24CA1275 Datko v Dunn 07-03-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1275 Jefferson County District Court No. 23CV31339 Honorable Ryan P. Loewer, Judge
Lindsay Datko and Jefferson County Students First d/b/a Jeffco Kids First,
Plaintiffs-Appellees,
v.
Rylee Dunn and Colorado News Conservancy, PBC d/b/a Arvada Press,
Defendants-Appellants.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE MEIRINK Freyre and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 3, 2025
Gessler Blue LLC, Scott E. Gessler, Geoffrey N. Blue, Greenwood Village, Colorado, for Plaintiffs-Appellees
Zansberg Beylkin LLC, Steven D. Zansberg, Michael Beylkin, Denver, Colorado, for Defendants-Appellants ¶1 In this anti-SLAPP1 case, the defendants, Rylee Dunn and
Colorado News Conservancy, PBC (CNC), appeal the district court’s
order denying their amended special motion to dismiss the
plaintiffs’ claims of libel per se and libel per quod. We conclude
that the district court erred by not granting the amended special
motion. Accordingly, we reverse and remand to the district court
with instructions.
I. Background
A. Factual Background
¶2 Plaintiff Lindsay Datko is the executive director of plaintiff
Jefferson County Students First, d/b/a Jeffco Kids First (JKF), an
unincorporated nonprofit organization engaged in education
advocacy. JKF operates a Facebook page that has approximately
6,000 members. JKF’s Facebook page is an open forum for
commentary and provides an avenue for members to exchange
ideas and information.
¶3 In March 2022, members of the JKF Facebook group
discussed students attending Jefferson County Public Schools
1 “SLAPP” is an acronym for “strategic lawsuits against public
participation.”
1 dressed as “furries,” which the parties define in their court
pleadings as “a child dressing as an animal, such as a cat or a dog.”
As part of the discussion, one JKF Facebook group member posted
a photo of a student dressed in a furry costume. In response to the
photo, another member posted the following:
Kids are called out all the time for dress code violations at my kids [sic] school such as wearing hats, shorts too short, etc. However this is acceptable and part of EVERY day at our school. It’s allowed and there are numerous kids doing this. I don’t understand how it’s not a distraction. This is an actual photo of a kid in my kids [sic] class. It really bothers my kids. Honest thoughts please. Thank you.[2]
The post received 283 comments. In response to the discussion,
Datko emailed Jefferson County school officials to “express concern
about the distractions, safety, and disruptive animal-like behaviors”
and to learn about district policies that might be implicated by such
conduct.
¶4 In August 2022, Drake Middle School — a Jefferson County
Public School — announced that it would no longer allow costume-
2 Datko asked the person who posted the photo to “crop th[e]
picture up to just the head” to ensure the student could not be identified.
2 like attire, such as tails, headbands, face paint, or capes, that
distracted from learning. Datko advocated for the entire school
district to adopt Drake Middle School’s policy and posted the
following on JKF’s Facebook page: “If just 100 of you email the list
below (see top of comments) and ask them to ban ear/tails/furries
as a district-wide policy, we might see this happen. Email your
schools as well if this is an issue for you. See policy in comments
as well.”
¶5 In September 2022, Republican gubernatorial candidate Heidi
Ganahl learned that students in Jefferson County schools were
dressing up as furries and raised the issue in an interview with a
Denver-area radio station, stating, “Not many people know that we
have furries in Colorado schools . . . it’s happening all over Colorado
and the schools are tolerating it. It’s insane.” Ganahl’s statements
were covered by various media outlets, including by Denver’s
Channel 9 News, which used the March 2022 photo that had been
posted on JKF’s Facebook page in its broadcast. Members of the
media started reaching out to Datko and JKF, asking them for “any
evidence you can provide to support” claims that children in
3 Colorado were dressing as furries. In response, Datko posted the
following on JKF’s Facebook page:
The media is really trying to spin this. If any of your kids would be willing to record anonymous audio of their experiences with furries hissing, barking, clawing, chasing, and how it affects their school day, please send to me or let me know ASAP.
The post elicited many comments.
¶6 Dunn is a news reporter for CNC, which operates the Arvada
Press. Dunn first learned of JKF in June 2022. In early October
2022, Dunn heard that members of JKF were discussing the
presence of furries in Jefferson County schools. Dunn proposed to
her editors that she “prepare a news report on the [JKF] group and
its involvement in bringing the issue of ‘furries in the schools’ to the
fore in the gubernatorial campaign.” Dunn’s editors approved, and
she began investigating JKF. Dunn gained access to JKF’s
Facebook page and discovered Datko’s September 2022 Facebook
post and responses to the post, one of which told members that
they could find evidence of students dressed as furries in Jefferson
County schools by searching the same on TikTok’s social media
app. In the comments to one of the TikTok videos, a user used the
4 hashtag “#KillFurrys” in response to a video of a student dressed as
a furry.
¶7 Dunn’s article, “Inside Jeffco Kids First, and Ganahl’s furor
over students,” was published online on the Arvada Press’s website
on October 7, 2022. In her article, Dunn wrote that “[a] leading
voice in the group told parents to empower their children to find
‘furries,’ kids who dress up in animal accessories, and to record
them,” and that “[l]ast month, Datko urged the nearly 6,000
members of [JKF] to have their kids secretly record their
classmates.” She also wrote that “[n]either Datko nor Ganahl
responded to Colorado Community Media’s requests for interviews
about the Facebook group’s activities.” The article went on to say
the following:
A member of the group posted an additional suggestion: “go on tiktok and use the keyword furries and Colorado school.”
A Community Media search of TikTok found numerous posts where purported students in the state recorded videos of classmates, who seemed unaware they were being filmed dressed in costumes and accessories. Some posts contained threats against the students being filmed.
5 One post of a student apparently filmed without their knowledge contained the hashtag “#killfurrys.” Other posts harshly mocked the students.
On the last page of the article, Dunn included Datko’s September
2022 Facebook post with the caption, “[s]creenshot of Datko’s post
in [JKF] asking parents to have their children record classmates.”
Beside it, Dunn included a second screenshot of the above-
mentioned TikTok video recording students identified as furries in a
school.
¶8 The same evening the article was published online, Datko
contacted the paper’s editor-in-chief, requesting that Dunn’s article
retract the following statement: “Last month, Datko urged the
nearly 6,000 members of [JKF] to have their kids secretly record
their classmates.” Datko proposed that Dunn’s statement should
“read something like: Last month, Datko requested anonymous
verbal statements from children belonging to the 6,000 members in
the group.” Dunn conferred with her editors, and they decided not
to retract the statement. Instead, they published the following
editor’s note to accompany the article:
Lindsay Datko contacted Colorado Community Media after online publication of this story to
6 seek a retraction, stating that she sought “anonymous verbal statements from children.” Datko disagreed with the article’s sentence, “Datko urged the nearly 6,000 members of Jeffco Kids First to have their kids secretly record their classmates.” Screenshots from the group show she made that request. Datko confirmed to Colorado Community Media that she received pictures of students but indicated to the group that she has not used them.
CNC published Dunn’s article in twenty-three other news outlets.
¶9 Based on Datko’s September 2022 Facebook post and after
listening to Datko speak on a local radio station about JKF and its
activities, Thelma Grimes, an editor at Colorado Community Media
(CCM), wrote an opinion column titled “Distracted Distractions,”
which was published on October 13, 2022, in CCM’s papers,
including the Littleton Independent. In preparing the opinion
column, Grimes relied on Dunn’s article, other press reports,
Datko’s Facebook post, and discussions with CCM reporters. In her
opinion column, Grimes stated that Datko “encouraged people to
take pictures of children who behave or dress differently” and that
“[k]ids can be mean enough without some parent group
encouraging them to take pictures and post them on social media.”
7 ¶ 10 According to Datko, both she and JKF were harmed by the
publications and have “suffered injury to their standing in the
community and their reputations.” JKF lost members, which
decreased the group’s influence in the community, and Datko was
“forced to take [JKF’s] social media account private, due to a large
volume of hateful comments.” Datko also claims that JKF “did not
receive any donations” in the months following Dunn’s article. The
plaintiffs believe the publications lost them financial contributions.
B. Procedural Posture
¶ 11 Datko and JKF filed suit, alleging four claims of defamation.3
The defendants filed a combined special motion to dismiss under
Colorado’s anti-SLAPP law, section 13-20-1101(3)(a), C.R.S. 2024,
or, in the alternative, to dismiss under C.R.C.P. 12(b)(5). The
defendants’ motion argued that the plaintiffs’ defamation claims
failed because they could not demonstrate a reasonable likelihood
that they would be able to produce clear and convincing evidence of
material falsity or actual malice at trial. As an alternative basis for
dismissal, the defendants argued that because all the claims
3 Defamation is an umbrella term that encompasses libel.
8 sounded, if at all, in libel per quod,4 the plaintiffs’ failure to plead
special damages with particularity was fatal to their suit.
¶ 12 The district court granted in part and denied in part the
motion to dismiss under C.R.C.P. 12(b)(5) but took no action on the
special motion to dismiss under the anti-SLAPP law.
¶ 13 In May 2024, the plaintiffs filed their first amended complaint
(FAC), asserting the following three claims for relief:
1. Libel per se, alleging that the defendants published
statements that Datko asked JKF members to have their
children secretly videotape other schoolchildren dressed as
furries.
2. Libel per quod, alleging that the defendants published or
caused to be published statements, “the gist of which was
that one or more members of [JKF] urged others to post
secret recordings on [sic] children on TikTok, and that one
or more [JKF] members posted recordings of Colorado
4 The terms “libel per quod,” “libel by implication,” and “libel by
innuendo” are synonymous and used interchangeably by the parties and Colorado courts. See, e.g., Pietrafeso v. D.P.I., Inc., 757 P.2d 1113, 1115 (Colo. App. 1988).
9 children acting like furries, accompanied by mocking and
harassing comments and the phrase ‘killfurrys.’”
3. Libel per quod, alleging that the article implied the
defendants sought comment from Datko and JKF through
“numerous emails, phone call[s], and tweets,” but Datko
and JKF “consistently refused to comment on Dunn’s
reporting or refute the false statements.”
¶ 14 The defendants filed an amended special motion to dismiss the
FAC under Colorado’s anti-SLAPP statute, arguing that the
plaintiffs (1) could not establish a reasonable likelihood of prevailing
on their defamation claims and (2) were precluded from asserting a
claim for libel by implication because they were limited purpose
public figures. Following a hearing, the district court concluded
that the plaintiffs established a reasonable likelihood that they
could prevail on all claims at trial and denied the amended special
motion.5 The defendants appeal.
5 The district court’s order did not address the defendants’
argument that, as limited purpose public figures, the plaintiffs could not assert a claim for libel by implication.
10 II. Analysis
¶ 15 The defendants claim the district court erred by denying their
amended special motion to dismiss because the plaintiffs failed to
show a reasonable likelihood that they would be able to establish
that (1) the statements challenged in the FAC were materially false;
(2) the statements challenged in the FAC were made with actual
malice; (3) they could demonstrate a claim for libel by implication;
(4) they could demonstrate the allegations implied by the article
when considered as a whole; and (5) they could demonstrate
allegedly per quod statements had caused any financial harm as a
direct result of the article.
¶ 16 We agree with the defendants’ second contention, which
concerns the plaintiffs’ libel per se claim. We also agree with
defendants’ fourth contention, which concerns the plaintiffs’ two
claims of libel per quod. Because our conclusion is dispositive of
the remaining contentions, we need not address those contentions.
A. Special Motion to Dismiss Standards
¶ 17 Colorado’s anti-SLAPP statute exists “to encourage and
safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to
11 the maximum extent permitted by law and, at the same time, to
protect the rights of persons to file meritorious lawsuits for
demonstrable injury.” § 13-20-1101(1)(b). The statute strikes a
balance by establishing a procedure that allows the district court to
“make an early assessment about the merits of claims brought in
response to a defendant’s . . . speech activity.” Rosenblum v. Budd,
2023 COA 72, ¶ 23 (quoting Salazar v. Pub. Tr. Inst., 2022 COA
109M, ¶ 12).
¶ 18 A court resolves a special motion to dismiss through a two-
step process. Anderson v. Senthilnathan, 2023 COA 88, ¶ 10. First,
the defendant must show that the plaintiff’s claim arises from the
defendant’s exercise of free speech or right to petition in connection
with a public issue. Rosenblum, ¶ 24. If the claim falls within the
statute’s scope, the second step is triggered, and the burden shifts
to the plaintiff to establish that there is a reasonable likelihood they
will prevail on the claim. § 13-20-1101(3)(a).
¶ 19 During the second step, the district court “must not weigh the
evidence or resolve factual conflicts; instead, it must assess
whether the plaintiff’s factual assertions, if true, establish a
reasonable likelihood of proving each claim under the applicable
12 burden of proof.” Rosenblum, ¶ 24.6 If the district court, after
considering the pleadings and supporting documents, concludes
that there is a reasonable likelihood that the plaintiff will prevail on
the claim, it must deny the motion to dismiss. § 13-20-1101(3)(a),
(b); see also Creekside Endodontics, LLC v. Sullivan, 2022 COA 145,
¶ 23.
¶ 20 We review a district court’s ruling on a special motion to
dismiss de novo. Creekside, ¶ 24. Like the district court, we do not
assess the truth of the allegations made in the complaint.
Rosenblum, ¶ 26. Rather, we merely consider whether the
allegations in the pleadings and supporting and opposing affidavits,
if true, support a “legally sufficient claim and [make] a prima facie
factual showing sufficient to sustain a favorable judgment.”
Creekside, ¶ 26 (quoting L.S.S. v. S.A.P., 2022 COA 123, ¶ 23).
6 We recognize that divisions of this court are split on how to apply
the second step and whether a court must accept the nonmoving party’s pleadings and averments as true, as it does when ruling on a motion for summary judgment, or whether a court may weigh conflicting facts, as it does when resolving a request for a preliminary injunction. See Coomer v. Salem Media of Colo., Inc., 2025 COA 2, ¶¶ 117-139 (Tow, J., specially concurring); Jogan Health, LLC v. Scripps Media, Inc., 2025 COA 4, ¶¶ 56-76 (Berger, J., specially concurring). Here, under either approach, the result is the same.
13 ¶ 21 No party contests that the plaintiffs’ claims arise from the
defendants’ exercise of free speech in connection with a public
issue, so the anti-SLAPP statute applies. We therefore turn to the
second step and assess whether the plaintiffs met their burden of
establishing a reasonable likelihood of success on their libel per se
and libel per quod claims.
B. Defamation
¶ 22 Defamation is a communication that holds an individual up to
contempt or ridicule, thereby causing them to incur injury or
damage. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). To
prevail on a defamation claim, the plaintiff must establish (1) a
defamatory statement concerning another; (2) published to a third
party; (3) with fault amounting to at least negligence on the part of
the publisher; and (4) either actionability of the statement
irrespective of special damages or the existence of special damages
to the plaintiff caused by the publication. Lawson v. Stow, 2014
COA 26, ¶ 15.
¶ 23 “A publication of libel can be either defamatory per se or
defamatory per quod, depending upon the certainty of the
defamatory meaning of the publication.” Gordon v. Boyles, 99 P.3d
14 75, 79 (Colo. App. 2004). If the defamatory meaning is apparent
from the face of the publication, the publication is defamatory per
se. See id. If the communication is defamatory per se, the plaintiff
need not plead special damages.7 Id. If, on the other hand, “the
defamatory meaning may be understood only in reference to
extrinsic facts known by the recipient, then the publication is
defamatory per quod,” and the plaintiff must plead special
damages. Id.
¶ 24 When, as in the present case, a statement concerns a public
figure or a matter of public concern, certain elements of a
defamation claim are subject to a higher evidentiary standard.
Anderson, ¶ 13. As applicable here, the plaintiff must prove by
clear and convincing evidence that the statement was materially
false and that the speaker published the statement with actual
malice. See Coomer v. Salem Media of Colo., Inc., 2025 COA 2, ¶ 23.
¶ 25 Falsity is shown by proving that the substance or the gist of
the statement is inaccurate. Jogan Health, LLC v. Scripps Media,
7 “Special damages” refer to specific financial losses that a plaintiff
suffered because of a defendant’s statement. Lind v. O’Reilly, 636 P.2d 1319, 1321 (Colo. App. 1981).
15 Inc., 2025 COA 4, ¶ 23. Minor inaccuracies do not amount to
falsity as long as the substance or gist of the statement was true.
Id. This inquiry focuses “on how an average reader would read the
statement.” Fry v. Lee, 2013 COA 100, ¶ 23. To qualify as a
material falsehood, the challenged statement must be false and
“‘likely to cause reasonable people to think “significantly less
favorably” about the plaintiff’ than they would if they knew the
whole truth.” Jogan, ¶ 23 (quoting Fry, ¶ 50).
¶ 26 To show the defendant acted with actual malice, a plaintiff
must prove by clear and convincing evidence that the defendant
published the defamatory statement with knowledge of its falsity or
with reckless disregard for the truth. Fry, ¶ 21. Evidence that a
speaker knew their statement was false is rare, so proving this
element often rests on showing that the speaker published their
statement with reckless disregard. Creekside, ¶ 37. While ill will is
not an element of actual malice, it can be used as circumstantial
evidence of the speaker’s subjective attitude toward the subject.
L.S.S., ¶ 40.
16 C. Discussion
¶ 27 The district court’s order denying the special motion to
dismiss did not separate the plaintiffs’ libel per se claim from their
two libel per quod claims. We do so now because special damages
must be pleaded with specificity to prove libel per quod and the
challenged statements for libel per se are different from the
statements attributed to the libel per quod claims.
1. Plaintiffs’ First Claim for Relief – Libel Per Se
¶ 28 The defendants argue that the plaintiffs failed to meet their
burden of demonstrating a reasonable likelihood that they could
produce clear and convincing evidence that the statements
challenged in the FAC were made with actual malice and were
materially false.
¶ 29 We agree that the plaintiffs failed to demonstrate a reasonable
likelihood that they could provide clear and convincing evidence of
actual malice at trial. Because we conclude that the plaintiffs failed
to meet their burden with respect to actual malice, we need not
consider whether they met their burden for material falsity.
17 a. Actual Malice
¶ 30 The defendants raise three arguments in support of their
contention that the plaintiffs failed to meet their burden regarding
actual malice. First, the defendants assert that the challenged
statements were rational interpretations of Datko’s September 2022
Facebook post, which negates actual malice as a matter of law.
Second, the defendants claim that the plaintiffs could not prove
that the defendants held serious doubts about the truth of the
allegations. Third, the defendants assert that the district court
incorrectly focused on and applied elements of common law malice
instead of actual malice. We agree with all three assertions and
analyze them in turn.
i. A Rational Interpretation Negates Actual Malice
¶ 31 If an allegedly defamatory statement purports to be a
summary of claims contained in another document, courts consider
whether the source document is sufficiently ambiguous to admit
more than one rational interpretation. See Time, Inc. v. Pape, 401
U.S. 279, 290 (1971). In Pape, the United States Supreme Court
determined that a publisher’s statement “amounted to the adoption
of one of a number of possible rational interpretations of a
18 document that bristled with ambiguities” and that the “deliberate
choice of such an interpretation, though arguably reflecting a
misconception, was not enough to create a jury issue of ‘malice.’”
Id.; see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.
485, 513 (1984) (holding that the publisher’s choice of language,
“though reflecting a misconception, d[id] not place the speech
beyond the outer limits of the First Amendment’s broad protective
umbrella” and that as a matter of law “the record does not contain
clear and convincing evidence that [the defendants] prepared the
. . . article with knowledge that it contained a false statement, or
with reckless disregard of the truth”).
¶ 32 The challenged statements were a rational interpretation of
Datko’s September 2022 Facebook post. Dunn’s article contained a
screenshot of the post. Readers of the Facebook post and the
article could and did interpret the post to mean that Datko was
asking for pictures and recordings of students dressed as or
behaving like furries. Shortly after making the post — before
Dunn’s article was published — Datko herself acknowledged on
JKF’s Facebook page that, after making her post, she received
pictures and videos of children dressed as furries but was not
19 comfortable posting them. Several JKF members posted comments
on JKF’s Facebook page urging Datko to “blur the faces” or “block
out the children’s faces.” Similarly, Grimes’s opinion column also
interpreted Datko’s Facebook post as “encourag[ing] people to take
pictures of children who behave or dress differently.”
¶ 33 Datko’s September 2022 Facebook post did not “bristle with
ambiguities,” because it was less than fifty words, but it was
ambiguous, as evidenced by two diverging — but rational —
interpretations. Under Datko’s interpretation, she merely asked the
children of JKF members to post anonymous audio testimony of
their own personal experiences with furries acting disruptively in
school and did not invite them to record other children dressed as
furries. On the other hand, the defendants, Grimes, and several
JKF members interpreted the same message differently — as a
request to post pictures and videos of children dressed as furries.
Because Datko’s Facebook post was subject to interpretation, we
conclude, as a matter of law, that the defendants’ choice to
interpret the post in a way that diverged from Datko’s intended
interpretation did not create an issue of actual malice for a jury to
consider.
20 ii. Subjective Awareness of Probable Falsity
¶ 34 As we have previously mentioned, “[a] communication is made
with actual malice if it is published with ‘actual knowledge that it
was false’ or ‘with reckless disregard for whether it was true.’”
Creekside, ¶ 37 (quoting L.S.S., ¶ 40). In concluding that the
plaintiffs met their burden of proof for actual malice, the district
court incorrectly focused on what Datko intended to convey in her
Facebook post rather than focusing on the defendants’ subjective
belief as to the truth of the challenged statements. See Fry, ¶ 21
(actual malice requires proof that publisher actually “entertained
serious doubts as to the truth of the statement or acted with a high
degree of awareness of its probable falsity”).
¶ 35 Dunn’s article contained a screenshot of Datko’s actual
Facebook post and the editor’s note expressing Datko’s
disagreement with the defendants’ interpretation of her Facebook
posting and setting forth Datko’s interpretation. Including this
information counters any inkling of actual malice because it allows
readers to come to their own conclusions about the post and
challenged statements. See, e.g., NBC Subsidiary (KCNC-TV), Inc. v.
Living Will Ctr., 879 P.2d 6, 12 (Colo. 1994) (noting that broadcast
21 at issue “provided sufficient information for viewers to answer for
themselves” questions about whether a living will kit was “worth it”
when the same forms were available at local hospitals and libraries
for little to no cost).
iii. Common Law Malice and Actual Malice
¶ 36 Although ill will “may serve as circumstantial evidence of
actual malice ‘to the extent that it reflects on the subjective attitude
of the publisher,’” Creekside, ¶ 39 (quoting L.S.S., ¶ 40), the district
court incorrectly used the defendants’ hostility toward plaintiffs —
which aligns more with common law malice — to find actual malice.
Actual malice is knowledge that a statement was false or a reckless
disregard for whether it was false or not. Garrison v. Louisiana, 379
U.S. 64, 67 (1964). In contrast, common law malice includes “spite,
hostility or deliberate intention to harm.” Greenbelt Coop. Publ’g
Ass’n v. Bresler, 398 U.S. 6, 10 (1970). In concluding that the
plaintiffs satisfied the actual malice element, the district court
relied on tweets Dunn made indicating that JKF was an “anti-trans
group,” that they were “bad actors,” and that they were an “awful
Facebook group.”
22 ¶ 37 While those characterizations may have evidenced Dunn’s
hostility toward the plaintiffs and perhaps established common law
malice, such statements, even if used as circumstantial evidence
reflecting Dunn’s subjective attitude, do not establish actual malice
because they have no bearing on whether the challenged
statements were false or published with a reckless disregard for
their truth. Cf. L.S.S., ¶ 50 (concluding the actual malice standard
was established when parents were engaged in a custody dispute
and mother had personal motive to falsely allege that father
sexually assaulted their child, as “investigations . . . could lead to
the termination of parental rights and an indeterminate sentence of
several years to life in prison”).
¶ 38 The district court erred by not granting the defendants’
amended special motion to dismiss the plaintiffs’ libel per se claim.
The plaintiffs failed to demonstrate a reasonable likelihood that they
could produce clear and convincing evidence at trial that the
defendants’ challenged statements were made with actual malice.
23 b. Material Falsity
¶ 39 Because the plaintiffs failed to meet their burden regarding
actual malice, we need not consider whether they met their burden
with respect to establishing material falsity.
2. Plaintiffs’ Libel Per Quod Claims
¶ 40 The defendants contend the district court erred by allowing
the plaintiffs’ libel per quod claims to proceed for three reasons.
First, the defendants argue the plaintiffs’ alleged implications
cannot be drawn from the article. Second, the defendants contend
that the district court’s order denying the amended special motion
failed to address whether the plaintiffs, as limited purpose public
figures, could even assert a claim for libel by implication. Third, the
defendants argue the plaintiffs failed to sufficiently plead special
damages in both libel per quod claims. We agree with the
defendants’ first contention — that the plaintiffs’ alleged
implications cannot be drawn from the article.
¶ 41 Because we agree with the defendants’ first assertion and
conclude that the district court should have dismissed both libel
per quod claims, we need not address the defendants’ remaining
arguments as independent bases for dismissal.
24 a. Plaintiffs’ Second Claim for Relief – Libel Per Quod
¶ 42 Unlike libel per se, libel per quod “concerns cases of libel in
which the defamatory meaning, or innuendo, is not apparent on the
face of the publication, but must be made out by proof of extrinsic
facts.” William L. Prosser, More Libel Per Quod, 79 Harv. L. Rev.
1629, 1630 (1966).
¶ 43 As part of their second claim for relief, the plaintiffs assert the
following:
Defendants published or caused to be published statements, the gist of which was that one or more members of Jeffco Kids First urged others to post secret recordings on [sic] children on TikTok, and that one or more JeffCo Kids First members posted recordings of Colorado children acting like furries, accompanied by mocking and harassing comments and the phrase “killfurrys.”
The plaintiffs’ second claim for relief is premised on the theory that
Dunn’s reporting made people think JKF “caused people to secretly
record students acting as furries and resulted in harassment of
students.”
¶ 44 The defendants argue that the article, when considered as a
whole, cannot be reasonably read to imply that Datko and JKF had
caused people to secretly record and harass their classmates. The
25 defendants further contend that the timeline of events leading up to
Dunn’s article precludes these implications. We agree.
¶ 45 The screenshot of a purported furry was posted to TikTok
around April 2022 — five months before Datko’s September 2022
Facebook post and six months before Dunn’s article. Because the
TikTok post predated Datko’s Facebook post, it cannot be inferred
that Datko’s post encouraged others to post videos or comments on
TikTok that mocked or harassed children for wearing costumes.
Similarly, before the article was published, a JKF member
mentioned TikTok had posts on furries in Colorado schools.
¶ 46 Based on the timeline of events leading up to the article and
the evidence submitted by both parties, the plaintiffs failed to
establish a prima facie factual showing sufficient to establish a
reasonable likelihood of prevailing on their second claim for relief.
Accordingly, the district court erred by not granting the special
motion to dismiss this claim.
b. Plaintiffs’ Third Claim for Relief – Libel Per Quod
¶ 47 As part of their third claim for relief (libel per quod), the
plaintiffs assert that “[b]oth Dunn and Colorado News published
statements that Dunn and others at Colorado News sought
26 comment from Datko and other members of [JKF] through
numerous emails, phone call[s], and tweets” and that the
defendants “published statements that Datko and other members of
[JKF] consistently refused to comment on Dunn’s reporting or
refute the false statements about Datko and [JKF].” The implication
of these statements in the article was that the plaintiffs “refus[ed] to
respond to request for comment . . . because they could not and
would not defend their positions.”
¶ 48 The defendants assert that the plaintiffs’ second libel per quod
claim fails for two reasons. First, the article stated that “[n]either
Datko nor Ganahl responded to Colorado Community Media’s
requests for interviews about the Facebook group’s activities” and
“Datko did not respond to interview requests from Colorado
Community Media.” The defendants assert that these statements
were true, as months before the article’s publication, Dunn
attempted to contact Datko and other JKF leaders by phone, email,
and direct messaging. The defendants also contend that JKF’s
leadership acknowledged receiving requests for comment but
declined to respond. Therefore, the plaintiffs could not establish
27 that the statements or the gist of the statements were materially
false.
¶ 49 Second, the defendants claim that Dunn reached out to Datko
and JKF leadership in July 2022 before the article’s publication,
inviting them to “explain to the community what [JKF] is all about”
and not to comment or defend their positions on the forthcoming
article.
¶ 50 Based on the actual comments made in the article, the
undisputed evidence the defendants offered showing that Dunn
contacted Datko and others, and the timeline of requests, the
plaintiffs failed to demonstrate a reasonable likelihood of proving,
by clear and convincing evidence, that the statements were
¶ 51 Accordingly, the district court erred by not granting the
amended special motion to dismiss claim three.
D. Conclusion
¶ 52 After a de novo review of all the defendants’ claims on appeal,
we conclude that the district court erred by denying the defendants’
amended special motion to dismiss the plaintiffs’ libel per se claim
28 (claim one) and the plaintiffs’ libel per quod claims (claims two and
three) pursuant to section 13-20-1101(3)(a).
E. Attorney Fees and Costs
¶ 53 The defendants request an award of attorney fees and costs
under C.A.R. 39.1 and section 13-20-1101(4)(a), which entitles a
defendant who prevails on a special motion to dismiss to recover
attorney fees and costs.
¶ 54 We exercise our discretion under C.A.R. 39.1 and remand the
case to the district court to determine the reasonable amount of
attorney fees and costs, including appellate attorney fees and costs,
to be awarded to the defendants as the prevailing parties under
section 13-20-1101(4)(a).
III. Disposition
¶ 55 We reverse the order of the district court denying the
defendants’ amended special motion to dismiss the plaintiffs’ libel
per se and libel per quod claims. We remand to the district court
with instructions to dismiss the plaintiffs’ case with prejudice and
to determine the amount of reasonable attorney fees and costs
consistent with this court’s instructions.
JUDGE FREYRE and JUDGE GOMEZ concur.