Chapter 13 - § 13.9 • APPELLATE ISSUES IN DEFAMATION LAW

• Jurisdiction: Colorado

§ 13.9 • APPELLATE ISSUES IN DEFAMATION LAW

When raising constitutional issues on appeal, counsel must be careful to note that the U.S. Supreme Court has held that in reviewing First Amendment defenses, appellate courts must engage in an independent, de novo review of questions of "constitutional fact." Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508 n. 27 (1984). In Bose, the Court held that such independent review is required in all varieties of cases involving First Amendment defenses, including but not limited to libel. Thus, whether allegedly defamatory language is constitutionally privileged is a question of law, and a reviewing court must review the record de novo to ensure that the trial court's judgment does not constitute a forbidden intrusion on the field of free expression. Id. at 499; Walker, 538 P.2d at 450; Kuhn, 637 P.2d at 318. In Kuhn, the court summarized the nature of the inquiry:

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