The Colorado Supreme Court has extended the actual malice standard to defamatory statements about private individuals when the statements involve a matter of public concern. Walker, 538 P.2d at 457;see also Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103, 1106 (Colo.1982). This standard requires a plaintiff to show the defamatory statement “was known by the declarant to be false or was made with reckless disregard for its truth.”
1975), overruled on otr. grounds by Diversified Management, Inc.v. Denver Post, Inc., 653 P.2d 1103, 1107 (Colo. 1982) (actual malice standard applicable to defamatory statement involving matter of public or general concern); Meuser v. Rocky Mtn. Hosp., 685 P.2d 776, 778 — 779 (Colo. App. 1984) (defamatory statements made by party to a labor dispute and during a union campaign actionable only if statements made with actual malice). The actual malice standard is an enhanced burden of proof.
Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994); Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 107, 538 P.2d 450, 462 (1975), overruled on other grounds by Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982); Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39, 41 (Colo.App. 1996). Protection of a person's reputation "`reflects no more than our basic concept of the essential dignity and worth of every human being,'" and recognizes that once an individual's reputation is damaged, it is extremely difficult to restore.
R.Vol. XI at 719 (emphasis added). Dun Bradstreet challenges that definition of reckless disregard, and claims entitlement to the following test adopted by the Colorado Supreme Court in Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982): Recklessness implies a higher degree of culpability than negligence.
The plaintiff must additionally prove that the defendant published the defamatory statements with actual malice, that is, with actual knowledge that they were false or in reckless disregard of the truth. New York Times Co., 376 U.S. at 279–80, 84 S.Ct. 710 ; Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103, 1109–10 (Colo.1982) ; Lewis v. McGraw–Hill Broad. Co., 832 P.2d 1118, 1122–23 (Colo.App.1992). Actual malice can be shown if the author entertained serious doubts as to the truth of the statement or acted with a high degree of awareness of its probable falsity.
(quotation omitted). Diversified Mgmt., Inc. v. The Denver Post, Inc., 653 P.2d 1103, 1105 (Colo. 1982). Accordingly, Plaintiffs have to prove actual malice, meaning they have to show that the Defendants knew that what they saying was false or made statements with reckless disregard as to whether they were false. Walters, 559 F. Supp. at 1235; see also Diversified Mgmt., 653 P.2d at 1104-09.
Colorado has chosen to adopt the Supreme Court's standard of actual malice, including the definition of "reckless disregard" for truth or falsity, for cases involving public officials, public figures, and matters of public or general concern. Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1106 (Colo. 1982) (en banc). Thus, where the plaintiff is a public figure by virtue of his or her involvement in a matter of public concern, i.e., a "limited-purpose public figure, " the First Amendment imposes greater protection for the speech of the defendant than it would for a purely private figure.
Once a court determines that a statement involves a matter of public concern, the plaintiff faces an increased burden and must prove the speaker acted with actual malice, rather than mere negligence. Diversified Mgmt., Inc. v. Denver Post, Inc. , 653 P.2d 1103 (Colo. 1982). Defendants contend that the NHIE comment involved a matter of public concern because the NHIE is a licensing exam in twenty-nine states, and the public is harmed when competent home inspectors fail an overly broad exam.
In Colorado, the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) is extended to situations like the one under consideration here where "a defamatory statement has been published concerning one who is not a public official or a public figure, but the matter involved is of public or general concern." Quigley v. Rosenthal 327 F.3d 1044, 1058 (10th Cir. 2003), cert. denied, 124 U.S. 1507 (2004), citing to Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 457 (1975) and Diversified Mgmt., Inc. v. The Denver Post, Inc., 653 P.2d 1103, 1106 (Colo. 1982). Under this higher standard, a person claiming defamation must prove with "convincing clarity" that the alleged defamatory statement was made with "actual malice" — that is, with knowledge that the statement was false or with reckless disregard of whether it was false or not. Diversified Mgmt., Inc., supra, 653 P.2d at 1105.
See Walker v. Colorado Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450, 457 (Colo. 1975), overruled on other grounds by Diversified Management, Inc. v. Denver Post, Inc. 653 P.2d 1103 (Colo. 1982). In Diversified Management, the Colorado Supreme Court adopted the definition of reckless disregard announced in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Under this definition of reckless disregard, there must at least be "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."