A former executive of Denver-based Dominion Voting Systems may proceed with his defamation lawsuit against the owner of a conservative talk radio station and one of its hosts, Colorado’s second-highest court ruled on Thursday.

The latest in a string of recent decisions favoring plaintiff Eric Coomer, a three-judge panel for the Court of Appeals concluded Coomer would likely succeed in proving that Salem Media of Colorado and Randy Corporon spread damaging claims about him in the wake of the 2020 presidential election.

Coomer, the director of product strategy and security for voting technology supplier Dominion, has filed a series of lawsuits against conservative figures alleging the same basic sequence of events.

Coomer’s claims originated with a November 2020 podcast recorded by Joe Oltmann of Colorado. Days after the presidential election, Oltmann alleged he had recently listened in on an “antifa” conference call — a reference to anti-fascist ideology.

On the call, an unnamed participant referenced “Eric … the Dominion guy.” Oltmann alleged “Eric” said, “Don’t worry about the election, (Donald) Trump is not gonna win. I made f-ing sure of that.”

Oltmann then conducted his own “investigation” by Googling the terms “Eric,” “Dominion,” and “Colorado.” Based on limited other information found online, he concluded Coomer was the one who allegedly made the comments of election rigging. Oltmann repeated his story publicly, even after the Cybersecurity & Infrastructure Security Agency found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Coomer sued Oltmann, media figures, Trump’s 2020 campaign and Trump’s lawyers after they amplified the unproven accusations. Coomer alleged receiving credible death threats and that he was forced to hide for fear of his safety as a result of the incendiary story. 

In the latest case before the Court of Appeals, Coomer sought to hold Salem Media — which owns 710 KNUS in Denver — liable. He pointed to several instances in which Oltmann himself appeared and repeated the unconfirmed accusations, along with several talk hosts’ endorsement or approval of his election-rigging story.

Corporon, one of KNUS’s hosts and the Republican National Committeeman for Colorado, also bolstered Oltmann’s credibility on his program.

“You have exposed the antifa basis to the man who has the knowledge and the influence on this company that has these machines and this software in battleground states around the country,” Corporon said in November 2020. Coomer “actually made a statement that he had solved this problem for antifa and the left of getting rid of Donald Trump, and that adds seriousness to what we’re already concerned about.”

The defendants sought to dismiss Coomer’s lawsuit under Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide a mechanism to quickly dispose of litigation that implicates a person’s First Amendment rights — specifically, the rights to free speech and to petition the government.

In July 2022, Denver District Court Judge David H. Goldberg declined to dismiss the lawsuit. He concluded Coomer was likely to establish the election-rigging claim was false, that Corporon’s statements were not constitutionally protected opinions and that repeating Oltmann’s story amounted to reckless disregard for the truth.

“Once on air, Oltmann produced his story about Plaintiff without investigation or evidence to support his allegations. Corporon neither questioned the story nor asked Oltmann for the sources of his information. Instead, Oltmann supported his claims by relying on a Google search,” wrote Goldberg.

The defendants appealed Goldberg’s decision. Salem Media argued the company could only be held liable for its conduct, and Coomer could not rely on evidence that Corporon may have defamed him to automatically implicate the radio station. For his part, Corporon alleged he believed Oltmann to be a credible source, and virtually none of the 100-plus statements Coomer cited were actually defamation.

“Mr. Corporon’s job — not only on behalf of himself and his employer, but also to his audience — is to create an environment where political rhetoric and back-and-forth and call-ins and emotions are at play here. So, there is going to be that rhetorical hyperbole,” his attorney, John S. Zakhem, told the appellate panel during oral arguments.

But the panel believed Coomer had established he would likely succeed on his defamation claims.

“Corporon’s statements spoke to Oltmann’s credibility. A jury could find that they presented Oltmann as a subject matter expert speaking the truth and painted him as a hero uncovering a sinister plot,” wrote Judge W. Eric Kuhn in the Jan. 16 opinion. “There is a reasonable likelihood that a jury could interpret Corporon’s statements as defamatory assertions that Coomer had in fact attended an antifa conference call and had in fact said he had made sure that then-President Trump was not going to win the election.”

Kuhn, writing for himself and Judge Christina F. Gomez, added jurors could ultimately disagree that Corporon recklessly disregarded the unreliability of Oltmann’s accusations. However, they found Coomer had pointed to reasons to disbelieve the election-rigging story at the time.

The panel’s majority also concluded there was enough preliminary evidence to show Salem Media exerted control over Corporon, such that it could independently be held liable for the alleged defamation on its airwaves. Finally, the panel agreed with the defendants that Coomer had not established a conspiracy, and dismissed that portion of the lawsuit.

Judge Ted C. Tow III wrote separately to say he believed the panel relied on the incorrect standard when evaluating Coomer’s likelihood of success at trial. Without elaboration, Tow added that he analyzed the evidence through his preferred lens and still believed Coomer would likely prevail.

The case is Coomer v. Salem Media of Colorado, Inc. et al.