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Rosenblum v. Budd.

2023 COA 72. No. 22CA0393. Defamation—Misappropriation of Name and Likeness—Civil Conspiracy—Anti-SLAPP Statute—Special Motion to Dismiss—Attorney Fees.

August 3, 2023

Rosenblum ran for a seat on the Boulder City Council in 2021. He is a member of Safer Boulder, a community group organized around public safety and housing issues. Boulder Progressives (BPO) is a local advocacy group that opposed Safer Boulder’s stances on homelessness and public safety. Rosenblum alleges that in 2020 an unidentified John Doe accessed Safer Boulder’s private internal messaging channel, made screenshots of distasteful comments made there by Safer Boulder members, and published them on his blog, Safer Leaks. BPO member Budd admitted to creating an impersonation account on Twitter in Rosenblum’s name, which operated under the handle “@steveforboulder.” Budd added a link to the Safer Leaks blog in the account’s bio. Rosenblum also discovered an impersonation Instagram account in his name and a website under the domain that linked directly to Safer Leaks. And BPO members widely circulated a letter (BPO letter) opposing Rosenblum’s candidacy via email and blog immediately before various groups considered endorsing Rosenblum. The letter contained a link to Safer Leaks, copied several of the leaked screenshots from the blog, and provided analysis on Rosenblum’s fitness for office. Rosenblum ultimately lost the election by less than one percentage point.

Rosenblum filed a complaint against Budd, Farnan, Welsh, Van Akkeren, Haynes, and Boulder Progressives (BPO defendants) alleging that Budd and Doe had defamed him and misappropriated his name and likeness. Rosenblum also alleged that all defendants engaged in a civil conspiracy against him. BPO defendants filed a special motion to dismiss under CRS § 13-20-1101, Colorado’s anti-SLAPP (strategic lawsuits against public participation) statute. They argued that the BPO letter contained constitutionally protected opinions about accurately recited words spoken by Rosenblum, that Rosenblum could not show actual malice, and that Rosenblum’s choice to file the suit shortly before the election suggested a motive to silence his political adversaries. BPO defendants also denied knowledge of or involvement in the creation of the impersonation account. Budd also filed a special motion to dismiss under the anti-SLAPP statute, arguing that Rosenblum could not establish actual malice, prove that Budd appropriated Rosenblum’s name for a personal benefit, or demonstrate an agreement between the parties to disparage him. The district court found that the anti-SLAPP statute applied to the conduct and that Rosenblum established a reasonable probability that he could prove each claim by clear and convincing evidence at trial. The court denied the special motions to dismiss.

As an initial matter on appeal, the court of appeals considered whether the anti-SLAPP statute applied. This statute applies to a cause of action arising from conduct in connection with a public issue that furthers one’s free speech rights. Here, the impersonation account was made in connection to an issue of public interest because when Budd created the impersonation account with a link to the Safer Leaks blog, Rosenblum was a public figure within the context of a city council election. Further, the impersonation account contained a link to public discourse about Rosenblum’s fitness for public office. And Rosenblum conceded that his conspiracy claim against Budd and BPO defendants falls within the anti-SLAPP statute’s purview. Accordingly, the anti-SLAPP statute applies.

Budd argued that the district court erroneously denied his special motion to dismiss Rosenblum’s claim of misappropriation of name and likeness because the impersonation Twitter account did not benefit him since it was created solely for “public advocacy.” The anti-SLAPP statute establishes a two-step process for considering a special motion to dismiss: (1) the defendant filing the special motion to dismiss must make a threshold showing that the anti-SLAPP statute applies; and if so, (2) the plaintiff must demonstrate a “reasonable likelihood that the plaintiff will prevail on the claim.” If the district court concludes that there is a reasonable likelihood that the plaintiff will prevail on the claim, it must deny the special motion to dismiss. Here, in creating an impersonation account on Twitter, Budd prevented Rosenblum from using the account name for his own campaign and arguably created the appearance that Rosenblum’s campaign endorsed the contents of the Safer Leaks blog. Therefore, the district court properly concluded that Rosenblum was reasonably likely to prove that this conduct conferred a noncommercial benefit on Budd by giving him the ability to undermine the efforts of a political candidate he opposed. Further, it is reasonably likely that a jury could find for Rosenblum notwithstanding Budd’s claimed First Amendment privilege. Therefore, the misappropriation claim may proceed.

Budd also argued that the district court’s denial of his special motion to dismiss Rosenblum’s defamation claim was erroneous. He maintained that no reasonable Internet user could believe that Rosenblum created the impersonation account or endorsed the Safer Leaks blog because the Internet is inherently unreliable and the account was relatively devoid of content. Where, as here, a statement concerns a public figure or a matter of public concern, the plaintiff must prove by clear and convincing evidence that the speaker published the statement with actual malice. Here, it is reasonably likely that Rosenblum will be able to prove that the account and link combination was a defamatory statement because this combination could reasonably be interpreted to convey that Rosenblum created the Twitter account for campaign purposes and that the campaign validated or endorsed the contents of the Safer Links blog. And this implication could injure Rosenblum by causing some community members to view him in a lesser light. Further, it is reasonably likely that Rosenblum will be able to prove Budd published the statement with actual malice. Therefore, Rosenblum met his burden to survive the special motion to dismiss and his defamation claim may proceed.

Budd and BPO defendants argued that the district court improperly denied their special motions to dismiss Rosenblum’s civil conspiracy claim. Here, the evidence rebuts Rosenblum’s suggestion that BPO defendants worked with Doe to spread defamatory information about him. Rosenblum thus failed to present evidence that could show a meeting of the minds between any combination of the individual defendants and Doe. Accordingly, Rosenblum failed to establish a reasonable probability of success at trial on his civil conspiracy claim against Budd and BPO defendants, and the district court erred.

All defendants requested attorney fees incurred on appeal under CRS § 13-20-1101(4). Because Rosenblum did not have a reasonable likelihood of prevailing on his civil conspiracy claim against BPO defendants, they are entitled to recover appellate attorney fees and costs. However, Rosenblum remains able to pursue a misappropriation and defamation claim against Budd, so the district court may yet consider Budd a partially prevailing defendant. A partially prevailing defendant on an anti-SLAPP motion filed under CRS § 13-20-1101(3)(a) must be considered a prevailing party for purposes of attorney fees and costs unless the results of the partially successful motion were so insignificant that the defendant did not achieve any practical benefit from bringing the motion. Accordingly, the district court must determine whether Budd is a partially prevailing defendant, to what extent his partial appellate success warrants an apportionment of fees, and the reasonableness of his appellate fees.

The judgment 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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