20‑1101(2)(a)(IV);
  • Confirms that private grievances can—and often do—intersect with public issues, especially where consumer safety, health, or professional quality are involved; and
  • Unequivocally removes a speaker’s subjective motive from the threshold coverage analysis, reserving motive‑based inquiries for the merits stage of defamation and related claims.

In doing so, the Court strengthens protections for online consumer speech and community discussion, offering clearer guidance to courts and litigants and reducing the risk that defamation suits will be used to chill robust, if sometimes harsh, public commentary on services that affect the community. The remand in this case ensures that lower courts will begin to apply this new framework immediately, shaping the future of public‑participation litigation in Colorado.

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