Wilburn v. Guthrie

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 12, 2026

2026COA13

No. 25CA0776, Wilburn v. Guthrie — Courts and Court
Procedure — Regulation of Actions and Proceedings — Action
Involving Exercise of Constitutional Rights — Anti-SLAPP —
Accusation of Crime

In this action under the anti-SLAPP statute, § 13-20-1101,

C.R.S. 2025, a division of the court of appeals addresses the line

between fact and opinion when one person publicly accuses another

of committing a crime. The division holds that if the speaker fully

and accurately discloses the conduct on which the accusation is

based, the speaker’s characterization of that conduct as a crime is a

constitutionally protected opinion that cannot sustain a defamation

claim. In contrast, when the speaker does not fully and accurately

disclose the factual context for the accusation, or when the speaker

asserts or implies that the other person has done something they

have not, the statement may be an actionable assertion of fact.
COLORADO COURT OF APPEALS 2026COA13

Court of Appeals No. 25CA0776
El Paso County District Court No. 24CV32374
Honorable Gregory R. Werner, Judge

Derrick Wilburn,

Plaintiff-Appellee,

v.

Bernadette Guthrie,

Defendant-Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SCHOCK
Grove and Yun, JJ., concur

Announced March 12, 2026

First & Fourteenth PLLC, Andrew M. Nussbaum, Robert J. Bucknam, Colorado
Springs, Colorado, for Plaintiff-Appellee

Civil Rights Litigation Group, LLP, Edward C. Hopkins Jr., Denver, Colorado,
for Defendant-Appellant
¶1 The line between fact and opinion can grow blurry when one

person accuses another — particularly a public figure — of

committing a crime. On one hand, it has been stated categorically

that an accusation that someone committed a crime is per se

defamatory. See Arrington v. Palmer, 971 P.2d 669, 671 (Colo. App.

1998). On the other hand, an opinion based on disclosed facts is

constitutionally protected. See NBC Subsidiary (KCNC-TV), Inc. v.

Living Will Ctr., 879 P.2d 6, 12 (Colo. 1994). And sometimes, people

have different opinions about whether a particular act is a crime.

¶2 The distinction lies in what about the accusation is alleged to

be false. If the speaker asserts or implies that the other person has

done something they have not, that is a factual assertion that can

support a defamation claim. But if instead the speaker fully and

accurately discloses what the other person has done, the speaker’s

characterization of that act as a crime is a protected opinion.

¶3 This case involves both kinds of statements. After plaintiff,

Derrick Wilburn, read explicit book passages at a public forum in

the presence of children, defendant, Bernadette Guthrie, publicly

(and repeatedly) accused him of being a “child predator” and

committing crimes against children — sometimes disclosing the

1
relevant context and sometimes not. Wilburn sued Guthrie for

defamation and outrageous conduct, and Guthrie moved to dismiss

the claims under Colorado’s anti-SLAPP1 statute, § 13-20-1101,

C.R.S. 2025, primarily on the ground that her statements were

protected opinions. The district court denied the motion to dismiss.

¶4 We affirm that denial. But in doing so, we conclude that many

of the allegedly defamatory statements — those in which Guthrie

offered her subjective characterization of a factually accurate

account — are constitutionally protected statements of opinion that

cannot support Wilburn’s claims. Thus, while Wilburn’s claims can

proceed, they must be narrowed in accordance with this opinion.

I. Background

¶5 While running for a seat on a local school board, Wilburn

participated in a public forum at a middle school attended by

Guthrie and her then-eleven-year-old daughter. At the forum, a

moderator asked candidates about issues affecting the school

district. One such question addressed “banned books”: “How does

1 “SLAPP” stands for “strategic lawsuit against public participation.”

Salazar v. Pub. Tr. Inst., 2022 COA 109M, ¶ 1 n.1.

2
the school board ensure that banned books do not negatively

impact students’ access to diverse educational literature?”

¶6 In response, Wilburn — who believed that certain books

should not be available in public schools — read excerpts from

three books that he said were available in school libraries in the

district. He prefaced his reading from the books with the following:

I do not curse. I’m going to speak some words
now that have not come from my lips in 30
years, and I apologize in advance, ladies and
gentlemen, for what you’re about to hear.
These are books currently available in [the
school district’s] libraries. Please forgive me in
advance.

¶7 He then read the following passage:

Title is Push. Page 32. “Daddy put his peepee
smelling thing in my mouth, my pussy, but
never hold me. I see when he first created
pink dress dirty sperm stuff on it. About three
months after baby was born, I’m twelve when
this happens, mama slapped me hard. Then
she picked up a cast-iron skillet and she hit
me so hard I fall back on the floor. Then she
kicks me in the ribs, and she say, ‘Thank you
Miz Claireece Precious Jones for fucking my
husband you nasty little slut! Fat cunt bucket
slut! Nigger pig bitch! All you tell them
motherfuckers at the damn hospital? I should
kill you,’ she screamed at me.”

3
¶8 After reading passages from two other books,2 Wilburn

continued:

If you want your children to have access to
and read this material, that’s none of my
business. But as an independent taxpayer in
this district, don’t ask me to pay for it. As a
member of this board of directors, don’t ask
me to force you to pay for it because the
answer to both is no.

¶9 According to Guthrie, her daughter was “shocked” by the

readings and “immediately burst into tears” after the forum.

Guthrie characterizes Wilburn’s reading of these passages as the

“public performance of pornography at a student-led event.”

¶ 10 Wilburn was elected to the school board the next month. In

the months that followed, Guthrie made several public statements

criticizing Wilburn’s conduct at the forum and accusing him of

engaging in sexually predatory and other criminal behavior.

A. November School Board Meeting and Police Report

¶ 11 Shortly after Wilburn’s election to the school board, Guthrie

spoke at a school board meeting about his comments at the public

2 We do not quote the other excerpts because Guthrie’s public

statements center primarily on the first excerpt, and the specific
content of the excerpts has no bearing on our analysis.

4
forum. Wilburn attended the meeting, and afterward, the two had a

verbal altercation outside. According to Guthrie, Wilburn initiated

the confrontation by approaching her from behind and addressing

her about her comments at the meeting. According to Wilburn,

Guthrie approached him first, screaming and cursing at him and

accusing him of being a predator as he walked to his car.

¶ 12 After this incident, Guthrie filed a police report in which she

described the public forum and accused Wilburn of being a “child

predator” for reading the explicit passages in front of children. She

claimed that because Wilburn had previously referred to one of the

books he read from as “pornography” — which she defined as

“material used for arousal” — that meant he had “read small

children material that arouses him.” She asserted that Wilburn’s

conduct at the forum amounted to the crime of “obscenity.”

¶ 13 Guthrie also reported the altercation after the school board

meeting, which she said constituted the crimes of harassment and

retaliation against a witness or victim. She told police that Wilburn

had approached her from behind “in an intimidating fashion and

started yelling at [her] for [her] public comments.” Wilburn denied

5
approaching Guthrie and claimed that Guthrie had “berate[d] and

repeatedly threaten[ed] [him] in an extremely aggressive fashion.”

¶ 14 The investigating officer concluded there was no evidence that

Wilburn had committed any crimes, either at the public forum or

after the school board meeting. As to the forum, the officer found

that there was no evidence that Wilburn had intended to promote

obscene material to minors. As to the board meeting incident, the

officer found that Wilburn had not followed Guthrie or intended to

harass her. The officer explained these findings to Guthrie.

B. Public Comments and Social Media Postings

¶ 15 For several months after the public forum, Guthrie made

public comments at school board meetings and on social media

accusing Wilburn of being a “child predator,” a “pervert,” and “a

danger to children.” In many of these comments, Guthrie

recounted with varying degrees of detail what Wilburn had done at

the forum that led her to these accusations. In others, she simply

called Wilburn a child predator without explaining why. Guthrie

asserted that Wilburn’s conduct was criminal and that, “if he’s

convicted of the crime he committed[,] he will have to register as a

sex offender and will not be eligible to hold a board director seat.”

6
¶ 16 Guthrie also shared her account of the school board meeting

incident on social media, posting that Wilburn had “followed [her]

out of a . . . school board meeting . . . late at night into a dark

parking lot where he harassed and tried to intimidate [her].” She

noted that a police report had been filed as a result of the incident.

C. Petition for Prosecution

¶ 17 Four months after the public forum, a group of parents of

students in the school district submitted a petition to the district

attorney, contending that Wilburn had committed the crime of

obscenity and requesting an investigation into his conduct. The

petition described the public forum, including Wilburn’s reading of

the passages, and provided a link to a video of the event.

¶ 18 Guthrie wrote a letter in support of the petition, which likewise

included a link to a video of the forum. Her letter largely mirrored

the statements in her police report. It concluded by asserting that

the school district “now has a child predator sitting on their board.”

D. Colorado Association of School Boards Communications

¶ 19 A few days after the parent group submitted the petition,

Guthrie forwarded a news release about the petition to the Colorado

Association of School Boards (CASB) and asked, “[W]hat happens if

7
a sitting school board director is under investigation for sexual

crimes against minor children?” The executive director of CASB

responded that “[t]here isn’t recourse if a school board member is

under investigation,” but “if they are found guilty, they are removed

from their seat and there would be a vacancy.” Guthrie replied:

If a board came to you with this situation,
would you advise them for the board member
under investigation to limit their time around
children/schools? It’s concerning to say the
least to have someone who is being
investigated for sex crimes against children to
have full access to schools and students.

¶ 20 The executive director responded: “Yes, I would advise the

board member to exercise caution, but we always have to be

mindful that allegations are not findings, so the judicial and

administrative processes need to be followed.”

¶ 21 After this email exchange, Guthrie posted a comment on

Wilburn’s social media page attributing the following quote to the

CASB: “We would advise the . . . school board to exercise caution in

allowing Mr. Wilburn access to children while there is a pending

investigation into his behavior around children.” She also made a

public comment at a school board meeting that the executive

8
director of the CASB had advised the “board to exercise extreme

caution in allowing an accused board member access to children.”

E. Complaint and Motion to Dismiss

¶ 22 Wilburn sued Guthrie for defamation and outrageous conduct

based on her statements. He alleged that Guthrie had falsely stated

that Wilburn (1) “is a child predator who has violated children, is

sexually aroused by exposing children to obscene materials, and is

a danger to children”; (2) “is under investigation . . . for his various

crimes”; and (3) “harassed and retaliated against [Guthrie].”

¶ 23 Guthrie filed a special motion to dismiss under the anti-SLAPP

statute. See § 13-20-1101(3)(a). She argued that (1) her

statements accusing Wilburn of crimes against children and

harassment were constitutionally protected opinions; (2) her

statements that Wilburn was under investigation were not

defamatory; and (3) Wilburn could not prove by clear and

convincing evidence that Guthrie acted with actual malice.

¶ 24 The district court denied Guthrie’s motion. In doing so, it

rejected Guthrie’s claim that her statements were protected

opinions, identifying several that it regarded as factual assertions

capable of being proved true or false. The court also determined

9
that a jury could reasonably find that Guthrie made the statements

with actual malice. And it concluded that the nature of the

statements was such as to sustain the outrageous conduct claim.

II. Anti-SLAPP Legal Framework

¶ 25 The purpose of the anti-SLAPP statute is to “encourage and

safeguard the constitutional rights of persons to petition, speak

freely, associate freely, and otherwise participate in government,”

while at the same time protecting the right to “file meritorious

lawsuits for demonstrable injury.” § 13-20-1101(1)(b). It does so by

creating a special motion to dismiss, which allows the district court

to “make an early assessment about the merits of claims brought in

response to a defendant’s petitioning or speech activity.” Salazar v.

Pub. Tr. Inst., 2022 COA 109M, ¶ 12; see § 13-20-1101(3)(a).

¶ 26 When a defendant shows that a claim arises from an act “in

furtherance of the [defendant’s] [constitutional] right of petition or

free speech . . . in connection with a public issue” — as Wilburn

concedes his claims do — the claim must be dismissed unless the

plaintiff establishes “a reasonable likelihood” of prevailing on the

claim. § 13-20-1101(3)(a); see Lind-Barnett v. Tender Care

Veterinary Ctr., Inc., 2025 CO 62, ¶¶ 22-23. We review the district

10
court’s resolution of that question de novo. Coomer v. Donald J.

Trump for President, Inc., 2024 COA 35, ¶ 64 (Coomer I).

¶ 27 Guthrie argues that the district court erred by applying the

oft-cited legal standard that, in determining whether a plaintiff has

shown a reasonable likelihood of success, the court “accepts the

plaintiff’s evidence as true, and evaluates the defendant’s showing

only to determine if it defeats the plaintiff’s claim as a matter of

law.” L.S.S. v. S.A.P., 2022 COA 123, ¶ 23 (citation omitted). Citing

the concurring opinions in Coomer v. Salem Media of Colorado, Inc.,

2025 COA 2 (Coomer II) (Tow, J., specially concurring), and Jogan

Health, LLC v. Scripps Media, Inc., 2025 COA 4 (Berger, J., specially

concurring), Guthrie contends that this standard is irreconcilably

inconsistent with the standard set forth in Salazar. She urges us to

“resolve” this split by eschewing L.S.S. and applying Salazar.3

¶ 28 Salazar was the first published case to address the standard

for resolving a special motion to dismiss under the anti-SLAPP

3 We, of course, cannot “resolve” the purported split. As a divisional
court, the most we could do is pick a side. See Chavez v. Chavez,
2020 COA 70, ¶ 13 (“[D]ivisions are not bound by the decisions of
other divisions . . . .”). Only the supreme court can settle an
interdivision split. See Willhite v. Rodriguez-Cera, 2012 CO 29, ¶ 9
(“[T]his court is the final authority on questions of Colorado law.”).

11
statute. In that case, the division held that the court “neither

simply accept[s] the truth of the [plaintiff’s] allegations nor make[s]

an ultimate determination of their truth” but instead “assess[es]

whether the allegations and defenses are such that it is reasonably

likely that a jury would find for the plaintiff.” Salazar, ¶ 21.

¶ 29 About a month later, the division in L.S.S. announced the

standard that the district court applied in this case: “‘[T]he court

does not weigh evidence or resolve conflicting factual claims’ but

simply ‘accepts the plaintiff’s evidence as true, and evaluates the

defendant’s showing only to determine if it defeats the plaintiff’s

claim as a matter of law.’” L.S.S., ¶ 23 (citation omitted). Since

L.S.S., divisions of this court have universally applied this standard

(often alongside Salazar). See Jogan Health, ¶ 14; Coomer II, ¶ 18;

Coomer I, ¶¶ 66-69; Anderson v. Senthilnathan, 2023 COA 88, ¶ 11;

Creekside Endodontics, LLC v. Sullivan, 2022 COA 145, ¶ 26.4

4 The only case we are aware of that did not apply the standard in

L.S.S. v. S.A.P., 2022 COA 123, is Tender Care Veterinary Center,
Inc. v. Lind-Barnett, 2023 COA 114, rev’d, 2025 CO 62. In that
case, the division acknowledged the conflicting standards but did
not decide which of the approaches was correct. Id. at ¶ 14 n.2.

12
¶ 30 But the special concurrences in Coomer II and Jogan rejected

the L.S.S. standard, viewing it as inconsistent with both Salazar

and the anti-SLAPP statute. See Coomer II, ¶ 120 (Tow, J., specially

concurring); Jogan Health, ¶ 56 (Berger, J., specially concurring).

They asserted that rather than accepting the plaintiff’s evidence as

true, the court should weigh the evidence — at least to an extent —

to assess whether the claim is likely to succeed. See Coomer II,

¶ 117 (Tow, J., specially concurring); Jogan Health, ¶¶ 64-67

(Berger, J., specially concurring). Guthrie asks us to do the same.

¶ 31 Initially, we do not view Salazar and L.S.S. as “irreconcilably

inconsistent.” Coomer II, ¶ 119 (Tow, J., specially concurring). As

the division explained in Coomer I, Salazar says that a court should

not accept the truth of the plaintiff’s allegations. Coomer I, ¶ 67

(citing Salazar, ¶ 21). L.S.S. does not say otherwise. It says that a

court should accept the truth of the plaintiff’s evidence. L.S.S.,

¶ 23. Thus, Salazar and L.S.S. can be read together to mean that

“while we do not necessarily accept the plaintiff’s allegations as

true, we do accept as true the plaintiff’s evidence” — including

evidence contained in the plaintiff’s affidavit. Coomer I, ¶¶ 68-69.

13
¶ 32 But even if Salazar and L.S.S. are somewhat inconsistent, we

need not add our voice to the percolating debate for two reasons.

First, to the extent Guthrie argues that the district court erred by

applying the L.S.S. standard, she did not preserve the issue. In her

special motion to dismiss, Guthrie cited L.S.S. several times,

including for the proposition that the court must determine

“whether the plaintiff has stated a legally sufficient claim and made

a prima facie factual showing sufficient to sustain a favorable

judgment.” L.S.S., ¶ 23 (citation omitted); see also Stamp v. Vail

Corp., 172 P.3d 437, 449 (Colo. 2007) (“Prima facie evidence is

evidence that, unless rebutted, is sufficient to establish a fact.”).

She also asserted, again citing L.S.S., that the court should look for

guidance to California law, from which the L.S.S. standard was

drawn. See L.S.S., ¶¶ 20, 23. In doing so, Guthrie gave no

indication that L.S.S. was inconsistent with Salazar or otherwise

incorrect. Nor did she argue, as she does on appeal, that the court

should weigh the evidence. We generally do not consider

unpreserved arguments in civil cases. See Melat, Pressman &

Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18.

14
¶ 33 Second, while we must nevertheless apply the correct legal

standard in conducting our own review, the ostensible divide —

between accepting the plaintiff’s evidence as true and weighing the

evidence — makes no difference in this case because there are no

pertinent factual disputes. Guthrie does not, for purposes of this

appeal, dispute what she said or what Wilburn did.5 Cf. Coomer II,

¶ 127 (Tow, J., specially concurring) (describing scenario in which

video evidence refutes plaintiff’s affidavit denial). Instead, her

appeal turns on whether her statements were protected opinions

and whether they are capable of being proved true or false. In other

words, Guthrie argues that Wilburn has not shown a reasonable

likelihood of prevailing on his claims — not because her evidence is

stronger than his, but because the claims fail as a matter of law.

See L.S.S., ¶ 23; see also Sall v. Barber, 782 P.2d 1216, 1218 (Colo.

App. 1989) (“The question of whether allegedly defamatory language

is constitutionally protected opinion is a matter of law.”).

5 The parties do dispute what happened after the board meeting,

with Wilburn attesting that he did not follow or harass Guthrie and
Guthrie saying he did. But Guthrie did not seek dismissal on the
ground that Wilburn’s denial was too weak or unsubstantiated to
sustain his claims at this stage. See Jogan Health, LLC v. Scripps
Media, Inc., 2025 COA 4, ¶ 64 (Berger, J., specially concurring).

15
¶ 34 Thus, whether we accept Wilburn’s evidence as true or weigh

the evidence, we end up in the same place. Wilburn read the book

excerpts at the public forum, and Guthrie made the challenged

statements. Wilburn’s claims rise or fall on whether those

statements are actionable. That is the question we turn to next.

III. Fact or Opinion

¶ 35 Guthrie contends that her statements — particularly those

calling Wilburn a “predator” — were nonactionable opinions based

on disclosed facts. She asserts that the district court erred by

characterizing the statements as factual assertions. We agree in

part. Those statements that Guthrie coupled with a factually

accurate description of the conduct on which they were based

constitute protected opinion. Statements that were untethered to

that context, however, are sufficiently factual to support a claim.

A. The Line Between Fact and Opinion

¶ 36 Statements of pure opinion are constitutionally protected and

not actionable as defamation. Lawson v. Stow, 2014 COA 26, ¶ 30.

But even if a statement is framed as an opinion, it may constitute

an actionable assertion of fact if (1) it contains or implies a

statement that is susceptible of being proved true or false, and (2) a

16
reasonable person would conclude the assertion is one of fact.

Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994); NBC

Subsidiary (KCNC-TV), 879 P.2d at 10. To determine how a

reasonable person would interpret the statement, we consider how

the assertion is phrased, the context of the statement as a whole,

and the surrounding circumstances. Keohane, 882 P.2d at 1299.

¶ 37 A statement of opinion may be actionable as defamation if it is

based on false or undisclosed facts. Burns v. McGraw-Hill Broad.

Co., 659 P.2d 1351, 1360 (Colo. 1983). But if the factual context

for the opinion is fully and accurately disclosed, the speaker’s

subjective characterization of those facts may constitute a

constitutionally protected opinion. See NBC Subsidiary (KCNC-TV),

879 P.2d at 12; Burns, 659 P.2d at 1359; see also Herring Networks,

Inc. v. Maddow, 8 F.4th 1148, 1159-60 (9th Cir. 2021) (holding that

statement that news outlet was “paid Russian propaganda” was

opinion where speaker disclosed factual basis for claim).

¶ 38 We review de novo whether a statement is a protected opinion

or an assertion of fact. Lawson, ¶ 32.

17
B. Guthrie’s Characterizations of Undisputed Facts

¶ 39 We agree with Guthrie that several of her allegedly defamatory

statements — specifically, those in which she described Wilburn’s

conduct at the forum and expressed her view that it was criminal or

otherwise improper — are protected opinion. In these statements,

Guthrie made clear that her accusations were based on her

interpretation of the disclosed facts, not on some other undisclosed

criminal act that Wilburn committed. See NBC Subsidiary (KCNC-

TV), 879 P.2d at 12 (holding that the defendant’s assertion that the

plaintiff’s product was a “scam” was an opinion because it was

“based on facts disclosed to the viewer”); Burns, 659 P.2d at

1360-61 (distinguishing statements in which the context was “fully

and clearly disclosed” from those that implied the reporter had

“inside knowledge of the facts which would support her charge”).

¶ 40 For example, in both the police report and the petition for

prosecution, Guthrie began her statements by describing Wilburn’s

reading of the passages at the public forum. She also included a

link to a video of the forum and identified the pertinent portions of

the video. She then asserted that, by reading the passages aloud,

Wilburn had “violated the rules and norms” of the forum and that

18
this conduct was “criminal behavior” because Wilburn had

previously referred to the book as pornography. And she said that

Wilburn was a “child predator” for reading the quoted excerpts.

¶ 41 Many of Guthrie’s comments at school board meetings and in

social media posts were in the same vein. Her first post was similar

to her statements in the police report and the petition, quoting the

language Wilburn read, linking to the video, and asserting that he

had “violated the set rules and decorum of the forum, broke [the]

district code of conduct, and . . . traumatize[d] the young children

in the audience.” And in many other public comments, Guthrie

explicitly tied her assertions that Wilburn was a “predator,” a

“pervert,” and a “danger to children” to his readings at the forum.

¶ 42 Given the context and phrasing of these statements, no

reasonable person would understand them as assertions of any fact

other than that Wilburn had read from the books at the forum. See

Keohane, 882 P.2d at 1299. To the extent Guthrie expressed her

view that his doing so was criminal, predatory, or otherwise

improper, a reasonable listener would understand these

accusations as Guthrie’s opinion of Wilburn’s behavior. See id.

And Guthrie disclosed the facts that “would allow an average

19
listener to evaluate” that opinion for themselves. Burns, 659 P.2d

at 1360; see also NBC Subsidiary (KCNC-TV), 879 P.2d at 12

(“Viewers were in a position to evaluate [the speaker’s] views, and

were free to form a judgment . . . that differed from his.”).

¶ 43 We recognize that “accusations of criminal activity, ‘even in the

form of opinion, are not constitutionally protected.’” Keohane, 882

P.2d at 1304 (citation omitted); see also Arrington, 971 P.2d at 671

(“A statement is defamatory per se if it imputes a criminal offense.”).

But there is a difference between falsely accusing someone of

committing a criminal act and expressing the view that an act the

person indisputably undertook violates the law. See Keohane, 882

P.2d at 1304 (explaining that allegations of illicit behavior expressed

as an opinion may support a defamation claim “if there is no

adequate exposition of the underlying facts”); see also Gross v. N.Y.

Times Co., 623 N.E.2d 1163, 1169 (N.Y. 1993) (“[A]ccusations of

criminality could be regarded as mere hypothesis and therefore not

actionable if the facts on which they are based are fully and

accurately set forth and it is clear to the reasonable reader or

listener that the accusation is merely a personal surmise built upon

20
those facts.”). We decline to hold that a person may be liable for

defamation for calling a public figure’s public acts a crime.

¶ 44 The undisputed nature of the underlying facts sets this case

apart from others in which Colorado courts have treated an

accusation of criminal activity as an assertion of fact. In Coomer I,

for example, the plaintiff denied the defendants’ underlying factual

assertion that he took steps to undermine the election results. See

Coomer I, ¶¶ 135, 138. Similarly, in Lawson, there was a factual

dispute as to whether the plaintiff had threatened the defendant.

See Lawson, ¶ 37. And in Keohane, the defendant did not even

assert that the plaintiff had actually taken a bribe, as his

statements had implied. See Keohane, 882 P.2d at 1303.

¶ 45 In contrast, Wilburn does not dispute that he read the quoted

book passages at the forum or that children were present when he

did so. He only disputes Guthrie’s characterization of that act. We

conclude that as long as Guthrie fully disclosed the factual basis for

that characterization, the characterization itself is a protected

opinion. See id. at 1304; Burns, 659 P.2d at 1361.

¶ 46 We also conclude that certain of Guthrie’s other statements

are not “sufficiently factual to be susceptible of being proved true or

21
false.” Keohane, 882 P.2d at 1299 (quoting Milkovich v. Lorain J.

Co., 497 U.S. 1, 21 (1990)). Such statements include Guthrie’s

alleged assertions that (1) Wilburn’s actions were “grossly perverted

and lewd”; (2) Wilburn “raped [her] child’s mind”; (3) Wilburn is a

“sexual deviant” and a “pervert”; and (4) Wilburn is “the biggest

criminal” in the school district. These statements are the kind of

subjective judgments and rhetorical hyperbole that cannot support

a defamation claim. See NBC Subsidiary (KCNC-TV), 879 P.2d at

12-13; Coomer I, ¶ 133 (holding that statements calling the plaintiff

“unhinged,” a “lunatic,” and “evil” “undoubtedly would qualify as

protected opinion or hyperbole”).

C. Factual Assertions

¶ 47 Although Wilburn’s claims may not be premised on the

categories of statements described above, we have identified four

categories of statements that are sufficiently factual to support a

claim: (1) accusations of criminal conduct or predatory behavior

that are divorced from the factual context for those accusations;

(2) Guthrie’s claim that Wilburn followed and harassed her; (3) the

insinuation that Wilburn was under investigation; and

22
(4) statements indicating that the CASB had advised the school

board to “exercise caution” in allowing Wilburn access to children.

¶ 48 First, unlike the statements described in Part III.B, some of

Guthrie’s social media posts — at least as they are presented (and

admitted) in the complaint — do not include any context for her

accusations of criminal and predatory behavior by Wilburn.6 In one

post, Guthrie asserted, without more, that her daughter was “the

victim of one of the school board members who is a child predator.”

In another, Guthrie said, “[I]f [Wilburn is] convicted of the crime he

committed[,] he will have to register as a sex offender and will not

be eligible to hold a board director seat.” Guthrie made other

6 The analysis of these statements could change to the extent their

context is apparent from surrounding discussion not detailed in the
complaint. But Guthrie did not identify any such additional context
in her motion, and we are limited to “the pleadings and supporting
and opposing affidavits.” § 13-20-1101(3)(b), C.R.S. 2025.

23
comments baldly claiming that Wilburn had engaged in “predatory

behavior” and that there was a “child predator” on the board.7

¶ 49 Without the context for these accusations, they could

reasonably be understood to imply that Wilburn had committed an

unspecified criminal act against children — a claim that is

“sufficiently factual to be susceptible of being proved true or false.”

Keohane, 882 P.2d at 1299 (citation omitted); see also Coomer I,

¶ 90 (“[W]e must consider . . . statements in context to determine

how a reasonable person would have understood them.”). Opinions

that “imply the existence of an undisclosed defamatory factual

predicate may support” a defamation claim. Burns, 659 P.2d at

1360. And given the declarative and unqualified nature of the

statements, they could reasonably be understood as literal

assertions of fact rather than rhetorical hyperbole. See Lane v. Ark.

Valley Publ’g Co., 675 P.2d 747, 751 (Colo. App. 1983).

7 We do not exhaustively catalogue each of the more than twenty

statements set forth in the complaint. See Coomer v. Donald J.
Trump for President, Inc., 2024 COA 35, ¶ 91 n.12 (Coomer I)
(“Absent a specific challenge, we need not separately parse each
statement . . . .”). Instead, we address them by category — those
that disclosed the factual context and those that did not — and
provide examples to guide further proceedings in the district court.

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¶ 50 In other social media posts, the limited context Guthrie

provided for her statements was glaringly incomplete. For example,

in one post, Guthrie said that Wilburn had referred to the book he

read as “p[o]rn,” which she defined as “material used for purpose of

arousal,” and then leaped from there to the conclusion that Wilburn

“read material that arouses him to little kids.” Unlike the police

report, where Guthrie posed the same syllogism, she did not include

a link to the video of the forum or otherwise disclose Wilburn’s

prefatory and concluding remarks that made clear that he was not

reading the book for purposes of sexual gratification. Nor did she

specify what the book was. Without this critical context, this post

too could have misled a reasonable reader as to what had actually

occurred. See Keohane, 882 P.2d at 1303 (holding that statement

was an assertion of fact where a reasonable person could have

believed that it was based on undisclosed defamatory facts).

¶ 51 Second, Guthrie’s statements that Wilburn followed and

harassed her are factual assertions and would reasonably be

understood as such. As in Lawson, the context establishes that

Guthrie made the statements primarily to convince law

enforcement — first the police and then the district attorney — that

25
Wilburn had in fact followed and harassed her, with the intent that

they would charge Wilburn with a crime.8 See Lawson, ¶ 35. And

although disputed, Guthrie’s account is susceptible of being proved

true or false. See id. at ¶ 33. It either happened or it did not.

¶ 52 Guthrie contends that these statements are opinions because

they describe her “subjective perception of a disclosed interaction.”

But unlike Guthrie’s statements about the public forum, the facts

of which are not in dispute, this claim is premised on Guthrie’s

factual account of what happened between the parties after the

school board meeting. That account does not become an opinion

just because it described “what [Guthrie] felt.” Id. at ¶ 35.

¶ 53 Third, to the extent Guthrie made statements asserting or

implying that Wilburn was under investigation, those statements

8 Guthrie also repeated this accusation in a social media post, again

in a manner that “could reasonably be interpreted as stating actual
facts.” Lawson v. Stow, 2014 COA 26, ¶ 30.

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were factual assertions.9 Wilburn was either under investigation or

he was not, regardless of what Guthrie believed or whether she

agreed with law enforcement’s decision. Indeed, Guthrie did not

argue in the district court or in her opening brief on appeal that this

assertion was an opinion. See Caylao-Do v. Logue, 2025 COA 42,

¶ 33 (“[W]e do not consider arguments raised for the first time in a

reply brief.”). Her sole argument in the district court was that it

was not defamatory — an argument she does not raise on appeal.

¶ 54 Fourth, Guthrie’s posting of the purported CASB quote —

which she repeated at a school board meeting — embedded two

factual assertions: (1) there was a pending investigation into

Wilburn’s behavior around children, and (2) the CASB had advised

the school board to “exercise caution” in allowing Wilburn access to

children. The first of these assertions is addressed above. The

9 As far as we can tell, the only time Guthrie explicitly said Wilburn

was under investigation was in the purported CASB quote. In
another social media post, she said that the superintendent was
being investigated while again saying “there’s a child predator on
the school board” and including a link to a news story about the
petition for prosecution with the heading, “Sex Crimes against
children for Derrick Wilburn.” Given the context and the lack of
any argument by Guthrie to the contrary, we assume for purposes
of this appeal that this post could reasonably be interpreted as an
assertion that Wilburn was under investigation. See Coomer I, ¶ 90.

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second is likewise “susceptible of being proved true or false”: The

CASB either issued the claimed advisement or not. Keohane, 882

P.2d at 1299 (citation omitted). And framed as a direct quote from

the CASB and a statement by the executive director, reasonable

people would take as fact that it had. See id.

¶ 55 Thus, we conclude that the four categories of statements we

outline in this section are sufficiently factual to support a claim.

IV. Material Falsity

¶ 56 Guthrie next argues that Wilburn failed to establish a

reasonable likelihood of proving by clear and convincing evidence

that her statements were false. But this argument is entirely

derivative of her argument that the statements were opinions. In

short, she asserts that her statements were not false because they

cannot be proved false and because a reasonable audience would

not interpret them as factual assertions. As to the four categories

of statements outlined above, we have concluded otherwise.

A. Preservation

¶ 57 Wilburn asserts that Guthrie did not preserve her challenge to

the falsity of the statements. But Guthrie argued in her special

motion to dismiss that several of her assertions could not be proved

28
true or false. So to the extent this is her argument on appeal, the

argument is preserved. We agree with Wilburn that Guthrie did not

make a separate argument that her statements — particularly the

statements we describe above — if factual, were true. But we do

not understand her to be making that argument on appeal either.

B. Applicable Law

¶ 58 When an allegedly defamatory statement involves a public

figure or a matter of public concern, as Guthrie’s statements did,

the plaintiff must prove by clear and convincing evidence that the

statement is materially false. Coomer I, ¶ 86; Jogan Health, ¶ 23.

¶ 59 “‘Minor inaccuracies do not amount to falsity’ so long as the

substance or the gist of the statement was true.” Jogan Health,

¶ 23 (quoting Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517

(1991)). A material falsehood is one that is “likely to cause

reasonable people to think ‘significantly less favorably’ about the

plaintiff” than if they knew the whole truth. Id. (citation omitted).

To survive an anti-SLAPP motion to dismiss, the plaintiff must show

a reasonable probability that they will be able to prove material

falsity by clear and convincing evidence at trial. See Coomer I, ¶ 87.

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C. Analysis

¶ 60 We have agreed with Guthrie’s argument in part. Those

statements in which she called Wilburn’s disclosed conduct a crime

were protected opinion rather than provably false factual

assertions. But as to the four categories of factual assertions we

have identified above, Guthrie does not make any falsity argument

that is distinct from the opinion argument we have rejected.

¶ 61 The only additional argument she makes is that Wilburn did

not present any evidence of any audience member who in fact

interpreted her statements as factual assertions. But that is not

the standard. To show that a statement is a factual assertion, the

plaintiff need not identify a specific person who understood it as

such. The question is what a reasonable person would understand.

See Keohane, 882 P.2d at 1299. And we have concluded that a

reasonable observer could understand the statements in which

Guthrie did not disclose the basis for her accusations as factual

assertions that Wilburn had engaged in some other misconduct.

¶ 62 Guthrie does not assert that Wilburn failed to show a

reasonable probability of proving that such an accusation — or any

other factual assertion we have identified — was materially false.

30
Wilburn expressly denied these accusations in his affidavit, and

Guthrie disclaims any allegation that he committed any undisclosed

criminal act. Guthrie argues only that her statements that Wilburn

acted inappropriately by reading the book passages at the public

forum were substantially true. But to the extent they were

adequately contextualized, those statements are nonactionable

because they are opinion, not because they are substantially true.

¶ 63 Because Guthrie does not make any argument that the other

statements are substantially true — or more precisely, that Wilburn

has not shown a reasonable probability of proving they are not —

we conclude that Wilburn has met his burden on this element.

V. Outrageous Conduct Claim

¶ 64 The parties agree, as do we, that our resolution of the

defamation claim controls the resolution of the outrageous conduct

claim as well. Guthrie’s only argument for dismissal of that claim is

that the speech underlying the claim is protectable opinion.

¶ 65 A tort claim that arises from an allegedly defamatory

statement is subject to the same constitutional limitations as a

defamation claim. Coomer II, ¶ 101; Lewis v. McGraw-Hill Broad.

Co., 832 P.2d 1118, 1124-25 (Colo. App. 1992); see also Creekside

31
Endodontics, ¶ 54 n.8 (noting that an ancillary tort claim “rises and

falls with the defamation claim”). Thus, the protected opinions we

identify above can no more sustain Wilburn’s outrageous conduct

claim than they can his defamation claim. And vice versa, the

factual assertions can. Because Guthrie makes no other argument

for dismissal of the outrageous conduct claim, that claim may

proceed to the extent it is premised on those factual assertions.

VI. Contentions Raised in Reply Brief

¶ 66 Guthrie raises additional arguments for the first time in her

reply brief, including that (1) Wilburn did not meet his burden of

proving actual malice; (2) Wilburn did not show causation for his

alleged damages; (3) Wilburn’s request for injunctive relief is an

unlawful prior restraint of speech; and (4) Guthrie’s statements to

law enforcement are immune from liability. We do not consider

arguments raised for the first time in a reply brief. Caylao-Do, ¶ 33.

¶ 67 Moreover, other than the argument about malice, Guthrie did

not raise these arguments in her special motion to dismiss either.

Thus, they are not preserved for appeal, and we decline to consider

them on that ground as well. See Melat, Pressman & Higbie, ¶ 18.

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VII. Appellate Attorney Fees

¶ 68 Guthrie requests an award of her appellate attorney fees under

section 13-20-1101(4)(a). That subsection provides that “a

prevailing defendant on a special motion to dismiss is entitled to

recover the defendant’s attorney fees and costs.” Id. It entitles a

defendant who prevails on appeal to an award of their appellate

attorney fees and costs. Rosenblum v. Budd, 2023 COA 72, ¶ 61.

¶ 69 We deny Guthrie’s request. Although we have narrowed

Wilburn’s claims, we have concluded that both of his claims may

proceed. Thus, Guthrie is not a prevailing defendant “because she

still faces the same claim[s] she faced before filing the motion.”

Salazar, ¶ 66; see also Coomer I, ¶ 223 (holding that narrowing of

one claim did not “make [the defendant] a partially prevailing

defendant because the defamation claim as a whole survives”).

VIII. Disposition

¶ 70 The order denying the motion to dismiss is affirmed. But

Wilburn’s claims may proceed only as to the statements identified

in Part III.C of this opinion. The case is remanded to the district

court for further proceedings consistent with this opinion.

JUDGE GROVE and JUDGE YUN concur.

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