Articles

This New Colorado Law Champions Free Speech

By Nicole Westbrook

Governor Jared Polis signed into law a bill to curb frivolous lawsuits in Colorado. The new law, which took effect July 1, protects citizens and news organizations from baseless lawsuits intended to stifle free speech.

What It Says

Lawsuits filed to silence individuals from expressing views that might hurt a plaintiff’s reputation are common. While some are founded, others are ultimately found to be frivolous.

The new law, HB19-1324, recognizes the potential for abuse of the judicial process in an effort to chill free speech. And it provides a path forward for Colorado defendants to protect themselves from such abuses.

Under the First Amendment, government cannot suppress freedom of speech or of the press. Frivolous lawsuits against persons, entities and the press can be expensive to defend, and without a defined process for expediting the dismissal of frivolous suits, can trample a defendant’s right to free speech and to petition the government.

The Colorado law expedites the process for courts in a civil action suit in which a defendant files a “special” motion to dismiss based on the constitutional First Amendment rights to petition the government and to free speech. While a motion is under court consideration, discovery is stayed, this limits upfront costs that could create a barrier to a legal determination of the merits of a suit in the past.

Under the law, a court can dismiss the case, and prevailing defendants are entitled to recover attorneys’ fees and costs. If the motion is denied, however, the defendant can also be subject to attorneys’ fees to see that meritorious defamation-type claims proceed to trial – while meritless claims are stopped. The law gives the parties an interlocutory right to appeal the decision and to dismiss immediately.

Why It Matters

The state of Colorado joins nearly 30 states in upholding constitutional rights to free speech against frivolous lawsuits. The Colorado law sets a path for the court to consider whether a case is founded or should be dismissed prior to parties engaging in the costly discovery process.

The law, targeting “strategic lawsuits against public participation” (SLAPP suits), seeks to protect and encourage Colorado citizens’ First Amendment Rights to petition, speak freely, associate freely and participate in government to the fullest extent permitted by law. SLAPP suits have been historically utilized by wealthy individuals or entities to intimidate, censor, and silence critics knowing that these critics rarely have the financial strength to stand up to these bullies in court.

Typically, SLAPP plaintiffs do not expect to win these lawsuits; their goals are merely to exhaust the critic and ensure other critics will not participate in the debate. Now, Courts in Colorado can immediately separate meritorious suits from frivolous ones, consider both well-pleaded facts and other evidence – such as affidavits in a “special” motion to dismiss – and prescribe attorneys’ fees to the winner as a warning against misuse of the justice system. Win or lose, the issue is immediately appealable, continuing to stay any discovery until a higher court has weighed in on the trial court’s decision.

Nicole Westbrook is an attorney, litigator and shareholder at Jones & Keller. She has litigated both sides of the aisle in cases ranging from defamation to breach of fiduciary duties to fraud, complex contract disputes, commercial real estate litigation, and all else between. Westbrook can be reached at nwestbrook@joneskeller.com.

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