Colorado’s second-highest court ruled last week that a public figure cannot sue for defamation solely because a person publicly accuses them of committing a crime, as the statement may be constitutionally protected opinion.

A three-judge Court of Appeals panel narrowed the claims that Academy School District 20 board member Derrick Wilburn may pursue against Bernadette Guthrie, who has repeatedly accused Wilburn of being a “predator.” Although the panel decided that Guthrie may be legally liable for her assertions, which can be proven true or false, her free speech rights permitted her to air her conclusions about Wilburn based on undisputed facts.

“The line between fact and opinion can grow blurry when one person accuses another — particularly a public figure — of committing a crime,” wrote Judge Karl L. Schock in the March 12 opinion. “But there is a difference between falsely accusing someone of committing a criminal act and expressing the view that an act the person indisputably undertook violates the law.”

When Wilburn was a candidate for the El Paso County-based school district in 2023, he appeared at a candidate forum. The moderator asked participants how they would ensure that “banned books do not negatively impact students’ access to diverse educational literature.”

Wilburn responded that he was “going to speak some words now that have not come from my lips in 30 years, and I apologize in advance.” He then read passages from three books that he said were available in District 20 libraries. The excerpts contained explicit sexual references, curses, and the N-word.

“If you want your children to have access to and read this material, that’s none of my business. But as an independent taxpayer in this district, don’t ask me to pay for it,” Wilburn concluded.

Guthrie, who was present with her 11-year-old daughter, grew offended. On social media and in school board meetings, she called Wilburn a “predator,” a “pervert,” and said he committed “this crime” of promoting obscenity. She also wrote to the Colorado Association of School Boards about what to do when “a sitting school board director is under investigation for sexual crimes against minor children.”

The association’s executive director responded that the “board member (should) exercise caution.” Guthrie instead posted on social media that the email had advised the “school board to exercise caution in allowing Mr. Wilburn access to children.”

Wilburn sued Guthrie for defamation and outrageous conduct. In response, Guthrie sought to dismiss under Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” Through the law, the legislature provided a mechanism for quickly resolving litigation arising from a person’s rights to free speech and to petition the government.

In April 2025, District Court Judge Gregory R. Werner declined to dismiss the case. He noted Guthrie’s various claims about Wilburn could be proven true or false, and they amounted to defamation if they falsely accused him of a crime or serious sexual misconduct.

“Guthrie’s attempt to claim these statements are simply statements of her opinion has no merit. Otherwise, someone would always be able to avoid liability simply by saying, ‘well, this is what I believe,'” wrote Werner. “In this case, a jury could conclude that Guthrie had some ill will against Wilburn because she continued to make statements claiming Wilburn was promoting obscenity to a minor even though there was no basis for that claim.”

Guthrie turned to the Court of Appeals, arguing her statements were “rhetorical hyperbole.”

“To reasonable observers, Guthrie’s statements express moral condemnation rather than factual claims of a criminal conviction,” wrote attorney Edward C. Hopkins Jr.

“The full context of her statements is sufficient for a jury to find at trial that Guthrie was attempting to convince her listeners,” countered attorney David W. Illingworth II for Wilburn, “that Mr. Wilburn was the sort of child predator who committed sex crimes against children because he was aroused by material that contained a description of child rape.”

In the appellate panel’s opinion, Schock wrote that a speaker’s words may be constitutionally protected opinion when they present a characterization extrapolated from “fully and accurately disclosed” facts.

In many instances, “Guthrie explicitly tied her assertions that Wilburn was a ‘predator,’ a ‘pervert,’ and a ‘danger to children’ to his readings at the forum,” Schock wrote. “To the extent Guthrie expressed her view that his doing so was criminal, predatory, or otherwise improper, a reasonable listener would understand these accusations as Guthrie’s opinion of Wilburn’s behavior.”

Although courts have found accusations of criminality to be defamation when the public figure’s actions are in dispute, “We decline to hold that a person may be liable for defamation for calling a public figure’s public acts a crime,” wrote Schock.

The panel permitted Wilburn’s lawsuit to proceed against Guthrie on a subset of her statements that “do not include any context for her accusations of criminal and predatory behavior.” Those included Guthrie’s allegations that there was a pending investigation into Wilburn, her representation of the school board association’s email, and her characterizations of Wilburn’s behavior toward her individually.

Christopher Beall, a First Amendment lawyer and University of Denver law professor who recently served as Colorado’s deputy secretary of state, said he believed the appellate panel correctly drew the line between protected opinion and defamatory statements.

“My criticism of the court’s decision is the court is misunderstanding the context of social media,” he said. “I think our culture today has authorized people to say outrageous things on social media, and everyone who sees outrageous commentary on social media takes it with a grain of salt and does not perceive it to be a statement of fact.”

To that end, Beall said he did not believe public officeholders should ever bring lawsuits in response to critical comments about them.

“I grant you that this defendant pursued what may feel like even a vendetta or a character assassination. But in our politics today, this is what happens,” he said. “What the public official in this case is attempting to do is to impose liability for speech he doesn’t like.”

Hopkins, the attorney for Guthrie, told Colorado Politics that a person “can sincerely believe that a public official’s conduct broke the law, say so publicly, and be constitutionally protected in doing so — as long as she discloses the conduct she is talking about and lets the public evaluate it for themselves. That is what Mrs. Guthrie did.”

“No parent should be intimidated by a public official for advocating for their child’s safety and well-being,” added Guthrie in a statement. “This ruling sends a clear message that parents can’t be silenced for speaking up.”

Wilburn’s lawyers did not respond to an email seeking comment.

The case is Wilburn v. Guthrie.