Spacecon Specialty Contractors v. Bensinger ( 2013 )


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  •                                                                      FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
    
                                                                   April 15, 2013
                                          PUBLISH              Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS
    
                                   TENTH CIRCUIT
    
    
    
     SPACECON SPECIALTY
     CONTRACTORS, LLC,
    
                 Plaintiff - Appellant,
     v.                                                    No. 11-1139
     RICHARD BENSINGER, an individual,
    
                 Defendant - Appellee.
    
    
            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLORADO
                     (D.C. NO. 1:09-CV-02080-REB-KLM)
    
    
    Lawrence W. Marquess (Christopher M. Leh, Danielle L. Kitson, and Allison R.
    Cohn, with him on the briefs), Littler Mendelson, P.C., Denver, Colorado,
    Attorneys for Plaintiff - Appellant.
    
    Thomas B. Kelley, Levine Sullivan Koch & Schulz, L.L.P., Denver, Colorado
    (Daniel M. Shanley and Jody Borrelli, DeCarlo, Connor & Shanley, A
    Professional Corporation, Los Angeles, California; and Steven D. Zansberg,
    Levine Sullivan Koch & Schulz, L.L.P., Denver, Colorado, with him on the brief),
    Attorneys for Defendant - Appellee.
    
    
    Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
    
    
    MURPHY, Circuit Judge.
    I.    Introduction
    
          Richard Bensinger produced and screened a film about Spacecon Specialty
    
    Contractors, LLC. Claiming the film conveyed several defamatory statements,
    
    Spacecon filed suit against Bensinger in the United States District Court for the
    
    District of Colorado, based on diversity jurisdiction, asserting a state-law claim
    
    for defamation per se. The district court granted Bensinger’s motion for summary
    
    judgment, concluding the messages conveyed by the film involve matters of
    
    public concern and Spacecon did not show Bensinger published the film with
    
    actual malice. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court
    
    affirms.
    
    II.   Background
    
          Richard Bensinger is a consultant for the United Brotherhood of Carpenters
    
    And Joiners of America. In 2008, Bensinger was asked by David Wilson, the
    
    Assistant Director of Organizing for the Carpenters District Council of Kansas
    
    City and Vicinity and its Local Union No. 55 (collectively the “Union”) to create
    
    a film about Spacecon. Bensinger agreed. During their initial conversations,
    
    Wilson made clear to Bensinger the Union was engaged in a campaign against
    
    Spacecon because Spacecon did not pay its employees area standards wages and
    
    benefits, i.e., those wages and benefits required by the Union’s labor agreements
    
    with its signatory contractors.
    
    
    
    
                                             -2-
          The film was inspired by a series of local news reports about a group of
    
    approximately 100 workers from Mexico who were stranded in Glenwood
    
    Springs, Colorado, in late 2007 and early 2008 (the “Stranded Workers” and the
    
    “Glenwood Springs incident”). According to the news reports, the workers were
    
    brought to Colorado from Mexico by JNS Construction Services, LLC, to work at
    
    a hotel project for Midwest Drywall Company, Inc. After arriving in Colorado,
    
    the Stranded Workers were told they were no longer needed for the construction
    
    work they were promised. It appears some did find work but claimed they were
    
    paid below minimum wage. They were housed in a hotel for extended periods of
    
    time with as many as ten people per room and inadequately fed. In January 2008
    
    many of the Stranded Workers filed suit against, inter alia, JNS, Midwest, and
    
    Leno & Company, a labor broker that allegedly recruited the workers for JNS.
    
    The complaint did not name Spacecon as a party or otherwise mention Spacecon.
    
          The Union sent two of its representatives to conduct videotaped interviews
    
    of the Stranded Workers. According to the Union, several of the Stranded
    
    Workers stated that Leno told them they were brought to Colorado to work for
    
    Spacecon. After these interviews were conducted, Wilson contacted Bensinger
    
    about making the film.
    
          The film is entitled “Looking the Other Way: Benefitting from Misery.” It
    
    is presented as a documentary and consists primarily of videotaped interviews of
    
    
    
    
                                            -3-
    various individuals, including several foreign construction workers. 1 The film
    
    addresses alleged abuse and discrimination suffered by these workers, including
    
    under-payment, misclassification of employees as independent contractors, and
    
    trafficking of foreign workers from Mexico. Some of the alleged abuses are
    
    attributed directly to Spacecon. The majority of the alleged abuses, however, are
    
    attributed to Leno, which provided laborers to various companies, including
    
    Spacecon. The film explicitly represents that Spacecon used Leno to obtain
    
    workers for Spacecon projects. Spacecon does not dispute it used Leno to
    
    provide laborers to supplement its own workforce on three of its projects and was
    
    under contract with Leno at the time of the Glenwood Springs incident. Spacecon
    
    terminated its relationship with Leno in May 2008.
    
          A significant portion of the film is devoted to the Glenwood Springs
    
    incident. The film includes videotaped interviews with the Stranded Workers and
    
    excerpts of television and newspaper coverage of the Glenwood Springs incident.
    
          The film also includes interviews and statements from several other
    
    individuals. One of those individuals is Kevin Ott, President of Swinerton
    
    Builders, a general contractor that has worked with Spacecon. In the interview,
    
          1
            While the parties use the term immigrant worker, it appears from the
    record the term foreign worker is more appropriate. A foreign worker is an
    individual who works in the United States but is a citizen of another country,
    including both a temporary (nonimmigrant) and a permanent (immigrant) worker.
    See U.S. Citizenship and Immigration Services, Working in the U.S.,
    http://www.uscis.gov/portal/site/uscis (follow “Working in the US” hyperlink)
    (last updated Jan. 26, 2012).
    
                                            -4-
    Ott defends Spacecon. He states that Spacecon has always done a good job for
    
    Swinerton, and he has not seen any evidence indicating Spacecon violated the law
    
    by using illegal foreign workers. The film also includes statements made by
    
    Wilson, who says Spacecon can outbid other contractors because it uses labor
    
    brokers and is not paying taxes, which gives it an advantage. The film also
    
    includes an interview with Bud Stratton, President of E&K Construction in
    
    Denver, who says his company cannot bid projects as low as Spacecon because of
    
    how little Spacecon pays its workers, implying Spacecon pays less than E&K.
    
          Bensinger relied on several sources in making the film. He consulted
    
    newspaper articles and television reports about the Glenwood Springs incident;
    
    newspaper articles about alleged abuse and discrimination suffered by foreign
    
    workers at the hands of Leno and Spacecon; the complaint filed by the Stranded
    
    Workers; videotaped interviews of the Stranded Workers conducted by members
    
    of the Union; interviews he conducted of two of the Stranded Workers; interviews
    
    he conducted of other workers alleging abuse and discrimination; and statements
    
    and information provided by Wilson, Stratton, and Ott.
    
          Bensinger was compensated for his work on the film as part of a regular
    
    $7,500 monthly retainer from the United Brotherhood. The United Brotherhood
    
    also reimbursed the expenses Bensinger incurred in making the film. Spacecon
    
    claims Bensinger delegated all of the editing and much of the filming to members
    
    of the Union, including Wilson, who worked with a graduate film student paid by
    
                                            -5-
    the United Brotherhood. Spacecon also claims all of the interviewees Bensinger
    
    relied on in making the film were recruited by the Union and that Bensinger, who
    
    does not speak Spanish, delegated the interviews in Spanish to Union members.
    
          Shortly before the film was screened but after the screening had been
    
    scheduled and invitations distributed, Bensinger sent a letter to John Banks,
    
    Spacecon’s then-President, and Kirk Lidell, CEO and President of Spacecon’s
    
    parent company, asking to interview them on camera regarding “allegations made
    
    by [Spacecon’s] employees and others that concern the abuse of [foreign] labor by
    
    Spacecon.” Banks responded by letter, stating he would be willing to review the
    
    film and provide information necessary to correct any false or misleading
    
    statements. Bensinger refused to allow Banks to view the film, but emailed
    
    Banks a list of questions regarding the allegations. In his response, Banks denied
    
    many of the allegations and provided information directly contradicting some of
    
    the messages Spacecon claims were conveyed by the film, e.g., that Spacecon was
    
    involved in or responsible for the Glenwood Springs incident.
    
          Following these communications, the film was screened to an audience of
    
    approximately fifty people at the Tivoli Center in Denver in March 2009 (the
    
    “Tivoli screening”). Bensinger claims the screening was organized and sponsored
    
    by Union representatives along with members of the Denver City Council.
    
    Councilman Paul Lopez gave a speech at the screening. The screening was
    
    followed by a discussion of the policy implications of the film, which was led by
    
                                            -6-
    a panel of experts, including experts on human trafficking and misclassification
    
    of employees as independent contractors. A copy of Banks’s responses to
    
    Bensinger’s questions was distributed to the audience. The film was also
    
    screened on at least two other occasions, once at a monthly Union meeting
    
    attended by approximately twelve representatives of various signatory contractors
    
    and Union members, and again at a second meeting attended by approximately ten
    
    E&K employees and Union members.
    
           Spacecon filed this diversity suit against Bensinger, alleging defamation
    
    per se under Colorado law based on the messages it claims were conveyed by the
    
    film, the invitation to the Tivoli screening, and a poster advertising the film.
    
    Bensinger filed a motion for summary judgment, which was granted by the
    
    district court. Spacecon appeals, arguing the alleged defamatory statements do
    
    not involve matters of public concern, and, even if they do, Spacecon has shown
    
    Bensinger published the film with actual malice.
    
    III.   Analysis
    
           A.    Matters of Public Concern
    
           Spacecon argues the messages conveyed by the film do not involve matters
    
    of public concern and, therefore, it need not show Bensinger published the film
    
    with actual malice. Because the district court granted Bensinger’s motion for
    
    summary judgment and because, under Colorado law, whether a matter is of
    
    public concern is a question of law for the court, this issue is reviewed de novo.
    
                                              -7-
    Quigley v. Rosenthal, 
    327 F.3d 1044
    , 1057-58 (10th Cir. 2003); Walker v.
    
    Colorado Springs Sun, Inc., 
    538 P.2d 450
    , 459 (Colo. 1975).
    
          The Supreme Court has declined to impose a federal standard of liability
    
    for allegedly defamatory statements about private individuals, instead giving that
    
    responsibility to the States. Gertz v. Robert Welch, Inc., 
    418 U.S. 323
    , 347
    
    (1974) (“[S]o long as they do not impose liability without fault, the States may
    
    define for themselves the appropriate standard of liability for a publisher or
    
    broadcaster of defamatory falsehood injurious to a private individual.”). 2 The
    
    Colorado Supreme Court has extended the actual malice standard to defamatory
    
    statements about private individuals when the statements involve a matter of
    
    public concern. Walker, 538 P.2d at 457; see also Diversified Mgmt., Inc. v.
    
    Denver Post, Inc., 
    653 P.2d 1103
    , 1106 (Colo. 1982). 3 This standard requires a
    
          2
             Gertz v. Robert Welch, Inc., 
    418 U.S. 323
    , 349 (1974), held “that the
    States may not permit recovery of presumed or punitive damages, at least when
    liability is not based on a showing of” actual malice. In Dun & Bradstreet, Inc. v.
    Greenmoss Builders, Inc., 
    472 U.S. 749
    , 761 (1985), the Supreme Court clarified
    that if the allegedly defamatory statement did not involve matters of public
    concern, a plaintiff may recover presumed or punitive damages even absent a
    showing of actual malice.
          3
           Spacecon asserts it need not show the allegedly defamatory statements
    were published with actual malice because, under Colorado law, the actual malice
    standard only applies to defamatory statements published by media defendants
    and Bensinger is not a media defendant. Colorado, however, does not limit
    application of the actual malice standard to cases involving media defendants.
    Walker v. Colorado Springs Sun, Inc., 
    538 P.2d 450
    , 457 (Colo. 1975) (holding
    the actual malice standard applies when “the matter involved is of public or
    general concern”); accord Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d
                                                                         (continued...)
    
                                             -8-
    plaintiff to show the defamatory statement “was known by the declarant to be
    
    false or was made with reckless disregard for its truth.” Quigley, 327 F.3d at
    
    1058; accord New York Times Co. v. Sullivan, 
    376 U.S. 254
    , 279-80 (1964).
    
          Colorado courts have indicated “a matter is of public concern whenever it
    
    embraces an issue about which information is needed or is appropriate, or when
    
    the public may reasonably be expected to have a legitimate interest in what is
    
    being published.” Williams v. Continental Airlines, Inc., 
    943 P.2d 10
    , 17 (Colo.
    
    App. 1996) (quotations omitted).
    
          [M]ore specifically, a matter is of public concern when it can be
          fairly considered as relating to any matter of political, social, or
          other concern to the community, or when it involves the use of
          names, likenesses or facts in giving information to the public for
          purposes of education, amusement, or enlightenment when the public
    
    
          3
           (...continued)
    1103, 1106 (Colo. 1982) (reiterating that Walker extended “constitutional
    protection to any discussion involving matters of public concern” (emphasis
    added)).
    
           Contrary to Spacecon’s assertions, neither Rowe v. Metz, 
    579 P.2d 83
    , 84-
    85 (Colo. 1978), nor People v. Ryan, 
    806 P.2d 935
    , 939-40 (Colo. 1991), held
    otherwise. Rowe held that when the reputation of a private plaintiff has been
    injured by a non-media defendant in a purely private context, and the remarks are
    defamatory per se, the actual malice standard does not apply. 579 P.2d at 85.
    Rowe acknowledged, however, the “need for constitutional protection of freedom
    of the press and free speech whenever . . . issues of public concern are involved.”
    Id. at 84. Ryan reiterated the actual malice standard does not apply in situations
    “where one private person disseminates defamatory statements about another
    private individual in the victim’s community,” i.e., “in a purely private context.”
    806 P.2d at 939. Thus, neither Rowe nor Ryan held application of the actual
    malice standard is limited to defamatory statements published by media
    defendants.
    
                                            -9-
          may reasonably be expected to have a legitimate interest in the
          subject.
    
    McIntyre v. Jones, 
    194 P.3d 519
    , 525 (Colo. App. 2008) (citation and quotations
    
    omitted); accord Kemp v. State Bd. of Agric., 
    803 P.2d 498
    , 503 (Colo. 1991); see
    
    also City of San Diego v. Roe, 
    543 U.S. 77
    , 83-84 (2004) (holding a matter is of
    
    public concern when it is “a subject of legitimate news interest; that is, a subject
    
    of general interest and of value and concern to the public”).
    
          Whether a matter is of public concern “must be determined on a case-by-
    
    case basis.” Williams, 943 P.2d at 17. “In determining whether statements
    
    involve a matter of public concern, [a court] must analyze the content, form, and
    
    context of the statements, in conjunction with the motivation or ‘point’ of the
    
    statements as revealed by the whole record.” McIntyre, 194 P.3d at 525
    
    (quotation omitted); accord Snyder v. Phelps, 
    131 S. Ct. 1207
    , 1216 (2011).
    
    “[T]he balance should be struck in favor of a private plaintiff if his or her
    
    reputation has been injured by a non-media defendant in a purely private
    
    context.” Williams, 943 P.2d at 18; accord People v. Ryan, 
    806 P.2d 935
    , 939-40
    
    (Colo. 1991); Rowe v. Metz, 
    579 P.2d 83
    , 84-85 (Colo. 1978). Nevertheless, in
    
    Colorado, “[p]ublic concern is interpreted broadly.” Hoeper v. Air Wisc. Airlines
    
    Corp., 
    232 P.3d 230
    , 241 (Colo. App. 2009).
    
          Spacecon claims the film, along with the poster advertising the film and the
    
    invitation to the screening of the film, conveyed the following false and
    
    
                                             -10-
    defamatory messages: (1) “Spacecon was involved with the Stranded Workers and
    
    responsible for the Glenwood Springs [incident],” (2) “Spacecon contracts with
    
    ‘labor brokers,’” including Leno, “knowing at the time that they hire [foreign
    
    workers,] that the [workers] will not be covered by workers’ compensation
    
    insurance[,] that the [workers] will be unpaid or underpaid[,] and that, if paid, the
    
    [workers] will be paid without the legally required . . . payment of employment
    
    taxes,” (3) “Spacecon engages in human trafficking, tax evasion, and insurance
    
    fraud,” (4) “Spacecon evades taxes by routinely misclassifying . . . its own . . .
    
    employees as independent contractors whom it pays without . . . paying
    
    employment taxes,” (5) “Spacecon mistreats its employees by abusing Hispanic
    
    [foreign] workers,” and (6) “Spacecon engages in these actions, including human
    
    trafficking, tax evasion, and insurance fraud,” and contracts with labor brokers
    
    like Leno who also engage in these actions, “to lower its labor costs and to submit
    
    low bids to win many projects.” For purposes of analysis, this court assumes
    
    these messages can be inferred and that they are false.
    
          In analyzing content, form, context, and motivation, McIntyre, 194 P.3d at
    
    525, Spacecon does not dispute that content weighs in favor of a conclusion the
    
    messages involve matters of public concern and makes no argument regarding the
    
    form of the messages. Instead, Spacecon’s argument is focused on the context
    
    and motive. Spacecon asserts the film manifests a purely private context, and that
    
    Bensinger’s motive in making the film was to harm Spacecon’s reputation. In
    
                                             -11-
    this manner, it argues the messages conveyed by the film do not involve matters
    
    of public concern.
    
          1.     Context
    
          Spacecon asserts the messages conveyed by the film occurred in a purely
    
    private context because they are essentially accusations made by Bensinger, a
    
    non-media defendant, against Spacecon, a private company, as part of the ongoing
    
    dispute between Spacecon and the Union. Colorado courts have held a statement
    
    involves a matter of public concern if its message has the potential to impact
    
    many members of the public or the public as a whole. See Diversified Mgmt., 653
    
    P.2d at 1108; Lewis v. McGraw-Hill Broad. Co., 
    832 P.2d 1118
    , 1121 (Colo. App.
    
    1992). Diversified Management held a matter was of public concern when it
    
    involved “alleged widespread and ongoing land-development schemes of
    
    questionable propriety,” and “the ‘public’ contained a number of potential buyers
    
    who had an abiding interest in the matter.” 653 P.2d at 1108. Lewis held a
    
    statement involved a matter of public concern when it was made “in the context
    
    of a persistent and concededly public controversy over [a major retailer’s]
    
    policies toward minorities, a controversy triggered by publicity surrounding
    
    plaintiffs’ $15 million lawsuit and their allegations of racially discriminatory
    
    policies by [the retailer].” 832 P.2d at 1121.
    
          Colorado courts have also made clear that a statement made in a purely
    
    private context does not involve a matter of public concern. Ryan, 806 P.2d at
    
                                            -12-
    939; Rowe, 579 P.2d at 84-85. In Ryan, the defendant, plaintiff’s former
    
    boyfriend, was charged with criminal libel when he mailed a fictitious “Wanted”
    
    poster to several local establishments. 806 P.2d at 936. The poster contained
    
    plaintiff’s picture and name, and stated she was wanted for, among other things,
    
    fraud, spouse abuse, child-abuse, sex abuse, abuse of the elderly, prostitution,
    
    assault, and larceny. Id. The poster also stated the plaintiff had a venereal
    
    disease and was at a high risk for AIDS. Id. The defendant filed a motion to
    
    dismiss, arguing that, while the criminal libel statute was constitutional as applied
    
    to him, it was facially unconstitutional because it did not require a showing of
    
    actual malice for false statements about public officials. Id. at 937 & n.5. The
    
    trial court granted the defendant’s motion but the Colorado Supreme Court
    
    reversed, holding “[t]he statute remain[ed] valid to the extent that it penalizes
    
    libelous attacks under the facts of this case.” Id. at 937, 941. The court
    
    elaborated: “[I]t is inappropriate to require that defamatory false statements must
    
    be made with ‘actual malice’ in situations, such as the present case, where one
    
    private person disseminates defamatory statements about another private
    
    individual in the victim’s community.” Id. at 939.
    
          Similarly, in Quigley, this court held that statements made by an attorney
    
    for a civil rights group at a press conference and on a radio show alleging the
    
    plaintiffs were anti-Semitic and engaged in anti-Semitic harassment did not
    
    involve a matter of public concern under Colorado law. 327 F.3d at 1058-61.
    
                                             -13-
    The court noted that, because the statements were made by a non-media defendant
    
    and concerned private plaintiffs, “the balance would seem to tip in favor of
    
    concluding that the matter was of private, rather than public, concern.” Id. at
    
    1059-60. It went on to consider, however, whether the matter was of public
    
    concern because the statements concerned allegations of religious and ethnic
    
    discrimination made as part of a civil lawsuit. Id. at 1060-61. While the court
    
    acknowledged that, under Colorado law, an allegation of racial or ethnic
    
    discrimination likely involves a matter of public concern, it concluded the
    
    allegations of discrimination at issue did not. The court first noted the allegations
    
    were not asserted against a public employer or an entity or individual with which
    
    the general public had contact and concluded “there was no concern that the
    
    public’s tax dollars were supporting discrimination” or “that members of the
    
    public were likely to be harmed or discriminated against.” Id. at 1061. The court
    
    then noted that, because the defendants were intimately familiar with the
    
    allegations and the individuals who made them, they knew or should have known
    
    the allegations of discrimination were baseless. Id.
    
          Here, the messages conveyed by the film have the potential to impact many
    
    members of the public or the public as a whole. Like in Diversified Management,
    
    the public includes current and potential employees, business owners, and
    
    government officials who have an abiding interest in matters discussed in the
    
    film, such as human trafficking, tax evasion, insurance fraud, and the
    
                                             -14-
    mistreatment of foreign workers. Moreover, as in Lewis, the film alleges racial
    
    and ethnic discrimination and abuse by Leno, a labor broker used by Spacecon
    
    and other contractors, and by Spacecon itself, which employs hundreds of
    
    individuals.
    
          The facts of this case stand in stark contrast to those in Ryan, where the
    
    defamatory statements were published by the plaintiff’s former boyfriend as part
    
    of a personal attack on the plaintiff’s character in her community. Unlike in
    
    Quigley, the allegations at issue here were made against a company with which
    
    the general public has contact and thus exposure to discrimination and abuse.
    
    Moreover, unlike in Quigley, even assuming the allegations of discrimination in
    
    the film are false, by virtue of his role in the film’s preparation, Bensinger would
    
    not have been so intimately familiar with the underlying factual circumstances
    
    that he would have known or should have known the allegations were baseless.
    
          While Spacecon points out that the audiences were small and came by
    
    invitation, this does not indicate the film was shown in a purely private context.
    
    Bensinger announced at the Tivoli screening he intended to release the film
    
    widely to the public in the fall of 2009. Indeed, the invitation to the Tivoli
    
    screening indicates it was a “pre-release screening” of the film. Moreover, the
    
    audience to which the film was screened included elected officials and other
    
    policymakers, weighing in favor of concluding it was not shown in a purely
    
    private context. See Kemp, 803 P.2d at 504 (“[T]he form of the speech—a letter
    
                                             -15-
    to a United States senator, only lends credence to the argument that the speech
    
    touched on a matter of public concern.”). In addition, the Tivoli screening was
    
    organized and sponsored in part by members of the Denver City Council and
    
    included a speech by a councilman discussing significant social issues addressed
    
    by the film. It was also followed by a panel discussion led by experts on human
    
    trafficking and employee misclassification as independent contractors. These
    
    facts further illustrate the film was not published in a purely private context. In
    
    sum, the context suggests the messages conveyed involve matters of public
    
    concern.
    
          2.     Motivation
    
          Spacecon argues Bensinger’s motive in making the film was to benefit the
    
    Union by harming Spacecon’s reputation and ultimately its business, rather than
    
    to expose a public wrong or harm. Spacecon points out that Midwest, a Union
    
    signatory, was identified in the newspaper articles and lawsuit as a contractor
    
    involved in the Glenwood Springs incident but was never mentioned in the film,
    
    even though Bensinger knew Midwest had used Leno. Spacecon also points out
    
    that JNS, the company that procured the Stranded Workers’ visas, arranged for
    
    their travel to Colorado, and was consistently named in the news reports as the
    
    party responsible for the Glenwood Springs incident, was barely mentioned in the
    
    film. In addition, Spacecon asserts Bensinger’s history as a union affiliate, and
    
    his current consulting position for the United Brotherhood, indicate he was
    
                                             -16-
    unlikely to be concerned with the truth of what he was publishing. Spacecon
    
    points out that Bensinger delegated to Wilson and other Union agents the
    
    responsibility for procuring interviewees for the film, editing the film, and
    
    selecting invitees to the screening, despite knowing the Union and its agents were
    
    biased against Spacecon. Finally, Spacecon argues the Union, which sponsored
    
    the film, had an ongoing conflict with Spacecon, indicating the film’s reference to
    
    matters of public concern was intended to mask an attack on Spacecon over a
    
    private matter.
    
          In support of its argument, Spacecon relies on Snyder,131 S. Ct. at 1217,
    
    and Sky Fun 1, Inc. v. Schuttloffel, 
    8 P.3d 570
    , 575 (Colo. App. 2000). In Snyder,
    
    the Supreme Court noted that evidence of a pre-existing conflict between the
    
    parties and a resulting motivation to harm may demonstrate that speech on public
    
    matters was intended to mask an attack over a private matter. 131 S. Ct. at 1217.
    
    In Skyfun 1, the Colorado Court of Appeals held, without elucidation, that
    
    statements concerning a defendant’s abilities as a pilot were not matters of public
    
    concern because they were “not made to protect the safety of the flying public,
    
    but instead were made in an attempt to preclude defendant’s employment with
    
    [an] airline.” 8 P.3d at 575.
    
          Any pro-union, anti-Spacecon bias on Bensinger’s part does not alone
    
    indicate he was unlikely to be concerned with the truth of what he was publishing.
    
    Spacecon fails to cite any supporting authority to the contrary. Bensinger was a
    
                                             -17-
    consultant for the United Brotherhood, which paid for the film, and he delegated
    
    many of the critical film-making tasks to members of the Union knowing the
    
    Union was embroiled in a campaign against Spacecon. These facts do show
    
    Bensinger may have had a motive to harm Spacecon. See Snyder, 131 S. Ct. at
    
    1217. Any such motivation, however, does not necessarily render the messages
    
    conveyed by the film matters of purely private rather than public concern. See
    
    Kemp, 803 P.2d at 503-04 (holding that even though an employee’s statement was
    
    “partially, if not entirely, motivated by self-interest,” it nevertheless touched on a
    
    matter of public concern); accord Connick v. Myers, 
    461 U.S. 138
    , 149 (1983)
    
    (concluding that an employee’s statement, which arose out of a personal dispute
    
    with her employer and was aimed at solving a private problem, touched on a
    
    matter of public concern). 4 Other than the dispute between the Union and
    
    Spacecon, there is no evidence supporting a conclusion Bensinger’s possible
    
    motive to harm Spacecon demonstrates the film’s depiction of public matters was
    
    
          4
            Sky Fun 1 is not to the contrary. In that unusual case, the trial court found,
    beyond a reasonable doubt, that the defamatory statements were made
    maliciously, for the sole purpose of attempting to ruin the career of the subject of
    the statements. Sky Fun 1, Inc. v. Schuttloffel, 
    8 P.3d 570
    , 575-76 (Colo. App.
    2000). The Colorado Supreme Court has made clear, however, that the mere
    presence of self-interest will not convert a matter of public concern into a purely
    private matter. Kemp v. State Board of Agriculture, 
    803 P.2d 498
    , 503-04 (Colo.
    1990). Here, the record reveals the Union’s (and, by extension, Bensinger’s)
    dispute with Spacecon revolved around issues that implicated matters of public
    concern. That the film elucidated those matters of public concern while
    simultaneously advancing the Union’s private interests does not render the matter
    entirely private. Id.
    
                                             -18-
    intended to mask an attack on Spacecon over a private matter. That is not
    
    enough.
    
          In sum, while there is some evidence Bensinger’s motive in making the
    
    film may have been to harm Spacecon, the content, context, and, arguably, the
    
    form of the film (a documentary meant to be shown to the public), support the
    
    conclusion the messages involve matters of public concern. Therefore, Spacecon
    
    must show Bensinger published the film with actual malice.
    
                 3. The Dissent
    
          According to the dissent, the panel majority errs in considering Bensinger’s
    
    knowledge of falsity or reckless publication of false statements in analyzing
    
    whether his statements implicate a matter of public concern. Dissenting Op. at 1-
    
    10. This court’s opinion in Quigley, however, mandates just such an analysis.
    
    Quigley began its analysis of Colorado’s public-concern doctrine by noting the
    
    statements at issue in that case, allegations of “religious and/or ethnic
    
    discrimination,” would generally be “sufficient to trigger public concern.” 327
    
    F.3d at 1060. It concluded the statements did not, however, implicate Colorado’s
    
    public-concern doctrine because, inter alia, the speaker knew the allegations were
    
    “baseless” and/or “not colorable.” Id. at 1061. That is, Quigley specifically held
    
    that, as a matter of Colorado law, a defendant’s knowledge of the falsity of a
    
    statement or his reckless publication of a false statement bears on whether that
    
    
    
    
                                            -19-
    statement implicates a public concern. 5 Pursuant to this court’s construction of
    
    Colorado law, a statement whose falsity is so apparent that it is “baseless” does
    
    not implicate a matter of public concern. Id. This panel is bound by Quigley’s
    
    interpretation of Colorado law. See Stauth v. Nat'l Union Fire Ins. Co. of
    
    Pittsburgh, 
    236 F.3d 1260
    , 1267 (10th Cir. 2001) (“[A]ny panel of this Court
    
    [must] follow an earlier panel’s interpretation of state law, absent a supervening
    
    
    
    
          5
           In concluding the allegations of discrimination did not touch a matter of
    public concern, Quigley concluded as follows:
    
          [M]ost importantly, [the defendants] were intimately familiar with
          [the facts surrounding the allegations of discrimination]. Unlike a
          third-party (e.g., newspaper reporter) unfamiliar with the parties to a
          lawsuit or its underlying facts, [the defendants] were in a position to
          know, and indeed knew or should have known, that the allegations in
          the . . . lawsuit were baseless. Accordingly, we are unable to
          conclude that [the plaintiffs’] comments at the press conference and
          on the radio show involved matters of “public concern” since [they]
          knew or should have known . . . the . . . allegations of racial
          discrimination/harassment were not colorable. See Kemp v. State Bd.
          of Agric., 
    803 P.2d 498
    , 504 (Colo.1990) (“When an employee
          alleges a colorable claim that a university is guilty of racial
          discrimination, it is a matter of public concern.”) (emphasis added);
          see generally Hutchinson v. Proxmire, 
    443 U.S. 111
    , 135 (1979)
          (“those charged with defamation cannot, by their own conduct, create
          their own defense”); Snead v. Redland Aggregates, Ltd., 
    998 F.2d 1325
    , 1330 (5th Cir.1993) (“A speaker cannot turn his speech into a
          matter of public concern simply by issuing a press release.”). We
          agree with the district court that the statements made by [the
          plaintiffs] at the press conference and during the radio show did not
          involve matters of public concern.
    
    Quigley v. Rosenthal, 
    327 F.3d 1044
    , 1061 (10th Cir. 2003).
    
                                            -20-
    declaration to the contrary by that state’s courts or an intervening change in the
    
    state law.”).
    
          The dissent begrudgingly acknowledges Quigley “contains language that
    
    supports the position of the panel opinion.” Dissenting Op. at 7. The dissent
    
    nevertheless asserts that because the entire panel agrees the statements at issue
    
    here involve matters of public concern, this panel should simply ignore Quigley.
    
    Dissenting Op. at 10 (“Although we cannot violate precedent, we have no
    
    obligation to cite it. There is ample precedent to support this panel’s (unanimous)
    
    view that the statements here were on a matter of public concern without relying
    
    on Quigley. I would think it better practice not to cite precedent for a highly
    
    questionable proposition unless that precedent appears to require a result that
    
    would not otherwise obtain.”). 6 Alternatively, the dissent asserts this panel
    
    should engage in its version of best practices by engaging in an extended critique
    
    of Quigley so “litigants and courts can anticipate [its] possible overruling.”
    
    Dissenting Op. at 10. While tips on opinion writing are appreciated, those offered
    
    by the dissent are inapt.
    
          6
            The dissent’s suggestion to ignore the holding in Quigley is puzzling given
    the extensive dissent in Quigley on this very issue. As does the dissent in this
    case, the dissent in Quigley interpreted Colorado law to require a court to assume
    the truthfulness of an allegedly defamatory statement in resolving the question of
    public concern. 327 F.3d at 1076 (Hartz, J., dissenting). The dissent in Quigley
    is built on a premise irreconcilable with Quigley’s holding that knowledge of
    falsity is pertinent to the question of public concern. Id. at 1061. Likewise, the
    dissent here is irreconcilable with Quigley’s holding that knowledge of falsity is
    pertinent to the question of public concern. Dissenting Op. at 1-10.
    
                                             -21-
          In any event, the dissent’s assertion that truth or falsity is obviously
    
    irrelevant to the public concern analysis is simply not borne out by the case law.
    
    The federal circuits are divided over this very issue. See Westmoreland v.
    
    Sutherland, 
    662 F.3d 714
    , 720-21 (6th Cir. 2011) (“[O]ther courts have divided
    
    over whether intentionally or recklessly false statements fall outside the
    
    protection of the First Amendment, or whether such falsity is to be weighed as
    
    part of the Pickering balancing.”). This court has specifically held truth or falsity
    
    is relevant to the question whether a given statement implicates a matter of public
    
    concern:
    
                 Presumably, the issue of the truth or falsity of the statements at
          issue is relevant to both the threshold public concern analysis and the
          balancing required under Pickering. It is difficult to see how a
          maliciously or recklessly false statement could be viewed as
          addressing a matter of public concern. Nonetheless, a merely
          erroneous statement may be of public concern. See Brasslett v. Cota,
          
    761 F.2d 839
    , 844 (1st Cir.1985). Similarly, under Pickering’s
          balancing test, as the First Circuit noted in Brasslett, an employer
          will have a significant interest in “curtailing deliberate falsehoods,”
          while the employee’s interest in making such statements will, of
          necessity, be slight, whereas merely “erroneous statements of public
          concern will be protected unless they are shown to have interfered
          with the employee’s performance or the regular operation of his
          governmental agency.” Id. at 844. We address the falsity issue here,
          in the context of our public concern analysis, but note that the
          finding that a statement is or is not maliciously or recklessly false is
          a factor to be considered in both the public concern and the Pickering
          balancing analyses.
    
    
    
    
                                             -22-
    Wulf v. City of Wichita, 
    883 F.2d 842
    , 858 & n.24 (10th Cir. 1989). 7 Likewise, as
    
    noted in Quigley, there is at least some reason to believe Colorado follows a
    
    similar approach, as its highest court has indicated only “colorable” claims of
    
    racial discrimination will relate to a public concern. Kemp, 803 P.2d at 504 (cited
    
    in Quigley, 327 F.3d at 1061). As a consequence, especially when coupled with a
    
    complete lack of briefing on the issue, this is not an appropriate setting to critique
    
    this court’s binding precedent in Quigley. Nor, for those same reasons, is it
    
    appropriate to signal concern to “future litigants and courts [to] anticipate
    
    possible overruling of the precedent” or “alert the state court . . . not . . . to adopt
    
    our precedent.” Dissenting Op. at 10.
    
          As to the dissent’s practice pointer that the panel just ignore Quigley, it
    
    would instead seem to be the better practice to note, rather than ignore, a directly
    
    applicable precedent that is cited and discussed extensively in the parties’ briefs.
    
    
    
    
          7
            To reiterate, the point of departure with the dissent is the question whether
    a speaker’s knowledge of the falsity of his statements is relevant, under Colorado
    state law, to this court’s public concern analysis. As even the dissent recognizes,
    Quigley is dispositive of this question. Dissenting Op. at 7. We note the lack of
    clarity on the precise parameters of the public concern doctrine in federal case
    law not in an effort to definitively define the doctrine, but instead to demonstrate
    the general weakness in the dissent’s assertion that Quigley is so clearly incorrect
    that this panel has an obligation to say so.
    
                                              -23-
          B.     Actual Malice
    
          “Whether the evidence in the record in a defamation case is sufficient to
    
    support a finding of actual malice is a question of law.” Lockett v. Garrett, 
    1 P.3d 206
    , 210 (Colo. App. 1999); accord Harte-Hanks Commc’ns, Inc. v.
    
    Connaughton, 
    491 U.S. 657
    , 685 (1989); see also Kuhn v. Tribune-Republican
    
    Publ’g Co., 
    637 P.2d 315
    , 318 (Colo. 1981). To meet its burden of showing
    
    actual malice, Spacecon must show by clear and convincing evidence Bensinger
    
    published the film with knowledge of its falsity or in reckless disregard of the
    
    truth. Lewis, 832 P.2d at 1122-23; accord Diversified Mgmt., 653 P.2d at 1109;
    
    see also DiLeo v. Koltnow, 
    613 P.2d 318
    , 323 (Colo. 1980) (holding the clear and
    
    convincing standard of proof must be applied at the summary judgment stage);
    
    accord Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 252-57 (1986) (same). To
    
    show reckless disregard, “the plaintiff must demonstrate that the defendant in fact
    
    entertained serious doubts as to the truth of the statement, or acted with a high
    
    degree of awareness of its probable falsity.” Lewis, 832 P.2d at 1123 (citations
    
    omitted) (affirming summary judgment for defendant-speaker); accord St. Amant
    
    v. Thompson, 
    390 U.S. 727
    , 731 (1968); Garrison v. Louisiana, 
    379 U.S. 64
    , 74
    
    (1964); Diversified Mgmt., 653 P.2d at 1110 (adopting St. Amant’s definition of
    
    reckless disregard). “That a reasonably prudent person would not have published
    
    the defamatory statements or would have investigated before publishing does not
    
    suffice.” Lewis, 832 P.2d at 1123.
    
                                            -24-
           Spacecon argues the evidence shows Bensinger either knew the messages
    
    conveyed by the film were false or acted in reckless disregard of whether they
    
    were true. In support of this argument, Spacecon relies on two categories of
    
    evidence: (1) evidence regarding the film’s preparation; and (2) evidence
    
    regarding two specific messages conveyed by the film. As set out below,
    
    Spacecon’s arguments in this regard are unconvincing. That is, viewing the
    
    evidence and drawing all reasonable inferences in Spacecon’s favor, no
    
    reasonable juror aware of the entire context surrounding the production and
    
    dissemination of the film could conclude by clear and convincing evidence that
    
    Bensinger included falsehoods in the film knowingly or with a reckless disregard
    
    for the truth. 8
    
    
    
    
           8
            Cf. Air Wisc. Airlines Corp. v. Hoeper, No. 09-SC-1050, 
    2012 WL 907764
    ,
    at *9 (Colo. March 19, 2012) (“[A] reviewing court must . . . examine for itself
    the statements in issue and the circumstances under which they were made to see
    whether they are of a character which the principles of the First Amendment
    protect. We must therefore undertake an independent review of the entire record
    to ensure that clear and convincing evidence supports a finding of actual malice.”
    (alterations, citations, and quotation omitted)); Harte-Hanks, 491 U.S. 695-96
    (“The question whether the evidence in the record in a defamation case is
    sufficient to support a finding of actual malice is a question of law. This rule is
    not simply premised on common-law tradition, but on the unique character of the
    interest protected by the actual malice standard. Our profound national
    commitment to the free exchange of ideas, as enshrined in the First Amendment,
    demands that the law of libel carve out an area of breathing space so that
    protected speech is not discouraged.” (quotations, citations, and footnote
    omitted)).
    
                                           -25-
          1.    Evidence Surrounding the Film’s Preparation
    
          Spacecon asserts evidence regarding the film’s preparation shows
    
    Bensinger knew the messages conveyed by the film were false or entertained
    
    serious doubts as to whether they were true. Spacecon argues Bensinger had a
    
    motive to make a false film about Spacecon to tarnish its reputation because he is
    
    a consultant to the Union, a long-time union official, and knew the Union was
    
    engaged in a campaign against Spacecon. Spacecon further asserts that
    
    Bensinger, knowing the Union and its members were biased against Spacecon,
    
    delegated critical film-making tasks to them, including the selection of
    
    interviewees and editing of the film, without appropriate direction and without
    
    independently investigating the truth of the messages conveyed. Spacecon
    
    minimizes Bensinger’s inquiry of Spacecon for its side of the story because it
    
    occurred a mere two weeks before the Tivoli screening, when preparations for the
    
    screening were finalized and the film was nearing completion. Moreover,
    
    Spacecon argues when Banks provided information directly contradicting the
    
    film’s messages, Bensinger chose not to investigate further, but instead screened
    
    the film the following day. Lastly, Spacecon asserts Bensinger allowed the film
    
    to be screened before it was complete, despite being under no time pressure to do
    
    so, because the Union was anxious to show it.
    
          The evidence does suggest Bensinger may have had a motive to harm
    
    Spacecon. The motivation behind a publication is a factor to consider in
    
                                            -26-
    determining whether the evidence shows a publisher acted with actual malice.
    
    Harte-Hanks, 491 U.S. at 668; 9 see also Burns v. McGraw-Hill Broad. Co., 
    659 P.2d 1351
    , 1362 (Colo. 1983). “[C]ourts must be careful,” however, “not to place
    
    too much reliance on [motive].” Harte-Hanks, 491 U.S. at 668. A publisher’s
    
    motive in publishing a story cannot, by itself, provide a sufficient basis for
    
    finding actual malice. Id. at 665; accord Old Dominion Branch No. 496 v. Austin,
    
    
    418 U.S. 264
    , 281-82 (1974) (stating that ill will toward the plaintiff or bad
    
    motives are not elements of actual malice and are insufficient standing alone to
    
    support a finding of actual malice). Thus, the evidence of Bensinger’s pro-union
    
    bias is not enough to show he acted with actual malice. Harte-Hanks, 491 U.S. at
    
    665; Tavoulareas v. Piro, 
    817 F.2d 762
    , 795 (D.C. Cir. 1987) (stating that a
    
    publisher’s “adversarial stance” may be “fully consistent with professional,
    
    investigative reporting” and is not necessarily “indicative of actual malice”
    
    (quotations omitted)).
    
    
    
          9
            While Colorado law governs in this case, Colorado courts adopted and
    have consistently applied the Supreme Court’s definition of actual malice to cases
    involving private plaintiffs and matters of public concern. See, e.g., Diversified
    Mgmt., 653 P.2d at 1106; Walker, 538 P.2d at 453, 456; Kuhn v. Tribune-
    Republican Publ’g Co., 
    637 P.2d 315
    , 318-19 (Colo. 1981). There is no reason to
    believe Colorado would discontinue this practice. See Wade v. EMCASCO Ins.
    Co., 
    483 F.3d 657
    , 666 (10th Cir. 2007) (“Where no controlling state decision
    exists, [a] federal court must attempt to predict what the state’s highest court
    would do.”); see also id. (stating that in attempting to predict what the state’s
    highest court would do, a federal court may seek guidance from “the general
    weight and trend of authority in the relevant area of law” (quotation omitted)).
    
                                            -27-
          Bensinger’s delegation of critical film-making tasks to members of the
    
    Union does not supply the necessary further evidence of actual malice. There is
    
    no evidence supporting Spacecon’s claim Bensinger did not provide appropriate
    
    direction to these individuals or failed to investigate the truth of the messages
    
    conveyed. Indeed, the evidence is to the contrary. For example, Bensinger
    
    testified he instructed those conducting interviews to allow interviewees to speak
    
    in their own words and encourage interviewees to tell the truth. Moreover,
    
    Bensinger was present for and directed many of the key interviews, including
    
    interviews with five of the workers featured most prominently in the film. At
    
    most, this evidence shows much of the film-making was done by individuals with
    
    biases and motives similar to those of Bensinger, which merely bolsters the
    
    conclusion Bensinger may have made the film with a motive to show Spacecon in
    
    a bad light.
    
          That Bensinger waited until days before the Tivoli screening to seek
    
    comment from Spacecon regarding the messages conveyed by the film is not
    
    evidence of actual malice because Bensinger had no obligation to seek comment
    
    from Spacecon. See Fink v. Combined Commc’ns Corp., 
    679 P.2d 1108
    , 1111
    
    (Colo. App. 1984) (stating a publisher “without a high degree of awareness of
    
    their probable falsity, may rely on statements made by a single source even
    
    though they reflect only one side of the story” (quotations omitted)). Moreover,
    
    Bensinger was not required to accept Banks’s denials of the film’s allegations as
    
                                             -28-
    conclusive, or prefer them over apparently creditable accusations. See Seible v.
    
    Denver Post Corp., 
    782 P.2d 805
    , 809 (Colo. App. 1989); accord Lewis, 832 P.2d
    
    at 1124; see also Harte-Hanks, 491 U.S. at 691 n.37 (“[T]he press need not accept
    
    denials, however vehement; such denials are so commonplace in the world of
    
    polemical charge and countercharge that, in themselves, they hardly alert the
    
    conscientious reporter to the likelihood of error.” (quotation omitted)). Finally,
    
    while evidence Bensinger allowed the film to be screened before it was complete,
    
    despite being under no time pressure to do so, may be evidence of actual malice,
    
    see, e.g., Kuhn, 637 P.2d at 319, there is no such evidence here. Bensinger
    
    admitted he wanted to do further work on the film but he also testified he
    
    considered the film ready for viewing.
    
          In any event, Spacecon fails to acknowledge the evidence suggesting a
    
    more balanced approach by Bensinger. Bensinger interviewed Kevin Ott, who in
    
    the past had responded to Union criticism of Spacecon. Although Ott was unable
    
    to respond to the allegations at issue, the favorable comments he provided about
    
    Spacecon were included in the film. Bensinger also attempted interviews with
    
    Joe Effies, a Spacecon supervisor, and Kirk Lidell, the CEO of Spacecon’s parent
    
    corporation, but both refused. Finally, Bensinger attempted to interview Banks
    
    on camera to obtain Spacecon’s perspective. That interview was declined unless
    
    Bensinger permitted Banks to review the film beforehand. Bensinger therefore
    
    
    
    
                                             -29-
    distributed Banks’s written responses to Bensinger’s questions to the audience at
    
    the Tivoli screening.
    
          In sum, notwithstanding the evidence suggesting Bensinger may have had a
    
    motive to harm Spacecon, that evidence standing alone is not enough to show
    
    actual malice. Furthermore, the other evidence Spacecon relies on regarding the
    
    creation and exhibition of the film does not in any way evince actual malice.
    
    Thus, this court moves on to consider the particular messages conveyed by the
    
    film to determine whether that evidence, coupled with Bensinger’s motive to
    
    harm Spacecon, could allow a reasonable jury to conclude, by clear and
    
    convincing evidence, Bensinger published the film with knowledge of its falsity
    
    or in reckless disregard of the truth. Lewis, 832 P.2d at 1122-23.
    
          2.     Particular Messages Conveyed by the Film
    
          Spacecon argues the evidence shows Bensinger knew certain of the
    
    messages conveyed by the film were false, entertained serious doubts as to
    
    whether they were true, and fabricated some of the messages. Spacecon’s
    
    argument focuses on two specific messages conveyed by the film: that Spacecon
    
    was involved in or responsible for the Glenwood Springs incident and that
    
    Spacecon used unscrupulous labor brokers to underbid competitors. Spacecon
    
    also asserts this case is similar to two cases where the Colorado Supreme Court
    
    concluded statements were published with actual malice.
    
    
    
    
                                            -30-
                 a.    The Message that Spacecon was Involved in or Responsible
                       for the Glenwood Springs Incident
    
          Spacecon asserts none of the newspaper articles Bensinger relied on
    
    concerning the Glenwood Springs incident mention Spacecon, much less attribute
    
    fault to Spacecon. Moreover, Spacecon points out the lawsuit filed by the
    
    Stranded Workers does not include Spacecon as a defendant. Thus, Spacecon
    
    argues Bensinger essentially relied on a single, biased source for the film’s
    
    message that Spacecon was involved in or responsible for the Glenwood Springs
    
    incident—Wilson, a representative of the Union, which Bensinger knew was
    
    involved in a campaign against Spacecon. Moreover, Spacecon argues Bensinger
    
    neglected to corroborate Wilson’s allegations by contacting “obvious unbiased
    
    sources,” including the lawyer who represented the Stranded Workers, the media
    
    that reported on the Glenwood Springs incident, or Spacecon.
    
          It is true that neither the lawsuit filed by the Stranded Workers nor the vast
    
    majority of the newspaper articles regarding the Glenwood Springs incident
    
    implicate Spacecon in that incident. One Aspen Daily News article, however,
    
    quotes Wilson as stating that several of the Stranded Workers “said they had been
    
    promised work on a Spacecon project in Aspen.” Wilson apparently told
    
    Bensinger the same thing. In cases “involving the reporting of a third party’s
    
    allegations, recklessness may be found where there are obvious reasons to doubt
    
    the veracity of the informant or the accuracy of his reports.” Harte-Hanks, 491
    
    
                                            -31-
    U.S. at 688 (quotation omitted). That Bensinger knew Wilson was involved in a
    
    dispute with Spacecon and may have been biased against Spacecon is not
    
    evidence Bensinger had obvious reasons to doubt Wilson’s veracity or the
    
    accuracy of his report. “Actual malice cannot be proven simply because a source
    
    of information might also have provided the information to further the source’s
    
    self-interest.” Reuber v. Food Chem. News, Inc., 
    925 F.2d 703
    , 715 (4th Cir.
    
    1991). “Self-interest (and the related desire to place opposing views and persons
    
    in an unfavorable light) motivates many news sources; if dealing with such
    
    persons were to constitute evidence of actual malice on the part of a reporter,
    
    much newsgathering would be severely chilled.” Id.; see also Hotchner v.
    
    Castillo-Puche, 
    551 F.2d 910
    , 914 (2d Cir. 1977) (“Knowledge of [a source’s] ill-
    
    will does not by itself prove knowledge of probable falsity.”); Fink, 679 P.2d at
    
    1111 (stating that a publisher “without a high degree of awareness of their
    
    probable falsity, may rely on statements made by a single source even though
    
    they reflect only one side of the story” (quotations omitted)).
    
          Even assuming, however, that a publisher has obvious reason to doubt the
    
    accuracy of a story, no actual malice can be inferred should the publisher act
    
    reasonably to dispel the doubt. See Masson v. New Yorker Magazine, Inc., 
    960 F.2d 896
    , 900 (9th Cir. 1992). There is evidence Bensinger did exactly that. He
    
    personally interviewed Manuel Mijangos and Jose Paz Aguirre, two of the
    
    Stranded Workers, who confirmed they were told by Leno they were brought to
    
                                             -32-
    Colorado to work for Spacecon. These confirmations were consistent with
    
    Bensinger’s knowledge that Spacecon had used Leno as a labor broker, and that
    
    Leno brought workers to the United States from Mexico. These confirmations
    
    were also consistent with allegations made by workers at a separate work site, the
    
    Residences at Little Nell. Laborers at the Little Nell site alleged they were
    
    mistreated by both Leno and Spacecon and were not paid for “their short stints on
    
    the job.” 10 The reporting on the allegations at Little Nell certainly adds credence
    
    to Leno’s assertions Spacecon was involved with the Stranded Workers.
    
          10
            An article in the Aspen Daily News upon which Bensinger relied in
    preparing the film, reported as follows:
    
                Three more people have come forward alleging worker
          mistreatment by subcontractors on the Residences at Little Nell cited
          in Aspen.
    
                A supervisor working for Leno and Company—a labor broker
          recently fired from the Residences job—corroborated complaints
          from a labor union that Leno was running a “crooked” operation that
          cheated both workers and the government through improprieties in
          the payroll.
    
                 And two laborers who said they were hired by Leno for the
          Residences project said they also were mistreated by Spacecon
          Specialty Contractors . . . and were not paid at all for their short
          stints on the job in January.
    
                 ....
    
                [The laborers] said they were supposed to be on Leno’s
          payroll, but a Spacecon foreman and superintendent were their day-
          to-day bosses. The Mexican men said they were told to hurry up,
          were called racial epithets and were “treated like animals” in
          comparison with the white laborers . . . .
    
                                            -33-
          Bensinger had no obligation to corroborate this allegation further by
    
    contacting the lawyer who represented the Stranded Workers in their lawsuit or
    
    the media that reported on the Glenwood Springs incident. While a publisher’s
    
    “failure to pursue the most obvious available sources of . . . corroboration or
    
    refutation” is evidence of actual malice, Kuhn, 637 P.2d at 319, a mere failure to
    
    pursue all possible sources is not, Lewis, 832 P.2d at 1123-24. Spacecon asserts
    
    these are “obvious unbiased sources,” but it does not explain why. Nor does
    
    Spacecon indicate what these sources may have revealed, if anything, had
    
    Bensinger contacted them. See Desnick v. American Broad. Cos., 
    233 F.3d 514
    ,
    
    520 (7th Cir. 2000) (holding that a failure to investigate does not indicate actual
    
    malice unless the plaintiff indicates “what follow up would have revealed”).
    
    Thus, Bensinger’s failure to contact these particular sources is not evidence of
    
    actual malice. In sum, Spacecon has not met its burden of showing this message
    
    was published with actual malice.
    
                 b.    The Message that Spacecon Uses Unscrupulous Labor
                       Brokers to Underbid Competitors
    
          Spacecon argues Bensinger relied solely on the allegations of two
    
    individuals he knew were biased against Spacecon for the film’s message that
    
    Spacecon uses unscrupulous labor brokers, including Leno, to underbid
    
    competitors—Wilson, and Bud Stratton, who is the president of one of Spacecon’s
    
    competitors. Moreover, Spacecon asserts Bensinger knew or should have known
    
    
                                             -34-
    that neither Wilson nor Stratton were privy to Spacecon’s business decisions or
    
    could have any knowledge of how Spacecon arrives at its bid numbers. Thus,
    
    Spacecon argues Bensinger acted with actual malice by failing to view their
    
    allegations with a healthy degree of skepticism and failing to verify their
    
    allegations.
    
          The fact Bensinger knew or should have known both Wilson and Stratton
    
    were biased against Spacecon is not evidence Bensinger had obvious reasons to
    
    doubt their veracity or the accuracy of their reports. See Reuber, 925 F.2d at 715;
    
    Hotchner, 551 F.2d at 914; Fink, 679 P.2d at 1111. Even assuming, however, that
    
    knowledge of Wilson’s and Stratton’s biases did give Bensinger obvious reasons
    
    to doubt their veracity or the accuracy of their reports, that these two sources
    
    corroborated each other’s allegations sufficiently establishes Bensinger dispelled
    
    those doubts. Masson, 960 F.2d at 900; Lewis, 832 P.2d at 1123-24. It was also
    
    reasonable for Bensinger to assume both Wilson and Stratton would know that
    
    Stratton’s company, E&K Construction, had been substantially underbid by
    
    Spacecon on more than one project and what the workers on those projects were
    
    paid. Both men were in positions suggesting some credible knowledge on these
    
    matters. Furthermore, as noted above, the Aspen Daily News article regarding
    
    mistreatment/nonpayment of workers at the Little Nell work site by Spacecon and
    
    Leno corroborates the assertion Spacecon was engaged in unscrupulous labor
    
    practices. It is certainly fair to infer from this reporting that Spacecon’s practice
    
                                             -35-
    of using a labor broker that did not always pay its workers allowed Spacecon to
    
    underbid its competition. 11
    
          The presentation of these statements as allegations, rather than as truth,
    
    further weighs against a conclusion Bensinger published them with actual malice.
    
    Harte-Hanks, 491 U.S. at 695 (Blackmun, J., concurring). Presenting an
    
    informant’s “allegations as though they were established fact would [show]
    
    markedly less regard of their possible falsity,” as opposed to portraying them “as
    
    allegations.” Id. In the film, Wilson is shown standing in front of a Union picket
    
    line when he makes his allegations. The caption “Dave Wilson is a union
    
    organizer for the carpenters’ union based out of Kansas City” appears on the
    
    screen as Wilson is speaking. Stratton is shown standing in front of a
    
    construction site. As he is speaking, the caption “Bud Stratton is President of
    
    E&K Construction in Denver” appears on the screen. By identifying the speakers
    
    by name and position, their statements are presented as their allegations, not
    
    absolute truths. In sum, Spacecon has not met its burden of showing Bensinger
    
    published these statements with actual malice.
    
                 c.     Colorado Case Law
    
          In support of its arguments, Spacecon likens this case to the Colorado
    
    Supreme Court’s decisions in Kuhn and Burns. In Kuhn, the court held the
    
          11
            For this very reason, the dissent’s assertion about Bensinger relying
    exclusively on two obviously biased sources in support of this statement,
    Dissenting Op. at 12, is contrary to the record.
    
                                            -36-
    evidence was sufficiently clear and convincing that a jury could have concluded a
    
    newspaper article, which reported that city officials improperly accepted
    
    complimentary ski passes, was published with reckless disregard for the truth.
    
    637 P.2d at 316, 319. The reporter in Kuhn admitted he had no basis for most of
    
    the erroneous statements, failed to corroborate the allegations even though no
    
    time pressure existed to publish, and failed to pursue “obvious available sources
    
    of possible corroboration or refutation.” Id. at 319. The court concluded the
    
    reporter’s failure to verify the statements in the article “meant that many of the
    
    ‘facts’ about the ski passes ‘exposed’ by the article, were, essentially,
    
    fabrications.” Id.
    
          In Burns, the Colorado Supreme Court held a jury could reasonably find
    
    with convincing clarity that a defamatory statement made during a television
    
    broadcast was made with reckless disregard of its truth. 659 P.2d at 1361. The
    
    broadcast, which told the story of a sergeant severely injured in an explosion,
    
    stated that the sergeant’s wife and children deserted him after the accident. Id. at
    
    1354. The reporter based this statement on her interview with the sergeant, whom
    
    she knew was “frustrated and bitter over the events surrounding his injuries and
    
    the divorce.” Id. at 1361-62. The court noted that “[a]ny self-serving description
    
    by [the sergeant] of the relationship between himself and his wife would warrant
    
    careful scrutiny,” should have been “viewed with a healthy degree of skepticism,”
    
    and should have been “verified by investigation.” Id. at 1362. The reporter,
    
                                             -37-
    however, “failed to investigate other sources of possible corroboration or
    
    refutation” even though she “was under no time pressure to finish her story.” Id.
    
    Moreover, the reporter knew the sergeant and his wife were having marital
    
    difficulties even before the accident, the wife had compelling reasons for
    
    divorcing the sergeant, and the wife had filed for divorce prior to the accident.
    
    Id. Finally, the reporter testified she had no basis for the statement. Id. The
    
    court held the reporter’s use of the term “deserted,” which has “obvious
    
    pejorative connotations[,] without underlying factual support is evidence of
    
    recklessness especially when the reporter has knowledge that the description is in
    
    fact untrue.” Id.
    
          Here, unlike in Kuhn and Burns, the messages conveyed by the film were
    
    supported by multiple reliable sources. Bensinger made an effort to corroborate
    
    allegations. There is no evidence Bensinger had knowledge the messages
    
    conveyed by the film were in fact untrue. Finally, there is no evidence Bensinger
    
    failed to pursue obvious available sources for corroboration or refutation. Thus,
    
    unlike in Kuhn and Burns, the evidence in this case does not suggest the messages
    
    conveyed by the film were fabricated or otherwise published with reckless
    
    disregard for the truth. See also Fink, 679 P.2d at 1111 (“Although a complete
    
    failure to investigate sources of corroboration of published statements may be
    
    evidence of actual malice, where an adequate investigation is conducted it is
    
    
    
    
                                             -38-
    unnecessary that the truth of each and every statement be supported by the
    
    evidence.” (citations omitted)). 12
    
          In sum, having considered the entire record, Spacecon has not come
    
    forward with clear and convincing evidence Bensinger published the film
    
    knowing its messages were false or with reckless disregard as to their truth.
    
    Thus, Spacecon has failed to set forth sufficient evidence to prove Bensinger
    
    published the film with actual malice.
    
                 d. The Dissent
    
          The crux of the dissent is two-fold: (1) in affirming the grant of summary
    
    judgment, the majority has usurped the function of the jury and adopted a
    
    “jaundiced” view of Spacecon’s evidence; and (2) specifically regarding the
    
    Stranded Workers, the record would support a jury determination of actual
    
    malice. Neither assertion is convincing.
    
          According to the dissent, the majority has failed to afford to Spacecon the
    
    solicitation it normally affords to a party opposing summary judgment. In so
    
    arguing, the dissent misapprehends the relative roles of the court and jury in
    
    defamation cases. The Supreme Court has made clear that in considering actual
    
          12
            Spacecon also asserts Bensinger knowingly omitted key facts, including
    that Spacecon was not a defendant in the Stranded Workers’ lawsuit, was not
    implicated by the media in the Glenwood Springs incident, no longer worked with
    Leno, had only worked with Leno on three projects, and was not the only
    contractor to use Leno. Whether Bensinger did so, however, is irrelevant to the
    actual malice inquiry. See NBC Subsidiary (KCNC-TV), Inc. v. Living Will
    Center, 
    879 P.2d 6
    , 15 (Colo. 1994).
    
                                             -39-
    malice, courts are obligated to engage in a heightened level of review. Harte-
    
    Hanks, 491 U.S. 688-89; Bose Corp. v. Consumers Union of U.S., Inc, 
    466 U.S. 485
    , 514 (1984) (specifically holding that the clear-error standard of review does
    
    not apply to a jury’s determination of actual malice). In this particular context,
    
    “the Court has been reluctant to give the trier of fact’s conclusions presumptive
    
    force and, in so doing, strip a federal appellate court of its primary function as an
    
    expositor of law.” Miller v. Fenton, 
    474 U.S. 104
    , 114 (1985). The Court has
    
    likewise made clear that “the determination of whether a given factual dispute
    
    requires submission to a jury must be guided by the substantive evidentiary
    
    standards that apply to the case.” Liberty Lobby, 
    477 U.S. 255
    . 13 As noted above,
    
          13
               In this regard, the Supreme Court has reasoned as follows:
    
                  Just as the “convincing clarity” requirement is relevant in
          ruling on a motion for directed verdict, it is relevant in ruling on a
          motion for summary judgment. When determining if a genuine
          factual issue as to actual malice exists . . . a trial judge must bear in
          mind the actual quantum and quality of proof necessary to support
          liability . . . . For example, there is no genuine issue if the evidence
          presented in the opposing affidavits is of insufficient caliber or
          quantity to allow a rational finder of fact to find actual malice by
          clear and convincing evidence.
    
                 Thus, in ruling on a motion for summary judgment, the judge
          must view the evidence presented through the prism of the
          substantive evidentiary burden. This conclusion is mandated by the
          nature of this determination. The question here is whether a jury
          could reasonably find either that the plaintiff proved his case by the
          quality and quantity of evidence required by the governing law or
          that he did not. Whether a jury could reasonably find for either
          party, however, cannot be defined except by the criteria governing
                                                                           (continued...)
    
                                              -40-
    Colorado has fully embraced the Supreme Court’s precedents regarding actual
    
    malice. See supra n.8. In particular, the Colorado Supreme Court has
    
    incorporated into Colorado law the searching standard set out by the Supreme
    
    Court in Harte-Hanks. Air Wisc., 
    2012 WL 907764
    , at *8-9. That being the case,
    
    the dissent is off the mark in asserting the majority has not been appropriately
    
    solicitous of Spacecon’s evidence.
    
          Nor is the dissent correct in asserting the majority has failed to consider in
    
    the aggregate each piece of evidence identified by Spacecon as supporting the
    
    existence of actual malice. Consistent with Air Wisconsin, this court has
    
    considered the film and the circumstances under which it was made to determine
    
    whether a reasonable juror could conclude the statements contained in the film
    
    were made with actual malice. Id. In so doing, this court has considered both the
    
    evidence Spacecon identifies as supporting actual malice, as well as the evidence
    
    and circumstances indicating a lack thereof. Exercising that independent review,
    
    we readily conclude no reasonable juror could conclude Bensinger made or
    
    displayed the film with knowledge that it contained falsehoods or with reckless
    
          13
            (...continued)
          what evidence would enable the jury to find for either the plaintiff or
          the defendant: It makes no sense to say that a jury could reasonably
          find for either party without some benchmark as to what standards
          govern its deliberations and within what boundaries its ultimate
          decision must fall, and these standards and boundaries are in fact
          provided by the applicable evidentiary standards.
    
    Anderson v. Liberty Lobby, Inc., 477 U.S. 254-55 (1986).
    
                                            -41-
    disregard of potential falsehoods. 14 This conclusion is equally applicable to those
    
    aspects of the film relating to the Stranded Workers. Although a reasonable juror
    
    could perhaps conclude a prudent person would not have conveyed the impression
    
    Spacecon was involved with the Stranded Workers, and that Bensinger was
    
    negligent in so doing, a review of the entire record, as summarized above, reveals
    
    
    
    
          14
              The dissent’s one-sided view of the evidence may be appropriate in a
    more common summary judgment setting. It is not, however, appropriate in
    analyzing the sufficiency of the evidence to support actual malice in a Colorado
    defamation case. In such a case, this court must “‘examine for itself the
    statements in issue and the circumstances under which they are made to see
    whether they are of a character which the principles of the First Amendment
    protect.’” Air Wisc., 
    2012 WL 907764
    , at *9 (quoting Harte-Hanks, 491 U.S. at
    689-90) (alterations omitted). This requires “an independent review of the entire
    record to ensure that clear and convincing evidence supports a finding of actual
    malice,” id., an approach not taken by the dissent. While it is certainly true that
    at the summary judgment stage, “[t]he evidence of the non-movant is to be
    believed, and all justifiable inferences are to be drawn in his favor,” this court
    must still view that evidence in light of the entire record to determine whether
    Spacecon’s evidence “is of insufficient caliber or quantity to allow a rational
    finder of fact to find actual malice by clear and convincing evidence.” Liberty
    Lobby, 477 U.S. at 255. Nor is the dissent correct in proceeding at this stage on
    the presumption the jury could simply choose not to believe Bensinger’s
    evidence, particularly evidence Spacecon did not contest at the summary
    judgment stage. Id. at 256 (“We do not understand [our precedents] to hold that a
    plaintiff may defeat a defendant’s properly supported motion for summary
    judgment in a . . . libel case . . . without offering any concrete evidence from
    which a reasonable juror could return a verdict in his favor and by merely
    asserting that the jury might, and legally could, disbelieve the defendant’s denial
    of . . . legal malice. The movant has the burden of showing that there is no
    genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of
    producing in turn evidence that would support a jury verdict.”).
    
                                            -42-
                              insufficient evidence Bensinger, in fact, possessed a
    
    “high degree of awareness of probable falsity.” Harte-Hanks, 491 U.S. at 688. 15
    
    IV.   Conclusion
    
          The crux of the challenge to summary judgment is that Bensinger had a
    
    motive to portray Spacecon falsely. The evidence supporting that bias is
    
    undisputed but it does not support the legal conclusions that the film did not
    
    involve matters of public concern or that the film was published with actual
    
    malice. As a consequence, this court affirms the district court’s grant of
    
    summary judgment.
    
    
    
    
          15
             If the record revealed nothing more than the limited array of facts set out
    in the dissent, we would agree the Stranded Worker issue should go to the jury.
    Harte-Hanks, 491 U.S. at 688. Although the efforts were ineffective for the
    reasons set out in the dissent, Bensinger did undertake to corroborate Wilson’s
    statements by interviewing the Stranded Workers. Nothing in the record even
    hints at the possibility those efforts were pretextual. Furthermore, as Bensinger
    was well aware, Spacecon had a preexisting relationship with Leno. Spacecon
    does not dispute it used Leno to provide laborers to supplement its own workforce
    on three of its projects and was under contract with Leno at the time of the
    Glenwood Springs incident. This connection between Leno and Spacecon,
    verified by reporting in the Aspen Daily News about the Little Nell incident,
    certainly bolsters Leno’s assertion Spacecon was involved with the Stranded
    Workers. When considered within the context of all the circumstances
    surrounding the production and dissemination of the film, no reasonable juror
    could conclude Bensinger had a sufficiently culpable state of mind to satisfy the
    actual malice standard.
    
                                            -43-
    11-1139 - Spacecon Specialty Contractors, LLC v. Bensinger
    
    HARTZ, Circuit Judge, dissenting:
    
    
    
           I respectfully dissent. The panel opinion assumes that the film implied that
    
    “Spacecon was involved with the Stranded Workers and responsible for the
    
    Glenwood Springs incident,” and that this implied message was false. Op. at 11
    
    (brackets and internal quotation marks omitted). But it holds that Spacecon
    
    produced insufficient evidence that Bensinger acted with malice. I disagree. In
    
    my view, the record would support a finding under the clear-and-convincing-
    
    evidence standard that Bensinger published the message with reckless disregard
    
    for its truth.
    
           There is, of course, much in the panel opinion with which I agree. In
    
    particular, I share the panel opinion’s view that the Colorado Supreme Court
    
    would require the plaintiff to prove actual malice to sustain a defamation claim
    
    based on a statement involving a matter of public concern, even if the plaintiff is
    
    a private individual. And I agree that the allegedly false messages published by
    
    Bensinger involved matters of public concern. But I believe it worthwhile to
    
    discuss two areas of disagreement. I have already mentioned that I think there
    
    was sufficient evidence of malice. Before I turn to that matter, however, I will
    
    address what I view as a flaw in the panel opinion’s analysis of whether the film
    
    was on a matter of public concern.
    I.    THE PUBLIC-CONCERN ANALYSIS
    
          I cannot join the panel opinion’s analysis of the public-concern issue. The
    
    panel opinion correctly states Colorado’s definition of public concern, which
    
    apparently is not intended as a departure from the use of the term by federal
    
    courts:
    
                 Colorado courts have indicated a matter is of public concern
          whenever it embraces an issue about which information is needed or
          is appropriate, or when the public may reasonably be expected to
          have a legitimate interest in what is being published. More
          specifically, a matter is of public concern when it can be fairly
          considered as relating to any matter of political, social, or other
          concern to the community, or when it involves the use of names,
          likenesses or facts in giving information to the public for purposes of
          education, amusement, or enlightenment when the public may
          reasonably be expected to have a legitimate interest in the subject.
    
    Op. at 9–10 (citation, brackets, and internal quotation marks omitted).
    
          The opinion then, however, goes on to indicate, without any analysis of the
    
    merits of the issue, that a statement that would otherwise be on a matter of public
    
    concern may not be so classified if the publisher of the statement knew of its
    
    falsity or published it in reckless disregard of whether it was true. Under the
    
    heading “Context,” the public-concern discussion states, “Bensinger would not
    
    have been so intimately familiar with the underlying factual circumstances that he
    
    would have known or should have known the allegations were baseless.” Id. at
    
    15. And under the heading “Motivation,” it says, “Any pro-union bias on
    
    
    
    
                                            -2-
    Bensinger’s part does not alone indicate he was unlikely to be concerned with the
    
    truth of what he was publishing.” Id. at 17.
    
          These observations are irrelevant to whether statements are on matters of
    
    public concern. In common parlance the “subject matter” of a statement does not
    
    encompass either the truth of the statement or whether the publisher of the
    
    statement thought it to be true. The case law analyzes whether a statement is on a
    
    matter of public concern by looking to its content, form, and context. See, e.g.,
    
    Connick v. Myers, 
    461 U.S. 138
    , 147–48 (1983); McIntyre v. Jones, 
    194 P.3d 519
    ,
    
    525 (Colo. App. 2008). Or, as the Supreme Court recently said in Snyder v.
    
    Phelps, 
    131 S. Ct. 1207
    , 1216 (2011), “[I]t is necessary to evaluate all the
    
    circumstances of the speech, including what was said [the content], where it was
    
    said [the context], and how it was said [the form].” These circumstances are what
    
    one refers to in deciding what a statement conveys or “says.” To be sure, the
    
    context may include “the motivation or ‘point’” of the statements. McIntyre, 194
    
    P.3d at 525. But the motivation or point concerns only the purpose of the
    
    statements; for example, did an employee of the district attorney complain about
    
    how the office was run because the public’s business was not being performed
    
    properly or only because she felt mistreated? See Connick, 461 U.S. at 147–49.
    
    Knowing the motive or point helps one to assess whether the statement related
    
    only to a private concern or to one that would engage public interest. In contrast,
    
    
    
    
                                             -3-
    a statement’s truthfulness, or the culpability of the publisher of a false statement,
    
    does not change what it conveys.
    
          Moreover, it makes no sense to say that the culpability of the publisher of a
    
    false statement should be a factor in determining what level of culpability must be
    
    shown for the publisher to be liable. In this case the only reason for assessing
    
    whether a statement was on a matter of public concern is to determine whether it
    
    is necessary that the plaintiff prove that the publisher acted with malice. If the
    
    published statement was on a matter of public concern, the plaintiff must show
    
    that the publisher knew the statement was false or acted in reckless disregard of
    
    whether it was false; if it was not on a matter of public concern, the publisher can
    
    be liable if he was merely negligent. See McIntyre, 194 P.3d at 523–24.
    
    Declaring that malice is a factor in the public-concern calculus must mean that
    
    sometimes the presence of malice makes a difference in that calculus; that is, it
    
    must mean that on occasion a statement that would otherwise be on a matter of
    
    public concern is not on a matter of public concern because it was published with
    
    malice. But why say that if the publisher acted with malice (so the statement was
    
    not on a matter of public concern), then the plaintiff does not need to prove
    
    malice? Including malice in the public-concern analysis accomplishes nothing.
    
          More troublesome, the panel opinion appears to consider a level of
    
    culpability less than malice in its analysis of whether a false statement was on a
    
    matter of public concern. It uses the phrases “would have known or should have
    
                                              -4-
    known” and “was unlikely to be concerned with the truth.” These phrases suggest
    
    something short of malice. But free-speech protection could be undermined if
    
    courts were to say that a statement is not on a matter of public concern if it was
    
    made, say, negligently (or with any culpability less than malice). Instead of
    
    having to prove that a statement on a matter of public concern was made with
    
    malice, the person claiming to have been defamed could simply prove negligence,
    
    because then the statement would not be on a matter of public concern. The panel
    
    opinion suggests that other circuits are divided on whether malice is a factor in
    
    determining whether a statement is on a matter of public concern. The
    
    suggestion, however, is based on a misreading of the cases. The only out-of-
    
    circuit case cited is the Sixth Circuit’s opinion in Westmoreland v. Sutherland,
    
    
    662 F.3d 714
     (2011). It involved a suit by a firefighter complaining that he was
    
    fired for criticizing the city council. The opinion must be read in context.
    
          In analyzing a claim that the government has improperly retaliated against
    
    an employee based on the employee’s speech, the federal courts undertake a five-
    
    element analysis derived from a line of Supreme Court opinions originating with
    
    Pickering v. Board of Education, 
    391 U.S. 563
     (1968). We ask:
    
          (1) whether the speech was made pursuant to an employee’s official
          duties; (2) whether the speech was on a matter of public concern; (3)
          whether the government’s interests, as employer, in promoting the
          efficiency of the public service are sufficient to outweigh the
          plaintiff’s free speech interests; (4) whether the protected speech was
          a motivating factor in the adverse employment action; and (5)
    
    
                                             -5-
          whether the defendant would have reached the same employment
          decision in the absence of the protected conduct.
    
    Dixon v. Kirkpatrick, 
    553 F.3d 1294
    , 1302 (10th Cir. 2009). Ordinarily, the first
    
    three elements are matters of law for the court and the last two are for the
    
    factfinder. See id. As in defamation actions like this one, public concern is one
    
    of the elements. Unlike defamation actions, however, the role of malice has not
    
    been specified by the Supreme Court. In Pickering the Court wrote that it had
    
    “no occasion to pass upon the . . . question whether a statement that was
    
    knowingly or recklessly false would, if it were neither shown nor could
    
    reasonably be presumed to have had any harmful effects, still be protected by the
    
    First Amendment.” 391 U.S. at 574 n.6. That occasion has yet to arise in a
    
    government-employee retaliation case before the Supreme Court, but cf. United
    
    States v. Alvarez, 
    132 S. Ct. 2537
     (2012) (invalidating Stolen Valor Act); so
    
    lower courts have had to decide for themselves how to take into account that the
    
    employee made a false statement with malice.
    
          In Westmoreland the court addressed the first three elements of the
    
    Pickering analysis. It wrote:
    
          To establish that his speech was constitutionally protected, a public
          employee must show that he was speaking as a private citizen, rather
          than pursuant to his official duties; that his speech involved a matter
          of public concern; and, if so, that his interest as a citizen in
          commenting on the matter outweighed the interest of the State, as an
          employer, in promoting the efficiency of the public services it
          performs through its employees.
    
    
                                             -6-
    662 F.3d at 718–19 (internal quotation marks omitted). Only after determining
    
    that the firefighter’s speech “undoubtedly involved matters of public concern,” id.
    
    at 720, did the court consider whether a public employee has no First Amendment
    
    claim if his statements were intentionally or recklessly false, or whether such
    
    malicious falsehood is merely a factor to be considered in assessing whether the
    
    employee’s interest in speaking outweighs the government employer’s interest.
    
    See id. at 720–21. The court read its precedent to say that “Pickering balancing
    
    [the third element] is not required if it is determined that the employee made
    
    statements with knowledge of, or reckless indifference to, their falsity.” Id. at
    
    721.
    
           The split in the circuits that Westmoreland referred to is not the same as the
    
    split between the panel opinion and this dissent. Westmoreland spoke of the
    
    circuit differences “over whether intentionally or recklessly false statements fall
    
    outside the protection of the First Amendment, or whether such falsity is to be
    
    weighed as part of the . . . balancing [test].” Id. at 720. In other words, the
    
    divide is about whether the presence of malice should be dispositive in public-
    
    employment retaliation cases, not whether malice is relevant to the public-concern
    
    analysis. The panel opinion accurately quotes Westmoreland, but it misinterprets
    
    the statement. Westmoreland did not view malice as a factor in the public-
    
    concern analysis, nor did it say that there was a circuit split on that issue. As far
    
    
    
    
                                              -7-
    as I can tell, no other circuit court has held that malice is a proper consideration
    
    in assessing whether a statement is on a matter of public concern.
    
          That brings us to precedent in this circuit. It cannot be denied that Quigley
    
    v. Rosenthal, 
    327 F.3d 1044
    , 1061 (10th Cir. 2003), contains language that
    
    supports the position of the panel opinion. But it also cannot be denied that
    
    Quigley does not analyze the issue or provide any rationale for considering malice
    
    in assessing whether a statement involved a matter of public concern. It relies on
    
    citations to two cases with a “see generally” signal and one with a “see” signal.
    
    The first two cases do not address anything close to malice. As for the third, it
    
    concerned a state employee who had filed a grievance claiming race and sex
    
    discrimination. She requested a closed hearing but she and her husband wrote her
    
    senator complaining of the proceedings and suggesting an investigation of
    
    “‘possible civil rights violations.’” Kemp v. State Bd. of Agric., 
    803 P.2d 498
    ,
    
    500 (Colo. 1990) (en banc). The state agency then informed her that her violation
    
    of secrecy “‘voided’” the grievance proceedings, and she sued, claiming
    
    retaliation on the basis of her speech. Id. at 501. The court wrote the following
    
    in addressing whether the employee’s speech was on a matter of public concern:
    
                Although the context within which [the employee’s] letter
          arose was one in which she had a personal stake, it was nevertheless
          a context in which charges of racial discrimination had been filed.
          The very purpose of the grievance was to address alleged
          discrimination, which the grievance manual defines as any act or
          policy that violates any of a multitude of state and federal anti-
          discrimination laws, all of which are public matters. Moreover, the
    
                                              -8-
           form of the speech—a letter to a United States senator, only lends
           credence to the argument that the speech touched on a matter of
           public concern.
    
                  When an employee alleges a colorable claim that a university
           is guilty of racial discrimination, it is a matter of public concern, and
           the fact that she has a personal stake in the outcome does not
           alchemize that claim into a purely private matter in which the public
           has no interest.
    
    Id. at 504 (footnote omitted) (emphasis added).
    
           The panel opinion argues that the Colorado court’s use of the term
    
    colorable claim indicates that the court thought the veracity of the plaintiff was a
    
    factor in its public-concern analysis. But nothing in Kemp suggests that the court
    
    was concerned with the employee’s veracity. It was apparently using the term
    
    “colorable claim” in the sense in which we use it when assessing whether an
    
    allegation suffices to convey jurisdiction—our concern is not the veracity of the
    
    pleader but whether the allegations (deemed to be true) state the necessary
    
    elements. See, e.g., Iowa Tribe of Kan. & Neb. v. Salazar, 
    607 F.3d 1225
    ,
    
    1231–32 (10th Cir. 2010) (Federal Quiet Title Act prohibits suits challenging
    
    United States title in Indian trust land. “[T]he Secretary [of the Interior] need
    
    only make a colorable claim that the land is held in trust on behalf of an Indian
    
    tribe. . . . The very purpose of the doctrine . . . is to prevent a judicial
    
    examination of the merits of the government’s position.” (internal quotation
    
    marks omitted)). (We now use the term plausible claim in a similar sense in
    
    assessing a motion to dismiss for failure to state a claim. See, e.g., Keith v.
    
                                               -9-
    Koerner, 
    707 F.3d 1185
    , 1190 (10th Cir. 2013).) Kemp does not support the
    
    proposition that malice plays a role in the public-concern analysis.
    
          As for the panel opinion’s reliance on the footnote in Wulf v. City of
    
    Wichita, 
    883 F.2d 842
     (10th Cir. 1989)—another case dealing with retaliation
    
    against a government employee rather than defamation—we are hardly bound by
    
    the undeveloped dictum in that opinion. Moreover, our later opinions have not
    
    read Wulf as standing for the proposition advanced by the panel opinion. Rather,
    
    they view Wulf as treating malice not as a factor in assessing public concern but
    
    as an independent ground for denying relief. In Lancaster v. Independent School
    
    District No. 5, 
    149 F.3d 1228
    , 1234 (10th Cir. 1998), we wrote:
    
                Our finding that the speech was not of public concern makes it
          unnecessary for the court to address whether the interests of the
          defendant outweighed the plaintiff’s interests, whether plaintiff’s
          speech was knowingly false, and whether plaintiff’s speech was a
          motivating or a substantial factor for the Board’s employment
          decision. See Wulf, 883 F.2d at 856–57 (noting these are factors to
          be considered if speech is found to be of public concern).
    
    (emphasis added). And in Moore v. City of Wynnewood, 
    57 F.3d 924
    , 932–33
    
    (10th Cir. 1995), we said:
    
          Defendants’ claim that Moore’s accusations were false does not alter
          our conclusion that his speech was of public concern. We may
          assume that deliberately or recklessly false statements by public
          employees are either unprotected by the First Amendment or, at least,
          that such intentional falsity would weigh heavily against protection.
          See Pickering, 391 U.S. at 574, (suggesting that a public employee
          might lose the protection of the First Amendment for knowingly or
          recklessly making false statements); Wulf, 883 F.2d at 858 & n.24
          (suggesting that malicious or reckless false statements would receive
    
                                            -10-
          less protection). However, here Defendants have failed to show
          either that Moore’s statements were false or that Moore made them
          knowing that they were false or with reckless disregard for their
          veracity.
    
          So what is to be done with Quigley? Although we cannot violate precedent,
    
    we have no obligation to cite it. There is ample precedent to support this panel’s
    
    (unanimous) view that the statements here were on a matter of public concern
    
    without relying on Quigley. I would think it better practice not to cite precedent
    
    for a highly questionable proposition unless that proposition appears to require a
    
    result that would not otherwise obtain. Then the issue is clearly postured for en
    
    banc review, and correction. Or if the highly questionable proposition must be
    
    cited, it is helpful to point out concerns about the proposition so that future
    
    litigants and courts can anticipate possible overruling of the precedent.
    
    Particularly in a diversity case in which we are “predicting” state law, it could be
    
    useful to alert the state court that it may not wish to adopt our precedent
    
    interpreting state law.
    
    II.   EVIDENCE OF MALICE
    
          The basis for my dissent, however, is the panel opinion’s determination that
    
    there was insufficient evidence of malice to overcome the motion for summary
    
    judgment. To be sure, a defamation plaintiff seeking to resist summary judgment
    
    on the issue of malice—whether the publisher of the statement knew it to be false
    
    or acted with reckless disregard of its truth—bears a heavy burden. “[T]he
    
    
                                             -11-
    evidence in the record [must] support a reasonable jury finding . . . that the
    
    plaintiff has shown actual malice by clear or convincing evidence . . . .” Andrews
    
    v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255–56 (1986); see Air Wisconsin Airlines
    
    Corp. v. Hoeper, No. 09SC1050, 
    2012 WL 907764
    , *9 (Colo. March 19, 2012)
    
    (court must “undertake an independent review of the entire record to ensure that
    
    clear and convincing evidence supports a finding of actual malice”). When
    
    defamation doctrine protects First Amendment interests, courts must be
    
    particularly diligent in reviewing the sufficiency of the evidence of liability
    
    (although, as noted by the panel opinion, the United States Supreme Court has
    
    held that proof of malice is not necessary in a case like the one before us).
    
          Nevertheless, I think that the panel opinion’s view of Spacecon’s evidence
    
    is too jaundiced. We should not forget that “[c]redibility determinations, the
    
    weighing of the evidence, and the drawing of legitimate inferences from the facts
    
    are jury functions . . . . The evidence of the non-movant is to be believed, and all
    
    justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255
    
    (reviewing summary judgment in defamation case brought by public figures). On
    
    several points I question whether the opinion applies that standard. When it says,
    
    “Even assuming . . . that knowledge of Wilson’s and Stratton’s biases did give
    
    Bensinger obvious reasons to doubt their veracity or the accuracy of their reports,
    
    that these two sources corroborated each other’s allegations sufficiently
    
    establishes Bensinger dispelled those doubts,” Op. at 35, the opinion is apparently
    
                                             -12-
    foreclosing the possibility that a reasonable juror could think that two dubious
    
    sources do not add up to one reliable source. And, contrary to the opinion’s
    
    discussion on page 36, I would also think that a reasonable juror could infer that
    
    the film was presenting the statements of those complaining of Spacecon as truth,
    
    not merely as allegations. The film was a far cry from a newscast that reports
    
    allegations and denials without trying to take sides.
    
          In addition, the approach of the opinion strikes me as misconceived. It
    
    pursues a strategy of divide and conquer—addressing separately each item of
    
    evidence of malice and saying that it is not sufficient in itself to establish
    
    malice—a strategy derided by the Supreme Court in another context (but also
    
    addressing the reasonableness of a fact-finding) as contrary to the proper
    
    approach of looking at the totality of the circumstances. See United States v.
    
    Arvizu, 
    534 U.S. 266
    , 274 (2002) (reversing decision that officers did not have
    
    reasonable suspicion for stopping vehicle). The jury is entitled to look at the
    
    evidence holistically. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 
    551 U.S. 308
    , 326 (2007) (When assessing sufficiency of pleading, “the court’s job is not
    
    to scrutinize each allegation in isolation but to assess all the allegations
    
    holistically.”)
    
          Most importantly, it seems to me that the panel opinion misses a critical
    
    point regarding the reliability of Bensinger’s sources for the false statement that
    
    “Spacecon was involved with the Stranded Workers and responsible for the
    
                                              -13-
    Glenwood Springs incident.” Op. at 11 (brackets and internal quotation marks
    
    omitted). The opinion, in essence, states that Bensinger did not act with reckless
    
    disregard of the truth in relying on two of the workers—and Union representative
    
    Wilson, who purported to be merely repeating what workers had told him—who
    
    said that they had been told by Leno that they were brought to Colorado to work
    
    for Spacecon. But even assuming the veracity of the workers and Wilson, they
    
    were providing only hearsay; the reliability of the statement about Spacecon
    
    depends on the veracity of Leno. The workers did not say that they had worked
    
    for Spacecon. They were relying on what Leno had told them.
    
          It is therefore essential to consider what Bensinger knew about Leno’s
    
    veracity. And the record indicates that Bensinger not only should have known,
    
    but actually believed, that Leno had lied to the workers about whom they were
    
    going to be working for in Colorado. The original complaint filed by the
    
    Stranded Workers named Midwest Drywall Company as a defendant, alleging that
    
    the labor brokers recruited the workers to work for Midwest and were acting as
    
    Midwest’s agents. Bensinger was familiar with this complaint; indeed, it is
    
    shown in the film. The workers’ amended complaint, however, withdrew
    
    Midwest as a defendant and made it a plaintiff. It alleged that the brokers,
    
    including Leno, “falsely asserted to the Department of Labor (DOL) and to the
    
    individual Plaintiffs that Midwest was to employ individual Plaintiffs.” Aplt.
    
    App., Vol. IV at 753. A second amended complaint added specifics about these
    
                                            -14-
    false representations, including allegations that the defendants had submitted
    
    forged documents. The evidence would readily permit a jury to find that
    
    Bensinger knew about this change in the lawsuit. An article in the Aspen Times
    
    reported Midwest’s response to the original claims against it and the statement by
    
    the Stranded Workers’ attorney that “Midwest appears to be stone-cold innocent,
    
    and these 69 men have no beef with an innocent local business.” Id. at 732.
    
    Bensinger read the article. He testified in his deposition: “Midwest was named;
    
    however, as I say, Midwest was switched from a defendant in the suit because
    
    their name was used fraudulently to get those people here. The lawyer in the
    
    newspaper says that Midwest was cold-stone innocent in this whole situation.”
    
    Id. at 738–39.
    
          Thus, Bensinger accused Spacecon of misconduct in reliance solely on the
    
    credibility of a source—Leno—that he knew had falsely attributed to Midwest the
    
    same conduct (hiring Leno to bring the Stranded Workers to Colorado) that Leno
    
    allegedly attributed to Spacecon. One would think that a jury could be clearly
    
    convinced that Bensinger had acted in reckless disregard of the truth when he did
    
    not corroborate Leno’s statements about Spacecon despite knowing that Leno had
    
    falsely said the same thing about Midwest. Indeed, the Supreme Court has
    
    written, “[R]ecklessness may be found where there are obvious reasons to doubt
    
    the veracity of the informant or the accuracy of his reports.” Harte-Hanks
    
    Commc’ns, Inc. v. Connaughton, 
    491 U.S. 657
    , 688 (1989) (internal quotation
    
                                            -15-
    marks omitted). I read this statement as saying that if a reasonable juror could
    
    find (under the clear-and-convincing-evidence standard) that the publisher had
    
    obvious reasons to doubt the veracity or accuracy of its source and nevertheless
    
    published as true what the source said, then the juror can properly find malice.
    
    That is the situation here.
    
          The panel opinion suggests that Bensinger could credit the allegation
    
    against Spacecon because it was supported by allegations concerning
    
    mistreatment of workers at the Little Nell site. That suggestion is misguided. It
    
    is important to keep in mind that Leno, as the labor broker, paid the workers (and
    
    was responsible for any withholding from the payments); contractors such as
    
    Spacecon paid Leno, not the workers themselves. Thus, complaints about pay and
    
    withholding concerned Leno, not Spacecon. The specific complaints about
    
    Spacecon were limited to racial discrimination in working conditions. However
    
    despicable such discrimination is, it is not evidence of Spacecon’s “involve[ment]
    
    with the Stranded Workers [who did not work at the Little Nell site]” or its
    
    “responsib[ility] for the Glenwood Springs incident.” Op. at 11 (brackets and
    
    internal quotation marks omitted). With respect to that involvement and
    
    responsibility, the only thing implicating Spacecon was that it employed Leno as
    
    a labor broker in the Glenwood Springs area. But so did Midwest, and Bensinger
    
    believed that Midwest had no connection with (much less responsibility for) the
    
    
    
    
                                            -16-
    Stranded Workers. There was no rational basis for Bensinger to distinguish
    
    Spacecon and Midwest in that respect.
    
             In contrast, there is significant evidence that truth was not what motivated
    
    Bensinger in producing the film. First, there was his motive. Bensinger prepared
    
    the film as part of his $7,500 monthly retainer from a union engaged in an
    
    organization campaign against Spacecon. The obvious purpose of the union in
    
    financing the film was to make Spacecon look bad; and the obvious motive of
    
    Bensinger was to please his employer by achieving that goal.
    
             Also supporting a recklessness finding is Bensinger’s failure to check
    
    obvious sources, such as the Stranded Workers’ attorney or the reporter who
    
    wrote the stories about the workers, that could have undermined his attack on
    
    Spacecon. In particular, the absence of a claim against Spacecon in any of the
    
    complaints filed by the Stranded Workers would have struck any but the most
    
    biased observer as highly suggestive. No one would have had more incentive
    
    than counsel for those workers to assert that Spacecon was responsible for their
    
    plight if there was sufficient evidence of responsibility to support a good-faith
    
    claim.
    
             Bensinger’s failure to check other sources was not for lack of time. He
    
    testified that he began work on the film in “early ‘08,” R., Vol. 11 at 331–32, and
    
    he interviewed and filmed Stranded Workers in late June and early July 2008.
    
    Yet he did not screen his film until March 2009. During those months (perhaps a
    
                                               -17-
    year) he made no effort to contact the reporter or the Stranded Workers’ attorney.
    
    See Masson v. New Yorker Magazine, 
    501 U.S. 496
    , 521 (1991) (noting that
    
    author “was not working under a tight deadline. Unlike a case involving hot
    
    news, [the author] cannot complain that she lacked the practical ability to [check
    
    the quotations].”)
    
          And Bensinger’s efforts to get information from Spacecon hardly displayed
    
    a sincere search for the truth. The film shows that on one occasion Bensinger or
    
    an assistant showed up at the Little Nell project with a video camera for an
    
    ambush interview of a Spacecon supervisor who responded “No comment,” when
    
    the interviewer said, “I have a question about worker abuse allegations.” R., Vol.
    
    IV at 637. Later, Bensinger sent a letter from Virginia dated February 23, 2009
    
    (after invitations had been sent for the film’s initial screening 17 days later) to
    
    Spacecon vice president John Banks in Colorado and the president of Spacecon’s
    
    parent corporation in Pennsylvania, requesting an on-camera interview about
    
    allegations “that concern the abuse of immigrant labor by Spacecon.” Id.,
    
    Vol. VIII at 1837. The letter stated that Bensinger was producing a documentary
    
    film that would be released in the summer of 2009 with “several screenings prior
    
    to that.” Id. Banks sent a return letter dated March 3, noting that he had learned
    
    that the film had already been scheduled for showing on March 12 and expressing
    
    doubts about its objectivity, but stating a willingness to provide information in
    
    response to questions if given the opportunity to review the film. Bensinger e-
    
                                             -18-
    mailed questions on March 10. Banks, who was not provided a preview of the
    
    film, responded. Among other things, he denied that Spacecon had any
    
    involvement with the Stranded Workers. The responses were provided to those
    
    who attended the March 12 screening. But Bensinger did not refer to them in his
    
    remarks. (Of course, “publication of a denial by the defamed subject does not
    
    absolve a defendant from liability for publishing knowing or reckless falsehoods
    
    [or] . . . in any way vitiate the value of the evidence that defendant published the
    
    charge with reckless disregard for truth or falsity.” Connaughton v. Harte Hanks
    
    Commc’ns, Inc., 
    842 F.2d 825
    , 837–38 n.6 (6th Cir. 1988) (brackets and internal
    
    quotation marks omitted), aff’d., 
    491 U.S. 657
     (1989).)
    
          Certainly, the evidence does not compel a finding that Bensinger acted with
    
    reckless disregard for the truth. A jury might well vindicate him. It seems to me,
    
    however, that a jury could also properly find malice. I respectfully dissent from
    
    the ground on which the panel opinion affirms summary judgment for Bensinger.
    
    
    
    
                                             -19-