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Anderson v. Senthilnathan.

2023 COA 88. No. 22CA0858. Defamation—Issue of Public Concern—Anti-SLAPP Statute—Special Motion to Dismiss.

September 28, 2023

While Anderson was an elected director on the Board of Education for Denver Public Schools (DPS), defendants Black Lives Matter 5280 (BLM), Brown, Brooks-Fleming, and Senthilnathan published separate statements alleging that Anderson had sexually assaulted one or more people. Defendants were familiar with Anderson through participation in community politics. A DPS investigation was unable to substantiate the allegations of sexual assault raised by Brooks-Fleming and by a third party who had allegedly reported her assault to BLM. The results of the investigation were released before Senthilnathan made her statements. Anderson brought claims against defendants for (1) defamation, (2) defamation per se, (3) civil conspiracy, (4) intentional infliction of emotional distress, (5) tortious interference with prospective business relationship, (6) aiding and abetting defamation, (7) aiding and abetting extreme and outrageous conduct, and (8) aiding and abetting tortious interference. Defendants each filed special motions to dismiss under Colorado’s anti-SLAPP (strategic lawsuit against public participation) statutes. The district court concluded that all statements at issue constituted protected petitioning activity and pertained to an issue of public concern. It granted BLM’s and Brooks-Fleming’s special motions to dismiss because it concluded that Anderson did not establish a reasonable likelihood that he could prove, by clear and convincing evidence, that their statements were made with actual malice. The court dismissed the remaining claims against BLM and Brooks-Fleming as derivative of the defamation claims. The court denied Senthilnathan’s special motion to dismiss because it concluded that Anderson established a reasonable likelihood that he would prevail as to the claims against her.

On appeal, Anderson contended that BLM’s and Brooks-Fleming’s statements are not protected by the anti-SLAPP statute because the statements (1) falsely reported criminal conduct, (2) do not involve an ongoing controversy, and (3) violated criminal statutes. Here, BLM and Brooks-Fleming established that their statements were made in a public forum (on social media and before the legislature) and in connection with a matter of public interest (allegations of sexual assault against an elected official). Further, the evidence does not conclusively establish that BLM or Brooks-Fleming committed the crime of false reporting to authorities. Accordingly, the district court properly concluded that the statements are protected by the anti-SLAPP statute.

Anderson also argued that the district court erred by concluding that he did not have a reasonable likelihood of prevailing on his defamation claims against BLM. Here, BLM’s statement does not assert that Anderson in fact committed sexual assault, and reasonable people would not conclude that BLM was asserting as a fact that Anderson committed sexual assault. Accordingly, the district court did not err.

Anderson further contended that the district court erred by concluding that he could not establish a probability of showing by clear and convincing evidence that Brooks-Fleming’s statements were false and made with actual malice. Two statements by Brooks-Fleming are issue. First, she testified as a member of the public before Colorado’s House Judiciary Committee concerning a child sexual abuse bill and referenced DPS students as victims. Second, after the hearing, Brooks-Fleming issued a follow-up statement regarding her testimony, which she apparently posted to social media. Here, Brooks-Fleming’s legislative testimony bore sufficient relation to the subject of the legislative proceeding to be entitled to absolute privilege, but the follow-up statement does not match any of her legislative testimony and is not privileged. Accordingly, Anderson proffered sufficient evidence of falsity and actual malice to survive Brooks-Fleming’s anti-SLAPP motion as to her follow-up statement.

Senthilnathan contended that the district court erred by concluding that Anderson established a probability that he could prove actual malice and damages. Here, Anderson’s affidavit alleged that he never committed sexual assault, and he requested that Senthilnathan remove the defamatory posts, but she declined to do so. Further, Senthilnathan’s statement reflects hostility toward Anderson for reasons seemingly unrelated to the assault allegations. Therefore, the district court did not err by concluding that Anderson established a reasonable probability that he would be able to prove actual malice. In addition, Anderson’s affidavit regarding his emotional state as evidence of his damages is sufficient for his claim to survive an anti-SLAPP motion.

Lastly, the court determined that because the district court erred by dismissing Anderson’s defamation claim based on Brooks-Fleming’s follow-up statement, it also erred by dismissing the non-defamation claims arising from that statement. And because the district court did not err by dismissing the defamation claim against Brown and BLM, it did not err by dismissing the non-defamation claims against those parties. Finally, Anderson did not contest the dismissal of the civil conspiracy and aiding and abetting claims as to Senthilnathan.

The order was affirmed in part and reversed in part, and the case was remanded with directions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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