Coomer v. Salem Media of Colorado, Inc.
2025 COA 2. No. 23CA1235. Anti-SLAPP Special Motion to Dismiss—Defamation—Civil Conspiracy—Intentional Infliction of Emotional Distress—Respondeat Superior.
January 16, 2025
Coomer is the former director of product security and strategy for Dominion Voting Systems, Inc. Corporon is an attorney, a radio talk show host, and the Republican National Committee committeeman for Colorado. Salem Media of Colorado, Inc. (Salem) owns Denver-based radio station 710 KNUS and hosts Corporon’s talk show. After the 2020 presidential election, some members of the media, political figures, and pundits began publishing stories that the election had been compromised. Salem and Corporon allegedly published over 100 defamatory statements accusing Coomer of participating in a 2020 antifa conference call in which Coomer stated that he had “made sure” that then-President Trump was “not going to win” the election. Coomer denies that he was on such a call, and no evidence indicates that he took action to undermine the election results. Coomer filed multiple suits against the media outlets, political figures, and pundits who repeated these reports, asserting claims for defamation, intentional infliction of emotional distress (IIED), and civil conspiracy, and he sought injunctive relief. Coomer alleged defamation against Salem directly and under the theory of vicarious liability for Corporon’s acts. Corporon and Salem (defendants) filed an anti-SLAPP (strategic lawsuit against public participation) special motion to dismiss, which the trial court granted as to the claim for an injunction but otherwise denied.
On appeal, Corporon argued that the trial court erred by not requiring Coomer to present clear and convincing evidence to support his claims. However, while clear and convincing evidence is the standard for Coomer’s ultimate burden of proof for his defamation claim, at this preliminary stage Coomer must show only a reasonable likelihood of meeting his burden of proof at trial.
Corporon and Salem jointly contended that the trial court erred in denying their special motion to dismiss. They asserted that the court erred in concluding that Coomer showed a reasonable likelihood of success on the merits of his defamation claim, primarily challenging the court’s ruling on the actual malice issue. A court resolves a special motion to dismiss by (1) determining whether the anti-SLAPP statute applies and, if so, (2) determining whether the plaintiff established a reasonable likelihood success on the claim. Coomer did not contest the trial court’s conclusion that defendants’ statements satisfy the first step of the anti-SLAPP analysis. As to the second step, taking Coomer’s evidence as true, a reasonable jury could find that Corporon’s statements were defamatory assertions that Coomer had attended an antifa conference call and said he had made sure that then-President Trump was not going to win the election; and that Salem knew what was on its airwaves and should have doubted the truth or reliability of the story, conducted an adequate investigation, and not disregarded refutation by credible sources. Thus, Coomer met his burden of demonstrating a reasonable likelihood that he could show by clear and convincing evidence that Corporon and Salem acted with actual malice.
Salem argued that the trial court erred by concluding that it can be held vicariously liable for Corporon’s actions because Coomer presented no evidence to support his vicarious liability claim; and regardless of the evidence, the doctrine of vicarious liability does not apply in defamation cases. The doctrine of vicarious liability is based on the theory of respondeat superior, and the court of appeals determined that respondeat superior may apply to a claim for defamation. Here, Coomer established a reasonable likelihood that he will be able to prove that Corporon was acting within the scope of his employment or agency while hosting his talk show and that Salem had the right to control his performance. Coomer thus met his evidentiary burden.
Corporon contended that the trial court erred by not considering the fair report privilege, maintaining that his statements are privileged because the fair report privilege protects substantially accurate reporting on judicial and other official proceedings, even when the reporter knows or believes that the reported statements are false. However, on the record before the court, most of Corporon’s statements about Coomer cannot reasonably be characterized as reporting on an ongoing judicial or other public proceeding, and Corporon’s allegedly defamatory statements referencing ongoing lawsuits went beyond merely reporting on those suits. Further, even if Corporon was reporting on a judicial proceeding that existed at the time of his statements, publication of the contents of preliminary pleadings before any judicial action has been taken is not within the fair report doctrine.
Corporon and Salem also challenged the trial court’s denial of their special motion to dismiss Coomer’s claim of IIED. The actual malice requirement applies to Coomer’s claim for IIED because it is premised on publications that are subject to heightened constitutional protections. As discussed above, Coomer has satisfied his burden with respect to actual malice for defamation, so the court similarly rejected the argument that Coomer failed to meet his burden with respect to his IIED claim.
Corporon and Salem further asserted that the trial court erred by denying the anti-SLAPP special motion to dismiss Coomer’s conspiracy claim. Here, there is no evidence showing that Corporon and Salem agreed to advance a shared purpose by defaming or inflicting emotional distress upon Coomer. Therefore, Coomer failed to present evidence that establishes a reasonable likelihood of prevailing on the conspiracy claim, and the trial court erred by denying the special motion to dismiss on this claim.
The order was reversed as to the denial of the special motion to dismiss the conspiracy claim against both defendants. The case was remanded with instructions to dismiss that claim and to evaluate Salem’s entitlement to reasonable attorney fees. The order was affirmed in all other respects.