Datko v. Dunn

24CA1275 Datko v Dunn 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1275
Jefferson County District Court No. 23CV31339
Honorable Ryan P. Loewer, Judge

Lindsay Datko and Jefferson County Students First d/b/a Jeffco Kids First,

Plaintiffs-Appellees,

v.

Rylee Dunn and Colorado News Conservancy, PBC d/b/a Arvada Press,

Defendants-Appellants.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE MEIRINK
Freyre and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Gessler Blue LLC, Scott E. Gessler, Geoffrey N. Blue, Greenwood Village,
Colorado, for Plaintiffs-Appellees

Zansberg Beylkin LLC, Steven D. Zansberg, Michael Beylkin, Denver, Colorado,
for Defendants-Appellants
¶1 In this anti-SLAPP1 case, the defendants, Rylee Dunn and

Colorado News Conservancy, PBC (CNC), appeal the district court’s

order denying their amended special motion to dismiss the

plaintiffs’ claims of libel per se and libel per quod. We conclude

that the district court erred by not granting the amended special

motion. Accordingly, we reverse and remand to the district court

with instructions.

I. Background

A. Factual Background

¶2 Plaintiff Lindsay Datko is the executive director of plaintiff

Jefferson County Students First, d/b/a Jeffco Kids First (JKF), an

unincorporated nonprofit organization engaged in education

advocacy. JKF operates a Facebook page that has approximately

6,000 members. JKF’s Facebook page is an open forum for

commentary and provides an avenue for members to exchange

ideas and information.

¶3 In March 2022, members of the JKF Facebook group

discussed students attending Jefferson County Public Schools

1 “SLAPP” is an acronym for “strategic lawsuits against public

participation.”

1
dressed as “furries,” which the parties define in their court

pleadings as “a child dressing as an animal, such as a cat or a dog.”

As part of the discussion, one JKF Facebook group member posted

a photo of a student dressed in a furry costume. In response to the

photo, another member posted the following:

Kids are called out all the time for dress code
violations at my kids [sic] school such as
wearing hats, shorts too short, etc. However
this is acceptable and part of EVERY day at
our school. It’s allowed and there are
numerous kids doing this. I don’t understand
how it’s not a distraction. This is an actual
photo of a kid in my kids [sic] class. It really
bothers my kids. Honest thoughts please.
Thank you.[2]

The post received 283 comments. In response to the discussion,

Datko emailed Jefferson County school officials to “express concern

about the distractions, safety, and disruptive animal-like behaviors”

and to learn about district policies that might be implicated by such

conduct.

¶4 In August 2022, Drake Middle School — a Jefferson County

Public School — announced that it would no longer allow costume-

2 Datko asked the person who posted the photo to “crop th[e]

picture up to just the head” to ensure the student could not be
identified.

2
like attire, such as tails, headbands, face paint, or capes, that

distracted from learning. Datko advocated for the entire school

district to adopt Drake Middle School’s policy and posted the

following on JKF’s Facebook page: “If just 100 of you email the list

below (see top of comments) and ask them to ban ear/tails/furries

as a district-wide policy, we might see this happen. Email your

schools as well if this is an issue for you. See policy in comments

as well.”

¶5 In September 2022, Republican gubernatorial candidate Heidi

Ganahl learned that students in Jefferson County schools were

dressing up as furries and raised the issue in an interview with a

Denver-area radio station, stating, “Not many people know that we

have furries in Colorado schools . . . it’s happening all over Colorado

and the schools are tolerating it. It’s insane.” Ganahl’s statements

were covered by various media outlets, including by Denver’s

Channel 9 News, which used the March 2022 photo that had been

posted on JKF’s Facebook page in its broadcast. Members of the

media started reaching out to Datko and JKF, asking them for “any

evidence you can provide to support” claims that children in

3
Colorado were dressing as furries. In response, Datko posted the

following on JKF’s Facebook page:

The media is really trying to spin this. If any
of your kids would be willing to record
anonymous audio of their experiences with
furries hissing, barking, clawing, chasing, and
how it affects their school day, please send to
me or let me know ASAP.

The post elicited many comments.

¶6 Dunn is a news reporter for CNC, which operates the Arvada

Press. Dunn first learned of JKF in June 2022. In early October

2022, Dunn heard that members of JKF were discussing the

presence of furries in Jefferson County schools. Dunn proposed to

her editors that she “prepare a news report on the [JKF] group and

its involvement in bringing the issue of ‘furries in the schools’ to the

fore in the gubernatorial campaign.” Dunn’s editors approved, and

she began investigating JKF. Dunn gained access to JKF’s

Facebook page and discovered Datko’s September 2022 Facebook

post and responses to the post, one of which told members that

they could find evidence of students dressed as furries in Jefferson

County schools by searching the same on TikTok’s social media

app. In the comments to one of the TikTok videos, a user used the

4
hashtag “#KillFurrys” in response to a video of a student dressed as

a furry.

¶7 Dunn’s article, “Inside Jeffco Kids First, and Ganahl’s furor

over students,” was published online on the Arvada Press’s website

on October 7, 2022. In her article, Dunn wrote that “[a] leading

voice in the group told parents to empower their children to find

‘furries,’ kids who dress up in animal accessories, and to record

them,” and that “[l]ast month, Datko urged the nearly 6,000

members of [JKF] to have their kids secretly record their

classmates.” She also wrote that “[n]either Datko nor Ganahl

responded to Colorado Community Media’s requests for interviews

about the Facebook group’s activities.” The article went on to say

the following:

A member of the group posted an additional
suggestion: “go on tiktok and use the keyword
furries and Colorado school.”

A Community Media search of TikTok found
numerous posts where purported students in
the state recorded videos of classmates, who
seemed unaware they were being filmed
dressed in costumes and accessories. Some
posts contained threats against the students
being filmed.

5
One post of a student apparently filmed
without their knowledge contained the hashtag
“#killfurrys.” Other posts harshly mocked the
students.

On the last page of the article, Dunn included Datko’s September

2022 Facebook post with the caption, “[s]creenshot of Datko’s post

in [JKF] asking parents to have their children record classmates.”

Beside it, Dunn included a second screenshot of the above-

mentioned TikTok video recording students identified as furries in a

school.

¶8 The same evening the article was published online, Datko

contacted the paper’s editor-in-chief, requesting that Dunn’s article

retract the following statement: “Last month, Datko urged the

nearly 6,000 members of [JKF] to have their kids secretly record

their classmates.” Datko proposed that Dunn’s statement should

“read something like: Last month, Datko requested anonymous

verbal statements from children belonging to the 6,000 members in

the group.” Dunn conferred with her editors, and they decided not

to retract the statement. Instead, they published the following

editor’s note to accompany the article:

Lindsay Datko contacted Colorado Community
Media after online publication of this story to

6
seek a retraction, stating that she sought
“anonymous verbal statements from children.”
Datko disagreed with the article’s sentence,
“Datko urged the nearly 6,000 members of
Jeffco Kids First to have their kids secretly
record their classmates.” Screenshots from
the group show she made that request. Datko
confirmed to Colorado Community Media that
she received pictures of students but indicated
to the group that she has not used them.

CNC published Dunn’s article in twenty-three other news outlets.

¶9 Based on Datko’s September 2022 Facebook post and after

listening to Datko speak on a local radio station about JKF and its

activities, Thelma Grimes, an editor at Colorado Community Media

(CCM), wrote an opinion column titled “Distracted Distractions,”

which was published on October 13, 2022, in CCM’s papers,

including the Littleton Independent. In preparing the opinion

column, Grimes relied on Dunn’s article, other press reports,

Datko’s Facebook post, and discussions with CCM reporters. In her

opinion column, Grimes stated that Datko “encouraged people to

take pictures of children who behave or dress differently” and that

“[k]ids can be mean enough without some parent group

encouraging them to take pictures and post them on social media.”

7
¶ 10 According to Datko, both she and JKF were harmed by the

publications and have “suffered injury to their standing in the

community and their reputations.” JKF lost members, which

decreased the group’s influence in the community, and Datko was

“forced to take [JKF’s] social media account private, due to a large

volume of hateful comments.” Datko also claims that JKF “did not

receive any donations” in the months following Dunn’s article. The

plaintiffs believe the publications lost them financial contributions.

B. Procedural Posture

¶ 11 Datko and JKF filed suit, alleging four claims of defamation.3

The defendants filed a combined special motion to dismiss under

Colorado’s anti-SLAPP law, section 13-20-1101(3)(a), C.R.S. 2024,

or, in the alternative, to dismiss under C.R.C.P. 12(b)(5). The

defendants’ motion argued that the plaintiffs’ defamation claims

failed because they could not demonstrate a reasonable likelihood

that they would be able to produce clear and convincing evidence of

material falsity or actual malice at trial. As an alternative basis for

dismissal, the defendants argued that because all the claims

3 Defamation is an umbrella term that encompasses libel.

8
sounded, if at all, in libel per quod,4 the plaintiffs’ failure to plead

special damages with particularity was fatal to their suit.

¶ 12 The district court granted in part and denied in part the

motion to dismiss under C.R.C.P. 12(b)(5) but took no action on the

special motion to dismiss under the anti-SLAPP law.

¶ 13 In May 2024, the plaintiffs filed their first amended complaint

(FAC), asserting the following three claims for relief:

1. Libel per se, alleging that the defendants published

statements that Datko asked JKF members to have their

children secretly videotape other schoolchildren dressed as

furries.

2. Libel per quod, alleging that the defendants published or

caused to be published statements, “the gist of which was

that one or more members of [JKF] urged others to post

secret recordings on [sic] children on TikTok, and that one

or more [JKF] members posted recordings of Colorado

4 The terms “libel per quod,” “libel by implication,” and “libel by

innuendo” are synonymous and used interchangeably by the
parties and Colorado courts. See, e.g., Pietrafeso v. D.P.I., Inc., 757
P.2d 1113, 1115 (Colo. App. 1988).

9
children acting like furries, accompanied by mocking and

harassing comments and the phrase ‘killfurrys.’”

3. Libel per quod, alleging that the article implied the

defendants sought comment from Datko and JKF through

“numerous emails, phone call[s], and tweets,” but Datko

and JKF “consistently refused to comment on Dunn’s

reporting or refute the false statements.”

¶ 14 The defendants filed an amended special motion to dismiss the

FAC under Colorado’s anti-SLAPP statute, arguing that the

plaintiffs (1) could not establish a reasonable likelihood of prevailing

on their defamation claims and (2) were precluded from asserting a

claim for libel by implication because they were limited purpose

public figures. Following a hearing, the district court concluded

that the plaintiffs established a reasonable likelihood that they

could prevail on all claims at trial and denied the amended special

motion.5 The defendants appeal.

5 The district court’s order did not address the defendants’

argument that, as limited purpose public figures, the plaintiffs
could not assert a claim for libel by implication.

10
II. Analysis

¶ 15 The defendants claim the district court erred by denying their

amended special motion to dismiss because the plaintiffs failed to

show a reasonable likelihood that they would be able to establish

that (1) the statements challenged in the FAC were materially false;

(2) the statements challenged in the FAC were made with actual

malice; (3) they could demonstrate a claim for libel by implication;

(4) they could demonstrate the allegations implied by the article

when considered as a whole; and (5) they could demonstrate

allegedly per quod statements had caused any financial harm as a

direct result of the article.

¶ 16 We agree with the defendants’ second contention, which

concerns the plaintiffs’ libel per se claim. We also agree with

defendants’ fourth contention, which concerns the plaintiffs’ two

claims of libel per quod. Because our conclusion is dispositive of

the remaining contentions, we need not address those contentions.

A. Special Motion to Dismiss Standards

¶ 17 Colorado’s anti-SLAPP statute exists “to encourage and

safeguard the constitutional rights of persons to petition, speak

freely, associate freely, and otherwise participate in government to

11
the maximum extent permitted by law and, at the same time, to

protect the rights of persons to file meritorious lawsuits for

demonstrable injury.” § 13-20-1101(1)(b). The statute strikes a

balance by establishing a procedure that allows the district court to

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

response to a defendant’s . . . speech activity.” Rosenblum v. Budd,

2023 COA 72, ¶ 23 (quoting Salazar v. Pub. Tr. Inst., 2022 COA

109M, ¶ 12).

¶ 18 A court resolves a special motion to dismiss through a two-

step process. Anderson v. Senthilnathan, 2023 COA 88, ¶ 10. First,

the defendant must show that the plaintiff’s claim arises from the

defendant’s exercise of free speech or right to petition in connection

with a public issue. Rosenblum, ¶ 24. If the claim falls within the

statute’s scope, the second step is triggered, and the burden shifts

to the plaintiff to establish that there is a reasonable likelihood they

will prevail on the claim. § 13-20-1101(3)(a).

¶ 19 During the second step, the district court “must not weigh the

evidence or resolve factual conflicts; instead, it must assess

whether the plaintiff’s factual assertions, if true, establish a

reasonable likelihood of proving each claim under the applicable

12
burden of proof.” Rosenblum, ¶ 24.6 If the district court, after

considering the pleadings and supporting documents, concludes

that there is a reasonable likelihood that the plaintiff will prevail on

the claim, it must deny the motion to dismiss. § 13-20-1101(3)(a),

(b); see also Creekside Endodontics, LLC v. Sullivan, 2022 COA 145,

¶ 23.

¶ 20 We review a district court’s ruling on a special motion to

dismiss de novo. Creekside, ¶ 24. Like the district court, we do not

assess the truth of the allegations made in the complaint.

Rosenblum, ¶ 26. Rather, we merely consider whether the

allegations in the pleadings and supporting and opposing affidavits,

if true, support a “legally sufficient claim and [make] a prima facie

factual showing sufficient to sustain a favorable judgment.”

Creekside, ¶ 26 (quoting L.S.S. v. S.A.P., 2022 COA 123, ¶ 23).

6 We recognize that divisions of this court are split on how to apply

the second step and whether a court must accept the nonmoving
party’s pleadings and averments as true, as it does when ruling on
a motion for summary judgment, or whether a court may weigh
conflicting facts, as it does when resolving a request for a
preliminary injunction. See Coomer v. Salem Media of Colo., Inc.,
2025 COA 2, ¶¶ 117-139 (Tow, J., specially concurring); Jogan
Health, LLC v. Scripps Media, Inc., 2025 COA 4, ¶¶ 56-76 (Berger,
J., specially concurring). Here, under either approach, the result is
the same.

13
¶ 21 No party contests that the plaintiffs’ claims arise from the

defendants’ exercise of free speech in connection with a public

issue, so the anti-SLAPP statute applies. We therefore turn to the

second step and assess whether the plaintiffs met their burden of

establishing a reasonable likelihood of success on their libel per se

and libel per quod claims.

B. Defamation

¶ 22 Defamation is a communication that holds an individual up to

contempt or ridicule, thereby causing them to incur injury or

damage. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). To

prevail on a defamation claim, the plaintiff must establish (1) a

defamatory statement concerning another; (2) published to a third

party; (3) with fault amounting to at least negligence on the part of

the publisher; and (4) either actionability of the statement

irrespective of special damages or the existence of special damages

to the plaintiff caused by the publication. Lawson v. Stow, 2014

COA 26, ¶ 15.

¶ 23 “A publication of libel can be either defamatory per se or

defamatory per quod, depending upon the certainty of the

defamatory meaning of the publication.” Gordon v. Boyles, 99 P.3d

14
75, 79 (Colo. App. 2004). If the defamatory meaning is apparent

from the face of the publication, the publication is defamatory per

se. See id. If the communication is defamatory per se, the plaintiff

need not plead special damages.7 Id. If, on the other hand, “the

defamatory meaning may be understood only in reference to

extrinsic facts known by the recipient, then the publication is

defamatory per quod,” and the plaintiff must plead special

damages. Id.

¶ 24 When, as in the present case, a statement concerns a public

figure or a matter of public concern, certain elements of a

defamation claim are subject to a higher evidentiary standard.

Anderson, ¶ 13. As applicable here, the plaintiff must prove by

clear and convincing evidence that the statement was materially

false and that the speaker published the statement with actual

malice. See Coomer v. Salem Media of Colo., Inc., 2025 COA 2, ¶ 23.

¶ 25 Falsity is shown by proving that the substance or the gist of

the statement is inaccurate. Jogan Health, LLC v. Scripps Media,

7 “Special damages” refer to specific financial losses that a plaintiff

suffered because of a defendant’s statement. Lind v. O’Reilly, 636
P.2d 1319, 1321 (Colo. App. 1981).

15
Inc., 2025 COA 4, ¶ 23. Minor inaccuracies do not amount to

falsity as long as the substance or gist of the statement was true.

Id. This inquiry focuses “on how an average reader would read the

statement.” Fry v. Lee, 2013 COA 100, ¶ 23. To qualify as a

material falsehood, the challenged statement must be false and

“‘likely to cause reasonable people to think “significantly less

favorably” about the plaintiff’ than they would if they knew the

whole truth.” Jogan, ¶ 23 (quoting Fry, ¶ 50).

¶ 26 To show the defendant acted with actual malice, a plaintiff

must prove by clear and convincing evidence that the defendant

published the defamatory statement with knowledge of its falsity or

with reckless disregard for the truth. Fry, ¶ 21. Evidence that a

speaker knew their statement was false is rare, so proving this

element often rests on showing that the speaker published their

statement with reckless disregard. Creekside, ¶ 37. While ill will is

not an element of actual malice, it can be used as circumstantial

evidence of the speaker’s subjective attitude toward the subject.

L.S.S., ¶ 40.

16
C. Discussion

¶ 27 The district court’s order denying the special motion to

dismiss did not separate the plaintiffs’ libel per se claim from their

two libel per quod claims. We do so now because special damages

must be pleaded with specificity to prove libel per quod and the

challenged statements for libel per se are different from the

statements attributed to the libel per quod claims.

1. Plaintiffs’ First Claim for Relief – Libel Per Se

¶ 28 The defendants argue that the plaintiffs failed to meet their

burden of demonstrating a reasonable likelihood that they could

produce clear and convincing evidence that the statements

challenged in the FAC were made with actual malice and were

materially false.

¶ 29 We agree that the plaintiffs failed to demonstrate a reasonable

likelihood that they could provide clear and convincing evidence of

actual malice at trial. Because we conclude that the plaintiffs failed

to meet their burden with respect to actual malice, we need not

consider whether they met their burden for material falsity.

17
a. Actual Malice

¶ 30 The defendants raise three arguments in support of their

contention that the plaintiffs failed to meet their burden regarding

actual malice. First, the defendants assert that the challenged

statements were rational interpretations of Datko’s September 2022

Facebook post, which negates actual malice as a matter of law.

Second, the defendants claim that the plaintiffs could not prove

that the defendants held serious doubts about the truth of the

allegations. Third, the defendants assert that the district court

incorrectly focused on and applied elements of common law malice

instead of actual malice. We agree with all three assertions and

analyze them in turn.

i. A Rational Interpretation Negates Actual Malice

¶ 31 If an allegedly defamatory statement purports to be a

summary of claims contained in another document, courts consider

whether the source document is sufficiently ambiguous to admit

more than one rational interpretation. See Time, Inc. v. Pape, 401

U.S. 279, 290 (1971). In Pape, the United States Supreme Court

determined that a publisher’s statement “amounted to the adoption

of one of a number of possible rational interpretations of a

18
document that bristled with ambiguities” and that the “deliberate

choice of such an interpretation, though arguably reflecting a

misconception, was not enough to create a jury issue of ‘malice.’”

Id.; see also Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.

485, 513 (1984) (holding that the publisher’s choice of language,

“though reflecting a misconception, d[id] not place the speech

beyond the outer limits of the First Amendment’s broad protective

umbrella” and that as a matter of law “the record does not contain

clear and convincing evidence that [the defendants] prepared the

. . . article with knowledge that it contained a false statement, or

with reckless disregard of the truth”).

¶ 32 The challenged statements were a rational interpretation of

Datko’s September 2022 Facebook post. Dunn’s article contained a

screenshot of the post. Readers of the Facebook post and the

article could and did interpret the post to mean that Datko was

asking for pictures and recordings of students dressed as or

behaving like furries. Shortly after making the post — before

Dunn’s article was published — Datko herself acknowledged on

JKF’s Facebook page that, after making her post, she received

pictures and videos of children dressed as furries but was not

19
comfortable posting them. Several JKF members posted comments

on JKF’s Facebook page urging Datko to “blur the faces” or “block

out the children’s faces.” Similarly, Grimes’s opinion column also

interpreted Datko’s Facebook post as “encourag[ing] people to take

pictures of children who behave or dress differently.”

¶ 33 Datko’s September 2022 Facebook post did not “bristle with

ambiguities,” because it was less than fifty words, but it was

ambiguous, as evidenced by two diverging — but rational —

interpretations. Under Datko’s interpretation, she merely asked the

children of JKF members to post anonymous audio testimony of

their own personal experiences with furries acting disruptively in

school and did not invite them to record other children dressed as

furries. On the other hand, the defendants, Grimes, and several

JKF members interpreted the same message differently — as a

request to post pictures and videos of children dressed as furries.

Because Datko’s Facebook post was subject to interpretation, we

conclude, as a matter of law, that the defendants’ choice to

interpret the post in a way that diverged from Datko’s intended

interpretation did not create an issue of actual malice for a jury to

consider.

20
ii. Subjective Awareness of Probable Falsity

¶ 34 As we have previously mentioned, “[a] communication is made

with actual malice if it is published with ‘actual knowledge that it

was false’ or ‘with reckless disregard for whether it was true.’”

Creekside, ¶ 37 (quoting L.S.S., ¶ 40). In concluding that the

plaintiffs met their burden of proof for actual malice, the district

court incorrectly focused on what Datko intended to convey in her

Facebook post rather than focusing on the defendants’ subjective

belief as to the truth of the challenged statements. See Fry, ¶ 21

(actual malice requires proof that publisher actually “entertained

serious doubts as to the truth of the statement or acted with a high

degree of awareness of its probable falsity”).

¶ 35 Dunn’s article contained a screenshot of Datko’s actual

Facebook post and the editor’s note expressing Datko’s

disagreement with the defendants’ interpretation of her Facebook

posting and setting forth Datko’s interpretation. Including this

information counters any inkling of actual malice because it allows

readers to come to their own conclusions about the post and

challenged statements. See, e.g., NBC Subsidiary (KCNC-TV), Inc. v.

Living Will Ctr., 879 P.2d 6, 12 (Colo. 1994) (noting that broadcast

21
at issue “provided sufficient information for viewers to answer for

themselves” questions about whether a living will kit was “worth it”

when the same forms were available at local hospitals and libraries

for little to no cost).

iii. Common Law Malice and Actual Malice

¶ 36 Although ill will “may serve as circumstantial evidence of

actual malice ‘to the extent that it reflects on the subjective attitude

of the publisher,’” Creekside, ¶ 39 (quoting L.S.S., ¶ 40), the district

court incorrectly used the defendants’ hostility toward plaintiffs —

which aligns more with common law malice — to find actual malice.

Actual malice is knowledge that a statement was false or a reckless

disregard for whether it was false or not. Garrison v. Louisiana, 379

U.S. 64, 67 (1964). In contrast, common law malice includes “spite,

hostility or deliberate intention to harm.” Greenbelt Coop. Publ’g

Ass’n v. Bresler, 398 U.S. 6, 10 (1970). In concluding that the

plaintiffs satisfied the actual malice element, the district court

relied on tweets Dunn made indicating that JKF was an “anti-trans

group,” that they were “bad actors,” and that they were an “awful

Facebook group.”

22
¶ 37 While those characterizations may have evidenced Dunn’s

hostility toward the plaintiffs and perhaps established common law

malice, such statements, even if used as circumstantial evidence

reflecting Dunn’s subjective attitude, do not establish actual malice

because they have no bearing on whether the challenged

statements were false or published with a reckless disregard for

their truth. Cf. L.S.S., ¶ 50 (concluding the actual malice standard

was established when parents were engaged in a custody dispute

and mother had personal motive to falsely allege that father

sexually assaulted their child, as “investigations . . . could lead to

the termination of parental rights and an indeterminate sentence of

several years to life in prison”).

¶ 38 The district court erred by not granting the defendants’

amended special motion to dismiss the plaintiffs’ libel per se claim.

The plaintiffs failed to demonstrate a reasonable likelihood that they

could produce clear and convincing evidence at trial that the

defendants’ challenged statements were made with actual malice.

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b. Material Falsity

¶ 39 Because the plaintiffs failed to meet their burden regarding

actual malice, we need not consider whether they met their burden

with respect to establishing material falsity.

2. Plaintiffs’ Libel Per Quod Claims

¶ 40 The defendants contend the district court erred by allowing

the plaintiffs’ libel per quod claims to proceed for three reasons.

First, the defendants argue the plaintiffs’ alleged implications

cannot be drawn from the article. Second, the defendants contend

that the district court’s order denying the amended special motion

failed to address whether the plaintiffs, as limited purpose public

figures, could even assert a claim for libel by implication. Third, the

defendants argue the plaintiffs failed to sufficiently plead special

damages in both libel per quod claims. We agree with the

defendants’ first contention — that the plaintiffs’ alleged

implications cannot be drawn from the article.

¶ 41 Because we agree with the defendants’ first assertion and

conclude that the district court should have dismissed both libel

per quod claims, we need not address the defendants’ remaining

arguments as independent bases for dismissal.

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a. Plaintiffs’ Second Claim for Relief – Libel Per Quod

¶ 42 Unlike libel per se, libel per quod “concerns cases of libel in

which the defamatory meaning, or innuendo, is not apparent on the

face of the publication, but must be made out by proof of extrinsic

facts.” William L. Prosser, More Libel Per Quod, 79 Harv. L. Rev.

1629, 1630 (1966).

¶ 43 As part of their second claim for relief, the plaintiffs assert the

following:

Defendants published or caused to be
published statements, the gist of which was
that one or more members of Jeffco Kids First
urged others to post secret recordings on [sic]
children on TikTok, and that one or more
JeffCo Kids First members posted recordings of
Colorado children acting like furries,
accompanied by mocking and harassing
comments and the phrase “killfurrys.”

The plaintiffs’ second claim for relief is premised on the theory that

Dunn’s reporting made people think JKF “caused people to secretly

record students acting as furries and resulted in harassment of

students.”

¶ 44 The defendants argue that the article, when considered as a

whole, cannot be reasonably read to imply that Datko and JKF had

caused people to secretly record and harass their classmates. The

25
defendants further contend that the timeline of events leading up to

Dunn’s article precludes these implications. We agree.

¶ 45 The screenshot of a purported furry was posted to TikTok

around April 2022 — five months before Datko’s September 2022

Facebook post and six months before Dunn’s article. Because the

TikTok post predated Datko’s Facebook post, it cannot be inferred

that Datko’s post encouraged others to post videos or comments on

TikTok that mocked or harassed children for wearing costumes.

Similarly, before the article was published, a JKF member

mentioned TikTok had posts on furries in Colorado schools.

¶ 46 Based on the timeline of events leading up to the article and

the evidence submitted by both parties, the plaintiffs failed to

establish a prima facie factual showing sufficient to establish a

reasonable likelihood of prevailing on their second claim for relief.

Accordingly, the district court erred by not granting the special

motion to dismiss this claim.

b. Plaintiffs’ Third Claim for Relief – Libel Per Quod

¶ 47 As part of their third claim for relief (libel per quod), the

plaintiffs assert that “[b]oth Dunn and Colorado News published

statements that Dunn and others at Colorado News sought

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comment from Datko and other members of [JKF] through

numerous emails, phone call[s], and tweets” and that the

defendants “published statements that Datko and other members of

[JKF] consistently refused to comment on Dunn’s reporting or

refute the false statements about Datko and [JKF].” The implication

of these statements in the article was that the plaintiffs “refus[ed] to

respond to request for comment . . . because they could not and

would not defend their positions.”

¶ 48 The defendants assert that the plaintiffs’ second libel per quod

claim fails for two reasons. First, the article stated that “[n]either

Datko nor Ganahl responded to Colorado Community Media’s

requests for interviews about the Facebook group’s activities” and

“Datko did not respond to interview requests from Colorado

Community Media.” The defendants assert that these statements

were true, as months before the article’s publication, Dunn

attempted to contact Datko and other JKF leaders by phone, email,

and direct messaging. The defendants also contend that JKF’s

leadership acknowledged receiving requests for comment but

declined to respond. Therefore, the plaintiffs could not establish

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that the statements or the gist of the statements were materially

false.

¶ 49 Second, the defendants claim that Dunn reached out to Datko

and JKF leadership in July 2022 before the article’s publication,

inviting them to “explain to the community what [JKF] is all about”

and not to comment or defend their positions on the forthcoming

article.

¶ 50 Based on the actual comments made in the article, the

undisputed evidence the defendants offered showing that Dunn

contacted Datko and others, and the timeline of requests, the

plaintiffs failed to demonstrate a reasonable likelihood of proving,

by clear and convincing evidence, that the statements were

materially false.

¶ 51 Accordingly, the district court erred by not granting the

amended special motion to dismiss claim three.

D. Conclusion

¶ 52 After a de novo review of all the defendants’ claims on appeal,

we conclude that the district court erred by denying the defendants’

amended special motion to dismiss the plaintiffs’ libel per se claim

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(claim one) and the plaintiffs’ libel per quod claims (claims two and

three) pursuant to section 13-20-1101(3)(a).

E. Attorney Fees and Costs

¶ 53 The defendants request an award of attorney fees and costs

under C.A.R. 39.1 and section 13-20-1101(4)(a), which entitles a

defendant who prevails on a special motion to dismiss to recover

attorney fees and costs.

¶ 54 We exercise our discretion under C.A.R. 39.1 and remand the

case to the district court to determine the reasonable amount of

attorney fees and costs, including appellate attorney fees and costs,

to be awarded to the defendants as the prevailing parties under

section 13-20-1101(4)(a).

III. Disposition

¶ 55 We reverse the order of the district court denying the

defendants’ amended special motion to dismiss the plaintiffs’ libel

per se and libel per quod claims. We remand to the district court

with instructions to dismiss the plaintiffs’ case with prejudice and

to determine the amount of reasonable attorney fees and costs

consistent with this court’s instructions.

JUDGE FREYRE and JUDGE GOMEZ concur.

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