Coomer v. Trump

552 P.3d 562

2024 COA 35

Eric COOMER, Ph.D., Plaintiff-Appellee,

v.DONALD J. TRUMP FOR PRESIDENT, INC.; Sidney Powell; Sidney Powell, P.C.; Joseph Oltmann; FEC United; Shuffling Madness Media, Inc., d/b/a Conservative Daily; James Hoft; TGP Communications, LLC, d/b/a The Gateway Pundit; Michelle Malkin; Eric Metaxas; and Defending the Republic, Inc., Defendants-Appellants.

Court of Appeals Nos. 22CA0843 & 22CA0879

Colorado Court of Appeals, Div. IV.

Announced April 11, 2024

City and County of Denver District Court No. 20CV34319, Honorable Marie Avery Moses, Judge

Cain & Skarnulis PLLC, Charles J. Cain, Zachary Bowman, Bradley A Kloewer, Salida, Colorado; RechtKornfeld PC, Thomas M. Rogers III, Mark Grueskin, Andrew E. Ho, Denver, Colorado, for Plaintiff-Appellee

Campbell Killin Brittan & Ray, LLC, John S. Zakhem, Andrew C. Nickel, Denver, Colorado, for Defendant-Appellant Donald J. Trump for President, Inc.

Arrington Law Firm, Barry K. Arrington, Denver, Colorado; Kennedys CMK LLP, Marc S. Casarino, Wilmington, Delaware, for Defendants-Appellants Sidney Powell and Sidney Powell, P.C.

Harris, Karstaedt, Jamison & Powers, P.C., Jamey W. Jamison, Mark A. Sares, Dino G. Moncecchi, Englewood, Colorado, for Defendants-Appellants Joseph Oltmann, FEC United, and Shuffling Madness Media, Inc., d/b/a Conservative Daily

Law Offices of Randy B. Corporon, Randy B. Corporon, Aurora, Colorado; Burns Law Firm, Jonathon Burns, St. Louis, Missouri, for Defendants-Appellants James Hoft and TGP Communications, LLC, d/b/a The Gateway Pundit

Patterson Ripplinger, P.C., Franklin D. Patterson, Gordon A. Queenan, Greenwood Village, Colorado, for Defendant-Appellant Michelle Malkin

Gordon & Rees LLP, John R. Mann, Thomas B. Quinn, Margaret L. Boehmer, Denver, Colorado, for Defendant-Appellant Eric Metaxas

Dymond Reagor, PLLC, Michael W. Reagor, Christopher P. Seerveld, Greenwood Village, Colorado, for Defendant-Appellant Defending the Republic, Inc.

Opinion by JUDGE SCHOCK

¶ 1 In the wake of the 2020 presidential election, certain members of the media and political figures began circulating claims of election irregularities. One strand of those claims centered on the plaintiff, Eric Coomer, who was then an employee of Dominion Voting Systems, Inc. (Dominion), a company that provided election technology and support services throughout the country. The core of the allegations was that, on a supposed "Antifa" conference call in late September 2020, a person purported to be Coomer said he had "made sure" then-President Donald J. Trump was "not going to win" the election. Coomer denies ever being on such a call or making such a statement, and there is no evidence that he (or anyone else) took any action to undermine the election results.

¶ 2 Coomer sued several individuals and entities who shared reports of his alleged statement on the internet and in other media, asserting claims for defamation, intentional infliction of emotional distress, and civil conspiracy. Those claims come before us in a preliminary posture under Colorado’s anti-SLAPP¹ statute, section 13-20-1101, C.R.S. 2023. Under that statute, we do not decide whether Coomer will prevail on his claims. Nor do we determine who is telling the truth about what occurred. Instead, the sole question we must answer is whether Coomer has done enough to pursue his claims further. To do so, he must establish a reasonable likelihood — not a certainty — that he will prevail on each of those claims. The district court concluded that Coomer had met this burden with respect to all claims against all defendants.

¶ 3 We conclude that Coomer has met his burden with respect to his claims for defamation and intentional infliction of emotional distress. Considering each defendant’s statements separately, we conclude that each defendant made statements that could reasonably be understood to communicate that (1) Coomer asserted on a conference call that he had made sure President Trump was not going to win the election, and (2) Coomer in fact took steps to interfere with the election. We further conclude that Coomer has presented sufficient evidence at this preliminary stage to establish a reasonable likelihood of showing that those statements were false and that defendants made them with actual malice — that is, with knowledge they were false or with reckless disregard for their truth.

¶ 4 We reach a different conclusion as to Coomer’s civil conspiracy claim — at least with respect to the defendants who challenge that claim on appeal. Because Coomer has presented no evidence of an agreement to defame him or inflict emotional distress upon him, he has not shown a reasonable likelihood of prevailing on this claim.

¶ 5 We also conclude that the district court erred by addressing Coomer’s likelihood of prevailing on his request for an injunction in its order denying defendants’ special motions to dismiss because an injunction is a remedy, not an independent cause of action that is subject to dismissal under the anti-SLAPP statute. But because a request for injunctive relief is not the proper subject of an anti-SLAPP motion to dismiss, the district court’s denial of the special motions to dismiss that relief was correct on other grounds.

¶ 6 We therefore affirm the denial of the special motions to dismiss the defamation claim, with the exception of two tweets that we conclude are protected under the Communications Decency Act (CDA), 47 U.S.C. § 230. We also affirm the denial of the motions to dismiss the claim for intentional infliction of emotional distress and the request for injunctive relief. We reverse the denial of the motion to dismiss the conspiracy claim as to the defendants who challenge that ruling on appeal (as detailed below). We remand for the district court to consider certain defendants’ requests for attorney fees and costs, and for further proceedings consistent with this opinion.²

I. Background

¶ 7 Coomer is the former Director of Product Security and Strategy at Dominion. Dominion provided voting technology and support services to at least thirty different states in connection with the 2020 presidential election. Defendants are podcasters, talk show hosts, political commentators, bloggers, attorneys, and associated entities who generally questioned the validity of the 2020 presidential election results. More specifically, defendants are:

• Joseph Oltmann, the co-host of the Conservative Daily podcast, along with a nonprofit corporation Oltmann founded, FEC United, and a media corporation he owns, Shuffling Madness Media, Inc., d/b/a Conservative Daily (collectively, the Qltmann Defendants);

• Michelle Malkin, the host of #Malkin-Live, a program previously broadcast on YouTube, and Sovereign Nation, a television program that previously ran on Newsmax;

• James Hoft, the founder, editor-in-chief, and contributing author of The Gateway Pundit website, along with the company that operates the website, TGP Communications, LLC (collectively, the Hoft Defendants);

• Eric Metaxas, the host of The Eric Metaxas Radio Show, a radio program and podcast that is broadcast on various platforms and published on YouTube;

• Sidney Powell, an attorney who became associated with President Trump’s reelection campaign in the weeks following the 2020 election, along with Powell’s law firm, Sidney Powell, P.C. (collectively, the Powell Defendants), and a non-profit corporation Powell founded, Defending the Republic, Inc. (DTR); and

• Donald J. Trump for President, Inc. (the Trump Campaign or the Campaign), an organization supporting the reelection efforts of President Trump.

A. Oltmann’s Account

¶ 8 The statements underlying Coomer’s claims all stem from an account first shared by Oltmann on the Conservative Daily podcast days after Joseph Biden, Jr., was declared the winner of the 2020 presidential election. On November 9, 2020, Oltmann asserted that "the election was rigged" and called Dominion "a fraudulent company that is out to destroy our republic." He then recounted an alleged conference call he claimed to have infiltrated weeks earlier.

¶ 9 Oltmann introduced the show by stating,

We’re going to expose someone inside of Dominion Voting Systems specifically related to Antifa and related to someone that is so far left and is controlling elections, and his fingerprints are in every state.

….

The conversation will be about a man named Eric Coomer. C-O-O-M-E-R.

¶ 10 After describing Coomer’s role with Dominion, Oltmann relayed that, weeks before the election, he had been able to listen in on an Antifa conference call. As told by Oltmann, "a person who called himself Eric was on the call." As "Eric" was speaking,

[s]omebody interrupts, "Who’s Eric?" Someone else enters, "Eric is the Dominion guy, right?" … and everyone’s like, "Oh, oh, he’s a Dominion guy, okay." So, "Go ahead," came from somebody else.

So … somebody actually interrupts. First he says, "What are we going to do if effing Trump wins, right?" As in somebody’s frustrated and they’re . talking on this call. And ["Eric"] responds, and I’m paraphrasing this, right, "Don’t worry about the election. Trump is not going to win. I made effing sure of that, ha-ha-ha-ha." And everyone’s like, "Yeah." And then somebody else responds, "Effing right," right?

¶ 11 Oltmann went on to explain how he came to believe that the "Eric" on the call was Coomer, based primarily on Coomer’s social media posts, which included antiTrump messages and a so-called "Antifa manifesto." He also said that he thought "Eric’s" voice was a "match" to Coomer’s voice in other videos he had heard, but he "[couldn’t] be sure." In the end, Oltmann encapsulated his account:

Let me put this all together for you guys. So, you have a guy that is actually going to an Antifa meeting that tells somebody else that, [supposedly] … he’s got the election in hand.

….

It’s not admitting [Dominion is] vulnerable, it’s actually creating the vulnerability so that it can actually be manipulated. And that’s what

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