The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 12, 2026
2026COA13
No. 25CA0776, Wilburn v. Guthrie — Courts and Court Procedure — Regulation of Actions and Proceedings — Action Involving Exercise of Constitutional Rights — Anti-SLAPP — Accusation of Crime
In this action under the anti-SLAPP statute, § 13-20-1101,
C.R.S. 2025, a division of the court of appeals addresses the line
between fact and opinion when one person publicly accuses another
of committing a crime. The division holds that if the speaker fully
and accurately discloses the conduct on which the accusation is
based, the speaker’s characterization of that conduct as a crime is a
constitutionally protected opinion that cannot sustain a defamation
claim. In contrast, when the speaker does not fully and accurately
disclose the factual context for the accusation, or when the speaker
asserts or implies that the other person has done something they
have not, the statement may be an actionable assertion of fact. COLORADO COURT OF APPEALS 2026COA13
Court of Appeals No. 25CA0776 El Paso County District Court No. 24CV32374 Honorable Gregory R. Werner, Judge
Derrick Wilburn,
Plaintiff-Appellee,
v.
Bernadette Guthrie,
Defendant-Appellant.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE SCHOCK Grove and Yun, JJ., concur
Announced March 12, 2026
First & Fourteenth PLLC, Andrew M. Nussbaum, Robert J. Bucknam, Colorado Springs, Colorado, for Plaintiff-Appellee
Civil Rights Litigation Group, LLP, Edward C. Hopkins Jr., Denver, Colorado, for Defendant-Appellant ¶1 The line between fact and opinion can grow blurry when one
person accuses another — particularly a public figure — of
committing a crime. On one hand, it has been stated categorically
that an accusation that someone committed a crime is per se
defamatory. See Arrington v. Palmer, 971 P.2d 669, 671 (Colo. App.
1998). On the other hand, an opinion based on disclosed facts is
constitutionally protected. See NBC Subsidiary (KCNC-TV), Inc. v.
Living Will Ctr., 879 P.2d 6, 12 (Colo. 1994). And sometimes, people
have different opinions about whether a particular act is a crime.
¶2 The distinction lies in what about the accusation is alleged to
be false. If the speaker asserts or implies that the other person has
done something they have not, that is a factual assertion that can
support a defamation claim. But if instead the speaker fully and
accurately discloses what the other person has done, the speaker’s
characterization of that act as a crime is a protected opinion.
¶3 This case involves both kinds of statements. After plaintiff,
Derrick Wilburn, read explicit book passages at a public forum in
the presence of children, defendant, Bernadette Guthrie, publicly
(and repeatedly) accused him of being a “child predator” and
committing crimes against children — sometimes disclosing the
1 relevant context and sometimes not. Wilburn sued Guthrie for
defamation and outrageous conduct, and Guthrie moved to dismiss
the claims under Colorado’s anti-SLAPP1 statute, § 13-20-1101,
C.R.S. 2025, primarily on the ground that her statements were
protected opinions. The district court denied the motion to dismiss.
¶4 We affirm that denial. But in doing so, we conclude that many
of the allegedly defamatory statements — those in which Guthrie
offered her subjective characterization of a factually accurate
account — are constitutionally protected statements of opinion that
cannot support Wilburn’s claims. Thus, while Wilburn’s claims can
proceed, they must be narrowed in accordance with this opinion.
I. Background
¶5 While running for a seat on a local school board, Wilburn
participated in a public forum at a middle school attended by
Guthrie and her then-eleven-year-old daughter. At the forum, a
moderator asked candidates about issues affecting the school
district. One such question addressed “banned books”: “How does
1 “SLAPP” stands for “strategic lawsuit against public participation.”
Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 1 n.1.
2 the school board ensure that banned books do not negatively
impact students’ access to diverse educational literature?”
¶6 In response, Wilburn — who believed that certain books
should not be available in public schools — read excerpts from
three books that he said were available in school libraries in the
district. He prefaced his reading from the books with the following:
I do not curse. I’m going to speak some words now that have not come from my lips in 30 years, and I apologize in advance, ladies and gentlemen, for what you’re about to hear. These are books currently available in [the school district’s] libraries. Please forgive me in advance.
¶7 He then read the following passage:
Title is Push. Page 32. “Daddy put his peepee smelling thing in my mouth, my pussy, but never hold me. I see when he first created pink dress dirty sperm stuff on it. About three months after baby was born, I’m twelve when this happens, mama slapped me hard. Then she picked up a cast-iron skillet and she hit me so hard I fall back on the floor. Then she kicks me in the ribs, and she say, ‘Thank you Miz Claireece Precious Jones for fucking my husband you nasty little slut! Fat cunt bucket slut! Nigger pig bitch! All you tell them motherfuckers at the damn hospital? I should kill you,’ she screamed at me.”
3 ¶8 After reading passages from two other books,2 Wilburn
continued:
If you want your children to have access to and read this material, that’s none of my business. But as an independent taxpayer in this district, don’t ask me to pay for it. As a member of this board of directors, don’t ask me to force you to pay for it because the answer to both is no.
¶9 According to Guthrie, her daughter was “shocked” by the
readings and “immediately burst into tears” after the forum.
Guthrie characterizes Wilburn’s reading of these passages as the
“public performance of pornography at a student-led event.”
¶ 10 Wilburn was elected to the school board the next month. In
the months that followed, Guthrie made several public statements
criticizing Wilburn’s conduct at the forum and accusing him of
engaging in sexually predatory and other criminal behavior.
A. November School Board Meeting and Police Report
¶ 11 Shortly after Wilburn’s election to the school board, Guthrie
spoke at a school board meeting about his comments at the public
2 We do not quote the other excerpts because Guthrie’s public
statements center primarily on the first excerpt, and the specific content of the excerpts has no bearing on our analysis.
4 forum. Wilburn attended the meeting, and afterward, the two had a
verbal altercation outside. According to Guthrie, Wilburn initiated
the confrontation by approaching her from behind and addressing
her about her comments at the meeting. According to Wilburn,
Guthrie approached him first, screaming and cursing at him and
accusing him of being a predator as he walked to his car.
¶ 12 After this incident, Guthrie filed a police report in which she
described the public forum and accused Wilburn of being a “child
predator” for reading the explicit passages in front of children. She
claimed that because Wilburn had previously referred to one of the
books he read from as “pornography” — which she defined as
“material used for arousal” — that meant he had “read small
children material that arouses him.” She asserted that Wilburn’s
conduct at the forum amounted to the crime of “obscenity.”
¶ 13 Guthrie also reported the altercation after the school board
meeting, which she said constituted the crimes of harassment and
retaliation against a witness or victim. She told police that Wilburn
had approached her from behind “in an intimidating fashion and
started yelling at [her] for [her] public comments.” Wilburn denied
5 approaching Guthrie and claimed that Guthrie had “berate[d] and
repeatedly threaten[ed] [him] in an extremely aggressive fashion.”
¶ 14 The investigating officer concluded there was no evidence that
Wilburn had committed any crimes, either at the public forum or
after the school board meeting. As to the forum, the officer found
that there was no evidence that Wilburn had intended to promote
obscene material to minors. As to the board meeting incident, the
officer found that Wilburn had not followed Guthrie or intended to
harass her. The officer explained these findings to Guthrie.
B. Public Comments and Social Media Postings
¶ 15 For several months after the public forum, Guthrie made
public comments at school board meetings and on social media
accusing Wilburn of being a “child predator,” a “pervert,” and “a
danger to children.” In many of these comments, Guthrie
recounted with varying degrees of detail what Wilburn had done at
the forum that led her to these accusations. In others, she simply
called Wilburn a child predator without explaining why. Guthrie
asserted that Wilburn’s conduct was criminal and that, “if he’s
convicted of the crime he committed[,] he will have to register as a
sex offender and will not be eligible to hold a board director seat.”
6 ¶ 16 Guthrie also shared her account of the school board meeting
incident on social media, posting that Wilburn had “followed [her]
out of a . . . school board meeting . . . late at night into a dark
parking lot where he harassed and tried to intimidate [her].” She
noted that a police report had been filed as a result of the incident.
C. Petition for Prosecution
¶ 17 Four months after the public forum, a group of parents of
students in the school district submitted a petition to the district
attorney, contending that Wilburn had committed the crime of
obscenity and requesting an investigation into his conduct. The
petition described the public forum, including Wilburn’s reading of
the passages, and provided a link to a video of the event.
¶ 18 Guthrie wrote a letter in support of the petition, which likewise
included a link to a video of the forum. Her letter largely mirrored
the statements in her police report. It concluded by asserting that
the school district “now has a child predator sitting on their board.”
D. Colorado Association of School Boards Communications
¶ 19 A few days after the parent group submitted the petition,
Guthrie forwarded a news release about the petition to the Colorado
Association of School Boards (CASB) and asked, “[W]hat happens if
7 a sitting school board director is under investigation for sexual
crimes against minor children?” The executive director of CASB
responded that “[t]here isn’t recourse if a school board member is
under investigation,” but “if they are found guilty, they are removed
from their seat and there would be a vacancy.” Guthrie replied:
If a board came to you with this situation, would you advise them for the board member under investigation to limit their time around children/schools? It’s concerning to say the least to have someone who is being investigated for sex crimes against children to have full access to schools and students.
¶ 20 The executive director responded: “Yes, I would advise the
board member to exercise caution, but we always have to be
mindful that allegations are not findings, so the judicial and
administrative processes need to be followed.”
¶ 21 After this email exchange, Guthrie posted a comment on
Wilburn’s social media page attributing the following quote to the
CASB: “We would advise the . . . school board to exercise caution in
allowing Mr. Wilburn access to children while there is a pending
investigation into his behavior around children.” She also made a
public comment at a school board meeting that the executive
8 director of the CASB had advised the “board to exercise extreme
caution in allowing an accused board member access to children.”
E. Complaint and Motion to Dismiss
¶ 22 Wilburn sued Guthrie for defamation and outrageous conduct
based on her statements. He alleged that Guthrie had falsely stated
that Wilburn (1) “is a child predator who has violated children, is
sexually aroused by exposing children to obscene materials, and is
a danger to children”; (2) “is under investigation . . . for his various
crimes”; and (3) “harassed and retaliated against [Guthrie].”
¶ 23 Guthrie filed a special motion to dismiss under the anti-SLAPP
statute. See § 13-20-1101(3)(a). She argued that (1) her
statements accusing Wilburn of crimes against children and
harassment were constitutionally protected opinions; (2) her
statements that Wilburn was under investigation were not
defamatory; and (3) Wilburn could not prove by clear and
convincing evidence that Guthrie acted with actual malice.
¶ 24 The district court denied Guthrie’s motion. In doing so, it
rejected Guthrie’s claim that her statements were protected
opinions, identifying several that it regarded as factual assertions
capable of being proved true or false. The court also determined
9 that a jury could reasonably find that Guthrie made the statements
with actual malice. And it concluded that the nature of the
statements was such as to sustain the outrageous conduct claim.
II. Anti-SLAPP Legal Framework
¶ 25 The purpose of the anti-SLAPP statute is to “encourage and
safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government,”
while at the same time protecting the right to “file meritorious
lawsuits for demonstrable injury.” § 13-20-1101(1)(b). It does so by
creating a special motion to dismiss, which allows the district court
to “make an early assessment about the merits of claims brought in
response to a defendant’s petitioning or speech activity.” Salazar v.
Pub. Tr. Inst., 2022 COA 109M, ¶ 12; see § 13-20-1101(3)(a).
¶ 26 When a defendant shows that a claim arises from an act “in
furtherance of the [defendant’s] [constitutional] right of petition or
free speech . . . in connection with a public issue” — as Wilburn
concedes his claims do — the claim must be dismissed unless the
plaintiff establishes “a reasonable likelihood” of prevailing on the
claim. § 13-20-1101(3)(a); see Lind-Barnett v. Tender Care
Veterinary Ctr., Inc., 2025 CO 62, ¶¶ 22-23. We review the district
10 court’s resolution of that question de novo. Coomer v. Donald J.
Trump for President, Inc., 2024 COA 35, ¶ 64 (Coomer I).
¶ 27 Guthrie argues that the district court erred by applying the
oft-cited legal standard that, in determining whether a plaintiff has
shown a reasonable likelihood of success, the court “accepts the
plaintiff’s evidence as true, and evaluates the defendant’s showing
only to determine if it defeats the plaintiff’s claim as a matter of
law.” L.S.S. v. S.A.P., 2022 COA 123, ¶ 23 (citation omitted). Citing
the concurring opinions in Coomer v. Salem Media of Colorado, Inc.,
2025 COA 2 (Coomer II) (Tow, J., specially concurring), and Jogan
Health, LLC v. Scripps Media, Inc., 2025 COA 4 (Berger, J., specially
concurring), Guthrie contends that this standard is irreconcilably
inconsistent with the standard set forth in Salazar. She urges us to
“resolve” this split by eschewing L.S.S. and applying Salazar.3
¶ 28 Salazar was the first published case to address the standard
for resolving a special motion to dismiss under the anti-SLAPP
3 We, of course, cannot “resolve” the purported split. As a divisional court, the most we could do is pick a side. See Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions are not bound by the decisions of other divisions . . . .”). Only the supreme court can settle an interdivision split. See Willhite v. Rodriguez-Cera, 2012 CO 29, ¶ 9 (“[T]his court is the final authority on questions of Colorado law.”).
11 statute. In that case, the division held that the court “neither
simply accept[s] the truth of the [plaintiff’s] allegations nor make[s]
an ultimate determination of their truth” but instead “assess[es]
whether the allegations and defenses are such that it is reasonably
likely that a jury would find for the plaintiff.” Salazar, ¶ 21.
¶ 29 About a month later, the division in L.S.S. announced the
standard that the district court applied in this case: “‘[T]he court
does not weigh evidence or resolve conflicting factual claims’ but
simply ‘accepts the plaintiff’s evidence as true, and evaluates the
defendant’s showing only to determine if it defeats the plaintiff’s
claim as a matter of law.’” L.S.S., ¶ 23 (citation omitted). Since
L.S.S., divisions of this court have universally applied this standard
(often alongside Salazar). See Jogan Health, ¶ 14; Coomer II, ¶ 18;
Coomer I, ¶¶ 66-69; Anderson v. Senthilnathan, 2023 COA 88, ¶ 11;
Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 26.4
4 The only case we are aware of that did not apply the standard in
L.S.S. v. S.A.P., 2022 COA 123, is Tender Care Veterinary Center, Inc. v. Lind-Barnett, 2023 COA 114, rev’d, 2025 CO 62. In that case, the division acknowledged the conflicting standards but did not decide which of the approaches was correct. Id. at ¶ 14 n.2.
12 ¶ 30 But the special concurrences in Coomer II and Jogan rejected
the L.S.S. standard, viewing it as inconsistent with both Salazar
and the anti-SLAPP statute. See Coomer II, ¶ 120 (Tow, J., specially
concurring); Jogan Health, ¶ 56 (Berger, J., specially concurring).
They asserted that rather than accepting the plaintiff’s evidence as
true, the court should weigh the evidence — at least to an extent —
to assess whether the claim is likely to succeed. See Coomer II,
¶ 117 (Tow, J., specially concurring); Jogan Health, ¶¶ 64-67
(Berger, J., specially concurring). Guthrie asks us to do the same.
¶ 31 Initially, we do not view Salazar and L.S.S. as “irreconcilably
inconsistent.” Coomer II, ¶ 119 (Tow, J., specially concurring). As
the division explained in Coomer I, Salazar says that a court should
not accept the truth of the plaintiff’s allegations. Coomer I, ¶ 67
(citing Salazar, ¶ 21). L.S.S. does not say otherwise. It says that a
court should accept the truth of the plaintiff’s evidence. L.S.S.,
¶ 23. Thus, Salazar and L.S.S. can be read together to mean that
“while we do not necessarily accept the plaintiff’s allegations as
true, we do accept as true the plaintiff’s evidence” — including
evidence contained in the plaintiff’s affidavit. Coomer I, ¶¶ 68-69.
13 ¶ 32 But even if Salazar and L.S.S. are somewhat inconsistent, we
need not add our voice to the percolating debate for two reasons.
First, to the extent Guthrie argues that the district court erred by
applying the L.S.S. standard, she did not preserve the issue. In her
special motion to dismiss, Guthrie cited L.S.S. several times,
including for the proposition that the court must determine
“whether the plaintiff has stated a legally sufficient claim and made
a prima facie factual showing sufficient to sustain a favorable
judgment.” L.S.S., ¶ 23 (citation omitted); see also Stamp v. Vail
Corp., 172 P.3d 437, 449 (Colo. 2007) (“Prima facie evidence is
evidence that, unless rebutted, is sufficient to establish a fact.”).
She also asserted, again citing L.S.S., that the court should look for
guidance to California law, from which the L.S.S. standard was
drawn. See L.S.S., ¶¶ 20, 23. In doing so, Guthrie gave no
indication that L.S.S. was inconsistent with Salazar or otherwise
incorrect. Nor did she argue, as she does on appeal, that the court
should weigh the evidence. We generally do not consider
unpreserved arguments in civil cases. See Melat, Pressman &
Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18.
14 ¶ 33 Second, while we must nevertheless apply the correct legal
standard in conducting our own review, the ostensible divide —
between accepting the plaintiff’s evidence as true and weighing the
evidence — makes no difference in this case because there are no
pertinent factual disputes. Guthrie does not, for purposes of this
appeal, dispute what she said or what Wilburn did.5 Cf. Coomer II,
¶ 127 (Tow, J., specially concurring) (describing scenario in which
video evidence refutes plaintiff’s affidavit denial). Instead, her
appeal turns on whether her statements were protected opinions
and whether they are capable of being proved true or false. In other
words, Guthrie argues that Wilburn has not shown a reasonable
likelihood of prevailing on his claims — not because her evidence is
stronger than his, but because the claims fail as a matter of law.
See L.S.S., ¶ 23; see also Sall v. Barber, 782 P.2d 1216, 1218 (Colo.
App. 1989) (“The question of whether allegedly defamatory language
is constitutionally protected opinion is a matter of law.”).
5 The parties do dispute what happened after the board meeting,
with Wilburn attesting that he did not follow or harass Guthrie and Guthrie saying he did. But Guthrie did not seek dismissal on the ground that Wilburn’s denial was too weak or unsubstantiated to sustain his claims at this stage. See Jogan Health, LLC v. Scripps Media, Inc., 2025 COA 4, ¶ 64 (Berger, J., specially concurring).
15 ¶ 34 Thus, whether we accept Wilburn’s evidence as true or weigh
the evidence, we end up in the same place. Wilburn read the book
excerpts at the public forum, and Guthrie made the challenged
statements. Wilburn’s claims rise or fall on whether those
statements are actionable. That is the question we turn to next.
III. Fact or Opinion
¶ 35 Guthrie contends that her statements — particularly those
calling Wilburn a “predator” — were nonactionable opinions based
on disclosed facts. She asserts that the district court erred by
characterizing the statements as factual assertions. We agree in
part. Those statements that Guthrie coupled with a factually
accurate description of the conduct on which they were based
constitute protected opinion. Statements that were untethered to
that context, however, are sufficiently factual to support a claim.
A. The Line Between Fact and Opinion
¶ 36 Statements of pure opinion are constitutionally protected and
not actionable as defamation. Lawson v. Stow, 2014 COA 26, ¶ 30.
But even if a statement is framed as an opinion, it may constitute
an actionable assertion of fact if (1) it contains or implies a
statement that is susceptible of being proved true or false, and (2) a
16 reasonable person would conclude the assertion is one of fact.
Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994); NBC
Subsidiary (KCNC-TV), 879 P.2d at 10. To determine how a
reasonable person would interpret the statement, we consider how
the assertion is phrased, the context of the statement as a whole,
and the surrounding circumstances. Keohane, 882 P.2d at 1299.
¶ 37 A statement of opinion may be actionable as defamation if it is
based on false or undisclosed facts. Burns v. McGraw-Hill Broad.
Co., 659 P.2d 1351, 1360 (Colo. 1983). But if the factual context
for the opinion is fully and accurately disclosed, the speaker’s
subjective characterization of those facts may constitute a
constitutionally protected opinion. See NBC Subsidiary (KCNC-TV),
879 P.2d at 12; Burns, 659 P.2d at 1359; see also Herring Networks,
Inc. v. Maddow, 8 F.4th 1148, 1159-60 (9th Cir. 2021) (holding that
statement that news outlet was “paid Russian propaganda” was
opinion where speaker disclosed factual basis for claim).
¶ 38 We review de novo whether a statement is a protected opinion
or an assertion of fact. Lawson, ¶ 32.
17 B. Guthrie’s Characterizations of Undisputed Facts
¶ 39 We agree with Guthrie that several of her allegedly defamatory
statements — specifically, those in which she described Wilburn’s
conduct at the forum and expressed her view that it was criminal or
otherwise improper — are protected opinion. In these statements,
Guthrie made clear that her accusations were based on her
interpretation of the disclosed facts, not on some other undisclosed
criminal act that Wilburn committed. See NBC Subsidiary (KCNC-
TV), 879 P.2d at 12 (holding that the defendant’s assertion that the
plaintiff’s product was a “scam” was an opinion because it was
“based on facts disclosed to the viewer”); Burns, 659 P.2d at
1360-61 (distinguishing statements in which the context was “fully
and clearly disclosed” from those that implied the reporter had
“inside knowledge of the facts which would support her charge”).
¶ 40 For example, in both the police report and the petition for
prosecution, Guthrie began her statements by describing Wilburn’s
reading of the passages at the public forum. She also included a
link to a video of the forum and identified the pertinent portions of
the video. She then asserted that, by reading the passages aloud,
Wilburn had “violated the rules and norms” of the forum and that
18 this conduct was “criminal behavior” because Wilburn had
previously referred to the book as pornography. And she said that
Wilburn was a “child predator” for reading the quoted excerpts.
¶ 41 Many of Guthrie’s comments at school board meetings and in
social media posts were in the same vein. Her first post was similar
to her statements in the police report and the petition, quoting the
language Wilburn read, linking to the video, and asserting that he
had “violated the set rules and decorum of the forum, broke [the]
district code of conduct, and . . . traumatize[d] the young children
in the audience.” And in many other public comments, Guthrie
explicitly tied her assertions that Wilburn was a “predator,” a
“pervert,” and a “danger to children” to his readings at the forum.
¶ 42 Given the context and phrasing of these statements, no
reasonable person would understand them as assertions of any fact
other than that Wilburn had read from the books at the forum. See
Keohane, 882 P.2d at 1299. To the extent Guthrie expressed her
view that his doing so was criminal, predatory, or otherwise
improper, a reasonable listener would understand these
accusations as Guthrie’s opinion of Wilburn’s behavior. See id.
And Guthrie disclosed the facts that “would allow an average
19 listener to evaluate” that opinion for themselves. Burns, 659 P.2d
at 1360; see also NBC Subsidiary (KCNC-TV), 879 P.2d at 12
(“Viewers were in a position to evaluate [the speaker’s] views, and
were free to form a judgment . . . that differed from his.”).
¶ 43 We recognize that “accusations of criminal activity, ‘even in the
form of opinion, are not constitutionally protected.’” Keohane, 882
P.2d at 1304 (citation omitted); see also Arrington, 971 P.2d at 671
(“A statement is defamatory per se if it imputes a criminal offense.”).
But there is a difference between falsely accusing someone of
committing a criminal act and expressing the view that an act the
person indisputably undertook violates the law. See Keohane, 882
P.2d at 1304 (explaining that allegations of illicit behavior expressed
as an opinion may support a defamation claim “if there is no
adequate exposition of the underlying facts”); see also Gross v. N.Y.
Times Co., 623 N.E.2d 1163, 1169 (N.Y. 1993) (“[A]ccusations of
criminality could be regarded as mere hypothesis and therefore not
actionable if the facts on which they are based are fully and
accurately set forth and it is clear to the reasonable reader or
listener that the accusation is merely a personal surmise built upon
20 those facts.”). We decline to hold that a person may be liable for
defamation for calling a public figure’s public acts a crime.
¶ 44 The undisputed nature of the underlying facts sets this case
apart from others in which Colorado courts have treated an
accusation of criminal activity as an assertion of fact. In Coomer I,
for example, the plaintiff denied the defendants’ underlying factual
assertion that he took steps to undermine the election results. See
Coomer I, ¶¶ 135, 138. Similarly, in Lawson, there was a factual
dispute as to whether the plaintiff had threatened the defendant.
See Lawson, ¶ 37. And in Keohane, the defendant did not even
assert that the plaintiff had actually taken a bribe, as his
statements had implied. See Keohane, 882 P.2d at 1303.
¶ 45 In contrast, Wilburn does not dispute that he read the quoted
book passages at the forum or that children were present when he
did so. He only disputes Guthrie’s characterization of that act. We
conclude that as long as Guthrie fully disclosed the factual basis for
that characterization, the characterization itself is a protected
opinion. See id. at 1304; Burns, 659 P.2d at 1361.
¶ 46 We also conclude that certain of Guthrie’s other statements
are not “sufficiently factual to be susceptible of being proved true or
21 false.” Keohane, 882 P.2d at 1299 (quoting Milkovich v. Lorain J.
Co., 497 U.S. 1, 21 (1990)). Such statements include Guthrie’s
alleged assertions that (1) Wilburn’s actions were “grossly perverted
and lewd”; (2) Wilburn “raped [her] child’s mind”; (3) Wilburn is a
“sexual deviant” and a “pervert”; and (4) Wilburn is “the biggest
criminal” in the school district. These statements are the kind of
subjective judgments and rhetorical hyperbole that cannot support
a defamation claim. See NBC Subsidiary (KCNC-TV), 879 P.2d at
12-13; Coomer I, ¶ 133 (holding that statements calling the plaintiff
“unhinged,” a “lunatic,” and “evil” “undoubtedly would qualify as
protected opinion or hyperbole”).
C. Factual Assertions
¶ 47 Although Wilburn’s claims may not be premised on the
categories of statements described above, we have identified four
categories of statements that are sufficiently factual to support a
claim: (1) accusations of criminal conduct or predatory behavior
that are divorced from the factual context for those accusations;
(2) Guthrie’s claim that Wilburn followed and harassed her; (3) the
insinuation that Wilburn was under investigation; and
22 (4) statements indicating that the CASB had advised the school
board to “exercise caution” in allowing Wilburn access to children.
¶ 48 First, unlike the statements described in Part III.B, some of
Guthrie’s social media posts — at least as they are presented (and
admitted) in the complaint — do not include any context for her
accusations of criminal and predatory behavior by Wilburn.6 In one
post, Guthrie asserted, without more, that her daughter was “the
victim of one of the school board members who is a child predator.”
In another, Guthrie said, “[I]f [Wilburn is] convicted of the crime he
committed[,] he will have to register as a sex offender and will not
be eligible to hold a board director seat.” Guthrie made other
6 The analysis of these statements could change to the extent their
context is apparent from surrounding discussion not detailed in the complaint. But Guthrie did not identify any such additional context in her motion, and we are limited to “the pleadings and supporting and opposing affidavits.” § 13-20-1101(3)(b), C.R.S. 2025.
23 comments baldly claiming that Wilburn had engaged in “predatory
behavior” and that there was a “child predator” on the board.7
¶ 49 Without the context for these accusations, they could
reasonably be understood to imply that Wilburn had committed an
unspecified criminal act against children — a claim that is
“sufficiently factual to be susceptible of being proved true or false.”
Keohane, 882 P.2d at 1299 (citation omitted); see also Coomer I,
¶ 90 (“[W]e must consider . . . statements in context to determine
how a reasonable person would have understood them.”). Opinions
that “imply the existence of an undisclosed defamatory factual
predicate may support” a defamation claim. Burns, 659 P.2d at
1360. And given the declarative and unqualified nature of the
statements, they could reasonably be understood as literal
assertions of fact rather than rhetorical hyperbole. See Lane v. Ark.
Valley Publ’g Co., 675 P.2d 747, 751 (Colo. App. 1983).
7 We do not exhaustively catalogue each of the more than twenty
statements set forth in the complaint. See Coomer v. Donald J. Trump for President, Inc., 2024 COA 35, ¶ 91 n.12 (Coomer I) (“Absent a specific challenge, we need not separately parse each statement . . . .”). Instead, we address them by category — those that disclosed the factual context and those that did not — and provide examples to guide further proceedings in the district court.
24 ¶ 50 In other social media posts, the limited context Guthrie
provided for her statements was glaringly incomplete. For example,
in one post, Guthrie said that Wilburn had referred to the book he
read as “p[o]rn,” which she defined as “material used for purpose of
arousal,” and then leaped from there to the conclusion that Wilburn
“read material that arouses him to little kids.” Unlike the police
report, where Guthrie posed the same syllogism, she did not include
a link to the video of the forum or otherwise disclose Wilburn’s
prefatory and concluding remarks that made clear that he was not
reading the book for purposes of sexual gratification. Nor did she
specify what the book was. Without this critical context, this post
too could have misled a reasonable reader as to what had actually
occurred. See Keohane, 882 P.2d at 1303 (holding that statement
was an assertion of fact where a reasonable person could have
believed that it was based on undisclosed defamatory facts).
¶ 51 Second, Guthrie’s statements that Wilburn followed and
harassed her are factual assertions and would reasonably be
understood as such. As in Lawson, the context establishes that
Guthrie made the statements primarily to convince law
enforcement — first the police and then the district attorney — that
25 Wilburn had in fact followed and harassed her, with the intent that
they would charge Wilburn with a crime.8 See Lawson, ¶ 35. And
although disputed, Guthrie’s account is susceptible of being proved
true or false. See id. at ¶ 33. It either happened or it did not.
¶ 52 Guthrie contends that these statements are opinions because
they describe her “subjective perception of a disclosed interaction.”
But unlike Guthrie’s statements about the public forum, the facts
of which are not in dispute, this claim is premised on Guthrie’s
factual account of what happened between the parties after the
school board meeting. That account does not become an opinion
just because it described “what [Guthrie] felt.” Id. at ¶ 35.
¶ 53 Third, to the extent Guthrie made statements asserting or
implying that Wilburn was under investigation, those statements
8 Guthrie also repeated this accusation in a social media post, again
in a manner that “could reasonably be interpreted as stating actual facts.” Lawson v. Stow, 2014 COA 26, ¶ 30.
26 were factual assertions.9 Wilburn was either under investigation or
he was not, regardless of what Guthrie believed or whether she
agreed with law enforcement’s decision. Indeed, Guthrie did not
argue in the district court or in her opening brief on appeal that this
assertion was an opinion. See Caylao-Do v. Logue, 2025 COA 42,
¶ 33 (“[W]e do not consider arguments raised for the first time in a
reply brief.”). Her sole argument in the district court was that it
was not defamatory — an argument she does not raise on appeal.
¶ 54 Fourth, Guthrie’s posting of the purported CASB quote —
which she repeated at a school board meeting — embedded two
factual assertions: (1) there was a pending investigation into
Wilburn’s behavior around children, and (2) the CASB had advised
the school board to “exercise caution” in allowing Wilburn access to
children. The first of these assertions is addressed above. The
9 As far as we can tell, the only time Guthrie explicitly said Wilburn
was under investigation was in the purported CASB quote. In another social media post, she said that the superintendent was being investigated while again saying “there’s a child predator on the school board” and including a link to a news story about the petition for prosecution with the heading, “Sex Crimes against children for Derrick Wilburn.” Given the context and the lack of any argument by Guthrie to the contrary, we assume for purposes of this appeal that this post could reasonably be interpreted as an assertion that Wilburn was under investigation. See Coomer I, ¶ 90.
27 second is likewise “susceptible of being proved true or false”: The
CASB either issued the claimed advisement or not. Keohane, 882
P.2d at 1299 (citation omitted). And framed as a direct quote from
the CASB and a statement by the executive director, reasonable
people would take as fact that it had. See id.
¶ 55 Thus, we conclude that the four categories of statements we
outline in this section are sufficiently factual to support a claim.
IV. Material Falsity
¶ 56 Guthrie next argues that Wilburn failed to establish a
reasonable likelihood of proving by clear and convincing evidence
that her statements were false. But this argument is entirely
derivative of her argument that the statements were opinions. In
short, she asserts that her statements were not false because they
cannot be proved false and because a reasonable audience would
not interpret them as factual assertions. As to the four categories
of statements outlined above, we have concluded otherwise.
A. Preservation
¶ 57 Wilburn asserts that Guthrie did not preserve her challenge to
the falsity of the statements. But Guthrie argued in her special
motion to dismiss that several of her assertions could not be proved
28 true or false. So to the extent this is her argument on appeal, the
argument is preserved. We agree with Wilburn that Guthrie did not
make a separate argument that her statements — particularly the
statements we describe above — if factual, were true. But we do
not understand her to be making that argument on appeal either.
B. Applicable Law
¶ 58 When an allegedly defamatory statement involves a public
figure or a matter of public concern, as Guthrie’s statements did,
the plaintiff must prove by clear and convincing evidence that the
statement is materially false. Coomer I, ¶ 86; Jogan Health, ¶ 23.
¶ 59 “‘Minor inaccuracies do not amount to falsity’ so long as the
substance or the gist of the statement was true.” Jogan Health,
¶ 23 (quoting Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517
(1991)). A material falsehood is one that is “likely to cause
reasonable people to think ‘significantly less favorably’ about the
plaintiff” than if they knew the whole truth. Id. (citation omitted).
To survive an anti-SLAPP motion to dismiss, the plaintiff must show
a reasonable probability that they will be able to prove material
falsity by clear and convincing evidence at trial. See Coomer I, ¶ 87.
29 C. Analysis
¶ 60 We have agreed with Guthrie’s argument in part. Those
statements in which she called Wilburn’s disclosed conduct a crime
were protected opinion rather than provably false factual
assertions. But as to the four categories of factual assertions we
have identified above, Guthrie does not make any falsity argument
that is distinct from the opinion argument we have rejected.
¶ 61 The only additional argument she makes is that Wilburn did
not present any evidence of any audience member who in fact
interpreted her statements as factual assertions. But that is not
the standard. To show that a statement is a factual assertion, the
plaintiff need not identify a specific person who understood it as
such. The question is what a reasonable person would understand.
See Keohane, 882 P.2d at 1299. And we have concluded that a
reasonable observer could understand the statements in which
Guthrie did not disclose the basis for her accusations as factual
assertions that Wilburn had engaged in some other misconduct.
¶ 62 Guthrie does not assert that Wilburn failed to show a
reasonable probability of proving that such an accusation — or any
other factual assertion we have identified — was materially false.
30 Wilburn expressly denied these accusations in his affidavit, and
Guthrie disclaims any allegation that he committed any undisclosed
criminal act. Guthrie argues only that her statements that Wilburn
acted inappropriately by reading the book passages at the public
forum were substantially true. But to the extent they were
adequately contextualized, those statements are nonactionable
because they are opinion, not because they are substantially true.
¶ 63 Because Guthrie does not make any argument that the other
statements are substantially true — or more precisely, that Wilburn
has not shown a reasonable probability of proving they are not —
we conclude that Wilburn has met his burden on this element.
V. Outrageous Conduct Claim
¶ 64 The parties agree, as do we, that our resolution of the
defamation claim controls the resolution of the outrageous conduct
claim as well. Guthrie’s only argument for dismissal of that claim is
that the speech underlying the claim is protectable opinion.
¶ 65 A tort claim that arises from an allegedly defamatory
statement is subject to the same constitutional limitations as a
defamation claim. Coomer II, ¶ 101; Lewis v. McGraw-Hill Broad.
Co., 832 P.2d 1118, 1124-25 (Colo. App. 1992); see also Creekside
31 Endodontics, ¶ 54 n.8 (noting that an ancillary tort claim “rises and
falls with the defamation claim”). Thus, the protected opinions we
identify above can no more sustain Wilburn’s outrageous conduct
claim than they can his defamation claim. And vice versa, the
factual assertions can. Because Guthrie makes no other argument
for dismissal of the outrageous conduct claim, that claim may
proceed to the extent it is premised on those factual assertions.
VI. Contentions Raised in Reply Brief
¶ 66 Guthrie raises additional arguments for the first time in her
reply brief, including that (1) Wilburn did not meet his burden of
proving actual malice; (2) Wilburn did not show causation for his
alleged damages; (3) Wilburn’s request for injunctive relief is an
unlawful prior restraint of speech; and (4) Guthrie’s statements to
law enforcement are immune from liability. We do not consider
arguments raised for the first time in a reply brief. Caylao-Do, ¶ 33.
¶ 67 Moreover, other than the argument about malice, Guthrie did
not raise these arguments in her special motion to dismiss either.
Thus, they are not preserved for appeal, and we decline to consider
them on that ground as well. See Melat, Pressman & Higbie, ¶ 18.
32 VII. Appellate Attorney Fees
¶ 68 Guthrie requests an award of her appellate attorney fees under
section 13-20-1101(4)(a). That subsection provides that “a
prevailing defendant on a special motion to dismiss is entitled to
recover the defendant’s attorney fees and costs.” Id. It entitles a
defendant who prevails on appeal to an award of their appellate
attorney fees and costs. Rosenblum v. Budd, 2023 COA 72, ¶ 61.
¶ 69 We deny Guthrie’s request. Although we have narrowed
Wilburn’s claims, we have concluded that both of his claims may
proceed. Thus, Guthrie is not a prevailing defendant “because she
still faces the same claim[s] she faced before filing the motion.”
Salazar, ¶ 66; see also Coomer I, ¶ 223 (holding that narrowing of
one claim did not “make [the defendant] a partially prevailing
defendant because the defamation claim as a whole survives”).
VIII. Disposition
¶ 70 The order denying the motion to dismiss is affirmed. But
Wilburn’s claims may proceed only as to the statements identified
in Part III.C of this opinion. The case is remanded to the district
court for further proceedings consistent with this opinion.
JUDGE GROVE and JUDGE YUN concur.