Members of the Colorado Supreme Court considered last week whether a person’s vindictive motivations in posting a negative online review can nevertheless relate to a matter of public interest, and potentially shield the commentary from a defamation lawsuit.

For the first time, the state’s highest court examined Colorado’s 2019 “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The goal was to provide a mechanism for quickly disposing of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government.

While parties bringing defamation lawsuits must show they are likely to succeed, judges first need to examine whether the disputed speech is “in connection with” a public issue. Now, the Supreme Court is considering to what degree a consumer review may implicate a public issue, and whether the reviewer’s motivation affects the answer.

In other words, when does a personal experience rise to the level of public concern?

“It would require a statement that, on its face, appears to engage in public discourse,” contended attorney Tanner W. Havens during the May 14 oral arguments. “A statement that ‘Dr. Smith didn’t follow CDC guidelines and protocols during flu season this year, leaving many individuals, including myself, subject to risk’ … as opposed to ‘Dr. Smith almost killed me in his hospital today. Don’t go there unless you want to die on the hospital room floor.’”

“That seems to be a pretty high bar, though,” responded Justice Richard L. Gabriel. “Somebody says, ‘The doctor almost killed me, avoid him,’ would seem to be something the public might be interested in.”

“Why isn’t it enough to essentially warn someone to be careful without elaborating on exactly why?” added Justice William W. Hood III. “It provides the public with some encouragement to be more circumspect in dealing with this particular physician.”

In the underlying case, Jennifer Lind-Barnett had a poor experience when she brought her puppy to Tender Care Veterinary Center in Falcon. She subsequently posted about it on multiple Facebook pages, including Tender Care’s. Among other things, she and another dissatisfied customer, Julie Davis, called Tender Care “inept,” “dishonest,” the “biggest scam to ever walk into our town,” and alleged it committed “malpractice.”

Tender Care filed a defamation lawsuit based on many of Lind-Barnett and Davis’ statements. The defendants sought to dismiss the complaint under the anti-SLAPP law, arguing their speech was a matter of public interest covered by the shield.

In August 2022, El Paso County District Court Judge David Prince declined to dismiss the lawsuit. He acknowledged the statements were made on social media pages, but believed they fundamentally pertained to “a private business dispute, essentially a pair of customer complaints.”

A three-judge Court of Appeals panel clarified that customer posts about veterinary services could amount to an issue of public concern. But the panel did not believe the defendants’ statements contributed to “any broader public discussion about pet health care,” like training, the availability of services or “overbreeding” problems.

“Rather, read in context, the posts’ purpose was, in Lind-Barnett’s own words, ‘to deal with (Tender Care) once and for all’ — that is, to exact some revenge by putting it out of business,” wrote then-Judge John Daniel Dailey. “Most of the posts simply attack Tender Care and its staff.”

The defendants appealed to the Supreme Court, arguing the Court of Appeals panel took too narrow a view of the “public interest.” They pointed out their comments generated substantial discussion among other interested residents of the community. They also disputed that their motivations in posting played any role in determining whether the anti-SLAPP law shielded their speech.

Various consumer- and speech-related groups weighed in on the defendants’ behalf. Public Citizen and the Public Participation Project argued consumer reviews are generally a matter of public interest because of the information they provide to customers. Online review site Yelp also contended that individual experiences can, when combined, contribute to “the public debate,” even if a consumer is motivated out of revenge.

“So, if their statements were, ‘I just want to exact revenge and put this company out of business’ and everything is sort of along those lines, does that still survive” the motion to dismiss, asked Justice Maria E. Berkenkotter.

If that was the post, and it “didn’t offer any reason for that personal vendetta, that would likely not be a matter of public concern,” responded Steven D. Zansberg, the attorney for Lind-Barnett and Davis who also represents media organizations.

On the other hand, the justices were wary of Tender Care’s position that statements are shielded when they contain “substance or information,” not just disparaging commentary.

“My concern is on your test, we really shut down speech,” responded Gabriel. “I mean, the speaker needs to be thinking, ‘Have I said enough? Have I provided enough facts? I’m not sure I can speak. I may be liable here.’ And that’s troubling to me.”

“The motivation may be the person’s upset at the doctor,” said Justice Carlos A. Samour Jr. “But if the person is saying, ‘Hey, I went to this doctor and I almost ended up dying,’ and I, on the other hand, am looking for a doctor in the future and I’m looking at that review, that’s helpful to me. Even if the motivation by that patient may have been because they were upset.”

Hood also wondered if the need to justify a bad review with evidence would be easier in certain cases — like restaurant reviews — than with medical services where people “may not have a sophisticated understanding of exactly how things went wrong.”

Further, he asked, would a review still be deemed in the public interest if it conveys legitimate complaints about an experience, but is intertwined with incendiary, false claims as well?

“Something that’s not rooted in fact and it’s just somebody sounding off because they’re upset,” he said.

The case is Lind-Barnett et al. v. Tender Care Veterinary Center, Inc.