California Dreamin’: Colorado Follows California’s Anti-SLAPP ‘Public Interest’ Test

Colorado’s anti-SLAPP statute sets out a two-pronged procedure for determining whether defendants are immune from liability: (1) whether the alleged speech or conduct falls within one of four statutory categories of First Amendment activity, subject to no exception; and (2) if so, whether the plaintiff has a reasonable likelihood of prevailing on its claims.

The statute came into effect in 2019. But since then, the Colorado Supreme Court has not weighed in on the first prong of the analysis in any reported or unreported opinion—until now. On Dec. 8, 2025, the Supreme Court issued its opinion in Lind-Barnett et al. v. Tender Care Veterinary Center, Inc., 2025 CO 62. In addition to setting a clear standard for how courts should analyze lawsuits based on speech or conduct related to matters of “public interest,” the ruling confirms how Colorado courts should interpret the categories of speech or conduct protected by the statute, more broadly.

Key Context and the Court’s Holding

The dispute began when two dog owners posted negative Facebook reviews of a vet center, accusing staff of “ignorance” and “almost killing” a pet. The clinic sued for defamation over more than 100 statements. The defendants sought dismissal under the anti-SLAPP statute, arguing their posts qualified for protection because they were “in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The trial court denied the motion, calling the posts private grievances based on what the court felt were the defendants’ bad faith motives. A divided Court of Appeals agreed, finding the reviews too revenge-driven and narrow to qualify as speech on matters of public interest.

The high court disagreed, adopting California’s analysis for determining whether the challenged speech or conduct was made in connection with an “issue of public interest.” In doing so, the court adopted California’s two-part test for determining whether speech or conduct is made “in connection with an issue of public interest”: (1) would an objective observer reasonably view the speech or conduct in content and context as touching on broader public concerns, even if it implicates some private dispute?; and (2) does the speech contribute to public discourse or debate on that issue, considering the relationship between the challenged speech or conduct and the public issue or issue of public interest identified?

The court was clear that evidence of personal animus or motives in speaking or acting are not relevant to the analysis. Instead, such evidence may be material at the second prong of the statute’s procedure that tests the sufficiency of the claims, to the extent motive or animus bears on a necessary element of them. The case was ultimately remanded to the lower court to apply the new test without considering motive.

A Harbinger of Things to Come?

Clarifying the appropriate test to determine matters that are “in connection with a public issue or issue of public interest” is important for Colorado litigants in its own right. But what is most useful from the Lind-Barrett opinion is insight into how the Colorado Supreme Court will interpret and apply the Colorado anti-SLAPP statute more broadly, especially considering it has never waded into the first prong of the anti-SLAPP waters before this decision.

Colorado’s statute is near-identical to California’s statute with respect to what particular speech or conduct qualifies for protection. The Lind-Barrett court adopted the California Supreme Court’s test for determining speech or conduct on matters of public interest based on the identical statutory category of protected activity, without exception. That signals the court is likely to adopt California’s highly developed case law for the other three categories as such case comes before it. Lower courts in Colorado no longer need to guess as to how the statutory categories operate and have the benefit of California law for future anti-SLAPP motions.

But how far will Colorado go? There may be limits. Though Colorado’s statute is near identical to California’s, there are still differences. For example, California’s statute contains a legislative directive to courts to interpret and apply the statute as broadly as possible, whereas Colorado’s does not. A good amount of California’s first-prong jurisprudence relies on that directive for its interpretations, in particular where those interpretations are not found in the express language of the statutory categories. Colorado courts may reign in the scope of the statute’s protections versus California by relying on that difference.

In addition, Colorado may detour when it comes to the standard applied to the second-prong analysis. For instance, California’s constitution generally provides the right to a civil jury trial, but Colorado’s does not. Thus, when interpreting the second prong, California courts must grapple with impeding that right when determining an anti-SLAPP motion. Without any generally applicable civil jury trial right, Colorado courts do not necessarily weigh the same consideration. Relatedly, the second prong is satisfied in California by showing a “reasonable probability of prevailing” on the claim. Colorado’s second prong standard deploys different language, requiring a “reasonable likelihood” of prevailing. Though “probability” and “likelihood” feel similar, different words presumably mean a different thing—meaning courts could interpret them in vastly different ways. Indeed, it has already created a split in the Colorado Court of Appeals, to be further discussed in a forthcoming companion article.

In sum, Lind-Barrett provides a reliable basis for courts and litigants alike to rely on California’s significant body of law interpreting what specific speech or conduct qualifies for anti-SLAPP protections under Colorado’s nearly identical statute.