ROBINSON, J.
On August 24, 2004, thirty-one year old William Smolinski, Jr. (Bill),
The defendants now appeal, upon our grant of their petition for certification,
The record, including the Appellate Court's opinion and the findings set forth in the trial court's memorandum of decision, reveals the following relevant facts and procedural history. The plaintiff was, at all times relevant to the present case, employed by B and B Transportation, Inc., as a school bus driver. For a period of time, Bill worked at the same company. The two met there and began dating. Soon thereafter, Bill ended his relationship with the plaintiff and his employment at B and B Transportation, Inc. About one year later, Bill and the plaintiff began dating again. During a vacation together in Florida, however, they broke up because of problems in their relationship, including the fact that the plaintiff was much older than Bill, and his belief that she was cheating on him with Chris Sorensen, a local married politician.
Shortly after his disappearance, the defendants and William Smolinski, Sr., Bill's father, "started putting up missing [person] posters
The plaintiff then brought the present action against the defendants. As the Appellate Court noted, the plaintiff claims the defendants' activities interfered with and damaged her monetarily by interfering with her business of operating a school bus for a living. She also says she was defamed by the defendants who had characterized her as a murderer. She also states that her right to privacy was invaded and that generally the defendants intentionally inflicted great emotional stress on her, causing her much anxiety and torment.
"The defendants countered the allegations by saying [that the] alleged actions
Following a court trial, the trial court, Hon. Thomas J, Corradino, judge trial referee, "found that the defendants' conduct constituted intentional infliction of emotional distress and that their statements that the plaintiff was a murderer or was involved in murder constituted defamation. The court awarded the plaintiff compensatory damages of $32,000 on her claim of intentional infliction of emotional distress and $7500 on her claim of defamation, for a total compensatory damages award of $39,500. The court also awarded the plaintiff [$13,166.67 in] punitive damages... an amount equal to one third of the plaintiff's total compensatory damages award...." Id., at 289, 88 A.3d 589.
The defendants appealed from the judgment of the trial court to the Appellate Court and claimed, inter alia,
With respect to the defendants' first amendment claim, the Appellate Court first determined that it was unpreserved, and considered it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
With respect to the plaintiff's defamation claims, the Appellate Court reviewed the record and concluded that the trial court properly had found that the defendants had made three defamatory statements regarding the plaintiff, namely, by telling various people that the plaintiff was a "murderer" or otherwise involved in Bill's disappearance. Id., at 310, 88 A.3d 589. In particular, the Appellate Court relied on this court's decision in Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952), and concluded that the defendants' statements were defamatory per se, thus allowing a presumption that they had harmed the plaintiff's reputation, and relieving her of the burden of proving such harm. Gleason v. Smolinski, supra, 149 Conn.App. at 310-12, 88 A.3d 589. Accordingly, the Appellate Court rendered judgment affirming the judgment of the trial court. Id., at 314, 88 A.3d 589. This certified appeal followed. See footnote 4 of this opinion.
On appeal, the defendants claim that: (1) the first amendment bars the plaintiff's claims of intentional infliction of emotional distress; and (2) the Appellate Court improperly upheld the trial court's conclusion that they had committed the tort of defamation. Additional relevant facts and procedural history will be set forth where appropriate. We address each claim in turn.
We begin with the defendants' contention that the Appellate Court improperly concluded that the first amendment did not bar the plaintiff's claim of intentional infliction of emotional distress, insofar as it arose from their constitutionally protected conduct in putting up missing person posters on public roadways, despite that conduct's design to target the plaintiff. The defendants argue that the Appellate Court, which treated the first amendment issue as an unpreserved constitutional claim reviewable under State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823,
In response, the plaintiff argues that Snyder is factually distinguishable because the conduct at issue therein was not as invasive as the defendants' conduct in the present case, which they had specifically intended to be intimidating.
"[T]he [f]irst [a]mendment bars... damages under the generally applicable laws of intentional and negligent infliction of emotional distress where those claims are based on constitutionally protected conduct."
Nevertheless, "the heightened scrutiny that this court applies in first amendment cases does not authorize us to make credibility determinations regarding disputed issues of fact. Although we review de novo the trier of fact's ultimate determination that the statements at issue [were not protected by the first amendment], we accept all subsidiary credibility determinations and findings that are not clearly erroneous." State v. Krijger, 313 Conn. 434, 447, 97 A.3d 946 (2014); see also Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("[t]he requirement of independent appellate review ... does not limit our deference to a trial court on matters of witness credibility" [citation omitted; internal quotation marks omitted]). Thus, because the certified issues in this case do not embrace a challenge to the trial court's underlying factual findings, which already have been upheld on review by the Appellate Court; see footnotes 4 and 9 of this opinion; our de novo review is limited to determining whether the defendants' conduct, as found by the trial court, was subject to first amendment protection.
We begin with a review of Snyder, which is the leading United States Supreme Court decision on first amendment protection from tort claims of intentional infliction of emotional distress. Snyder arose from the protest activities of Westboro, whose small, but vociferous, congregation "believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America's military," and "frequently communicates its views by picketing, often at military funerals." Snyder v. Phelps, supra, 562 U.S. at 448, 131 S.Ct. 1207. Parishioners from Westboro held protests, replete with a barrage of offensively phrased signs, on "public land adjacent to public streets near the Maryland State House, the United States Naval Academy," and the funeral services for Marine Lance Corporal Matthew
"The funeral procession passed within 200 to 300 feet of the picket site. Although [Snyder's father] testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event." (Citations omitted.) Id., at 449, 131 S.Ct. 1207. A federal court jury subsequently awarded the Snyder's father several million dollars in damages for his claims, which included intentional infliction of emotional distress, against Westboro and several of its members. Id., at 450, 131 S.Ct. 1207.
Relying on Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988),
"[N]ot all speech is of equal [f]irst [a]mendment importance, however, and where matters of purely private significance are at issue, [f]irst [a]mendment protections are often less rigorous.... That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: [T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas; and the threat of liability does not pose the risk of a reaction of self-censorship on matters of public import." (Citations omitted; internal quotation marks omitted.) Snyder v. Phelps, supra, 562 U.S. at 451-52, 131 S.Ct. 1207.
The court then observed that, although "the boundaries of the public concern test are not well defined," it has "articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors." (Internal quotation marks omitted.) Id., at 452, 131 S.Ct. 1207. It explained that "[s]peech deals with matters 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 is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.... The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern." (Citations omitted; internal quotation marks omitted.) Id., at 453, 131 S.Ct. 1207.
Further, "[d]eciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record.... As in other [f]irst [a]mendment cases, the court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.... In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said." (Citations omitted; internal quotation marks omitted.) Id., at 453-54, 131 S.Ct. 1207.
Turning to the record before it, the Supreme Court observed that the "content of Westboro's signs plainly relates to broad issues of interest to society at large, rather than matters of purely private concern," despite the fact that their "messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import." (Internal quotation marks omitted.) Id., at 454, 131 S.Ct. 1207. The court observed that "even if a few of the signs—such as `You're Going to Hell' and `God Hates You'—were viewed as containing messages related to... Snyder or [his family] specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues."
The court further rejected the argument that Westboro's conduct was a "personal attack on Snyder and his family," which it had attempted to "immunize ... by claiming that they were actually protesting the United States' tolerance of homosexuality or the supposed evils of the Catholic [c]hurch." (Internal quotation marks omitted.) Id., at 455, 131 S.Ct. 1207. The court was "not concerned in this case that Westboro's speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of ... Snyder, and there can be no serious claim that Westboro's picketing did not represent its honestly believed views on public issues.... There was no [preexisting] relationship or conflict between Westboro and Snyder that might suggest Westboro's speech on public matters was intended to mask an attack on Snyder over a private matter." (Citation omitted; internal quotation marks omitted.) Id. Thus, the court held that, because "Westboro's speech was at a public place on a matter of public concern, that speech is entitled to special protection under the [f]irst [a]mendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt." (Internal quotation marks omitted.) Id., at 458, 131 S.Ct. 1207. Accordingly, the Supreme Court directed the lower federal courts to set aside the "jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress...." Id., at 459, 131 S.Ct. 1207.
Post-Snyder cases make clear the critical import of the threshold inquiry into the nature of the communications at issue in determining whether allegedly tortious speech is subject to first amendment protection.
Our inquiry does not, however, end here, as we also must consider the
Nevertheless, although the existence of preexisting animus between parties might indicate circumstantially that a defendant is dressing intentionally tortious conduct in the garb of the first amendment, such animus, including the defendant's motive to harm the plaintiff, "does not necessarily render the messages conveyed... matters of purely private rather than public concern." Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1038 (10th Cir.2013). The vehicle, context, and content of the messages remains of paramount importance. See id., at 1038-39 (evidence that organizer's motive to harm corporation arising from its labor dispute with union led him to make documentary film did not mean that documentary was not matter of public concern, because it addressed its unfair labor practices with respect to use of foreign laborers, which is matter of public concern); accord State v. Carpenter, 171 P.3d 41, 58-59 (Alaska 2007) (radio show host engaged in protected conduct when he ridiculed and
Turning to the record in the present case, we acknowledge the trial court's finding that "one of the important lines of evidence relied on by the plaintiff to establish this tort [of intentional infliction of emotional distress] was the hanging of posters in areas where the plaintiff lived and worked for the sole purpose of intimidating and harassing the plaintiff. The plaintiff claims posters, showing a picture of ... Bill ... with contact information, were hung throughout her bus route, at places where she lived and worked and even near, if not on school grounds, where she picked up and dropped off children. This went on for months."
Moreover, the missing person posters created by the defendants in the present case were entirely content-neutral with respect to the plaintiff; none mentioned her
To this end, we find instructive the New Hampshire Supreme Court's recent decision in Keene v. Cleaveland, 167 N.H. 731, 118 A.3d 253 (2015). In Keene, a city brought tort claims for damages, alleging tortious interference with contract, civil conspiracy, and negligence, against persons who had engaged in an aggressive protest of the city's parking enforcement policies by following and videotaping parking enforcement officers in the performance of their duties. Id., at 255-56. Although acknowledging that the content of their speech was constitutionally protected, the city argued that the protesters' behavior, "following closely, chasing, running after, approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity—constitute improper interference with the [officers'] employment duties. The [c]ity contends that this conduct is significantly harassing behavior under the guise of political expression, and, therefore, not constitutionally protected. The [c]ity asserts, therefore, that a jury may impose tort liability without unconstitutionally burdening the [protesters'] right to free speech."
Guided heavily by this recent New Hampshire decision,
Turning to the fourth prong of Golding, namely, whether reversal is required, we conclude that the plaintiff, as appellee, has not established that the constitutional violation was harmless beyond a reasonable doubt, given the apparent significance of the flyer campaign to the trial court's finding on her intentional infliction of emotional distress claim. We cannot, however, direct judgment as a matter of law for the defendants because the record demonstrates that, in addition to the posters, which are constitutionally protected if not solely a contrived means for malicious harassment on a matter of private concern; see Snyder v. Phelps, supra, 562 U.S. at 458-59, 131 S.Ct. 1207; the defendants also engaged in other confrontational and harassing behavior, including calling the plaintiff offensive names, following her, and videotaping her activities.
We next turn to the defendants' claim that the Appellate Court improperly upheld the trial court's conclusion that they had committed the tort of defamation. In support of this claim, the defendants contend, inter alia, that: (1) the Appellate Court improperly applied the clearly erroneous standard of review to all of the trial court's conclusions; and (2) the plaintiff improperly was not required to carry the burden of proof constitutionally required insofar as the statements pertained to a
Before turning to the defendants' claims regarding defamation, we note that the Appellate Court's opinion sets forth the following additional relevant facts and procedural history, namely, that the trial court "found three statements made by the defendants to be defamatory. Specifically, it found two sets of statements made to the plaintiff's friends ... Vrabel and [Melissa] DePallo, to be defamatory: (1) `Janice Smolinski told [Vrabel] on several occasions that [the plaintiff] "did something to her son" and that "she believes that either [the plaintiff] or someone in her family murdered her son"; and (2) `Janice Smolinski approached [DePallo] and said you do not know what [the plaintiff] is capable of; she said she does not believe [the plaintiff] killed her son, personally, but she knows where he is and [Janice] Smolinski thought "she's involved." The court also found the following statement made by the defendants to an unidentified man at the plaintiff's gym to be defamatory: `[The plaintiff] drove to her gym, the defendants were following her, and [the plaintiff] says, "a guy came and said those people (referring to the Smolinskis) just followed you in and said you were a murderer."'"
Citing its decision in Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008),
Our consideration of the defendants' specific challenges to the Appellate Court's decision is informed by the following general principles. Although defamation
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him...." (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). It is well settled that "for a claim of defamation to be actionable, the statement must be false ... and under the common law, truth is an affirmative defense to defamation ... the determination of the truthfulness of a statement is a question of fact for the jury." (Citations omitted.) Id., at 228-29, 837 A.2d 759. Each statement furnishes a separate cause of action and requires proof of each of the elements for defamation. See id., at 217, 837 A.2d 759.
Beyond these common-law principles, there are numerous federal constitutional restrictions that govern the proof of the tort of defamation, the applicability of which varies with "(a) the status of the plaintiff as a public or private figure, and (b) whether the subject of the speech
Relying on Woodcock v. Journal Publishing Co., 230 Conn. 525, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995), the defendants first contend that the Appellate Court improperly applied the clearly erroneous standard of review, rather than engaging in an independent examination of the entire record to ensure that the judgment did not violate their first amendment rights. The plaintiff argues that the proper standard of review is abuse of discretion. We conclude that appellate review of the trial court's conclusions with respect to defamation in this case requires us to review the underlying findings of historical fact for clear error, but also to engage in an independent review of those determinations by the trial court that carry constitutional significance, such as whether those facts constituted clear and convincing evidence of actual malice justifying an award of punitive damages.
In Woodcock v. Journal Publishing Co., supra, 230 Conn. at 525-36, 646 A.2d 92, this court followed, inter alia, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), and Holbrook v. Casazza, supra, 204 Conn. at 343, 528 A.2d 774, in declining to apply the clearly erroneous standard in reviewing a trial court's "determination of actual malice in a case governed by New York Times Co. v. Sullivan [supra, 376 U.S. at 254, 84 S.Ct. 710]," namely, one implicating defamation claims by a public figure on a matter of public concern. (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., supra, at 525-36, 646 A.2d 92. Rather, consistent with the analysis applied in other first amendment contexts; see part I of this opinion; the court observed that, in "reviewing defamation actions, an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. . . . Because freedom of expression occupies the highest rung of the hierarchy of [f]irst [a]mendment values, and is entitled to special protection . . . [t]he rule of independent review assigns to appellate courts in first amendment freedom of expression cases, a constitutional responsibility that cannot be delegated to the trier of fact, whether the [fact-finding] function be performed in the particular case by a jury or by a trial judge."
This independent review does not, however, mean that the reviewing court may disregard the facts as found by the trier of fact. This court has acknowledged that the independent review required by Bose Corp. v. Consumers Union of United States, Inc., supra, 466 U.S. at 499-500, 104 S.Ct. 1949 "preserves the due regard that is ordinarily given to the trial judge's
Thus, although "[w]e have considerable latitude in deciding whether the evidence supports a finding of actual malice," the "constitutionally based rule of independent review does not mean that we disregard credibility determinations of the trier of fact. . . . Deference to factual determinations that turn on credibility assessment is essential because of the fact finder's unique opportunity to observe and weigh witness testimony." (Citations omitted; internal quotation marks omitted.) Tan v. Le, 177 Wn.2d 649, 669-70, 300 P.3d 356 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 941, 187 L.Ed.2d 784 (2014); see also Dacey v. Connecticut Bar Assn., supra, 170 Conn. at 540, 368 A.2d 125 ("[T]he credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide. Further, we refrain from choosing among inferences as this is another jury function."). Thus, we defer to the trier's findings with respect to, for example, a party's actual knowledge of a statement's falsity, or whether he acted in good faith in publishing a statement later deemed defamatory. See Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 638-39, 969 A.2d 736;
We finally turn to the defendants' burden of proof claim, which relies on Obsidian Finance Group, LLC v. Cox, supra, 740 F.3d at 1284, for the proposition that when, as in this case, an allegedly defamatory statement relates to a matter of public concern, the first amendment requires the plaintiff, even if not a public figure, to prove by clear and convincing evidence that the defendant acted with actual malice in making it. To this end, the defendants contend that we should engage in an independent review of the record, and conclude that they lacked the requisite actual malice insofar as they were reasonable in believing that the plaintiff was involved in Bill's disappearance because the plaintiff was the last person to see him alive, and refuses to take a polygraph to clear herself as a suspect in his disappearance and, they argue, admits that she continues to withhold information from the police. As the plaintiff acknowledges, the defendants in essence "claim that [she] had the burden of proving that she was innocent of murder in order to prevail on her defamation claim."
In response, the plaintiff relies on Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. at 112 and n. 6, 448 A.2d 1317, and Atwater v. Morning News Co., 67 Conn. 504, 520, 34 A. 865 (1896), for the proposition that, as a private figure, she does not bear the burden of proving the falsity of the defamatory statements, insofar as Connecticut follows the common-law rule that the truth is an affirmative defense in defamation cases involving private citizens. The plaintiff claims that the defendants' arguments to the contrary would cause a radical change in the law of defamation, because it would render any victim of defamation a "limited purpose public figure" under Gertz v. Robert Welch, Inc., supra, 418 U.S. at 323, 94 S.Ct. 2997 resulting solely from the publication of the allegedly tortious statements.
We note at the outset that this claim was not preserved in the trial court. Nevertheless, and in the absence of a procedural objection by the plaintiff, we exercise our discretion to review it pursuant to State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, despite the defendants' failure to ask that we do so, because their main brief otherwise meets the predicates for Golding review insofar as it has "present[ed] a record that is [adequate] for review and affirmatively [demonstrates] that [their] claim is indeed a violation of a fundamental constitutional right."
Our independent research demonstrates that neither of the parties' briefs provides a completely accurate recitation of the law governing the proof of defamation claims like those at issue in the present case, namely, claims made by private figure plaintiffs, but relating to matters of public concern.
The defendants' citation to Obsidian Finance Group, LLC, does, however, point us indirectly to the proper legal standard with respect to the proof of defamation claims brought by private figures relating to matters of public concern, insofar as it cites the decision of the United States Court of Appeals for the Second Circuit
In describing this burden shift away from the common-law rule, followed in Connecticut, that falsity is presumed and the truth is an affirmative defense; see, e.g., Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. at 112, 448 A.2d 1317; the United States Supreme Court acknowledged that "requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so. Nonetheless, the [c]ourt's previous decisions on the restrictions that the [f]irst [a]mendment places upon the common law of defamation firmly support our conclusion here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the [c]ourt has affirmed that [t]he [f]irst [a]mendment requires that we protect some falsehood in order to protect speech that matters. . . . To provide breathing space . . . for true speech on matters of public concern, the [c]ourt has been willing to insulate even demonstrably false speech from liability, and has imposed additional requirements of fault upon the plaintiff in a suit for defamation." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. at 778, 106 S.Ct. 1558. The court further observed that this burden shift "adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff's contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher's fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted."
"Whether a defendant has knowledge of the falsity of a defamatory statement is a question within the province of the trier of fact. . . . The proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements and whether he has grounds for such belief. . . . Notably, however, a trial court is not required merely to accept a defendant's self-serving assertion that he published a defamatory statement without knowing that it was false. . . . As the United States Supreme Court aptly stated: The defendant in a defamation action . . . cannot . . . automatically [e]nsure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. . . .
"Although whether a defendant has published a false statement with reckless disregard for its truth is not easily captured in a simple definition, we have held that reckless disregard may be found when an individual publishes defamatory statements with a high degree of awareness of. . . probable falsity . . . or . . . entertained serious doubts as to the truth of [the] publication. . . . Moreover, [a] refusal to retract a statement that has been demonstrated to be false and defamatory might be relevant in showing recklessness at the time the statement was published." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 637-39, 969 A.2d 736.
Turning to the record of the present case, we conclude that the plaintiff did not establish actual malice under any standard of proof. See footnote 44 of this opinion. Unlike in our past cases wherein we have upheld findings of actual malice, neither the trial court nor the plaintiff cite any evidence in the record indicating that the defendants' allegations that the plaintiff had some role in, or knowledge about, Bill's disappearance were made, as the trial court found, reckless disregard for the truth. Further, our review of the record does not yield any evidence to support the trial court's determination that "[w]e do not have a case of mere negligent utterances not based on fact but on suspicion and conjecture," particularly given that the plaintiff never challenged at trial the defendants' personal knowledge of the factual basis for their statements. Indeed, the evidence in the record supports the opposite conclusion, notwithstanding the fact that there need not be a "single smoking gun proving actual malice," and that even the "clear and convincing evidence standard does not require defendants to admit on the record they entertained serious doubts as to the truth of their allegations." (Internal quotation marks omitted.) Tan v. Le, supra, 177 Wash.2d at 674, 300 P.3d 356.
Although it would be probative evidence if there were other evidence of actual malice, the acrimony between the parties, including Janice Smolinski's expressed desire to "break" the plaintiff and have her reveal information about Bill's disappearance, does not suffice by itself to fill this evidentiary void. "[E]vidence of ill will or bad motives will support a finding of actual malice only when combined with other, more substantial evidence of a defendant's bad faith." (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., supra, 230 Conn. at 544, 646 A.2d 92; see also, e.g., Gmbardella v. Apple Health Care, Inc., supra, 291 Conn. at 638, 969 A.2d 736 ("proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice" [internal quotation marks omitted]). Accordingly, we conclude that the trial court's failure to conduct the falsity analysis required by the first amendment requires a new trial on the defamation claim.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court for a new trial on the claims of intentional infliction of emotional distress and defamation.
In this opinion ROGERS, C.J., and PALMER, McDON-ALD and ESPINOSA, Js., concurred.
EVELEIGH, J., with whom ZARELLA, J., joins, dissenting.
I respectfully dissent. Free speech may not be invoked as a mere contrivance to shield tortious conduct—directed at a private party on a purely private matter—from liability. See Snyder v. Phelps, 562 U.S. 443, 455, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011). In my view, the majority accepts a contrived, post hoc rationalization for the harassing conduct by the defendants, Janice Smolinski and Paula Bell,
In light of the standard of review we must apply today, which requires this court to search the record to make sure there is no intrusion on first amendment rights and to disturb the trial court's factual findings only when they are clearly erroneous, as well as the defendants' concession that they do not ask this court to overturn the trial court's factual findings, respectfully, I cannot agree with the majority's apparent sub silentio disregard of the trial court's crucial factual findings. If it is unable to disregard the trial court's critical factual finding, the majority essentially concedes, through its citation to State v. Carpenter, 171 P.3d 41 (Alaska 2007), that such conduct is not protected speech. See id., at 59 ("[e]ven speech that relates to a matter of public interest loses its protection and can give rise to an [intentional infliction of emotional distress] claim if . . . it is uttered with an intent merely to harass and with no intent to persuade, inform, or communicate"). Therefore, I would affirm the judgment of the Appellate Court which concluded that, notwithstanding an independent review of the whole record, the trial court's factual
The defendants did not intend to convey a protected message through their intentional efforts to "hound" the plaintiff until she "broke." No ideas were expressed through the other harassing conduct that formed the basis for the trial court's judgment. The only message a reasonable person could have gleaned from the defendants' conduct, including their targeted placement of posters, is one of harassment. Such tactics included calling the plaintiff and threatening to kill her, calling the plaintiff's employer and the employer's clients to accuse the plaintiff of murder, following the plaintiff and her friends on the street and videotaping her, threatening the plaintiff and her friends in person, swearing at and calling the plaintiff names such as "ho" and "slut" and ignoring admonishments by the police to stop escalating matters before things got out of hand. Shielding this harassing conduct, the sum of which caused the plaintiff "to fear for her safety and that of her child," cannot be tolerated in a decent society and is neither envisioned nor dictated by our first amendment jurisprudence. For these reasons, I respectfully dissent.
I begin by discussing the majority's opinion, first, by noting the cases it cites in setting forth relevant first amendment jurisprudence. I then discuss how, in my view, the majority has overturned a crucial finding of fact in order to conclude that the present case involves a violation of the first amendment. Because I respectfully disagree with the majority's disregard of this crucial finding, I then conclude that the cases cited by the majority, as well as additional case law, demonstrate that there is no basis for finding a constitutional violation in the present case under the third prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Specifically, I conclude that the defendants' targeted posters cannot be shielded from forming the basis of liability because it is not speech of public concern.
The majority accurately sets forth the standard of review and substantive law concerning speech of public concern. See Snyder v. Phelps, supra, 562 U.S. at 453-54, 131 S.Ct. 1207 ("Deciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record. . . . As in other [f]irst [a]mendment cases, the court is obligated to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression. . . . In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said." [Citations omitted; internal quotation marks omitted.]); State v. Krijger, supra, 313 Conn. at 447, 97 A.3d 946 ("[T]he heightened scrutiny that this court applies
As to the first of three factors to consider, the content of the speech, the majority examines the "objective nature of the speech at issue in the count of the complaint alleging intentional infliction of emotional distress, namely, the defendants' extensive campaign of missing person posters." It notes the "well established" principle that "`[t]he commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions . . . are without question events of legitimate concern to the public. . . .' Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975)." After noting that the posters seek information about Bill without specifically referencing the plaintiff, the majority concludes that the content of the communications relates to a matter of public concern—namely, "matters pertaining to missing persons." I agree that the content of the posters, without more, ostensibly relates to a matter of public concern.
The majority then discusses case law pertaining to the second and third factors: the context and form of the speech. As to context, the majority concedes that "the existence of preexisting animus between parties might indicate circumstantially that a defendant is dressing intentionally tortious conduct in the garb of the first amendment," though it explains that a motive to harm "`does not necessarily render the messages conveyed . . . matters of purely private rather than public concern.' Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1038 (10th Cir. 2013)." The cases cited by the majority conclude that, if the motive to harm or harass is the sole basis for speech uttered "with no intent to persuade, inform, or communicate" on a protected matter, the first amendment's protections do not apply because it is speech on a matter of purely private concern. State v. Carpenter, supra, 171 P.3d at 59. In my view, this jurisprudence applies precisely to the present case. However, I acknowledge that, if an improper motive to harm is not the sole basis for uttering speech, and there exists a bona fide intent to communicate on a protected matter—which, if condemned, the protected speech will have been improperly chilled—the speech remains protected by the first amendment. See Spacecon Specialty Contractors, LLC v. Bensinger, supra, at 1037-39 and 1039 n. 4 (documentary inspired by news reports about company's dubious employment practices and alleged abuse of foreign workers "not shown in a purely private context," even though it was product of some motivation to harm company's reputation, because "[t]hat the film elucidated those matters of public concern while simultaneously advancing the [u]nion's private interests does not render the matter entirely private"). As acknowledged by the majority, the inquiry into context, form, and motive is fundamental to determining whether speech is of public concern. Without such an inquiry, as the majority notes, the first amendment risks becoming an all-purpose tort shield that is
The majority then turns to the factual findings of the trial court to determine whether the context and form of the targeted placement of posters demonstrates the defendants' bona fide attempt to communicate a message to the public or, rather, an attempt purely and solely intended to harass the plaintiff. The majority alludes to the trial court's finding that the defendants' targeted posters, were located primarily on, or adjacent to, public roadways, were placed "not as the result of a general effort by the [defendants] to find their son and brother but [rather] part of an effort to break her"—uttered without an attempt to communicate a protected matter to the public—and yet the majority concludes that the targeted placement of posters "was consistent with the overarching public concern of gaining information about Bill's disappearance. . . ." Having apparently disregarded the trial court's crucial factual findings, the majority then concludes that "a substantial portion of the defendants' conduct . . . was, in fact, protected by the first amendment."
The majority asserts that "[n]othing in the trial court's memorandum of decision indicates that it considered the first amendment in deciding this case. We, of course, do not fault the trial court for this. The first amendment claims were not properly preserved and must be reviewed on appeal pursuant to Golding." See footnote 21 of the majority opinion. I disagree. A review of the trial court opinion reveals that the trial court did consider free speech issues when deciding this matter. First, the trial court explained that "the court understands the comments in [Petyan v. Ellis, 200 Conn. 243, 254, 510 A.2d 1337 (1986)], to the effect that certain conduct which would otherwise be considered extreme and outrageous can be privileged. The [defendants] cannot be faulted for bringing their concerns and suspicions to the attention of the police and even the media. Nothing, for example, has been introduced into evidence that the . . . relationship [between Bill and the plaintiff] did not break down under circumstances involving a rival for [the plaintiff's] affection and the [defendants] concede that Bill . . . made a threatening [tele]phone call to the rival the day before [Bill] disappeared. The nature of that person's business—long-haul trucking—and the occupation of [the plaintiff's] now deceased son as a grave digger are not disputed and it would be an unacceptable restriction on free speech and even hamper police investigations if people did not have a right to bring such facts to the police's or even [the] public's attention. In fact, the [defendants] are to be admired for their persistent efforts to bring [Bill's] disappearance and their complaints to the highest levels of state government and the federal authorities. One cannot help sympathizing with their pain and frustration." (Emphasis added.) Furthermore, the trial court also reasoned as follows: "The foregoing also leads the court to conclude that the third and fourth element[s] of the tort have been met. [The plaintiff and other witnesses] testified to the emotional distress caused [to the plaintiff] by the activities of the defendants. The enumerated facts and findings made by the court on those facts lead to the conclusion that the actions of the defendants caused [the plaintiff] emotional distress—in fact they were meant to do so. Also, it is not surprising that, given the facts, the emotional distress caused [to the plaintiff] was severe. She, in effect, felt she was being constantly hounded—not as the result of a
The majority explains that it does "not suggest that the trial court was completely unaware that the general subject matter of this case has first amendment implications. The dissent's discussion of the trial court's references to the defendants' free speech rights focuses, however, on conduct whose propriety and protected nature is not at issue in this appeal, namely, the defendants' rights to speak to law enforcement authorities or the public about details surrounding Bill's disappearance. There is nothing in the trial court's opinion indicating that it considered the first amendment implications of the defendants' flyer campaign, which were a substantial basis for the plaintiff's intentional infliction of emotional distress claim." See footnote 21 of the majority opinion. I disagree. First, it is not reasonable to assume that the trial court could be aware "that the general subject matter of this case has first amendment implications" and consider it in regard to some of the defendants' conduct, but not the conduct involving the posters. Second, the trial court's statement that "it would be an unacceptable restriction on free speech and even hamper police investigations if people did not have a right to bring such facts to the police's or even [the] public's attention" belies the majority's reading of the trial court's memorandum of decision. (Emphasis added.) A reasonable reading of the trial court's reference to the public's attention would include the defendants' placement of posters. Furthermore, contrary to the majority's claim that I am addressing an issue not briefed by the parties—namely, whether the Appellate Court properly applied Golding review to these claims—my focus on this language in the trial court's memorandum of decision regarding free speech is in response to the majority's explicit statement that "[n]othing in the trial court's memorandum of decision indicates that it considered the first amendment in deciding this case." See footnote 21 of the majority opinion.
I respectfully disagree with the majority's apparent disregard of the factual findings and credibility determinations of the trial court. First and foremost, at oral argument, the defendants conceded that they were not asking this court to overturn the trial court's factual findings as clearly erroneous.
Assuming that the majority chooses to overturn—without saying so and notwithstanding the defendants' concession—as clearly erroneous the trial court's factual finding that the defendants' sole purpose in placing posters near the plaintiff's home and work was to harass her, a review of the record is warranted. As noted by the majority, the standard of review requires deference to the factual findings of the trial court, especially credibility determinations regarding disputed issues of fact, unless clearly erroneous. "A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Internal quotation marks omitted.) State v. Krijger, supra, 313 Conn. at 446, 97 A.3d 946. Only after review of the trial court's subsidiary credibility determinations and findings of fact for clear error may this court review, de novo, "whether the defendants' conduct, as found by the trial court, was subject to first amendment protection." Id. Even Golding review, as the majority notes, "does not permit us to disregard the trial court's findings of historical fact resolving conflicting evidence in favor of our own view of the factual record, or to make our own findings when the record reveals conflicting or inconclusive evidence on a factual point." See footnote 15 of the majority opinion. In my view, however, the majority has done just that.
The majority acknowledges, in a footnote, the following subordinate factual findings undergirding the trial court's critical finding that the defendants' sole purpose in placing posters near the plaintiff's home and work was to intimidate and harass the plaintiff until she broke: that posters placed in other towns were generally well spaced out and yet posters were placed outside of the plaintiff's place of employment and saturated "every nook and cranny" of her bus route; that there were a large quantity of posters on one pole outside the plaintiff's house, that were replaced when taken down, and yet posters were placed nowhere else on the street; that the placement of posters continued for months and followed the plaintiff as she changed residences to avoid them; and that there was no evidence that the placement of posters along the plaintiff's bus route was necessary to aid in locating Bill. See footnote 20 of the majority
Under our standard for clear error and in light of the ample support in the record, therefore, the majority could only have overturned the trial court's critical finding if it had been left with the definite and firm conviction that a mistake had been committed, a conclusion the majority has not made. And if the majority made such a conclusion, it could only have done so by its further disregard of additional relevant facts found by the trial court: that Janice Smolinski admitted to "intentionally saturating all the areas where she knows [the plaintiff] frequents `because she was trying to break her'" so that the plaintiff would admit her involvement in Bill's disappearance; that both defendants admitted to the police, the Waterbury Observer, and other parties their plans to harass the plaintiff and her friend until one of them broke down and gave them information; that Janice Smolinski admitted to the Waterbury Observer that these actions could land her in jail; and that the poster campaign was part of—and not even the exclusive means of—a larger effort to intimidate the plaintiff, intended to, and in fact becoming, the cause of the plaintiff's severe emotional distress. In light of the defendants' admission that the posters were deliberately placed to affect only the plaintiff—a person who undeniably already understood that the defendants sought information about Bill's whereabouts—I would uphold the trial court's finding that this conduct did not convey a
Most importantly, the trial court, having had the opportunity to view the demeanor of the parties and determine their credibility, clearly resolved the conflict in the parties' testimony to make its crucial factual finding. The trial court characterized the parties' conduct as a "`cat and mouse game'" for which "both sides can be faulted for the antagonistic activity that developed." Additional review of the trial transcript reveals just how deep the acrimony between the parties ran—at one point during the plaintiff's testimony, Janice Smolinski interrupted the plaintiff stating: "Stop it. . . . Stop it. It's not all about you, it's not. Stop." The court took a recess after this outburst, after which the plaintiff's attorney noted that, during the recess, a family member of the defendants "directed an obscenity" at the plaintiff. The trial court then attempted to calm the parties, though it acknowledged that "emotions are boiling. . . ." A fair review of the record cannot, without overturning the trial court's determination as to the defendants' credibility, lead to the definite and firm conviction that a mistake has been committed—instead, the record indicates the turn of a blind eye toward the facts that the majority should have considered. Contrary to its statement that Golding review does not permit it to do so, the majority has made several of its own factual "findings when the record reveals conflicting or inconclusive evidence on a factual point." See footnote 15 of the majority opinion.
To the extent the majority might have come to its conclusion by "[performing] a fresh examination of crucial facts under the rule of independent review"; (internal quotation marks omitted) DiMartino v. Richens, 263 Conn. 639, 662, 822 A.2d 205 (2003); it has not stated how it performed this examination without disregarding credibility determinations made by the trial court, which our first amendment jurisprudence does not allow us, and the defendants have not asked us, to do. See State v. Krijger, supra, 313 Conn. at 447, 97 A.3d 946. The majority suggests that a proper application of the rule of independent review would involve a species of "the clearly erroneous standard of review [while] tailoring [the review] to the specific trial court determinations at issue. . . ." But as the Appellate Court noted, it is unclear how that standard permits us to overcome the trial court's finding that the defendants' sole intent was to harass without discounting the trial court's consideration of the parties' credibility as to this crucial issue of fact. See Gleason v. Smolinski, supra, 149 Conn.App. at 306, 88 A.3d 589 ("[u]ltimately, the court credit[ed] the testimony of the plaintiff . . . because although the defendants testified that they did not engage in the conduct of hanging missing person posters in order to harass the plaintiff, other evidence presented . . . [showed] that the defendants had a strong motive to act in the way . . . alleged by the plaintiff" [internal quotation marks omitted]). This crucial finding must stand.
If, therefore, the majority could not have overturned as clearly erroneous the factual finding that the defendants' sole intent in targeting posters at the plaintiff was to harass her until she broke, given its citation to relevant case law, the majority essentially concedes that its conclusion cannot stand. See State v. Carpenter, supra, 171 P.3d at 59 ("[e]ven speech that relates to a matter of public interest loses its protection and can give rise to an [intentional infliction of emotional distress] claim if . . . it is uttered with an intent merely to harass and with no intent to persuade, inform, or communicate"). No other cases cited by the majority support the conclusion that the defendants' conduct in the present case is speech of public concern. Indeed, no case has afforded the
My review of additional first amendment case law also supports my conclusion. Keene v. Cleaveland, 167 N.H. 731, 118 A.3d 253 (2015), is instructive, containing facts most similar to those in the present case and differing only by factual findings regarding the legitimacy of the actors' intent to express protected speech to the public and the extent to which protected speech would be chilled if the conduct were condemned. In Keene, the Supreme Court of New Hampshire confronted a claim that the first amendment protects conduct intended to harass parking enforcement officers issuing parking tickets. Id., at 255. The facts of Keene are set forth in the majority opinion and, therefore, need not be repeated here. See footnote 22 of the majority opinion. I emphasize, however, that in conceding that the content and locational context favored protection, the plaintiff in that case, the city of Keene, argued that certain other facts indicated that the conduct at issue constituted "`significantly harassing behavior under the guise of political expression,' and, therefore, [rendered the conduct] not constitutionally protected." Keene v. Cleaveland, supra, at 258. Specifically, the plaintiff in that case argued that aspects of the defendants' conduct, namely "following closely, chasing, running after, approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity" had a tortious impact on the parking enforcement officers. (Internal quotation marks omitted.) Id., at 260. The New Hampshire Supreme Court disagreed that this impact rendered the speech a matter of private concern, highlighting the fact that the defendants "intended [this conduct] to draw attention to the [c]ity's parking enforcement operations and to persuade the [parking enforcement officers] to leave their positions." (Emphasis added.) Id., at 261. Because the challenged conduct was the vehicle for the defendants' bona fide political protest, imposing liability for the conduct would infringe upon the defendants' right to free speech, undermine the free and robust debate of public issues, and pose the risk of a reaction of self-censorship on matters of public import. Id.; see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (first amendment protects rights of individuals to engage in public protest, even if protest activity causes economic harm, for purpose of influencing societal or governmental change, because speech "does not lose its protected character . . . simply because it may embarrass others or coerce them into action").
The defendants' use of posters touches on the same first amendment concerns as the defendants' conduct in Keene. Specifically, the content of the speech related to a matter of public concern, the activities
In Keene, the defendants engaged in harassing activity that, as a matter of fact, was inextricably linked to, and intended to advance, their protected message to the public—a message protesting the government. Such speech is worthy of the strongest first amendment protections. See State v. Kriket; supra, 313 Conn. at 450, 97 A.3d 946 (reiterating the "`profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials'"), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also State v. Peter, 798 N.W.2d 552, 553 (Minn.App.2011) (reversing conviction for disorderly conduct for protesters outside fur store because "their statements and conduct did not rise to the level of `fighting words,' and their loud chanting and yelling were `inextricably intertwined' with their political protest, which was protected by the [f]irst [a]mendment").
By stark contrast, in the present case, the trial court found that the defendants' targeting of the plaintiff, in the context of their other intimidating activities, was not a bona fide expression to the public of a message that the first amendment protects. Specifically, the trial court found that "the poster campaign in areas where [the plaintiff] lived and worked [was] part of a larger effort to intimidate her. . . . [The plaintiff] was being constantly hounded—not as the result of a general effort by the [defendants] to find their son and brother but part of an effort to break [the plaintiff]. . . . [The defendants] pursued their action with these purposes in mind." See Connick v. Myers, 461 U.S. 138, 148 n. 8, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("[A] questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest. [W]hether [the utterances] . . . could be matters of public concern is beside the point—it does not answer whether this [utterance] is such speech." [Emphasis in original.]). The defendants' conduct might have tangentially involved protected speech, but the other actions of the defendants, made transparent by their own admissions as to their purpose to harass, formed the basis of the trial court's credibility determination that this conduct was merely and solely tortious conduct directed at a private party in an antagonistic, private dispute. See People v. Little, Docket No. 4-13-1114, 2014 WL 7277785, *7 (Ill.App. December 22, 2014) (conviction for stalking affirmed, statute not unconstitutionally overbroad and properly applied to defendant's conduct because "preexisting relationship and conflict [between the defendant and his wife] strongly suggest [the] defendant is attempting to mask an attack on [his wife] over a private matter as a protest of a matter of public concern" and because "nothing in the evidence suggests that in driving by [the women's shelter], [the] defendant intended to peacefully protest a matter of public concern in a public forum . . . [or] `convey his position on abortion utilizing a method designed to reach as broad a public audience as possible'"). As the trial court found, nothing in the evidence suggests that, in hounding the plaintiff and placing posters near every place she frequented, the defendants intended to advance a message—a message
The comparison between the protected speech in Keene and the unprotected speech in the present case is reinforced when one examines whether a judgment for money damages would run the risk of chilling protected speech. In Keene, a judgment against the defendants would mean that the defendants, believing as they did that the government's actions in issuing parking tickets should not be tolerated and hoping to broadcast this belief to the public, would be penalized for expressing this message. It would also mean that future protesters of governmental action in New Hampshire would think twice and potentially self-censor before launching an unpleasantly sharp attack on their government or its officials. By contrast, the judgment against the defendants in the present case does not pose these risks: the judgment does not penalize the defendants for searching for Bill or bringing their grievances about the authorities' lack of diligence to public light, undeniably protected conduct. The trial court concluded that these bona fide efforts—the efforts in publicizing the case on television and in the Waterbury Observer, the efforts to hang posters in multiple states in a manner actually intended to yield tips as to Bill's whereabouts and to advance their cause—merited admiration and encouragement. The trial court stated that "it would be an unacceptable restriction on free speech and even hamper police investigations if people did not have a right to bring such facts to the police's or even [the] public's attention." The trial court further concluded that "the defendants [cannot] be held accountable [for] . . . [t]he publicity about the case . . . [and] had a right to voice what they felt were valid criticisms of the way law enforcement authorities handled the investigation and their pleas for help in order to try to ensure that the intensity of the investigation would be increased and relevant areas of inquiry
As the trial court found and the Appellate Court affirmed, however, expressing criticism of the police or engaging in the public search for Bill was not the defendants' intent when they targeted the plaintiff with posters. See Gleason v. Smolinski, supra, 149 Conn.App. at 306, 88 A.3d 589. Affirming the judgment against the defendants would penalize them only for going "beyond the acceptable parameters" of a decent society and engaging in opprobrious behavior wholly divorced from any protected message. Instead of chilling speech or posing any risk of self-censorship, the judgment prevents the actions of these defendants—and thereby future individuals—from targeting, intimidating, harassing, and intentionally inflicting emotional distress upon any person they believe to have previously engaged in the commission of a crime. Affirming the judgment would not require the defendants to take down all of their posters or cease their search for Bill; it is consistent with the protections afforded by the first amendment while vindicating our state's "legitimate interest in redressing wrongful injury"; Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); by reaching "no farther than is necessary to protect the legitimate interest involved." Id., at 349, 94 S.Ct. 2997.
Affirming the judgment of the trial court is also consistent with Snyder, from which the majority quotes extensively and upon which the majority appears to rely. In my view, reliance on Snyder is not apt. As in the present case, the content of the speech in Snyder related to a matter of public concern—a viewpoint critical of the government. But contrary to the present case, the context of the speech revealed that the defendants actually intended to convey this viewpoint to the public by way of its picketing. In Snyder, the United States Supreme Court concluded that the defendants "had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of [Marine Lance Corporal] Matthew Snyder, and there can be no serious claim that [the defendants'] picketing did not represent its `honestly believed' views on public issues." Snyder v. Phelps, supra, 562 U.S. at 455, 131 S.Ct. 1207. "There was no [preexisting] relationship or conflict between [the defendants] and [the plaintiff] that might suggest [the defendants'] speech on public matters was intended to mask an attack on [him] over a private matter." Id. Moreover, the plaintiff's distress in Snyder was not caused by harassing conduct; instead, "any distress occasioned by [the defendants'] picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." Id., at 457, 131 S.Ct. 1207. In other words, it was the content of the speech—the honestly believed, protected message that the defendants in Snyder wished to communicate to the public—that caused the distress, not the context in which the speech occurred.
In addressing the possibility that speech could be chilled by affirming the judgment for intentional infliction for emotional distress in Snyder, the United States Supreme Court recognized that, by condemning the defendants' speech, the jury could have imposed liability on the basis of their "tastes or views, or perhaps. . . their dislike of a particular expression . . . [which would pose] a real danger of becoming an instrument for the suppression of . . . vehement, caustic, and sometimes [unpleasant] expression." (Citation omitted; internal quotation marks omitted.) Snyder v. Phelps, supra, 562 U.S. at 458, 131 S.Ct. 1207. By contrast, condemnation of the defendants' harassing conduct in the present case does not pose any risk of having resulted from differing tastes or views on what the posters conveyed or the ideas they espoused, nor does it pose a risk of suppressing unpleasant expression. It merely imposes liability for the "continued, aggravated nature of the defendants' activity in hounding [the plaintiff] where she lived and worked" for the sole purpose of intimidating and harassing the plaintiff and "not as the result of a general effort by the [defendants] to find [Bill]."
In light of the foregoing, I would uphold the critical factual findings of the trial court which, in the absence of any case law to the contrary
But even assuming, arguendo, that the defendants' targeted posters represented speech of public concern and that the defendants established a constitutional violation under the third prong of Golding, I respectfully disagree with the majority's conclusion that the fourth prong of Golding requires a remand because of the "apparent significance of the flyer campaign to the trial court's finding on her intentional infliction of emotional distress claim." In my view, the constitutional violation, if any, is harmless beyond a reasonable doubt. The majority has conceded the existence of extensive and continuous "confrontational and harassing behavior, including calling the plaintiff offensive names, following her, and videotaping her activities" that, as detailed previously in this dissenting opinion, is a sound, independent basis for the judgment. Including the other relevant facts that, in my view, the majority should have considered—such as the fact that the plaintiff received threatening telephone calls from Bell, causing the plaintiff to fear for her safety and that of her child—any constitutional
Like the Appellate Court, I would conclude that the defendants did not satisfy the third prong of Golding because they have not established a violation of their first amendment rights. See Gleason v. Smolinski, supra, 149 Conn.App. at 293-95, 88 A.3d 589.
I next turn to the majority's discussion of the plaintiff's claim of defamation. I agree with the majority's analysis and conclusion that the three statements at issue—private accusations to private individuals that the plaintiff was a "murderer"—were defamatory statements of fact, not of opinion. I respectfully disagree, however, with the remainder of the majority's analysis, in particular, its conclusion that the statements at issue constitute speech of public concern meriting the protections of the first amendment. In my view, a proper inquiry into the content, context, and form of these private accusations leads to the conclusion that the first amendment's protections are unwarranted. Without analysis, the majority concludes that "the parties do not dispute for purposes of the defamation claim that the oral statements at issue, which pertain to the plaintiff's role in Bill's death or disappearance, implicate a matter of public concern for first amendment purposes." I respectfully disagree.
Contrary to the precedent to which it cites,
Instead of performing its own independent review of the whole record, the majority merely cites to three cases to support its position that the statements are of public concern because they "pertain to the plaintiff's role in Bill's death or disappearance. . . ." None of the three cases created a per se rule that any accusation of crime garners the first amendment's protections. Instead of creating per se rules, the court in each of those cases engaged in its own requisite inquiry into content, context, and form of the defamatory statements to come to a legal conclusion that the statements merited the first amendment's protections. As for their ultimate legal conclusions, all of the cases predicated the first amendment's protections on bases not applicable to the present case; see footnote 8 of this dissenting opinion; Holloway v. American Media, Inc., 947 F.Supp.2d 1252, 1261 n. 8 (N.D.Ala.2013) (article published involved public figure); Miles v. Ramsey, 31 F.Supp.2d 869, 875 (D.Colo.1998) (article published was matter of public concern because murder was national "media spectacle"); Shoen v. Shoen, 292 P.3d 1224, 1229-30 (Colo.App.2012) (statements were made on television program "during a two-hour interview, in which—among other things—[the speaker] criticized the quality and completeness of the [s]heriff's investigation" and therefore "related to a matter of public concern because they addressed [the speaker's] views about the adequacy of the investigation by public law enforcement officers when unanswered questions remained"). Though the content of the speech in those cases might have touched on a matter of public concern, the context of the speech involved attempts to convey a message to the public, vastly differing from the intended audience—private individuals—in the present case.
I would conclude, instead, that Sartain v. White, 588 So.2d 204 (Miss.1991), is instructive. In Sartain, neighbors were embroiled in a terrible conflict over a period of years. Id., at 205. The defendants alleged that the plaintiff, a woman with arguable mental capacity, accused them, verbally in public and in letters to third parties, of various criminal acts including murder. Id., at 206. After the defendants prevailed on their claim for defamation, the plaintiff appealed, citing to Gertz and claiming the protections of the first amendment in accusing the defendants of various crimes. Id., at 213. The Supreme Court of Mississippi concluded that only if the plaintiff's accusations amounted to speech of public concern would the first amendment have been applicable. Id. After detailing the plaintiff's borderline delusional behavior, the court discussed the content, context, and form of the accusations, concluding as follows: "The content of the debate in question involves whether the [defendants] are murderers, robbers and terrorists. The form of the debate involved various pleadings, letters to city officials, and oral tirades within a neighborhood. The context of the debate involves a dispute between a respectable family as the accused and an accuser with a rather notorious past. Though accusations of this nature generally are a matter of public concern, in this context and emanating from this source, we find that they are not in this case."
I would conclude that the defendants' private accusations of murder were "solely in the individual interest of the speaker. . . [and therefore warrant] no special protection. . . ." (Citation omitted.) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (plurality opinion). It is worth stressing that these private accusations forming the basis of the judgment lie in stark contrast to the defendants' other, protected speech not forming the basis of the judgment: namely, the defendants' speech that brings to the public's attention in the Waterbury Observer and on television the authorities' lack of diligence in pursuing the case in light of allegations that the plaintiff was involved in a love triangle. But far from the context of the defendants' legitimate attempts to exercise their free speech rights, and, instead, just as in Sartain, the context of the statements forming the basis of the judgment evinces a purely private conflict that simply cannot be attributed to any exposition on a public matter. See also Connick v. Myers, supra, 461 U.S. at 148 n. 8, 103 S.Ct. 1684 ("[A] questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest. [W]hether [the utterances] . . . could be matters of public concern is beside the point—it does not answer whether this
The majority's extension of the first amendment's protections to the defendants' defamatory statements has serious consequences, namely, a shift in the burden of proof as to the truth or falsity of the alleged defamatory statement from the defendants to the plaintiff. The burden of proof is often dispositive of actions for defamation, especially in cases involving defamatory statements difficult to prove or disprove, often the same cases in which the parties present scant evidence. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-78, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) ("the burden of proof is the deciding factor only when the evidence is ambiguous" and although "requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so . . . [this rule is justified in order] to protect speech that matters" [internal quotation marks omitted]). Without a reasoned legal conclusion that the defendants' speech is of public concern, affording the defendants protection under the first amendment serves only to shield false criminal accusations made by one private party against another private party. Such a result is inconsistent with first amendment jurisprudence. Cf. Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 168-69, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979) (rejecting contention that "any person who engages in criminal conduct automatically becomes a public figure" because "[t]o hold otherwise would create an `open season' for all who sought to defame persons convicted of a crime"); see Gertz v. Robert Welch, Inc., supra, 418 U.S. at 341, 94 S.Ct. 2997 ("[w]e would not lightly require the [s]tate to abandon [the underlying state interest in compensating individuals for harm inflicted on them by defamatory falsehoods]"). This result is also inconsistent with our classification of such statements as defamatory per se, which operates to lighten the burden on a plaintiff by presuming injury to a plaintiff's reputation. See Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 551, 733 A.2d 197 (1999).
An inquiry into the content, context, and form of the defamatory statements at issue, the harassing context of which is discussed at length previously in this dissenting opinion, leads me to conclude that the defamatory statements at issue in the present case are not speech of public concern and, therefore, are not entitled to protection under the first amendment. The defendants intended to convey no protected message on any matter of concern to the public and, therefore, affirming the judgment in the present case chills no protected speech. The constitutional guarantees of the first amendment "`can tolerate sanctions against calculated falsehood without significant impairment of their essential function.' [Time, Inc. v. Hill, 385 U.S. 374, 389-90, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967)]. Indeed, [f]irst [a]mendment protections must function in balance with competing interests protected by state tort law, among which the sanctity of reputation . . . [is] seminal to our jurisprudence." Krajewski v. Gusoff, 53 A.3d 793, 808 (Pa.Super.2012), appeal granted, 621 Pa. 117, 74 A.3d 119 (2013), appeal dismissed, 624 Pa. 224, 84 A.3d 1057 (2014).
Because I would conclude that the plaintiff's defamation claim does not implicate the first amendment—because it involves a private plaintiff, private defendants, and a matter of purely private concern—I would apply the common law of defamation in the present case and, accordingly, I would not have shifted the burden of proving falsity to the plaintiff. Without this shift, I would conclude that the plaintiff met her burden of proving a common-law defamation claim by a preponderance of the evidence. I
I begin with the trial court's decision, which correctly set forth the common law of defamation, and review the record to determine whether the plaintiff proved a prima facie case. The majority appears to concede, and I agree, that the plaintiff proved a common-law prima facie case for defamation, not disputing that the defendants' statements are properly classified as defamatory per se because they charge crimes punishable by imprisonment. But the inquiry into whether the defendants proved the truth of the defamatory statements as an affirmative defense is rendered more difficult because the defendants neither pleaded nor proved this defense. Indeed, at trial, the defendants decided to deny calling the plaintiff a murderer, instead of justifying having made those utterances by pleading and proving their truth. The defendants' failure to proffer evidence that the plaintiff murdered Bill is therefore unsurprising, as that issue was raised for the first time on appeal. Even if the defendants had properly pleaded, and subsequently attempted to prove, the truth of their defamatory utterances, the defendants would have needed to show that the plaintiff was a murderer by a preponderance of the evidence, meaning that "the evidence, considered fairly and impartially, induce[s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true." (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., supra, 249 Conn. at 535 n. 8, 733 A.2d 197. On appeal of "a defamation case brought by an individual who is not a public figure, the factual findings underpinning a trial court's decision will be disturbed only when those findings are clearly erroneous, such that there is no evidence in the record to support them." Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 628-29, 969 A.2d 736 (2009).
A review of the memorandum of decision demonstrates that the defendants failed to prove that the plaintiff murdered Bill by a preponderance of the evidence and that the trial court implicitly found as such. By repeatedly referring to the statements as "defamatory," the trial court was implicitly finding that the defendants had not proven the statements to be true. Our case law, however imprecisely, has at times used the term "defamatory" as a synonym for "false" in defamation actions, as it represents the legal conclusion that a prima facie case has been presented. See, e.g., Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 639, 969 A.2d 736; Woodcock v. Journal Publishing Co., 230 Conn. 525, 534, 543, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995); Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. at 228, 837 A.2d 759. Even our model jury instructions define a "defamatory statement" as "a false communication. . . ." Connecticut Civil Jury Instructions (4th Ed.2008) § 3.11-1, available at http://www. jud.ct.gov/JI/civil/part3/3.11-1.htm (last visited October 19, 2015). The trial court reinforced this implicit finding in its discussion of actual malice, in which it stated that the defendants presented absolutely no evidence that the plaintiff murdered Bill: "We do not have a case of mere
Because I read the trial court's thorough memorandum of decision as setting forth a finding that the defendants did not prove truth of their assertion that the plaintiff was a murderer, I now review the record to determine whether that factual finding is clearly erroneous. The defendants never alleged, either in their pleadings or at trial, that the plaintiff murdered Bill. They neither attempted to, nor succeeded in, presenting any evidence that could have led the trial court to conclude that it was more probable than not that the plaintiff murdered Bill. My own review confirms that the record is, in fact, devoid of any such evidence; there is no body, no weapon, and no evidence of foul play. The plaintiff, her friends, and all of the other witnesses at trial made no statements accusing the plaintiff of Bill's murder. Even after having hired a private detective, the defendants offered nothing other than conjecture to support their claim. That the plaintiff declines to speak to the police on advice of counsel does not inject clear error into the trial court's findings, nor does it establish that it is more probable than not that the plaintiff murdered Bill. At most, this evidence might suggest that, according to the majority, "the plaintiff, at the very least, knows more than she is saying about Bill's disappearance." But that is a far cry from establishing that the plaintiff is a "murderer," which is the actual defamatory statement forming the basis of the judgment in the present case. Because there is no competent evidence in the record to contradict the trial court's implicit finding that the defendants failed to prove that the plaintiff murdered Bill, the trial court's finding that the defendants failed to prove the truth of the defamatory statements is not clearly erroneous. Accordingly, I would affirm the judgment of the trial court on this count.
This does not end the inquiry, however, because the plaintiff sought and was awarded punitive damages. Because, in my view, this case lacks first amendment significance, and in light of the standard of review, I would conclude that the plaintiff proved her entitlement to common-law punitive damages. The trial court and the Appellate Court appropriately concluded that, to be awarded punitive damages in a defamation case lacking first amendment significance, the common law of damages applies. See Gleason v. Smolinski, supra, 149 Conn.App. at 312-14, 88 A.3d 589 citing DeVito v. Schwartz, 66 Conn.App. 228, 236, 784 A.2d 376 (2001); see also Johnson v. Johnson, 654 A.2d 1212, 1215-16 (R.I. 1995).
Common-law "[p]unitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Vandemluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). "If the evidence discloses that a defendant was recklessly indifferent to the rights of a plaintiff, an actual intention to do harm to the plaintiff is not necessary." Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). "[T]he trial court has broad discretion in determining whether damages are appropriate. . . . Its decision will not be disturbed on appeal absent a clear abuse of discretion." (Internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d 1009 (2008). In the present case, the trial court concluded "when all is said and done, [the plaintiff] was subject to intentional infliction of emotional distress." Moreover, having chosen a trial strategy of denying having made the defamatory statements instead of justifying having made them, the defendants even offered no self-serving testimony to the effect that they actually believed the plaintiff murdered Bill, testimony the trial court could have easily utilized in assessing whether punitive damages were warranted.
Although I would conclude that the first amendment does not protect the defendants' accusations of murder, because the majority has applied the first amendment to the present case, I briefly address several concerns I have with the majority's analysis.
First, I am not convinced that the majority should even have reached the issue of whether the plaintiff proved falsity as part of a prima facie case for defamation concerning speech of public concern. The majority acknowledges that neither party asked us to reach this issue, stating that "this claim was not preserved in the trial court" and "we exercise our discretion to review it . . . despite the defendants' failure to ask that we do so. . . ." (Citation omitted.) The defendants only asked that we review whether the plaintiff proved actual malice so that we would reverse the award of punitive damages. See Cox v. Galazin, 460 F.Supp.2d 380, 388 (D.Conn. 2006) ("If the plaintiff were a private individual and the statements concerned a purely private matter, the plaintiff would not need to show actual malice in order to establish liability. Further, in such a situation, if the statements constituted defamation per se, the plaintiff would also not need to prove actual injury and could recover presumed general damages."); Gleason v. Smolinski, supra, 149 Conn.App. at 312-14, 88 A.3d 589 (affirming award of punitive damages).
Second, having reached the issue of falsity despite the failure of any party to request that we do so, and even assuming arguendo that the defendants' defamatory statements were speech of public concern, thereby shifting the burden to the plaintiff to prove that she did not murder Bill, the majority does not explain by what burden of persuasion the plaintiff must prove her innocence on remand. Though the majority concludes that a new trial is warranted because, in its view, the trial court failed to conduct a falsity analysis, the majority does no more than note that there is a "debate as to whether the element of falsity must be established by clear and convincing evidence or by a preponderance of the evidence." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 661 n. 2, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Because the proper burden of persuasion is likely to arise on remand; see Weaver v. McKnight, 313 Conn. 393, 417-18, 97 A.3d 920 (2014); in my view, the majority should have set forth the burden of persuasion a private plaintiff must meet in proving the falsity of a defamatory statement of public concern.
Assuming that the majority's analysis nevertheless addresses whether the plaintiff proved that the defendants acted in reckless disregard for the truth of whether she murdered Bill, I turn now to the majority's analysis. The majority accurately sets forth the substantive law and standard of review for actual malice in a defamation case. The majority agrees that "[t]he proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements. . . ." Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 638, 969 A.2d 736. It also agrees that "we defer to the trier's findings with respect to, for example . . . whether [a party] acted in good faith in publishing a statement later deemed defamatory."
In the present case, the trial court found as follows: "The statements referenced. . . to [Melissa] DePallo and [Fran] Vrabel and the man at the gym, in the court's opinion meet the requirements of defamation as set forth in [Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. at 217, 837 A.2d 759].
"The statements to DePallo and Vrabel say directly [that the plaintiff] was a murderer or involved in the murder of Bill. . . . The statements made to DePallo and Vrabel were obviously `published' to them. The statement made to the man at the gym was published to him. In all these situations [the plaintiff] was identified to the listener and since [the plaintiff] was being accused of murder or involved with murder the defamations are per se accusations since murder clearly involves a crime of `moral turpitude' or `infamous penalty.' We do not have here mere opinion—[the plaintiff] was said to be a murderer or involved in a situation where murder occurred.
"The statements if made were made with actual malice under the law as the court interprets it. There was reckless disregard of whether the statements that were alleged to have been made were truthful. We do not have a case of mere negligent utterances not based on fact but on suspicion and conjecture." I agree with the trial court. In light of the ample evidence demonstrating the defendants' hostility and spite, which has been discussed
For the reasons set forth previously in this opinion, I do not view the present case as one implicating the first amendment. Consequently, I would affirm the judgment of the Appellate Court in all respects. Therefore, I respectfully dissent.
"2. Did the Appellate Court properly affirm the trial court's determination that the defendants were liable for defamation per se of the ... plaintiff?" Gleason v. Smolinski, 312 Conn. 920, 94 A.3d 1201 (2014).
"The first amendment prohibition against laws abridging the freedom of speech is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution." State v. Moulton, 310 Conn. 337, 341 n. 3, 78 A.3d 55 (2013).
In a footnote, the defendants raise a separate claim under article first, § 4, of the Connecticut constitution, arguing that "the state constitutional protection for free speech should be no less protective of the defendants' speech." Because the defendants' state constitutional claim is perfunctorily briefed without an independent analysis consistent with State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we confine our analysis in this opinion to their federal claim. See, e.g., State v. Johnson, 288 Conn. 236, 244 n. 14, 951 A.2d 1257 (2008).
We note that in In re Yasiel R., supra, 317 Conn. at 780-81, 120 A.3d 1188 we recently held that "a party satisfies the third prong of Golding if he or she makes a showing sufficient to establish a constitutional violation," and that this court's "use of the word `clearly' in describing the requirements under that prong of the test is unnecessary and misleading." See also id., at 781, 120 A.3d 1188 (noting that "we have previously employed Golding to decide constitutional questions of first impression," and rejecting conclusion that Golding required appellant to "reference prior Connecticut precedent to be successful under the third prong").
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society.... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!... Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012); see also Russo v. Hartford, 184 F.Supp.2d 169, 188 (D.Conn.2002) ("[t]he standard in Connecticut to demonstrate extreme and outrageous conduct is stringent").
The Supreme Court rejected the minister's urging to use an "outrageousness" standard to distinguish the cartoon at issue in Hustler Magazine, Inc., from "more traditional political cartoons," stating that the term "outrageousness" does not furnish a "principled standard" for making that distinction, given that "[o]utrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An outrageousness standard thus runs afoul of our [long-standing] refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 [102 S.Ct. 3409, 73 L.Ed.2d 1215] (1982) ([s]peech does not lose its protected character ... simply because it may embarrass others or coerce them into action)." (Internal quotation marks omitted.) Hustler Magazine, Inc. v. Falwell, supra, 485 U.S. at 55, 108 S.Ct. 876.
The trial court also noted that "no evidence was presented as to why the [defendants] could in fact believe it was a necessary aid to the location of Bill ... to [hang] posters along [the plaintiff's] bus route. It was understandable to do so along Route 63 which provides a direct connection between the Waterbury area and [the city of] New Haven but saturation of other areas [in the towns] of Woodbridge and Bethany do not appear to fall in this category. [The plaintiff] lived and worked in the Woodbridge and Bethan) area. But apart from a short period of employment at [B and B Transportation, Inc.] and his dating of [the plaintiff] who lived in Woodbridge nothing was presented to [indicate] Bill ... had any other connection to these towns.
"From another perspective it cannot be deduced from the evidence and testimony that the concentration of poster activity where [the plaintiff] lived and worked only commenced in reaction to [the plaintiff's] tearing down posters in that area. The [defendants] ordered thousands of posters and hung many in various areas of Connecticut's western part. But the poster hanging activity in towns where [the plaintiff] worked and lived was apparently done from the beginning of the poster hanging activity. The removal of posters from Woodbridge, Bethany, and [the town of] Ansonia began to be noticed in just a couple of weeks after their being put up by the [defendants]."
The dissent also appears to contend that the defendants' first amendment claims were properly preserved in the trial court, rendering Golding review unnecessary because a "review of the trial court opinion reveals that the trial court did consider free speech issues when deciding this matter." We do not suggest that the trial court was completely unaware that the general subject matter of this case has first amendment implications. The dissent's discussion of the trial court's references to the defendants' free speech rights focuses, however, on conduct the propriety and protected nature of which is not at issue in this appeal, namely, the defendants' rights to speak to law enforcement authorities or the public about details surrounding Bill's disappearance. There is nothing in the trial court's opinion indicating that it considered the first amendment implications of the defendants' flyer campaign, which were a substantial basis for the plaintiff's intentional infliction of emotional distress claim.
This, of course, explains why the Appellate Court considered the defendants' first amendment claims under the Golding bypass that is available for unpreserved constitutional claims. See Gleason v. Smolinski, supra, 149 Conn.App. at 289-90, 88 A.3d 589. It is, of course, this very analysis that formed the basis for the first question that we certified in this appeal, namely: "Did the Appellate Court properly conclude that the defendants' first amendment claim of protected speech failed to satisfy the third prong of the test for review of unpreserved claims set forth in State v. Golding, [supra, 213 Conn. at 239-40, 567 A.2d 823]?" Gleason v. Smolinski, 312 Conn. 920, 94 A.3d 1201 (2014). The dissent's attempt to litigate preservation, with no argument on this point from the parties, is at drastic odds with the well settled procedures that we employ in considering certified appeals from judgments of the Appellate Court, namely, that "the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo. The only questions that we need consider are those squarely raised by the petition for certification, and we will ordinarily consider these issues in the form in which they have been framed in the Appellate Court." (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 221, 926 A.2d 633 (2007); see also id., at 222-23, 926 A.2d 633 (declining to consider claim that evidence was not hearsay in certified appeal because that argument, although properly preserved at trial, was neither raised before Appellate Court nor mentioned in petition for certification). Accordingly, we conclude that the record demonstrates that the trial court's findings on the claims at issue in the present appeal did not consider, and were not guided by, the relevant first amendment principles.
At an evidentiary hearing, the officers "testified that the close proximity of the [protesters]—sometimes only [one] foot away from them—caused [them] anxiety and made them feel harassed. One [officer] testified that he was sometimes followed on his patrols by two or three of the [protesters] at the same time, and that they followed him so closely that if he turned around, they would bump into him. He ultimately resigned because `the constant harassment and intimidation [had] started to boil over into [his] personal life and [his] time off,' and he felt he was `backed into a corner.' Another [officer] testified that she is `tense and uptight all the time' because of the `awful anticipation' of `waiting for [the protesters] to show up,' and claimed that she is unable to do her job because she is `trying to avoid [the protesters].' A third, who complained that the [protesters] waited outside her car and followed her in and out of city buildings on her breaks, testified that she does not feel safe when the [protesters] follow her at work. She also testified that, on one occasion, one of the [protesters] grabbed her wrist when she attempted to remove one of the ... cards from a car windshield. She has changed her work schedule to avoid the [protesters], and has considered quitting her job. The [c]ity also offered testimony about the risk to public safety: specifically, that the [protesters] distract the [officers] as they drive on city streets, and that the [protesters] `[dart] across' the street, which the [c]ity asserted could result in pedestrian injuries or vehicle collisions." Id., at 256-57.
Further, in Bhatia v. Debek, supra, 287 Conn. at 404-405, 948 A.2d 1009, we recognized that the law governing the intentional tort of malicious prosecution "seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law." (Internal quotation marks omitted.) Satisfaction of that tort's elements that the defendant acted both without probable cause, and "with malice, primarily for a purpose other than that of bringing an offender to justice"; id., at 404, 948 A.2d 1009; would suffice to render such conduct unprotected by the first amendment in any event. Cf. Hustler Magazine, Inc. v. Falwell, supra, 485 U.S. at 56, 108 S.Ct. 876 ("public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with `actual malice'").
Qualified privileges may be defeated by a showing, by a preponderance of the evidence; see Miles v. Perry, supra, 11 Conn.App. at 590, 529 A.2d 199; of actual malice, also known as constitutional malice, or malice in fact. See, e.g., Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 634, 969 A.2d 736 (common-law intracorporate communications privilege); Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. at 114-15, 448 A.2d 1317 (fair comment privilege); see also Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 99 (2d Cir.2000) ("[t]he critical difference between common-law malice and constitutional malice, then, is that the former focuses on the defendant's attitude toward the plaintiff, the latter on the defendant's attitude toward the truth").
Thus, we note that the statement of the standard of proof articulated in Miles v. Perry, supra, 11 Conn.App. at 590, 529 A.2d 199, appears accurate with respect to common-law defamation issues lacking first amendment significance, such as privilege defenses. We emphasize, however, that given the constitutional implications; see, e.g., Gertz v. Robert Welch, Inc., supra, 418 U.S. at 350, 94 S.Ct. 2997; Flamm v. American Assn. of University Women, supra, 201 F.3d at 148-49; the clear and convincing evidence standard furnishes the applicable standard of proving actual malice to sustain an award of punitive damages to a private figure plaintiff. See, e.g., Lester v. Powers, 596 A.2d 65, 70 (Me.1991) ("[w]e do not require clear and convincing evidence, however, to overcome a conditional privilege that arises at common law and not from the [f]irst [a]mendment"); Reiter v. Manna, 436 Pa.Super. 192, 198-99, 647 A.2d 562 (1994) ("a private figure plaintiff cannot recover punitive damages unless he or she demonstrates actual malice by clear and convincing evidence"); Deloach v. Beaufort Gazette, 281 S.C. 474, 480, 316 S.E.2d 139 ("[F]or actual damages in a libel action neither ... [New York Times Co.] nor Gertz ... require the states to adopt a degree of proof more demanding than by `a preponderance of the evidence' where a private individual is involved. For a private individual to recover punitive damages in a libel action, however, he must prove actual malice by clear and convincing evidence."), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984); cf. Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 379 N.Y.S.2d 61 (1975) (New York defamation law requires that "where the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties").
First, we note that the Mississippi Supreme Court's decision in Sartain is a jurisprudential odd duck, which arose from a neighborhood dispute wherein defamation allegations arose from one party's accusations in numerous public fora, such as tirades and letters to public officials, that her neighbors were murderers, robbers, and terrorists. Id., at 213. In holding that this was not a matter of public concern, thus relieving the parties alleging defamation, Lloyd White and Bess White, from having to prove actual malice in order to recover punitive damages, the Mississippi court rendered a particularly narrow decision that appeared to account for the actions of the plaintiff in that case, Josephine Sartain—a prolific self-represented party with apparent mental health problems—noting that the "form of the debate involved various pleadings, letters to city officials, and oral tirades within a neighborhood. The context of the debate involves a dispute between a respectable family as the accused and an accuser with a rather notorious past. Though accusations of this nature generally are a matter of public concern, in this context and emanating from this source, we find that they are not in this case." (Emphasis added.) Id.; see also id. ("Sartain used, misused and played litigation games until she lost the game; yet, it is difficult to say that [Lloyd White and Bess White] won. Surely, they did not win more than they were entitled to, and we may be certain that the courts were patient and careful in hearing ... Sartain.").
Second, the dissent's emphasis on the relatively private expression of the statements as indicative of the fact that they do not relate to a matter of public concern—as compared to publication through a book, news article, broadcast or other broad medium—sounds appealing, but is constitutionally unavailing. It is well settled that the "private nature of the statement does not ... vitiate the status of the statement as addressing a matter of public concern." Rankin v. McPherson, 483 U.S. 378, 386 n. 11, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); see also, e.g., id., at 386-87, 107 S.Ct. 2891 (derogatory statement by law enforcement employee about unsuccessful attempt on President Ronald Reagan's life pertained to matter of public concern, despite fact that it was made during private conversation with another employee); Dongguk University v. Yale University, 734 F.3d 113, 128-29 (2d Cir.2013) (holding that allegedly defamatory statements pertained to matter of public concern under Snyder when they related to major scandal in South Korea, despite fact that they were private internal communications); Cioffi v. Averill Park Central School District Board of Education, 444 F.3d 158, 165 (2d Cir.2006) (private letter sent by athletic director to superintendent criticizing football coach's supervision of team was matter of public concern when its subject "was no mere private employment grievance, but assaultive conduct against a minor that, when publicly disclosed, triggered criminal charges as well as public outcry").
We note that the dissent criticizes us for failing to reach this open question of first amendment law and determine the applicable burden of persuasion on remand with respect to the element of falsity. Given the lack of briefing on this point, the fact, as noted by the dissent, that the burden may not necessarily be determinative on remand depending on the trial court's assessment of the level of proof, and our general reluctance to decide constitutional issues unnecessarily; see, e.g., State v. Torres, 230 Conn. 372, 382, 645 A.2d 529 (1994); we deem the dissent's criticism to be unwarranted.
"The Court: Didn't the trial court find that your client had said that the reason that she was putting up these posters was to `break' the plaintiff to get her to cooperate? . . .
"[The Defendants' Counsel]: It is a finding, Your Honor, but I don't think it's supported by the record. . . .
"The Court: The trial court found that the defendants were posting the `murdered' posters on the dead end road where the plaintiff was staying, they were found to have specifically targeted the plaintiff's home and the homes where she stayed. So you're asking us to find that all . . . of those [findings] were clearly erroneous . . .? Did you specifically ask us to do that?
"[The Defendants' Counsel]: Your Honor, I don't think that it matters that they're targeted. . . .
"The Court: I understand . . . but you seem to be saying . . . that the [trial] court was factually incorrect . . . as to where [the posters] were being tacked up and the question about whether [the defendants] was trying to `break' her.
"[The Defendants' Counsel]: The issue of trying to `break' her . . . is one of semantics. I think if you look at the total record, the record just doesn't support that my client[s] had any axe to grind against [the plaintiff]. My client[s] [were] trying to replace posters in an effort to find [Bill]. . . . And so . . . whether the trial court's opinion is clearly erroneous is irrelevant. . . .
"The Court: Did you ask us to make a finding that all of these findings are clearly erroneous? Or are you saying that, even with these factual findings, you win because targeting shouldn't matter?
"[The Defendants' Counsel]: The latter, Your Honor."
