How an Anti-SLAPP Statute Protected ‘The Holly’

SECTION 1: Julian

When I began the lengthy process of reporting and directing my feature documentary, The Holly (2022), there were plenty of indications of potential pitfalls. The story involved a gang shooting case, possible police corruption, and a historic community on edge from a rash of shootings, an ongoing effort to gentrify it, and decades of mistreatment by powerful forces in Denver.

Still, I didn’t imagine that just as we were preparing to launch the film’s festival run that my entire team would be served legal papers at their homes in a defamation lawsuit that threatened to derail eight years of work and undermine the explosive revelations we had uncovered. 

When I began the project in 2014, I was primarily a print journalist living in New York. I read a provocative news story about a prominent activist and third-generation resident of his Denver community, Terrance Roberts, who had shot someone at his own peace rally. Roberts was a former gang member who’d spent nearly ten years in prison before returning to his neighborhood and winning awards for an antiviolence program aimed at at-risk youth.

I’d grown up in Denver, and I flew home to look into the story. Almost from the beginning, many things about what I was learning on the ground didn’t match with media reporting on the case. I drafted a book proposal, accepted a deal with FSG, and permanently moved back home to work on it. 

Soon afterward, several factors led me to start filming. Mostly, I realized I had access to a story unfolding in front of me that was potentially explosive. It appeared possible that Roberts had been attacked on the day in question by active gang members, some of whom worked for law enforcement. Those men, whom I had come to know, were then hired by the city of Denver to replace Roberts as “anti-gang” workers in a federally funded antiviolence effort that the city was hailing as a “model for the nation.” But my reporting showed that shootings were sharply rising, and community members were fearful of these men and angered by what they saw as yet another case of police corruption that would further weaken and traumatize the community just as developers sought to solidify new projects there. 

I followed leads and filed open records requests for court and police documents, as well as for financial documents that could show who was involved in law enforcement and community efforts in the community. From my past investigative journalism work, I knew that I would need a lot of material to protect myself in case of a lawsuit. 

As I began seeking funding for the film, some in the documentary industry felt strongly that I needed to make Roberts a producer on the film. I was a white man doing a story about a Black community, and he was the Black protagonist. I resisted because I still wasn’t sure if I trusted Roberts, and I didn’t see the film being well-served by any of the participants having decision-making roles on the film. I believed journalistic independence was critical.

I did, however, take advantage of Roberts’s offer to give me access to his meetings with his public defender. “People need to see what’s happening to me,” Roberts said. Of course, his public defender didn’t agree. Ultimately, we found a workaround. Roberts’s lawyer offered me a contract to film the meetings for his client’s trial preparation. If Roberts wanted to share the material with me, it would be up to him. 

I also faced a legal scare regarding releases. One person integral to the story had not signed one, and by the time I realized this, I also knew that he probably would not like the film, and that approaching him at that point might backfire. Fortunately, a legal evaluation found that his stature as a public figure and an expert on the case would protect my right to use the material, particularly since I had approached the story journalistically. 

At last, in spring 2022, we finished editing and were ready to bring out the film. I braced myself for what might come. My book’s publication the previous year had been met with critical acclaim, but also direct threats to me from a community member who called himself an activist. Also, an ocean of falsehoods spread about me and the project by people with good reason to want to undermine the project. Among the lies: I hadn’t interviewed anyone from the neighborhood. I wasn’t from Denver. I did drugs with gang members. I paid Terrance.

Though festivals don’t require E&O insurance, I decided to get it. Fighting a lawsuit, even if I were to win it, could sink the project. This was an independent operation. In the spring of 2022, we accepted a premiere as the opening night film at Mountainfilm in Telluride. Days after Mountainfilm’s lineup was made public, I received a letter at my office at the University of Denver, where I was a visiting professor of documentary journalism, demanding that I not release the film. Before I could think about how to respond, I was on the phone with Michael Roberts, a reporter from Westword, Denver’s alt-weekly, who was interviewing me for a story. I made sure not to mention the irksome letter I’d received. But at the end of the interview, Roberts told me he had just one more question. “Do you have any comment about the lawsuit?” he said.

Lawsuit? I told him honestly that I had no knowledge of it, and asked if he would send me a copy. He did. It had just been filed in Denver County court. It was a defamation lawsuit filed by two people I knew well. Within days, my whole team, including Adam McKay (The Big Short), who had come on as an executive producer, reported to me that they had been served papers at their homes or businesses. 
 

SECTION 2: Rob 

I was at my L.A. office one day when a colleague sent me a copy of a lawsuit filed by two men against Julian and others who had made The Holly, an independent documentary that had yet to be released. The lawsuit was also directed against Julian’s book, which had been published the previous year. Another lawyer represented Julian and his publisher.

The film was covered by E&O insurance, which was a relief. Not all films have it, and it can cost tens of thousands of dollars to defend against a suit, regardless of whether you win.

In consultation with Julian, his insurance carrier QBE retained my firm, Ballard Spahr, to defend the claims against the film. I defend a lot of media companies against defamation claims, and at a glance this seemed to be the kind of case for which the anti-SLAPP statute was enacted. 

The statute is designed to deter SLAPPs (Strategic Lawsuits Against Public Participation)—meritless lawsuits filed to chill protected speech on a public issue—and this film dealt with several. California enacted the first anti-SLAPP statute in 1992, initially conceived as a way to protect against wealthy land developers seeking to bankrupt concerned citizens by filing lawsuits against them simply for exercising their First Amendment right of free speech. The statute is applied broadly, and is often used by content creators, journalists, and filmmakers. Today, 33 states have anti-SLAPP statutes. I quickly offered to take the lead in our office on this case. 

I knew time was of the essence for Julian. He was trying to sell the film and wasn’t sure if the legal cloud hovering over him would hamper that effort. Of course, I didn’t yet know if Julian had the evidence to back up the statements the two men alleged were made in the film. 

While plaintiffs are usually not required to present evidence to support their claims until months (if not years) after their lawsuits are filed, they are required to support their claims at the very start of the case if served with an anti-SLAPP motion. Indeed, anti-SLAPP statutes require defendants to file the motion within a certain number of days of being served with the complaint.

If a defendant demonstrates in their motion that they were sued for exercising their right of free speech in connection with a public issue (and Julian’s film addressed several), the plaintiff is then required to demonstrate—within a short matter of days—a reasonable likelihood of prevailing on their claims. If the plaintiff cannot do so, the lawsuit is dismissed, and the plaintiff is required to pay the defendant’s attorneys’ fees. 

Fortunately, Colorado has an anti-SLAPP statute, modeled after California’s. If we could file our anti-SLAPP motion quickly, the two men suing the film would only have days to present evidence to support their claims or their case would be dismissed. The first order of business was therefore collecting evidence and strategizing with Julian for an anti-SLAPP motion to seek an early dismissal of the case, including a declaration by Julian explaining and attaching documentary evidence supporting statements made in the film or demonstrating that certain alleged statements were not made in the film. 
 

SECTION 3: Julian

Because of the extensive legal review I had undertaken ahead of the publication of my book, I had collected not just official documents and court records but also photos—and even video my team had shot—that I thought would support some of the claims I made. In some cases, screenshots of Facebook photos helped satisfy the lawyer. One of those was identifying certain people as “gang members.” 

It wasn’t a point I wanted to make for no reason. But in this case, being specific about their identities really mattered. First, these people, whom I had spent a lot of time around, made a point of making sure I knew they were gang members. They wore gang colors and flashed gang signs around me. Many people I knew in the neighborhood feared them, and they seemed to know and like this. Their identity was also specifically important because they had been hired by the city of Denver to replace Terrance as “anti-gang” workers in a federally funded program that my reporting and the film calls into question.

Another reason the identity of these men was important was because one of them in particular turned out, according to my reporting, to have helped set Terrance up on the day in question. Terrance was facing life in prison for what he said was firing in self-defense as he gang members were attacking him. It all gave more credence to a theory that many in the neighborhood believed—that Terrance, who was a strident detractor of the federal anti-gang effort when he worked for it, and of the gentrification of his neighborhood, was someone that many powerful people wanted out. 

Now, one of the only allegations in the lawsuit that even exists in the film was the identification of these two men as gang members. We added to our working draft of the anti-SLAPP motion videos from social media of these men flashing gang signs and photos of them decked out in red in groups. 

This didn’t relieve all of my team members, some of whom wondered if they were covered by my insurance. They were also worried about their safety. 

I was worried about that, too. And about how the lawsuit, which was mentioned in the Westword story, would impact our ability to premiere, and hopefully sell, the film. Mountainfilm had a number of meetings with its board and lawyers before agreeing to let us premiere there. Ultimately, they agreed to go on with it if I added the festival to my insurance coverage. I did. 

I also had a $10,000 deductible to cover before my insurance kicked in. 
 

SECTION 4: Rob

The lawsuit was filled with problems. For example, one of the two plaintiffs claimed that he was accused of smoking crack cocaine, an allegation that is not in the film. Both also claimed they were falsely depicted ordering the murder of Terrance. But it was another gang member who is clearly identified in the film as having ordered the hit, not these two. 

In fact, one of the two plaintiffs barely appears on screen and is never identified by name. 

Indeed, at the time the lawsuit was filed, the film had yet to premiere. It had only had a couple of local test screenings. While it was possible that the men had attended one of these small screenings, it seemed unlikely. 

For purposes of demonstrating that the case was ripe for an anti-SLAPP motion, it seemed rather obvious that the film defendants had been sued for (alleged) statements in connection with a public issue—gang violence and a city’s novel efforts to combat it. If the judge agreed, once we filed the motion the lawsuit would be dismissed unless the two men could demonstrate they had a reasonable likelihood of success on their claims. Such a likelihood seemed improbable. Not only were several of the challenged statements not in the film, but one of the men had signed a release in which he waived any claims he might have in connection with his participation in the documentary.

Days before we planned to file the motion, the book defendants’ lawyer and I contacted the two men’s lawyers, letting them know that anti-SLAPP motions were about to be filed—and told them that unless the lawsuits were immediately dismissed, their clients would be responsible for our attorneys’ fees when our motions were granted. Because the complaint alleged that certain statements appeared in the film even though it was clear they did not, I asked the men’s lawyers point-blank if they had even seen the documentary. My question was met with a prolonged silence, strongly suggesting that they had never seen the film. While we certainly had the option of making the film available to them so they could compare it against the claims made in the complaint, we instead sent a letter later that day, telling them they had an obligation to watch the film before filing a complaint alleging that certain statements were made in the film. We advised them that, under the circumstances, sanctions might be awarded against them if they did not dismiss the case. 

Later that day—and just shortly before our deadline to file the motions—the two men’s lawyers notified us by email that they were immediately dismissing the lawsuit with prejudice, meaning that it could never be refiled. Within minutes, we received a copy of the dismissal. It isn’t often that a phone conversation with a plaintiff’s lawyer can lead to such a quick dismissal. But this was exactly the type of frivolous case that the anti-SLAPP statute was enacted to fight. 

Often an attorneys’ fees award for defendants following an anti-SLAPP ruling in their favor leads to a prolonged battle to actually collect the monies to repay legal fees. In this case, we didn’t even have to get to that point. 
 

SECTION 5: Julian

Once it seemed clear to us that the plaintiffs had not even seen the film all of us were being sued for, it was even clearer that the lawsuit was just a strategy to undermine the findings and cut the legs out from under the project right as we were trying to get it out in the world. 

I immediately sent an email to my team, thanking them for their patience and telling them the good news. Thanks to Adam McKay’s paying our $10,000 deductible, months of legal work didn’t cost me anything, except for some aggravation.

A week later, our sales agent, Charlotte Lichtman at CAA, told us we had a distribution offer with Gravitas Ventures to launch the film theatrically and on streaming platforms, which we took. 

But my legal issues weren’t over. Within hours of the film winning the Audience Award at the Denver Film Festival in November 2022, one of the men who sued me went on Facebook Live and threatened my life, calling me the “devil Jew” whom he had been “sent by God to destroy.” 

I was placed in a Colorado state address protection program, and several months later, after more threats, left Denver for good. The state is now paying to protect me from men whom the city and the federal government hired to work as “anti-gang” activists in a corrupt program that had seen violence skyrocket. But thanks to the anti-SLAPP motion, the film made it out in the world, helping the public to understand more about a problematic federal effort in our most vulnerable communities that had been kept under wraps for too long. 

The information in this article is for general informational purposes only and does not, and is not intended to, constitute legal advice. The views expressed in this article are those of the authors in their individual capacities only. Readers of this article with questions about a particular legal matter should contact their own attorney.

Julian Rubinstein is a journalist, author, and documentary filmmaker. His most recent nonfiction book and documentary, The Holly, was reported over eight years in a gentrifying community in Denver. The book was a New York Times Editors’ Choice and winner of the 2022 Colorado Book Award. The film won three awards at festivals and is streaming on Prime and Apple Plus. He is a visiting filmmaker at Western Colorado University

Robert S. Gutierrez is an entertainment litigator and member of Ballard Spahr’s Media & Entertainment department. He represents writers and publishers in all media, and content creators, producers, and distributors in the entertainment and music industry, on both prebroadcast clearance and related issues and postbroadcast claims and litigation.