A judge this week dismissed the bulk of a defamation lawsuit filed by Denver school board member Tay Anderson against Black Lives Matter 5280, its leadership and a parent, ruling their unsubstantiated claims of sexual assault against Anderson were protected speech and Anderson would not be able to prove they made the claims with actual malice.
However, Denver District Court Judge David H. Goldberg allowed the defamation claim against a 19-year-old activist who made similar allegations on her Facebook page to proceed, according to a written order filed Wednesday.
In March 2021, Black Lives Matter 5280 posted a statement on its social media accounts saying a woman had come to them with allegations that she was sexually assaulted by Anderson. The claim led Anderson’s fellow Denver Public Schools board members to hire ILG, an independent firm, to investigate the allegations.
During that investigation, Denver parent Mary-Katherine Brooks Fleming testified before a state Senate committee that a predator was targeting Denver Public Schools students, and although she didn’t name Anderson in her testimony, the school board later confirmed she was speaking about him.
In September, ILG determined that the sexual assault allegations made by BLM5180 and Brooks Fleming were unsubstantiated. However, the investigators discovered Anderson had flirted online with a 16-year-old student and penned “coercive” social media posts. The Denver Public Schools’ Board of Education deemed that behavior “unbecoming of a board member,” and the board censured Anderson.
Anderson, who has since become the school board’s vice president, will appeal the judge’s decision to dismiss the case against BLM5280 and Brooks Fleming, his attorney, Issa Israel, said Thursday morning.
“We really have no choice but to appeal that,” Israel said. “We don’t think the judge applied the law correctly.”
Anderson filed his defamation lawsuit against BLM5280, the organization’s leaders, Brooks Fleming and Jeeva Sinthilnathan, a young activist from Parker, in November.
Anderson needed to prove that the defendants knew their statements were false, that they held actual malice toward him and that the statements damaged his reputation or financial standing. But Goldberg determined that BLM5280’s claims were a matter of public interest and protected speech.
“An allegation of sexual assault against a public official, such as Plaintiff, is newsworthy because the allegation necessarily involves his fitness for public office, the public trust between Plaintiff and his constituents in Denver and, as such, is a matter of public concern to the community,” the judge wrote.
BLM5280 also was careful in how it worded its March 2021 allegation, saying a woman had come forward to tell the nonprofit organization’s leaders that she was sexually assaulted. The organization’s statement included a sentence that made it clear the accusation had not gone through a formal legal process, the judge noted in his order.
Goldberg dismissed the lawsuit’s claim against BLM5280 volunteer board member Amy Brown because board members are protected from legal action in their roles with a nonprofit organization, the order said. Israel said he agreed with that decision.
As for Brooks Fleming, her testimony before the state legislature is protected speech, Goldberg wrote. And a follow-up video she posted on social media was protected because it was a matter of public interest that an elected official had been accused of sexual assault.
The judge also wrote that Anderson could not prove malice because Brooks Fleming gave her testimony to the legislative committee before the ILG investigation was finished and before the claims had been found unsubstantiated.
However, Senthilnathan knew her written statements and video posted on her Facebook page in late October were not true because the ILG investigation, which had been made public the month before, did not find evidence to substantiate those claims.
The judge wrote that Senthilnathan acted with actual malice against Anderson in posting the statements and video, and that Anderson would be able to show her statements harmed him by causing “humiliation and mental anguish because her statements were made after the DPS investigation resolved.”
Goldberg let stand Anderson’s claims of defamation, extreme and outrageous conduct and intentional infliction of emotional distress, and tortious interference with a prospective business relationship against Senthilnathan, but dismissed claims of conspiracy and aiding and abetting.
All claims against BLM5280, Brooks Fleming and Brown were dismissed with prejudice, meaning they can’t be refiled.
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