Wilburn v. Guthrie.
2026 COA 13. No. 25CA0776. Regulation of Actions and Proceedings—Action Involving Exercise of Constitutional Rights—Anti-SLAPP—Accusation of Crime.
March 12, 2026
While running for a local school board seat, Wilburn participated in a public forum at a middle school. Guthrie and her then 11-year-old daughter attended the forum. At one point, the forum moderator asked candidates about “banned books,” and Wilburn—who believed that certain books should not be available in public schools—read explicit passages from three books that he said were available in school libraries in the district. Wilburn was elected to the school board, and during the following months, Guthrie made public statements criticizing Wilburn’s conduct at the forum and accusing him of engaging in sexually predatory and other criminal behavior. Guthrie also made reports to police accusing Wilburn of various crimes, but the investigation concluded that none had been committed. Wilburn sued Guthrie for defamation and outrageous conduct, and Guthrie moved to dismiss the claims under Colorado’s anti-SLAPP (strategic lawsuit against public participation) statute, primarily on the ground that her statements were protected opinions. The district court rejected Guthrie’s claim that her statements were protected opinions, identifying several that were factual assertions capable of being proved true or false. The court also determined that a jury could reasonably find that Guthrie made the statements with actual malice, and it concluded that the nature of the statements sustained the outrageous conduct claim. The court denied the motion to dismiss.
On appeal, Guthrie argued that the district court erred by applying the legal standard that, in determining whether a plaintiff has shown a reasonable likelihood of success, the court accepts the plaintiff’s evidence as true, evaluating the defendant’s showing solely to determine if it defeats the plaintiff’s claim as a matter of law. Rather, she maintained that the court should weigh the evidence. First, Guthrie failed to preserve this argument, so the court of appeals did not consider it. Second, the difference between accepting the plaintiff’s evidence as true and weighing the evidence makes no difference here because there are no pertinent factual disputes: Wilburn read the book excerpts at the public forum, and Guthrie made the challenged statements. Wilburn’s claims depend on whether those statements are actionable, so Guthrie’s appeal turns on whether her statements were protected opinions and whether they are capable of being proved true or false. Guthrie contended that her statements were nonactionable opinions based on disclosed facts and asserted that the district court erred by characterizing the statements as factual assertions. If a speaker asserts or implies that another person has done something they have not, that is a factual assertion that can support a defamation claim. But if the speaker fully and accurately discloses what the other person did, the speaker’s characterization of that act as a crime is a protected opinion. Here, Guthrie’s statements calling Wilburn’s disclosed conduct a crime were protected opinion rather than provably false factual assertions. But the court concluded that four categories of other statements that Guthrie made are sufficiently factual to support a claim.
Guthrie also argued that Wilburn did not establish a reasonable likelihood of proving by clear and convincing evidence that her statements were false. Where, as here, an allegedly defamatory statement pertains to a public figure or a matter of public concern, the plaintiff must prove by clear and convincing evidence that the statement is materially false. However, as to the four categories of factual assertions mentioned above, Guthrie did not make any falsity argument, so Wilburn met his burden.
Guthrie further contended that the outrageous conduct claim should be dismissed because the speech underlying the claim is protectable opinion. The parties and court agreed that resolution of the defamation claim controls the resolution of the outrageous conduct claim. Thus, as discussed above, the protected opinions cannot sustain Wilburn’s outrageous conduct claim, but the factual assertions can. Because Guthrie made no other argument for dismissal of the outrageous conduct claim, that claim may proceed to the extent it is premised on those factual assertions.
The court also rejected Guthrie’s requests for an award of her appellate attorney fees under CRS § 13-20-1101(4)(a) because she is not a prevailing defendant.
The order denying the motion to dismiss was affirmed, but Wilburn’s claims may proceed only as to the statements identified in the court’s opinion. The case was remanded for further proceedings.