“Under the actual malice standard, unless it can be proven that the speaker subjectively believed his or her statements to be untrue, the law imposes no liability,” U.S. District Judge Tom Barber wrote in a decision this week that cleared former Overstock CEO Patrick Byrne of liability in a defamation suit brought by a Dominion Voting Systems executive.
Judge Tom Barber’s ruling and what it decided
Barber granted summary judgment in Byrne’s favor on the narrow issue of whether Byrne can be held liable under Colorado’s heightened defamation standard for statements that appeared in a 2020 film Byrne produced, The Deep Rig. The decision did not resolve most substantive claims in the lawsuit — including whether Byrne bears ultimate legal responsibility for statements made by Joseph Oltmann that were included in the film — but it disposed of the suit on the ground that plaintiff Eric Coomer cannot meet Colorado’s “clear and convincing” proof requirement for actual malice as applied here.
The Deep Rig, Oltmann’s account, and Coomer’s claim
The disputed material comes from The Deep Rig, a 2020 film produced by Byrne that alleges a conspiracy to manipulate the 2020 presidential election. In the film, a man identified as Joseph Oltmann says he listened to a conference call led by organizers of “Antifa,” and that another participant on the call mentioned that “Eric” “The Dominion Guy” was also present. Oltmann says that an “Eric” on that call told others that Trump “wouldn’t win reelection because he had ‘made sure of it.’”
Eric Coomer, identified in the source as a former director of product strategy and security at Dominion Voting Systems, denies taking part in any such call. He filed a defamation lawsuit in 2022 against Patrick Byrne and seven other individuals and entities over the film’s portrayal; the suit alleged the film communicated false statements that injured Coomer’s reputation.
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See what we buildColorado’s “clear and convincing” actual malice test, as applied
Because Coomer’s suit was filed in Colorado, Barber applied Colorado law for defamation involving matters of public concern. He reiterated that the plaintiff must show by clear and convincing evidence that the defendant knew the challenged statements were false or acted with reckless disregard for their truth.
Barber emphasized that the legal inquiry is not whether a reasonable person would have investigated before publication, but whether the defendant “in fact entertained serious doubts as to the truth of [the] publication, or was highly aware of its probable falsity.” Under that standard, Barber wrote, it is difficult for a plaintiff to prove that a speaker “subjectively disbelieved or had serious doubts about Oltmann’s story,” particularly when speech involves matters of public concern.
Responses recorded in the record
Byrne’s attorney, Peter Ticktin, characterized the ruling as a victory in statements to CyberScoop: “This is a substantial victory for Patriot Patrick Byrne and for the principles at stake in this case. The court’s decision speaks for itself. We are pleased that the facts and applicable law resulted in summary judgment in our client’s favor.”
The record also notes that Coomer sued Byrne in his personal capacity and that Dominion Voting Systems was not a party to that litigation.
How Colorado courts, plaintiffs, and filmmakers are affected
- Colorado courts and higher courts: Barber explicitly suggested the current state of Colorado law is a policy choice that “might deserve reexamination” by the United States Supreme Court and Colorado courts, signaling judicial awareness that the actual malice standard can be decisive in cases tied to political speech.
- Plaintiffs alleging defamation on matters of public concern: Coomer’s experience illustrates the evidentiary hurdle. Under Colorado law as applied by Barber, plaintiffs must produce clear and convincing evidence that a defendant subjectively disbelieved the claim or was highly aware of its probable falsity — not merely that the defendant was negligent or failed to investigate.
- Filmmakers and public speakers: Barber’s opinion notes that modern technology gives a “powerful microphone” to individuals otherwise dismissed as “kooks” or conspiracy theorists, and that such speakers may “genuinely and sincerely believe what they say” even when their statements are “objectively and demonstrably wrong.” That dynamic, Barber observed, complicates defamation liability where subjective belief defeats a finding of actual malice.
- Dominion Voting Systems and related settlements: Though Dominion was not a party to Coomer’s suit, the decision arrives after the company secured more than $1.8 billion in combined legal settlements over the previous two years from Fox News, Newsmax and MyPillow CEO Mike Lindell — all named in the record as having made allegations that Dominion voting machines were used to flip or alter votes.
Judge Barber’s ruling narrows this chapter of litigation to the question of state-law proof of subjective fault, leaving open the wider factual and attributional disputes in Coomer’s complaint and inviting the very reexamination of legal standards Barber flagged. Whether Colorado courts or higher tribunals will revisit the balance between protecting reputations and shielding contentious political speech remains an explicit question Barber placed before them.
