It started with leaked screenshots and a fake Twitter account.
What followed was a defamation lawsuit filed by former City Council candidate Steve Rosenblum against five political organizers and Boulder Progressives, a local nonprofit that endorses candidates and ballot measures, in September 2021.
Nearly two years later, on Aug. 3, the Colorado Court of Appeals reversed an order by the Boulder District Court in the lawsuit’s claim of civil conspiracy for all defendants (Eric Budd, Katie Farnan, Ryan Welsh, Mark Van Akkeren, Sarah Dawn Haynes and Boulder Progressives), but affirmed claims against organizer Budd.
In addition to the dismissed civil conspiracy charge, the lawsuit accused Budd of misappropriation and defamation prior to the 2021 council elections, which Rosenblum lost by less than one percentage point.
Rosenblum argues the opposing political activists attacked his personal reputation, which impacted the outcome of the vote.
Lisa Sweeney-Miran, a member of Boulder Progressives, calls the appellate court ruling “precedent-setting” because it upholds Colorado’s anti-SLAPP (strategic lawsuits against public participation) law, passed in 2019, which is designed to protect engagement in government processes in issues of public concern.
“We’re very glad to see affirmation of free speech and the importance of open and informed elections,” she told Boulder Weekly. “And we believe very strongly in the importance of making sure that everyone knows who they are voting for and what the values and beliefs of candidates in every election are. We’re looking forward to this upcoming election cycle and we’re pleased that the court has affirmed the importance and need of folks engaging in these elections in a meaningful way.”
It’s an important win for Boulder Progressives as the organization leans into the 2023 election cycle that features an open seat for the mayor and four on the Boulder City Council.
The main concern in the lawsuit was an anonymous blog called Safer Leaks that used screenshots to call attention to comments made in a Slack group chat by members of Safer Boulder, a grassroots citizens’ group focused on crime and safety, of which Rosenblum is a member. The comments made disparaging and violent remarks about people experiencing homelessness.
Some comments proposed allowing wild animals to attack encampments and using fire hoses or rubber bullets to disperse residents.
The Safer Leaks blog also included a link to an anonymous Reddit account containing other alarming remarks about homeless people. While Rosenblum admitted to writing in the Safer Boulder group chat, the district court found he had no connection to the Reddit account and did not make the statements attributed to him.
While the majority of the claims in this case have been dismissed, Budd alone still faces the possibility of prosecution for creating a Twitter account under Rosenblum’s name, which included links to Safer Leaks, prior to the 2021 election.
Judge Fox calls Rosenblum’s assertion of misappropriation against Budd a “legally sufficient claim” because Budd used Rosenblum’s name, image and likeness through the Twitter account, which could benefit Budd by undermining the efforts of a political candidate he opposed.
“In [creating an impersonation account on Twitter], Budd prevented Rosenblum from using the account name for his own campaign purposes and, arguably, created the appearance that Rosenblum’s campaign endorsed the contents of the Safer Leaks blog,” Fox wrote in the Aug. 3 ruling.
To justify the defamation claim, a plaintiff has to provide evidence the defendant acted with “actual malice,” knowledge that what they were doing was false or blatant “disregard” for the truth.
The court of appeals found that Rosenblum has a “reasonable likelihood of success” at trial in regards to the defamation claim because the Twitter account and link were published together, which Fox says created a false endorsement. Budd may have acted with “actual knowledge” that it was false.
Budd says the Court of Appeals’ decision was “overall positive.”
“I think it’s important that the Court of Appeals affirmed the right to engage in local elections and free speech, and that I really tried to make sure that all of my actions are always in that vein,” Budd says. “And so that’s my priority in working through these as they go forward.”
Rosenblum is free to move forward with the additional claims against Budd in court.
