[A.] From Ellis v. Wallace, decided today by Chief Magistrate Judge Scott Varholak (D. Colo.):
On January 29, 2025, a Black Hawk helicopter and American Airlines Flight 5342 collided midair near Ronald Reagan Washington National Airport. In the hours following the crash, numerous posts and articles surfaced asserting that Plaintiff was the helicopter pilot involved in the midair collision (the rumor), including:
- During the morning of January 30, 2025, a prominent podcaster and influencer named Luke Ford published a complete video identifying [Plaintiff] as the pilot and portraying the crash as deliberate.
- On January 30, 2025, at 4:35 p.m., X user @RealNytoMwang posted a claim with “Plaintiff’s photograph with text falsely identifying her as the transgender Black Hawk pilot who crashed the helicopter.”
- On January 30, 2025, at 9:22 p.m., X user @FakeGayPolitics shared a post “identifying Plaintiff as the pilot, including her photographs and video clips.”
- At 11:34 p.m. on January 30, 2025, the Santa Monica Observer published an online piece titled, “A Transgender Pilot Named Jo Ellis Flew Blackhawk Helicopter Into the American Airlines Jet at Reagan National.”
Defendant issued his first X post addressing the rumor on January 31, 2025, at 1:00 a.m. Eastern Time. The Plaintiff filed her complaint in this matter on April 9, 2025, alleging defamation arising from those posts. She subsequently appeared as a guest on several podcasts. On July 18, 2025, she appeared on the Kill Tony podcast. During the interview, the hosts asked Plaintiff about the collision rumor and her ongoing litigation. Plaintiff explained that Defendant was the “[f]irst one to tie my likeness to the rumor. We don’t know if he started the rumor, but he had millions of followers. He did the most what we can determine as damage.”
Ten days later, Defendant filed the Special Motion to Dismiss Plaintiff’s Complaint, attaching copies of X posts and articles that linked Plaintiff to the crash before Defendant commented on the rumor. Plaintiff then appeared on the RVA Magazine podcast on September 30, 2025. She was again questioned about the rumor and the pending litigation. In response, she stated:
[W]ithin 24 hours of the crash, I was learning that I was being named as the pilot, described as the unnamed female pilot who was the supposed DEI hire that Trump, President Trump, had alluded to at a press conference, with the claim that “we know it’s DEI because we just know.” That provoked online speculation to identify this pilot. From what we can tell, [Defendant] noticed that and used a picture of me along with the [Michael] Smerconish article, and, well, put it all together. With his following—reportedly in the millions—he caused the most damage. It would not have gained traction if he hadn’t posted about it.
Finally, on January 12, 2026, Kim Congdon interviewed Plaintiff on The Kim Congdon Takeover podcast. Congdon asked Plaintiff whether she was suing the person who originated the rumor. Plaintiff answered:
I don’t know if he started it, but he certainly pushed it. He was the first to tie my likeness to it. His name is Matt Wallace, and he has millions of followers on Twitter, and he pushed it quite hard; we believe he did the most damage, which is why I’m suing him in federal court.
On April 6, 2026, Defendant filed the Counterclaim alleging that these podcast statements were defamatory.
Defendant contends that Plaintiff repeatedly made defamatory statements asserting that: (1) Defendant “was the first one to post [Plaintiff’s] likeness in connection with the helicopter crash,” and (2) that Plaintiff believes Defendant’s “statements caused the most damage.” Plaintiff maintains there is a material difference between alleging that Defendant was the first to name Plaintiff in connection with the tragedy and asserting that Defendant was the first to post Plaintiff’s likeness in connection with the collision. The court views the distinction as ambiguous and treats the latter as meaning that Defendant was the first to connect Plaintiff to the collision.
[B.] The court rejected Plaintiff’s argument that her statements were protected by the “litigation privilege.” That privilege shields statements made in court filings and in-court statements from defamation claims, but it does not extend to statements about the lawsuit made outside the litigation.
(Recall that, in a typical case, the defendant would be arguing that the statements are privileged, opinions, true, etc., while the plaintiff would respond; here, the roles are reversed because the defendant is counterclaiming against the plaintiff based on her statements.)
[C.] The court also rejected Plaintiff’s claims that the statements were nonactionable opinion: It concluded that both statements were “capable of being proven true or false,” and were framed as factual assertions rather than employing “loose or hyperbolic language that would suggest the statements should not be taken seriously.”
[D.] The court found that Defendant had presented sufficient evidence that the statements were false:
First, with respect to Plaintiff’s “likeness” statements, Plaintiff repeatedly claimed that Defendant was “the first one to tie [her] likeness to the rumor.” Yet Defendant provided multiple pieces of evidence showing that other X users linked Plaintiff to the rumor prior to Defendant’s first post…
Second, Defendant has shown a reasonable likelihood of proving by clear and convincing evidence that Plaintiff’s “most damage” statements were false. Defendant asserts that “the rumor was propagated primarily by far larger voices than [Defendant’s], such as Ann Coulter’s and Alex Jones’s,” and that these “prominent individuals and entities” had a far greater reach than anything Defendant posted. If true, this would provide clear and convincing evidence that Defendant’s “most damage” statements were false. At a minimum, it raises a jury question since Plaintiff has offered competing evidence…
[E.] The court also concluded that Defendant had introduced sufficient evidence that Plaintiff knew the “likeness” statements were probably false (which is required under Colorado law in such cases):
First, Plaintiff’s remarks on the RVA Magazine podcast and on The Kim Congdon Takeover podcast occurred after Defendant had filed his Special Motion to Dismiss and after Plaintiff had filed her response. In the Special Motion to Dismiss, Defendant included evidence of other X users who had linked Plaintiff to the rumor before Defendant’s first post. Plaintiff’s podcast remarks referenced ongoing litigation. This supports a reasonable inference that Plaintiff was aware of the probable falsity of her statements.
Second, Plaintiff’s statements reveal inconsistencies in her account of the underlying events. During her appearances on the Kill Tony podcast and The Kim Congdon Takeover podcast, Plaintiff repeatedly stated that she did not know whether Defendant started the rumor, even while claiming he was “the first to tie [her] likeness to it.” Plaintiff repeated these contradictory statements in her declaration, which indicates she knew the information was inaccurate. Consequently, such inconsistencies weigh in favor of finding that Defendant has shown a reasonable likelihood of proving actual malice by clear and convincing evidence….
However, the court concluded there was insufficient evidence of knowing or reckless falsehood as to the “most damage” statement:
Defendant contends that when Plaintiff made her public remarks, she knew that “prominent individuals and entities” had discussed her link to the crash and that those individuals had a far broader reach than anything Defendant posted. Yet such evidence does not support an inference that Plaintiff harbored serious doubts about the truth of the statements or was acutely aware of their probable falsity. Moreover, Defendant provides no additional evidence to bolster a claim of actual malice here.
{A simple illustration demonstrates both the point and the distinction between Plaintiff’s “likeness” statements. Suppose five bloggers, each with five followers, all post that a famous actor is having an affair (which did not occur). Later, a podcaster with millions of followers reports the same. A major outlet like the New York Times—far larger in audience than the podcaster—then runs a story about the actor’s alleged affair. If the actor asserts that the podcaster was the first to publish the story, knowing that five other bloggers had already done so, the actor would be knowingly making a false statement and thus acting with actual malice.
Conversely, the mere fact that the actor asserts the podcaster caused the most harm—even if the Times had a larger audience—does not necessarily prove actual malice; the actor might have reasonably believed (even if incorrectly) that the podcaster’s post lent credibility to the rumor and prompted others to repeat it. Here, Defendant has shown only that those with broader audiences also posted the false story. As the hypothetical demonstrates, this does not automatically establish actual malice in Plaintiff’s claim that Defendant caused the most damage.
[F.] Finally, the court determines that Defendant has sufficiently alleged damages, as required by Colorado law:
Specifically, he alleges that Plaintiff’s statements caused: (1) significant strain and stress within his family life, and (2) distress arising from a damaged reputation. Although Plaintiff contends that these damages were stated in a conclusory fashion, the Court finds the presented evidence adequate to meet Defendant’s burden at this stage.
The court thus denies Plaintiff’s motion to dismiss as to the “likeness” / “first one to tie” statements, which means Defendant’s counterclaim may advance (though this does not guarantee ultimate victory for the Defendant).
