A Littleton man who posted online that he either was – or was with – the “first guy to storm” the U.S. Capitol on Jan. 6, 2021 failed to show that 9News anchor Kyle Clark defamed him in the course of his reporting, a Denver judge ruled on Monday.

District Court Judge Ross B.H. Buchanan granted Clark’s motion to dismiss the defamation lawsuit after determining Chad Burmeister had not demonstrated Clark’s statements were materially false and were the product of malice toward Burmeister. Buchanan agreed that Clark’s reporting, which characterized Burmeister as “boasting” and “bragging” about being part of the pro-Donald Trump rally to overturn the results of the 2020 election, was a reasonable interpretation of Burmeister’s social media posts.

“Thus, the court finds it is clear that any reputational damage incurred by Plaintiff was primarily caused by his own decision to publicly post a photograph and caption which average members of the public understood indicated that he was proud of either being, or being with, the “(f)irst guy to storm the capital (sic) today,” wrote Buchanan in the March 28 order.

Burmeister, who describes himself as an investor and entrepreneur on his website, filed suit against Clark and 9News’ corporate owner in November. He put forward a single claim for defamation, claiming the station had acted with “reckless disregard for the truth or falsity” of Clark’s statements and “did not have one shred of evidence” to support the claim that Burmeister stormed the Capitol.

“Burmeister and his family have been repeatedly threatened. Former friends and neighbors say they hope Burmeister ‘rots in jail’ and gets ‘raped in prison’,” the lawsuit reads. “Burmeister continues to suffer from extreme anxiety, sleeplessness, loss of self-esteem, fear of being unable to provide for and protect his family, fear of what colleagues and members of the community think of him, and fear that some crazy person will appear at his doorstep with a gun.”

The defendants filed a special motion to dismiss under a procedure the legislature established in 2019. The anti-SLAPP law – an acronym for Strategic Lawsuits Against Public Participation – was based on the General Assembly’s finding that the judicial process should not be used to chill speech on matters in the public interest. A special motion to dismiss allows judges to toss lawsuits like Burmeister’s if there is no reasonable likelihood that plaintiffs will prevail on their claims.

Burmeister took issue with a segment 9News aired on Jan. 7, 2021 in which Clark highlighted Burmeister’s apparent statement that he was the “first guy” to storm the Capitol. Clark also pointed out that Burmeister had later edited that post to read, “Peaceful march to the capital,” and asserted that Burmeister had traveled to Washington, D.C. “expecting trouble.”

Burmeister’s Facebook page “is full of QAnon conspiracies about the ‘storm,’ that’s the moment when QAnon believers think that President Trump is going to round up and execute his opponents,” Clark added, referring to the pro-Trump conspiracy movement.

Buchanan, in granting the special motion to dismiss, observed that Clark had accurately quoted Burmeister regarding his Jan. 6 involvement. As to Burmeister’s claim that Clark’s reporting resulted in professional and personal consequences for him, the judge pointed out that people online were already interpreting Burmeister’s Facebook post to mean he had participated in the violent assault on the Capitol – even before the broadcast took place. 

There were also multiple screenshots the judge included in his order showing posts on Burmeister’s Facebook page referencing the QAnon “storm”. Clark’s statement that Burmeister’s social media page was full of QAnon material “is merely a rational observation related to the content of Plaintiff’s Facebook posts,” Buchanan wrote.

The Colorado Supreme Court has not yet interpreted the anti-SLAPP law, which prompted Buchanan to look to California’s largely-similar statute for his analysis. Reporting on a matter of public concern is protected speech, unless the defamatory statements are made maliciously. A media outlet can show that such statements are substantially true in order to defend against allegations of defamation.

The malice standard stems from the U.S. Supreme Court’s 1964 decision in New York Times Company v. Sullivan. The justices concluded that people alleging defamation must demonstrate that an outlet knew a statement was false or acted with reckless disregard toward the possibility that it may be false.

Recently, in a high-profile federal trial in New York, both a jury and a judge separately reached the conclusion that The New York Times was not liable for an erroneous editorial referencing former Republican vice presidential candidate Sarah Palin. A spokesperson for The Times said the verdict affirmed the principle that lawsuits should not “punish or intimidate news organizations that make, acknowledge and swiftly correct unintentional errors.”

Accordingly, Buchanan determined that Burmeister would not likely prevail on his underlying claim of defamation.

“Viewing the evidence in the light most favorable to Plaintiff, the court finds that, at most, he demonstrated that Defendants’ publication contained some partially misleading statements,” Buchanan concluded.

An attorney for the defendants declined to comment on behalf of his clients, and Burmeister’s attorney did not immediately return an email seeking comment.

The case is Burmeister v. Clark et al.