SLAPP Fight in Colorado: Plaintiffs Face Dueling Evidentiary Standards

An emerging split in the Colorado Court of Appeals may force the Colorado Supreme Court to revisit the state’s anti-SLAPP statute—soon after finally weighing in on the statute’s first prong as a novel question in Lind-Barnett et al. v. Tender Care Veterinary Center, Inc., 2025 CO 62.

In the last few years, Colorado’s Court of Appeals has grappled with a growing divide over how to apply the state’s anti-SLAPP statute at the second prong—a law designed to protect First Amendment activity from meritless lawsuits. Depending on which side of the split prevails, Colorado could find itself at odds with all other jurisdictions that have anti-SLAPP statutes similar in form and substance, including California—which provided the model for Colorado’s statute. More problematic, until the split is resolved, litigants will be forced to guess which approach courts will apply in resolving anti-SLAPP motions.

Colorado’s Anti-SLAPP Statute

Enacted in 2019, Colorado’s anti-SLAPP law (Section 13-20-1101, C.R.S.) aims to quickly dismiss meritless lawsuits targeting certain First Amendment activity. The 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.

Over the last few years, a split has emerged over what evidentiary standard a court should follow to determine whether a plaintiff has shown a “reasonable likelihood” of prevailing on its claims under the second prong.

The Emerging Split

Two early appellate decisions—Salazar v. Public Trust Institute, 2022 COA 109, and L.S.S. v. S.A.P., 2022 COA 123—set out the competing evidentiary frameworks:

• Salazar Approach: Courts should weigh and resolve conflicts in the parties’ evidence to assess whether a jury would likely find for the plaintiff. This method involves a preliminary evaluation of conflicting evidence, which essentially functions as a pre-discovery bench trial or merits resolution. Thus, while the second prong has been described as “summary-judgment like,” this standard goes far beyond summary judgment and asks courts to weigh competing evidence in resolving claims (akin to a bench trial) before any discovery.

• L.S.S. Approach: Courts must accept the plaintiff’s evidence as true and only dismiss if the defendant’s evidence defeats the claim as a matter of law, without weighing any conflicting evidence. This creates a lower threshold for plaintiffs to survive dismissal. Unlike Salazar, this approach is akin to the summary judgment analysis, in reverse.

Two judges recently warned that these standards are “irreconcilably inconsistent.” One argued that L.S.S. undermines legislative intent by shifting the burden to defendants and reducing the anti-SLAPP motion to “redundancy” or worse, creating an additional hurdle beyond C.R.C.P. 12(b)(5) for defendants to clear before obtaining relief.

In other words, rather than create a meaningful safeguard, these judges view the L.S.S. approach as “a speed bump” or too low of a threshold for plaintiffs to clear rather than a statutory safeguard. Another judge echoed those concerns, warning that accepting plaintiffs’ evidence as true invites abuse, allowing litigants to defeat dismissal with a simple affidavit denying wrongdoing. Both judges urged the Colorado Supreme Court to resolve the conflict.

Framing the Split: Coomer v. Salem Media of Colorado, Inc.

The divergence recently came into focus in Coomer v. Salem Media of Colorado, Inc., 2025 COA 2, a defamation suit by former Dominion Voting Systems executive Eric Coomer against Salem Media and talk show host Randy Corporon. Coomer alleged that Corporon amplified false claims linking him to election interference during 2020 broadcasts.

The Court of Appeals affirmed the trial court’s refusal to dismiss Coomer’s defamation and intentional infliction of emotional distress claims under the anti-SLAPP statute, finding Coomer had shown a reasonable likelihood of success. The Coomer panel applied the L.S.S. rubric—accepting Coomer’s evidence as true. Though a concurrence agreed with the outcome, it criticized the methodology, advocating for the Salazar approach that permits preliminary weighing of evidence.

The concurrence underscored the emerging split: under L.S.S., he argued, even compelling defense evidence could not overcome a plaintiff’s affidavit, thwarting the statute’s purpose of shielding defendants from costly litigation over protected speech. Ultimately, the concurrence warned that this interpretation “directly obstructs” legislative intent and urged a return to the more rigorous Salazar standard.

Implications

The split leaves trial courts without clear guidance and, more importantly, creates uncertainty for Colorado litigants. With anti-SLAPP motions increasingly central in high-profile media and speech cases, including election-related litigation, the Colorado Supreme Court will need to intervene to harmonize the standard.

While that much is clear, predicting which side the court will adopt is anything but.

On one hand, the Colorado Supreme Court very recently signaled a preference for following California law in Lind-Barnett et al. v. Tender Care Veterinary Center, Inc., 2025 CO 62. There, the court adopted California’s standard in demonstrating whether conduct or speech was made “in connection with an issue of public interest” under the first prong.

That makes sense. Colorado modeled its statute after California’s, and the category of protected activity analyzed in Lind-Barnett was identical to the category of protected activity in California’s statute. On top of similar statutory language, as the first state that adopted an anti-SLAPP law, California boasts the most developed body of anti-SLAPP jurisprudence in the country. If the Colorado Supreme Court continues that trend in resolving this split, that could signal adoption of the L.S.S. approach, which follows California’s standard.

On the other hand, the reasons supporting California’s interpretation of the second-prong standard might not apply as clearly in Colorado. California’s state constitution guarantees the right to a jury trial in civil cases (Cal. Const. art. I, Section 16). The reason the California standard is what it is—i.e., that courts must accept the plaintiff’s evidence as true and only dismiss claims if the defendant’s evidence defeats the claim as a matter of law—is to avoid violating this civil jury trial right. Several California decisions confirm that, if the second prong were interpreted differently, such as under the Salazar standard, such an interpretation would violate California’s right to a civil jury trial because it would equate to an early bench trial on conflicting evidence. See, e.g., Colt v. Freedom Commc’ns, Inc., 109 Cal. App. 4th 1551, 1557 (Cal. Ct. App. 2003) (explaining that, on prong two, “[t]he court may not weigh the evidence or make credibility determinations; doing either would violate plaintiff’s right to a jury trial”). The Washington Supreme Court adopted the same reasoning interpreting its anti-SLAPP statute. See Davis v. Cox, 351 P.3d 862, 871–72 (Wash. 2015).

But Colorado does not have a state constitutional right to a jury trial for every civil case, and the Seventh Amendment to the federal constitution has never been incorporated against the states. The source of a jury trial right in Colorado stems from claim-specific grants in certain state constitutional provisions, statutes or Colorado Rule of Civil Procedure 38 and does not extend to all claims. Thus, without the same constitutionally-based jury trial right, the basis for California’s second-prong standard may not apply to Colorado, and that could open the door for adopting the Salazar approach.

Other differences in Colorado’s statute may also favor a departure from the California standard. The language in California’s statute differs slightly from Colorado’s on the second prong. Prong two is satisfied in California (and neighboring Nevada) if the defendant can show a “reasonable probability” of prevailing, whereas Colorado requires a “reasonable likelihood” of prevailing. Though slight, this difference in statutory language could sway the court away from California’s analysis. While Colorado’s statute was taken from California’s, presumably the legislature’s use of different language in describing the second prong burden was intentional.

While it is difficult to predict which standard the Colorado Supreme Court will choose, the L.S.S. standard appears to better support the legislative intent behind the anti-SLAPP statute and would avoid the possibility of violating jury trial rights where available. Unlike the Salazar standard—which is effectively a pre-answer bench trial that permits weighing evidence—the statute is not meant to dismiss claims that have factually disputed merit. Instead, it is designed to protect against lawsuits that are wholly meritless and factually unsupported, while also protecting the right to file “meritorious lawsuits for demonstrable injury.” C.R.S. Section 13-20-1101(1)(b). Taking the Salazar approach would undercut this intent and force litigants to resolve their claims on the merits without any (or only limited) discovery or trial.

The Salazar standard would also threaten claim-specific civil jury trial rights protected by C.R.C.P. 38. While there is no express constitutional right to a civil jury trial, C.R.C.P. 38 provides for jury trials in legal (as opposed to equitable) actions. And that rule itself has a constitutional source—Article VI, Section 21 of the Colorado Constitution expressly requires the Colorado Supreme Court to “make and promulgate rules governing practice and procedure in civil” cases. Thus, adopting the Salazar approach would run afoul of the rights created by C.R.C.P. 38 pursuant to constitutional authority for actions that are legal in nature. Comparatively, adoption of the L.S.S. approach would promote uniformity in applying the anti-SLAPP statute in civil cases of any sort while also preserving the jury trial right where available. Relatedly, because there is a federal civil jury trial right, the Salazar standard may create problems for anti-SLAPP motions brought in federal court under Colorado law since it would require federal judges to weigh factually competing evidence in violation of that federal constitutional right—although the viability of anti-SLAPP motions in federal court has recently been called into question.

More fundamentally, the Salazar approach may be based on concerns that do not bear out in practice. While it is conceivable that a plaintiff could file a false declaration to oppose an anti-SLAPP motion, the same could be said about defendants in bringing an anti-SLAPP motion in the first place. That concern does not give credence to the several mechanisms Colorado courts may employ to address false declarations, including perjury and appropriate rule-based sanctions. But even so, under the Salazar standard, a defendant could just as easily file a false declaration that he or she did not commit the alleged acts, win the motion (and win on the merits) without discovery, and face no consequences for their false testimony. Conversely, under the L.S.S. standard, if a plaintiff files a false declaration to defeat an anti-SLAPP motion, the false declaration will be tested in discovery and can be dealt with via appropriate sanctions in the remainder of the litigation. Adopting the L.S.S. standard seems to be the only way to further the intent of the anti-SLAPP statute while preserving constitutionally sourced rights to jury trials where available and providing for a uniform approach (and therefore, certainty) for litigants to follow. Regardless, until the Colorado Supreme Court weighs in, litigants should be cognizant of this split and be prepared to address both standards when bringing or defending anti-SLAPP motions in Colorado.