What Businesses Should Know Before Filing a Defamation Lawsuit

Published On: May 27, 2026

Category: Defamation

A former client posts a detailed Yelp review accusing you of unethical conduct. An investigative journalist publishes allegations about your business practices. A blogger, influencer, or industry commentator circulates claims that threaten your professional credibility and commercial reputation. Some of the statements may be false. Others may be exaggerated, inflammatory, or strategically framed to provoke attention and public reaction.

The instinct to respond aggressively, whether through public confrontation or litigation, is understandable. But before filing a defamation lawsuit, businesses, professionals, and public figures need to understand an important reality: in Colorado and many other jurisdictions, Anti-SLAPP laws are designed to dispose of certain speech-related claims early and shift substantial financial risk onto the plaintiff if the case fails.

What is Colorado’s Anti-SLAPP Statute?

Colorado’s Anti-SLAPP statute, C.R.S. § 13-20-1101[1], was enacted in 2019 to provide an expedited procedural mechanism for dismissing certain lawsuits arising from constitutionally protected speech and petitioning activity. In practice, the statute serves as a significant procedural defense for journalists, media organizations, businesses, advocacy groups, and individuals speaking on matters of public concern.
The Colorado General Assembly enacted the statute to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law,”[2] while also preserving the ability to pursue legitimate claims involving demonstrable harm.
For plaintiffs considering a defamation action, the statute materially changes the litigation landscape. A successful Anti-SLAPP motion can result in early dismissal of claims, a stay of discovery, and mandatory fee-shifting against the plaintiff

What Constitutes Defamation Under Colorado Law?

Under Colorado law, defamation generally involves the publication of a false statement of fact to a third party that causes reputational or economic harm. To prevail on a defamation claim, a plaintiff typically must establish:

A false and defamatory statement of fact, rather than protected opinion, rhetoric, or hyperbole;
Publication of the statement to a third party;
The requisite level of fault, which may involve negligence or actual malice, depending on the plaintiff’s status; and
Actual damages affecting reputation, business interests, or livelihood.

Truth is generally an absolute defense to defamation. Likewise, statements framed as opinion, commentary, or rhetorical criticism, even when harsh or reputationally damaging, are often protected under the First Amendment and may not support a viable defamation claim.

Public Figure Status Can Dramatically Increase the Burden in a Defamation Case

One of the earliest and most consequential issues in many defamation cases is whether the plaintiff qualifies as a public figure. If so, the legal burden becomes substantially more demanding.

Colorado courts follow longstanding federal constitutional precedent recognizing both general-purpose and limited-purpose public figures. General-purpose public figures are individuals who have achieved pervasive notoriety or influence. Limited-purpose public figures, by contrast, are individuals who voluntarily inject themselves into a particular public controversy or industry discussion, even if they are not widely known outside that context.

In the modern business environment, public figure status extends well beyond celebrities and elected officials. Business owners, professionals, executives, and industry commentators who actively cultivate public visibility may fall within this category. Media appearances, podcast interviews, professional social media activity, published commentary, public-facing marketing, and participation in high-profile disputes can all become relevant in the analysis.

If a plaintiff is deemed a public figure, the standard shifts to actual malice. The plaintiff must establish that the publisher either knew the statement was false or acted with reckless disregard for the truth. This is a demanding evidentiary standard because it focuses on the publisher’s subjective state of mind at the time of publication. In practice, proving actual malice is often one of the most significant challenges in modern defamation litigation.

How Colorado’s Anti-SLAPP Statute Protects Critics, Journalists, and Public Commentary

Anti-SLAPP statutes were developed in response to lawsuits commonly referred to as “Strategic Lawsuits Against Public Participation,” or SLAPP suits. These cases are often characterized by claims intended less to prevail on the merits and more to impose litigation costs, pressure, or reputational consequences on critics, journalists, or other individuals speaking on matters of public concern.

Colorado’s Anti-SLAPP statute reflects the legislature’s determination that public participation and protected speech should not be chilled through abusive or meritless litigation. The statute expressly recognizes the public interest in safeguarding constitutional rights involving free speech, petitioning activity, and participation in matters of public significance.

The expansion of online review platforms, independent media, podcasts, blogs, and social media has dramatically increased the volume and visibility of public commentary involving businesses and professionals. In response, Colorado enacted C.R.S. § 13-20-1101 in 2019, creating a procedural mechanism designed to resolve certain speech-related claims at an early stage of litigation and, in many cases, shift financial exposure to the plaintiff.

How Colorado’s Anti-SLAPP Statute Works in Defamation Litigation

Under Colorado’s Anti-SLAPP framework, a defendant may file a special motion to dismiss when a claim arises from speech or petitioning activity involving a matter of public concern[3]. Courts generally interpret the concept of “public concern” broadly, focusing primarily on the subject matter of the speech rather than the speaker’s motive or intent.

As a result, constitutional protections may apply even where the publisher is motivated by commercial interests, personal hostility, or ideological advocacy. The critical inquiry is whether the speech involves issues that extend beyond a purely private dispute and implicate broader public interest considerations.

Matters frequently treated as issues of public concern include:

Healthcare practices and patient safety;
Regulatory compliance and professional licensing;
Consumer protection issues;
Public-facing professional conduct;
Advertising practices and marketing representations; and
Allegations involving business ethics, credibility, or industry standards.

Once an Anti-SLAPP motion is filed, the litigation can shift quickly into a threshold legal dispute over constitutional protections, evidentiary sufficiency, and fee-shifting exposure before the parties reach substantive discovery or trial.

The Financial Risk of Anti-SLAPP Fee-Shifting Provisions

If a defendant prevails on an Anti-SLAPP motion to dismiss, they are entitled to recover their reasonable attorney’s fees and costs from you, the plaintiff. In complex First Amendment litigation with experienced defense counsel, those fees can easily reach six figures.

If you file a defamation claim and the defendant files an Anti-SLAPP motion. If you lose the motion, you will have to pay your own legal fees plus the defendant’s. To add insult to injury, the person who published the damaging content will then have a judgment against you.

Additionally, while the Anti-SLAPP motion is pending, all discovery is stayed. This means that even if you ultimately survive the motion, you cannot compel the journalist to produce source materials, communications with witnesses, or other evidence that might support your case until after the threshold battle is resolved.

Opinion vs. Fact: Why Many Harmful Statements Are Still Legally Protected

One of the most difficult realities for defamation plaintiffs is that the statements they find most damaging are often the least likely to be actionable. The law draws a firm line between statements of verifiable fact and statements of opinion or rhetorical commentary.

Here is how that distinction typically plays out:

“Their products are dangerous.” This type of statement is often treated as an opinion when the underlying science is contested, and the statement lacks verifiable factual assertions.

“This company is a scam.” Courts frequently view this as hype rather than a specific, verifiable assertion of fact, depending on context.

“Patient X developed a serious complication within 48 hours of treatment.” This could be a specific, verifiable factual claim that could be actionable if false and made with the requisite fault.

“He has no legitimate credentials.” This statement may involve matters of public concern and could be supported or refuted by public records, depending on the sector.

Before concluding that you have a strong defamation case, a qualified attorney should carefully distinguish actionable statements (specific, false, factual claims) from those that are constitutionally protected (opinions, characterizations, hyperbole). In most cases, the actionable subset is narrower than the plaintiff initially believes.

Why Media Conflict and Public Litigation Can Escalate Reputational Harm

Many investigative journalists and independent media personalities today operate on subscription-based platforms (e.g., Substack, podcasts, YouTube channels) where audience engagement is the primary revenue driver. Conflict is not a byproduct of their work; for many, it is the product. As a public figure or business, do not play into their game.

In many high-profile disputes, legal threats or lawsuits can spur additional coverage or commentary rather than deter it. A cease-and-desist letter becomes a podcast episode on corporate intimidation. A filed complaint becomes a catalyst for fundraising. Every courtroom filing is new content.

This dynamic does not mean a defamation action is always wrong, but it is a material factor that must be included in the cost-benefit analysis. Before authorizing litigation, ask: Will filing a complaint make this matter worse?

Strategic Alternatives to Filing a Defamation Lawsuit

Before initiating litigation, businesses and professionals should carefully evaluate whether a defamation lawsuit is the most effective strategy for protecting reputation and limiting long-term exposure. In many cases, alternative approaches may achieve a more favorable practical result with substantially less financial and reputational risk.
Potential alternatives may include:

Targeted pre-litigation communications through counsel that focus narrowly on specific, demonstrably false factual assertions rather than generalized criticism or opinion. Carefully drafted demand letters can preserve strategic options while reducing unnecessary Anti-SLAPP exposure.
Platform-based reporting and removal procedures through services such as YouTube, Spotify, Apple Podcasts, Substack, or other digital publishers. While often imperfect and time-consuming, these mechanisms can sometimes result in removal or limitation of objectively false content without formal litigation.
Strategic public relations and reputation management efforts, including factual rebuttals supported by documentation, coordinated media responses, or proactive engagement with customers, clients, or industry stakeholders. In some circumstances, a disciplined communications strategy may be more effective than litigation at controlling reputational damage.
In certain situations, restraint may be the most commercially rational approach. Public disputes involving litigation frequently extend the lifespan and visibility of damaging allegations. Allowing a controversy to lose momentum naturally can, in some cases, minimize amplification and reduce overall exposure.

The appropriate response depends heavily on the nature of the allegations, the available evidence, the identity of the speaker, the scope of publication, and the broader business and reputational objectives at issue.

Key Considerations Before Filing a Defamation Claim in Colorado

Defamation litigation can be an appropriate and effective remedy in the right circumstances. Where a publisher has made objectively false factual statements causing substantial and demonstrable harm, litigation may be necessary to protect business interests, professional standing, and long-term reputational value.

At the same time, Colorado’s current legal framework requires plaintiffs to evaluate these cases with a clear understanding of the associated risks. Anti-SLAPP exposure, fee-shifting provisions, public figure analysis, constitutional protections for opinion and commentary, and the broader reputational dynamics of public litigation can all materially affect the outcome and overall cost-benefit analysis.

In many modern disputes, the litigation itself can become part of the public narrative. Journalists, media personalities, influencers, and online commentators often operate in environments where conflict generates additional visibility and audience engagement. As a result, legal action intended to suppress damaging allegations can sometimes expand public attention surrounding the dispute.

The role of counsel in these matters is not simply to encourage or discourage litigation. It is to provide a disciplined assessment of legal exposure, evidentiary strength, strategic objectives, reputational considerations, and practical business consequences before litigation begins. In many cases, the most successful outcome involves not only prevailing legally, but also protecting long-term credibility, commercial relationships, and reputation in the marketplace.

About Lantz Law Group

Lantz Law Group is a Denver-based boutique business law firm focused on transactional corporate law, commercial litigation, bankruptcy and creditor rights, and international business law. The firm represents businesses, professionals, and entrepreneurs in high-stakes disputes. This article is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.

Footnotes

[1] Much of Colorado law is being developed in accordance with California law because it was enacted earlier in that state. The Colorado

Court of Appeals held in Rosenblum v. Budd, 2023 COA 72, ¶ 29,n 3 (citing L.S.S. v. S.A.P., 2022 COA 123 ¶ 2, that“[b]ecause few cases have applied Colorado’s Anti-Slapp Statute, and because it closely resembles California’s anti-SLAPP statute, we look to California case law for guidance in outlining the two-step process for considering a special motion to dismiss.”)

[2] Ch. 414, sec. 1, § 13-20-1101, 2019 Colo. Sess. Laws 3647-50.

[3] Once a defendant files a special motion to dismiss under C.R.S. § 13-20-1101, the court applies a two-step analysis set out by the Colorado Supreme Court in Lind-Barnett v. Tender Care Veterinary Center, 2024 CO 62, ¶¶27-37, 580 P.3d 573, 579-582 (Colo. 2025). First, the court determines whether the publication could reasonably be understood to relate to a public issue. Second, the court determines whether the publication contributes to public discussion or debate about that issue.