There is a bizarre political controversy out of Colorado that may raise some interesting defamation and criminal law questions. Both the Colorado GOP and Rep. Lauren Boebert (R-CO) are calling for Democrat Adam Frisch to withdraw from the race. The basis for the demand is a Breitbart story detailing the claim of a local businessman that he successfully blackmailed Frisch to change his vote on a key bill in order to avoid the disclosure of a sexual affair. Local media has reported a denial from Frisch. If untrue, this businessman could face a major defamation action, but Frisch has not indicated whether he will contest the allegation in court.
This week the conservative site reported that Aspen businessman Todd Gardner claimed that Frisch used a storage unit facility to conduct an affair. Gardner was the owner of the High Mountain Taxi company and rented out two floors of storage units. (He now lives in California).
He reportedly claimed that, after learning of the alleged affair, he blackmailed or pressured Frisch into changing his position on the Aspen City Council to help his business. (Frisch was a member of the Aspen City Council from 2011 to 2019.).
Breitbart claims that Gardner provided emails and surveillance footage of Frisch arriving at the facility on the morning of May 8, 2017, to back up his claim.
What was so striking about this story is that the owner would seem to be incriminating himself in a potentially criminal act, if true. Here is the criminal extortion statute:
18-3-207. Criminal extortion – aggravated extortion
Universal Citation: CO Rev Stat § 18-3-207 (2016)
(1) A person commits criminal extortion if:
(a) The person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act, makes a substantial threat to confine or restrain, cause economic hardship or bodily injury to, or damage the property or reputation of, the threatened person or another person; and
(b) The person threatens to cause the results described in paragraph (a) of this subsection (1) by:
(I) Performing or causing an unlawful act to be performed; or
(II) Invoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat.
Yet, CRS 16-5-401 would seem to set a three-year statute of limitations for extortion cases. (Perhaps our Colorado lawyers can correct me if I am reading this wrong). If it occurred in 2017, the statute of limitations ran by 2020.
However, Gardner could still be sued for defamation since this factual claim was renewed with the Breitbart story. If untrue, the story is alleging per se categories of defamation including moral turpitude (Frisch is married with two teenage children) as well as unethical or possibly criminal conduct.
On his side, Gardner can always claim “truth as a defense” if, as reported, he has proof to support the claim. Moreover, Frisch is clearly a public figure for the purposes of defamation.
In New York Times v. Sullivan, the Supreme Court crafted the actual malice standard that required public figures to shoulder the higher burden of proving defamation. Under that standard, an official would have to show either actual knowledge of its falsity or a reckless disregard of the truth.
The standard was later extended to public figures. The Supreme Court has held that public figure status applies when someone “thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.” A limited-purpose public figure status applies if someone voluntarily “draw[s] attention to himself” or allows himself to become part of a controversy “as a fulcrum to create public discussion.” Wolston v. Reader’s Digest Association, 443 U.S. 157, 168 (1979).
Frisch would need to show that Gardner and Breitbart knowingly published a false claim or did so with a reckless disregard of the truth. That should be easily done if this story is untrue. The claim is quite specific and alarming: an express quid pro quo arrangement that Gardner would bury the evidence of the affair and Frisch would vote as demanded on the legislation.
Moreover, in the story, Gardner refers to his general manager who he said witnessed the sexual liaison through a slightly opened storage unit door. Again, that can be easily confirmed or refuted in discovery. He also says that the woman involved is a well-known figure in the community (though he has declined to name her).
It is extremely rare to have this degree of specificity in such a claim and it would make this case comparably easy to address in a defamation action.
It will be interesting if Frisch files a defamation case against either Gardner or Breitbart or both. The first step would often be a demand for retraction from Breitbart under a state retraction statute. However, Colorado does not have such a statute.
This is still early in the controversy so Frisch’s counsel may still announce the intention to file such an action.
In the meantime, some of these facts (like the business manager’s account) should be verifiable by the media. If Gardner is telling the truth, Frisch traded a vote for personal benefit. If Frisch is telling the truth, a media site and GOP figures (including his opponent) are pandering a maliciously false story. Someone is lying and I would think that the Colorado media would want to find out.