DENVER (CN) — A conservative attorney and the network that hosts his talk radio show asked the Colorado Court of Appeals on Tuesday to reverse a lower court’s denial of anti-SLAPP motions to dismiss a defamation lawsuit filed by a target of 2020 election fraud disinformation.
“The plaintiff’s entire case is based on a theme of self-censorship,” argued attorney Thomas Quinn, on behalf of Denver-based Salem Media, which hosts conservative talk radio shows, including Wake Up with Randy Corporon.
Following the 2020 election, Corporon interviewed Joseph Oltmann, a Castle Rock-based businessman who claimed he heard a man identified as “Eric from Dominion” say on a call that he was going to make sure Trump lost the 2020 election.
Internet research led Oltmann to conclude the speaker was Eric Coomer, a director of product strategy and security at Dominion Voting Systems in Denver.
The claim sparked and spread like wildfire after the 2020 election, when it was picked up by the OAN network then repeated by the Trump campaign — along with attorneys Rudy Giuliani and Sidney Powell. Locally, attorney Randy Corporon repeated the claims as he interviewed Oltmann on his show.
In addition to suing Corporon and Salem for defamation, Coomer filed two other suits seeking to hold accountable more than a dozen individuals and companies that collectively made him the villain in the narrative of baseless claims of election fraud.
On June 9, 2023, a Denver judge declined Corporon’s anti-SLAPP special motion to dismiss the suit. Enacted in 2019, the anti-Strategic Lawsuit Against Public Participation law seeks to block frivolous lawsuits to “safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.”
Corporon and Salem both appealed.
“Plaintiff argues Salem should have engaged in independent research and Salem should have self-censored,” Quinn, who practices with Gordon Rees in Denver, said Tuesday. “We know our Supreme Court has said self-censorship can’t be tolerated.”
Quinn argued that Salem couldn’t be held liable for Corporon’s statements, since he was an independent contractor, and that the lower court failed to complete reckless and malice analyses for the company.
“Does the question of actual malice go to the question of independent liability, or statements published by Corporon?” Court of Appeals Judge Eric Kuhn asked.
Quinn said analysis was lacking on both fronts.
On behalf of Corporon, attorney John Zakhem argued most of his client's statements were hyperbole. Zakhem practices with the Denver firm Campbell Killing.
“I would contend maybe one of those statements may be considered defamatory, but the rest were rhetorical hyperbole in the context of talk radio,” Zakhem said. “Assuming these statements were false, and we don’t concede that they were, this comes down to actual malice.”
"The anti-SLAPP statute is yet another defense against defamation claims in matters of public interest, where you have to reach a merits analysis and the judge must call balls and strikes,” he continued.
Court of Appeals Judge Christine Gomez clarified the role of the appeals court: “You’re asking for a weight of evidence, and as an appellate court, we generally don’t do that.”
Coomer’s attorney, Zachary Bowman, asked the panel to affirm the lower court’s finding and let the case proceed to a jury.
“Corporon and Salem repeatedly defamed Dr. Coomer for months on end. It’s lawsuits like this and courts that can hold media accountable for harmful falsehoods,” argued attorney Zachary Bowman, on behalf of Coomer. Bowman practices with the Austin-based firm Cain & Skarnulis
Bowman also pointed out that Corporon was more than a radio host, as the founder of the Arapahoe County Tea Party and an attorney who gave Oltmann legal advice when he first came forward with his story.
When Bowman argued Salem was liable as an employer of Corporon, Kuhn questioned the need to preserve Coomer’s conspiracy claims.
“We have case law saying the employee and employer can’t be held to conspire,” Kuhn said.
Bowman countered that Corporon could still be held liable for defamation in another capacity outside of his talk radio position, on which a conspiracy claim might hang. Moreover, Bowman claimed Salem supported election fraud narratives because they attracted listeners.
“Instead of shutting it down, they endorsed it,” Bowman argued. “There was institutional knowledge showing the defamatory statements were false, but they ultimately fed the company. Questions about the integrity of the election, that’s what listeners wanted to hear.”
Outside the courtroom, Coomer told Courthouse News he was optimistic about the outcome of the appeal, and pessimistic about whether any of his cases would reach a resolution before the next presidential election. “I would love to see that, but I’m not hopeful,” he said.
Court of Appeals Judge Ted Tow rounded out the panel. The court did not indicate when or how it would decide the case.
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