Kolbenschlag column: Strategic lawsuits against public participation

Peter Kolbenschlag
Pete Kolbenschlag
Luna Anna Archey

The public lands rise above where I live, from the town and from the orchards, farms, ranches and wineries for which the North Fork Valley is known. I have long been involved in the shared work here to build a vibrant community and to support our transition to a diverse economy no longer so tightly lashed to fossil fuels.

I accept the urgency of climate change, and I am a proud advocate for our public lands. Many here agree with me, and together we have stood up to limit oil and gas development from expanding across the national forest and BLM lands. But this is not about oil and gas development. It is not my story at all.

But it is about what my experience can do to help inform the conversation around HB 1324, the “Anti-SLAPP” bill recently introduced in the Colorado House by Reps. Lisa Cutter and Shannon Bird. This legislation would afford better protections for free speech and our right to “petition the government.”

For now, powerful or vindictive parties can level spurious charges and tie individuals up in court for years, taking their time and money, causing business uncertainty, and imposing financial duress.

I know because it is happening to me. I am the defendant in a SLAPP, a Strategic Lawsuit Against Public Participation, filed by an oil and gas company in response to my engagement on matters of public importance.

The particulars of my case are unimportant here, although they can be easily researched. And I have already been found by a Colorado District Court to not have committed any actionable offense, and also awarded attorney fees for the “frivolous” and “vexatious” complaint made against me.

But all that is under appeal, and so I am still, over two years later, unduly burdened by and defending myself against this action.

So I support HB 1324. The overall effect of this law would be to better ensure accusers meet a legitimate burden of proof when seeking to punish speech, if they are directly challenged by the person sued to do so. This evidence must be proffered, on the defendant’s motion, before the plaintiff can tie that defendant up further, in expensive court actions and fighting off frivolous charges. Often, as in my case, for years.

Free speech is protected in our republic for good reason. Citizen input is grist for the mill of representational democracy. Dialogue and debate is a plus in pluralistic society. And this value is shared by Americans across the political spectrum. Free Speech allows people to participate robustly in government, speak truth to power, and to challenge the status quo.

In my case, when I was sued the community immediately rallied to my support. Luckily my friends and neighbors saw this action for what it was. And for what the court has now found it to be, a frivolous and vexatious action. It is meant not only to impact and intimidate me, but to choke off community-based criticism, and to stifle dialogue and silence debate.

That is the threat SLAPP-type actions pose to the fundamental American values of free speech and civic engagement. SLAPP actions are meant to have a chilling effect on public discourse and community activism. And that is why Colorado should join states as divergent as Texas and California to enact anti-SLAPP legislation.

Of course, making intentionally false and reckless claims specifically to damage and harm is and ought to remain an actionable offense. But limiting our right to free speech should require a sufficient level of evidence before the powerful can force someone to endure burdensome and unwarranted litigation.

I am also lucky to have exceptional counsel, and fortunate that the district court made a sound, and well-reasoned ruling. I look forward to winning my defense on appeal. But that’s not the point. No Coloradan should face such litigation and unfair tactics simply for their civic engagement.

My attorney took the case on a contingency fee basis, since the case is so obvious for what it is: frivolous and vexatious with a high likelihood that fees would be paid by my accuser.

But not everyone who might face such an action would be so fortunate, and especially unscrupulous plaintiffs sometimes pile on outrageous damage claims to increase the intimidation and pain. HB 1324 could effectively limit the expense incurred from mounting a legal defense in cases like mine, and guarantees a fees award to a successful defendant.

HB 1324 takes concrete steps to strengthen the ability of citizens, journalists and others to hold government accountable and to participate on matters of public importance — without fear of retaliation from the powerful or vindictive.

Regardless of ideological or political persuasion, HB 1324 would better protect our shared rights to speak up on issues of public importance, to challenge governmental decisions, and to participate fully in civil society. HB 1324 deserves the support of all who care about our republic and about robust citizen engagement.

Pete Kolbenschlag is a long-time community activist based in western Colorado. In February 2017 he was sued for alleged defamation over a Facebook comment he had left on a Glenwood Springs Post Independent news article the previous year, and which was critical of a Houston-based oil and gas company active in the area.

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