Fry v. Lee
2013 COA 100
Colo. Ct. App.2013Background
- Fry ran for Denver City Council in 2011 and answered a DDP questionnaire whose responses were public.
- Lee contacted Fry about copying from an NLC publication; Fry denied copying.
- Lee compared Fry’s DDP response to the NLC text; the texts were identical.
- Fry admitted she copied the NLC text without attribution and apologized in writing.
- The Post published an initial article accusing Fry of plagiarism, later republishing a substantially similar version.
- Fry sued Lee and the Post, asserting seven defamation-related claims based on these articles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defamation claim sufficiency under 12(b)(5) | Fry claims statements were defamatory and false, not substantially true | The statements were substantially true and not defamatory | Defamation claims dismissed on substantial truth and non-defamatory meaning grounds |
| Meaning of challenged words and substantial truth | Words like ‘plagiarism,’ ‘charged,’ ‘recant’ conveyed criminal connotations | Words have ordinary meanings; context shows noncriminal accusations; statements were substantially true | No defamatory meaning; statements substantially true; no material falsehood |
| Ancillary claims and First Amendment protections | Ancillary tort claims should survive with defamation | Ancillary claims premised on defamation; blocked by First Amendment if defamation claim fails | Ancillary claims properly dismissed; protected by First Amendment if defamation claim fails |
Key Cases Cited
- Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351 (Colo. 1983) (defamation standard; factual falsity required)
- Knapp v. Post Printing & Publ’g Co., 111 Colo. 492, 144 P.2d 981 (Colo.1943) (meaning of words; average reader standard)
- Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo.1982) (public figure defamation standard; noncriminal charges emphasis)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (public figure defamation with actual malice standard)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (U.S. 1991) (defamation; emphasis on reader's perception; substantial truth concept)
- Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (Colo. 1972) (substantial truth defense to defamation)