When Christian author, speaker and radio host Eric Metaxas interviewed a guest who claimed to have uncovered an election fraud plot, he did what many influencers on both the left and the right do when a claim fits their political biases—he received the guest’s story uncritically and provided validating (and perhaps hyperbolic) feedback.
But in this case, Metaxas found himself roped into a defamation lawsuit along with 14 other defendants, including his interviewee, four other Christian influencers and the Trump campaign—a lawsuit Metaxas’ attorneys argued will have a “chilling effect” on free speech if allowed to move forward.
But move forward it will, now that the Colorado Court of Appeals has cleared a major hurdle more than three years after the suit was filed in late 2020.
In a unanimous decision on April 11, the three-judge panel agreed with 2nd Judicial District Judge Marie Avery Moses in rejecting a motion to dismiss the suit, but struck down a key item.
Background
The suit was filed by former Dominion Voting Systems executive Eric Coomer after businessman and podcaster Joe Oltmann went to conservative media, including Metaxas’ show, purporting to have evidence that Coomer conspired with Antifa to rig the 2020 election against Donald Trump.
Oltmann’s alleged evidence included an “infiltrated” conference call involving Antifa activists and someone identified as “Eric from Dominion,” who guaranteed a win for Joe Biden. Oltmann did internet research to make the connection that Eric from Dominion was Eric Coomer from Dominion Voting Systems.
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Oltmann’s claim is now widely regarded as false, and multiple conservative media outlets have agreed to settlements with Coomer, while Fox News paid $787.5 million to settle a suit by Dominion.
However, attorneys for Metaxas and fellow defendants sought dismissal under Colorado’s anti-SLAPP (strategic lawsuit against public participation) statute, a check against frivolous lawsuits that target constitutionally protected speech. Signed into law in 2019, the statute requires the court to determine whether the “plaintiff has established that there is a reasonable likelihood that the plaintiff will prevail on the claim.”
The defense argued Coomer failed to show malicious intent or that the defendants knew the election fraud claim to be false—two critical tests in proving defamation, which bears a high legal burden of proof due to First Amendment protections.
“In bringing this SLAPP suit against Defendant Metaxas, Plaintiff is making a strategic attempt to limit Defendant Metaxas’s participation in the national conversation regarding the election, including unanswered questions about various electronic voting machines,” Metaxas’ attorneys argued in the motion.
The Ruling
Previously, the defense’s constitutional concerns were dismissed by Judge Moses, who agreed to a permanent injunction forcing the defendants, including Metaxas, to remove all statements the court deems defamatory and refrain from publishing future statements.
“There is no constitutional value,” Moses wrote in a 136-page opinion, “in false statements of fact or the deliberate spread of dangerous and inflammatory political disinformation designed to sow distrust in democratic institutions.”
In affirming Moses’ decision, the appeals court retained the injunction and turned to the “reckless disregard” standard of defamation law when it concluded, “Given the gravity of the allegations and the size of the inferential leap they required, there is a reasonable likelihood that a jury could find that Oltmann acted with reckless disregard for the truth in making those accusations.”
Further, the court held that a jury is reasonably likely to decide the other defendants “recklessly disregarded the truth by asserting such an explosive and improbable claim without any evidence to support it.”
While the appellate judges rejected the defense’s motions to dismiss defamation and intentional infliction of emotional stress, the court did remove two tweets protected under the Communications Decency Act and, more significantly, struck down Coomer’s unsupported claim of a conspiracy between the defendants.
Now it will be up to a jury to decide whether Metaxas and his co-defendants committed defamation or were exercising free speech.
Metaxas’ Deposition
“Satanic.” “Evil.” “Flirt with insanity and violence.”
Such were the inflammatory words Metaxas used on his show as he reacted to the picture Oltmann painted of an election-rigging insider.
But in his August 2021 deposition, Metaxas chose his words more cautiously. He admitted to not personally verifying Oldmann’s story or cross-examining him, but insisted that is not his job as a talk show host. He explained that he generally takes his guests at their word and that his show lacks the time and resources to do investigative journalism.
Metaxas said that when he interviewed Oltmann, he found his assertions of election fraud “horrifyingly plausible.” At the time of the deposition, Metaxas still maintained it was “possible” that Dominion committed fraud; but when asked whether he currently believed Coomer personally influenced the outcome of the election, he said, “I honestly have no idea…. I couldn’t know, so I couldn’t even answer yes or no.”
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