Well, once again, this non-lawyer columnist is going to jump in the deep end of legal scholarship and will explore a recent Colorado Court of Appeals decision. Buckle up.

In yet another terrific Colorado Politics Court Crawl article, we learned about quite a few cases that the Appeals Court has ruled upon. Recall that only the state Supreme Court is above the appellate level. A lawyer friend once explained it to me as what he called the “10% rule”: about 90% of cases are decided at the district court, or lowest level of the judicial system. About 10% of decision there get appealed to the Appeals court (so that’s where the name came from!), with about 90% of appealed cases ending there. About 10% of appellate court decisions are appealed to the Supreme court. That basically means for the vast majority of cases, final decisions are issued at lower-level courts.

The CoPo article covers quite a few interesting cases that may have escaped your view initially. In yet another case in which the courts have been asked to balance free speech rights, the appellate court ruled a person saying nasty and unkind things to a judge when they both happened to be in the same elevator was engaged in a form of protected speech and the judge could not, therefore, sue the nasty person. I’m tempted to call this elevator case an uplifting decision, but my kindly editor hates it when I do that (Ed: wait… what?).

But the case I want to focus on a bit is another interesting free speech vs. criminal speech. A while back, during a forum for candidates running for school board here in Colorado Springs, one candidate talked about banned books a bit, and a person in the audience was deeply offended, apparently. This individual began referring to the candidate, based on, well, nothing, as a “predator” and other nasty things about children being unsafe around him.

Now, that is pretty outrageous, and it would seem to me to be a very good candidate for a defamation case, but the Colorado Appeals Court ruled, not so much. As reported, “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.”

For most of my life, I’ve understood the defamation world to revolve around two basic determinations in cases involving non-famous people, and a tad different for public figures. In the first case, I thought that defamation required the person making the statement to first, know that the statement was false, and second, that damage was done by the false statements.

But for public figures, courts have ruled the person making the statements knew they were false and proceeded anyway, with malice.

Who is a public figure is an interesting question. Back when I was teaching at the AF Academy, I taught my students about Oliver Sipple and his “public figure” status. Back in 1975, Sipple happened to be next to Sara Jane Moore, outside a building that then-President Gerald Ford would soon exit. Upon seeing Ford, Moore drew a pistol and attempted to shoot at the president. Sipple reacted instantly, grabbing Moore and forcing her pistol up and her shots fell harmlessly elsewhere. He had saved the president. Understandably, the press was interested in Sipple, and found it interesting, and therefore reported widely, that Sipple was gay. The problem was that Sipple hadn’t told his fundamentalist family about his sexual orientation, and he was promptly disowned and estranged from his family.

Sipple later sued, claiming his privacy rights were violated. The courts held that, when Sipple grabbed Moore’s arm, he was essentially volunteering to be a public figure, and his lawsuits were dismissed. His life spiraled downwards, and he would die at only 47 years old, alone with a bottle of Jack Daniel’s next to him, a public figure. His life was destroyed by his act of heroism.

In my own case, I know I did, in fact, volunteer to be a public figure when I ran for Congress and when I started writing these columns. But the person who was, well, in my view harassing the school board candidate, was not a public figure apparently, even though her actions seem to be attention-getting. Therefore, a determination of malice wasn’t required.

Though, thanks to Alexander Hamilton, truth is an absolute defense against defamation cases, in this case, as explained by one of the judges, “The line between fact and opinion can grow blurry when one person accuses another — particularly a public figure — of committing a crime, 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.”

Overall, I think I agree with the courts. As I’ve said before, I think of myself as a Hugo Black absolutist when it comes to free speech. I fully understand the school board candidate’s frustration with a total stranger attempting a most vile smear, but protecting such speech is the price we pay to ensure that all speech, and especially political speech, is protected.

During my run for Congress back in 2008, I picked up a stalker who argued then-President George W. Bush was actually the mastermind behind the attacks on Sept. 11, 2001. When I rejected that nonsensical claim, the individual involved started harassing me on the campaign trail and, most atrociously, at home, where his many, many harassing phone calls scared my kids. But my status as a public figure ended any legal recourse on my part.

I’m sure you’ve heard it said that the test of whether you truly believe in free speech comes down to whether or not you defend speech that you personally find vile and horrible. And it’s hard to imagine any more vile charge than being accused of crimes against children. Yet, as noted by the Colorado Appellate Court, such speech is nearly always protected. I will be curious if the case gets appealed to the state supreme court, and if they would even accept the case for consideration. In the meantime, you may want to consider whether your actions make you a public figure, as it might matter if things turn out poorly.

Stay tuned.

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.