Smith v. Supple ( 2023 )

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GREGORY B. SMITH ET AL. v. AARON
SUPPLE ET AL.
(SC 20730)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander, Prescott Js.*
This court, having requested briefing from the parties
on the issue of whether there was a final judgment for
purposes of appellate jurisdiction by order dated July
20, 2022, it is hereby ordered that the trial court’s denial
of the defendants’ special motion to dismiss, filed pursu-
ant to General Statutes § 52-196a, constitutes a final
judgment under the second prong of State v. Curcio, 191
Conn. 27, 31, 463 A.2d 566 (1983), and the defendants’
appeal is transferred to the Appellate Court for further
proceedings according to law.
May 2, 2023
ROBINSON, C. J. In this appeal, we must consider
whether Connecticut’s appellate courts have jurisdic-
tion over an interlocutory appeal from a trial court’s
denial of a special motion to dismiss filed pursuant to
our anti-SLAPP1 statute, General Statutes § 52-196a.2 The
defendants, Aaron Supple, Karen Montejo, Hendrick
Xiong-Calmes, and Gianna Moreno, who were students
at Trinity College in Hartford (Trinity), appealed to the
Appellate Court from the trial court’s denial of their spe-
cialmotion to dismiss the action brought against them
by the plaintiffs, Gregory B. Smith, Nicholas Engstrom,
and The Churchill Institute, Inc. (Churchill Institute).3
Thereafter, this court transferred the appeal to itself
and ordered the parties, sua sponte, to brief the issue
of whether the trial court’s denial of the special motion
to dismiss constitutes a final judgment for the purpose
of an appeal. On that limited issue, the defendants argue
that the trial court’s denial is immediately appealable
under the second prong of State v. Curcio, 191 Conn.
27, 31, 463 A.2d 566 (1983). For the reasons that follow,
we agree with the defendants and conclude that the
denial of a special motion to dismiss based on a color-
able claim of a right to avoid litigation under § 52-196a
is an appealable final judgment under the second prong
of Curcio. Because the defendants’ appeal presents
such a colorable claim, we transfer the appeal back to
the Appellate Court for further proceedings according
to law.
The record reveals the following relevant facts and
procedural history, which are undisputed for purposes
of the present appeal. Smith is a professor of political
science and philosophy at Trinity. Acting in his capacity
as a professor at Trinity, Smith circulated a letter to
his fellow faculty and colleagues entitled ‘‘Reflections
on the ‘Campus Climate.’ ’’ The letter criticized Trinity’s
policies, which Smith believed constituted a ‘‘new seg-
regation . . . .’’ Smith wrote in relevant part: ‘‘We are
creating a new form of racism and classism at Trinity—
with a new form of original sin being loaded on white,
suburban students—and it is no accident that this occurs
as the aftermath of transforming the center of the curric-
ulum and hiring into a focus on the mantra of [r]ace,
[c]lass and [g]ender as if there were nothing else of
interest in the life of the mind.’’ Smith went on to refer
to Trinity’s ‘‘ ‘cultural houses’ ’’ as ‘‘tribal enclaves,’’
opining that ‘‘[h]ouses that integrate students by inter-
est and academic subject matter would be far more
promising than tribal enclaves that lead to division and
hostility that need not exist. We are creating a climate
of armed camps, not one of open, urbane and cosmopol-
itan civility. What happened to the premise in [Brown
v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 873 (1954)] that separate is never equal? What
happened to Martin Luther [King, Jr.’s] ‘dream’ of get-
ting past the surface to treating each person as an indi-
vidual and an equal rather than as members of groups?’’4
Although Smith sent his letter to his fellow faculty mem-
bers, the defendants and other students received access
to it in March, 2019.
In the spring of 2019, several undergraduate students
at Trinity, including Engstrom, created the Churchill
Club (club) and applied for formal recognition and fund-
ing from Trinity’s Student Government Association (SGA).
Smith served as the faculty advisor to the club. The
club was ‘‘inspired’’ in part by the Churchill Institute,
which is a nonprofit corporation founded by Smith that
‘‘focuses on the study of Western civilization, philoso-
phy, and tradition,’’ and certain reading groups that
Smith had organized. In connection with the club’s
application for formal recognition, the club’s student
representatives, led by Engstrom, appeared before the
SGA on March 3, 2019, to answer questions. Student
protestors also attended the hearing to protest against
the club’s formal recognition. The SGA continued the
vote on whether to formally recognize the club and
subsequently announced that a pair of ‘‘ ‘drop-in student
town halls’ ’’ would take place on April 10 and 11, 2019.
On April 1, 2019, a Trinity student newspaper pub-
lished its annual satirical issue. The issue featured an
article entitled ‘‘SGA Considers Fascist Society Approval,’’
referencing the campus controversy over the club’s
application for recognition. Around April 10, 2019, the
defendants posted flyers around campus, featuring the
Churchill Institute’s logo, a photograph of Smith, and
a quote from a Facebook post authored by Smith: ‘‘the
new racism is every bit as ugly as the old.’’5 The defen-
dants also posted nearly identical flyers featuring a
photograph of Engstrom.
Thereafter, the plaintiffs brought the present action
against the defendants, alleging libel per se, libel per
quod, and negligent infliction of emotional distress. The
defendants filed a special motion to dismiss under the
anti-SLAPP statute, § 52-196a, arguing that the plaintiffs’
claims were based on the defendants’ exercise of their
right of free speech and their right of association in
connection with a matter of public concern under the
first amendment to the United States constitution. The
plaintiffs objected to the defendants’ special motion to dis-
miss.
The trial court denied the defendants’ special motion
to dismiss on November 16, 2021. The court noted that,
in deciding a special motion to dismiss under § 52-196a
(e) (3), Connecticut courts must undertake a two-
pronged, burden shifting analysis. See footnote 2 of this
opinion. The court found that the defendants had failed
to meet their burden under § 52-196a (e) (3) with
respect to their claim of free speech because their com-
munications at Trinity were not made in a ‘‘public
forum,’’ as required by § 52-196a (a) (2).6 The court
further concluded that a private college, like Trinity,
was not a state actor for purposes of triggering first
amendment protections under the United States consti-
tution.7
As to the defendant’s right of association claim,8 the
trial court noted that the ‘‘United States Supreme Court
has afforded constitutional protection to freedom of
association in two distinct senses. First, the [c]ourt has
held that the [c]onstitution protects against unjustified
government interference with an individual’s choice to
enter into and maintain certain intimate or private rela-
tionships. Second, the [c]ourt has upheld the freedom
of individuals to associate for the purpose of engaging
in protected speech or religious activities.’’ (Internal
quotation marks omitted.) The trial court determined
that the defendants’ conduct, and the lawsuit that
ensued, did ‘‘not involve any governmental interference
with the defendants’ choice to enter into and maintain
intimate or private relationships.’’ The court further
determined that the defendants’ conduct did not consti-
tute engagement in protected speech under the first
amendment because Trinity was not a public forum.
Accordingly, the court concluded that the defendants
had also failed to meet their initial burden under § 52-
196a (e) (3) on the ground that the plaintiffs’ complaint
was based on their right of association.9
The defendants appealed from the trial court’s denial
of their special motion to dismiss to the Appellate Court.
Shortly after the parties filed their preliminary state-
ment of the issues, the Appellate Court sua sponte
stayed the appeal pending this court’s decision in Pryor
v. Brignole, 346 Conn. 534, A.3d (2023). There-
after, we transferred this appeal to our docket pursuant
to Practice Book § 65-1 and instructed the parties, sua
sponte, to brief ‘‘only the threshold jurisdictional issue
of whether the denial of a special motion to dismiss
filed pursuant to . . . § 52-196a is an appealable final
judgment . . . .’’
Before this court, the defendants argue that an appeal-
able final judgment exists under the general appellate
jurisdiction statute, General Statutes § 52-263,10 as expli-
cated by the second prong of State v. Curcio, supra,191 Conn. 31, because an interlocutory appeal is neces-
sary to protect the statutory right to the dismissal of a
SLAPP suit. The defendants first look to the text of
§ 52-196a (d), which provides in relevant part that any
stay of discovery imposed upon the filing of a special
motion to dismiss ‘‘shall remain in effect until the court
grants or denies the special motion to dismiss and any
interlocutory appeal thereof. . . .’’ (Emphasis added.)
Although the defendants concede that this language
does not expressly create appellate jurisdiction, they
argue that the reference to ‘‘interlocutory appeal[s]’’
suggests that the legislature understood that the right
at issue in the statute would satisfy Curcio. In further
support of this claim, the defendants also rely on the
purpose of the statute as explained in the legislative
history, namely, to provide a rapid mechanism by which
defendants could avert SLAPP suits—which are by defi-
nition frivolous lawsuits intended to punish or deter
the otherwise legitimate exercise of first amendment
rights. In emphasizing that Connecticut’s anti-SLAPP
statute provides a right to avoid litigation, the defen-
dants likewise rely on a variety of federal and sister
state cases in arguing that the protections afforded by
the anti-SLAPP statute would be irrevocably lost by
virtue of having to litigate a putative SLAPP suit to
conclusion following a trial court’s erroneous denial of
a special motion to dismiss.
The plaintiffs contend in response that the denial of
a special motion to dismiss is not an appealable final
judgment. The plaintiffs argue that, had the legislature
intended such denials to be immediately appealable, it
would have used specific language in the statute to
bestow that right. The plaintiffs also argue that the
reference in § 52-196a (d) to an ‘‘interlocutory appeal’’
was not intended to make the denial of a special motion
to dismiss immediately appealable in and of itself but,
instead, merely contemplated other forms of interlocu-
tory appeals not requiring a final judgment, such as
public interest appeals by application to the Chief Jus-
tice under General Statutes § 52-265a. They further posit
that the legislative history of the anti-SLAPP statute is
devoid of any reference to the provision of an interlocu-
tory appeal. The plaintiffs also argue that anti-SLAPP
protection is not subject to vindication by interlocutory
appeal under the second prong of Curcio because it
is simply a procedure, akin to a motion for summary
judgment, and not itself an independent substantive
right. In particular, the plaintiffs contend that the anti-
SLAPP statute was created to short-circuit litigation
and that a statutory procedure to truncate litigation
does not itself constitute an independent right. Finally,
they argue that allowing an appeal would open the
floodgates to interlocutory appeals, which would be at
odds with our final judgment jurisprudence. We, how-
ever, agree with the defendants and conclude that the
denial of a special motion to dismiss based on a color-
able claim of a right to avoid litigation under § 52-196a
is an immediately appealable final judgment under the
second prong of Curcio.
‘‘The lack of a final judgment implicates the subject
matter jurisdiction of an appellate court to hear an
appeal. A determination regarding . . . subject matter
jurisdiction is a question of law [over which we exercise
plenary review].’’ (Internal quotation marks omitted.)
Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646,
651–52, 954 A.2d 816 (2008). ‘‘We commence the discus-
sion of our appellate jurisdiction by recognizing that
there is no constitutional right to an appeal. . . . Arti-
cle fifth, § 1, of the Connecticut constitution provides
for a Supreme Court, a Superior Court and such lower
courts as the [G]eneral [A]ssembly shall . . . ordain
and establish, and that [t]he powers and jurisdiction of
these courts shall be defined by law. . . . To consider
the [defendants’] claims, we must apply the law govern-
ing our appellate jurisdiction, which is statutory. . . .
The legislature has enacted . . . § 52-263, which limits
the right of appeal to those appeals filed by aggrieved
parties on issues of law from final judgments. Unless
a specific right to appeal otherwise has been provided
by statute, we must always determine the threshold
question of whether the appeal is taken from a final
judgment before considering the merits of the claim.
. . . Further, we have recognized that limiting appeals
to final judgments serves the important public policy
of minimizing interference with and delay in the resolu-
tion of trial court proceedings.’’ (Citations omitted;
emphasis in original; footnote omitted; internal quota-
tion marks omitted.) Id., 652–53.
Thus, ‘‘[a]s a general rule, an interlocutory ruling may
not be appealed pending the final disposition of a case.’’
(Internal quotation marks omitted.) Sena v. American
Medical Response of Connecticut, Inc., 333 Conn. 30,
41, 213 A.3d 1110 (2019). In determining whether a
judgment or a ruling is an immediately appealable final
judgment, courts have routinely looked to a statute’s
text to see if the legislature has provided an express
right to appeal. See General Statutes § 1-2z. In those
instances that the legislature has not provided such
an express right, our courts then continue to consider
whether the right at issue implicates one of the two
prongs set forth in State v. Curcio, supra, 191 Conn.
31. See Blakely v. Danbury Hospital, 323 Conn. 741,
745, 150 A.3d 1109 (2016) (‘‘[T]he subject matter juris-
diction of our appellate courts is limited by statute to
appeals from final judgments . . . . [However], the
courts may deem interlocutory orders or rulings to have
the attributes of a final judgment if they fit within either
of the two prongs of the test set forth in [Curcio].’’
(Internal quotation marks omitted.)).
We begin by observing that § 52-196a does not expressly
authorize an interlocutory appeal from a trial court’s
denial of a special motion to dismiss. The single subsec-
tion of that statute referencing interlocutory appeals, as
we noted previously in this opinion, provides in relevant
part: ‘‘The court shall stay all discovery upon the filing
of a special motion to dismiss. The stay of discovery
shall remain in effect until the court grants or denies
the special motion to dismiss and any interlocutory
appeal thereof. . . .’’ (Emphasis added.) General Stat-
utes § 52-196a (d). The defendants concede, and we
agree, that this isolated reference to an interlocutory
appeal does not rise to the level of specificity required
for an independent grant of appellate jurisdiction. Cf.
General Statutes § 31-118 (‘‘[w]hen any court or a judge
thereof issues or denies a temporary injunction in a
case involving or growing out of a labor dispute and
either party is aggrieved . . . he may appeal from the
final judgment of the court or of such judge to the
Appellate Court at any time within two weeks of . . .
such judgment’’); General Statutes § 42-110h (order grant-
ing or denying class certification for class actions
brought under Connecticut Unfair Trade Practices Act
‘‘shall be immediately appealable by either party’’); Gen-
eral Statutes § 52-278l (a) (1) (‘‘[a]n order . . . granting
or denying a prejudgment remedy . . . shall be deemed
a final judgment for purposes of appeal’’); General Stat-
utes § 54-63g (aggrieved accused person or state ‘‘may
petition the Appellate Court for review of [an] order
[concerning release]’’).
The text and legislative history of § 52-196a, however,
also do not in any way suggest that the legislature intended
to preclude interlocutory appeals from denials of spe-
cial motions to dismiss. See, e.g., In re Tyriq T., 313
Conn. 99, 112–14, 96 A.3d 494 (2014) (examining legisla-
tive history and genealogy of General Statutes § 46b-
127, and concluding that ‘‘the intent of the legislature
[was] to prohibit an immediate appeal of a discretionary
transfer order’’ from juvenile matters docket to regular
criminal docket). As the plaintiffs argue, on the one
hand, the reference in § 52-196a (d) to an ‘‘interlocutory
appeal’’ very well could be a reference to a public inter-
est appeal by application to the Chief Justice pursuant
to § 52-265a, which does not require a final judgment.
See, e.g., Halladay v. Commissioner of Correction, 340
Conn. 52, 67, 262 A.3d 823 (2021). The defendants sug-
gest, on the other hand, that this language may also be
an indirect reference to the availability of interlocutory
review under State v. Curcio, supra, 191 Conn. 31.
Either way, the fact that the legislature expressly pro-
vided for a stay of discovery during the pendency of
an interlocutory appeal provides us with good reason
to believe that the legislature, at the very least, did not
intend to foreclose such review.
The absence of language expressly providing the
defendants with a right to an interlocutory appeal does
not, however, answer the question of whether a trial
court’s denial of a special motion to dismiss can none-
theless constitute an appealable final judgment. Indeed,
it is well established that, ‘‘[a]lthough the legislature is
free to make it clear in the language of a statute that
an immediate appeal may be taken from an order of
the court, the absence of such language is not determi-
native of whether such a right exists. . . . Rather, we
presume that the legislature is aware of our [long-stand-
ing] final judgment jurisprudence. . . . Consequently,
unless the legislature has made its intent clear regarding
the appealability of an interlocutory order under a par-
ticular statute, our determination of whether that order
is immediately appealable hinges on whether the order
meets the test articulated in Curcio.’’ (Citations omit-
ted.) Hartford Accident & Indemnity Co. v. Ace Ameri-
can Reinsurance Co., 279 Conn. 220, 238, 901 A.2d 1164(2006); cf. In re Tyriq T., supra, 313 Conn. 103 n.4
(declining to consider whether discretionary transfer
orders are appealable final judgments under Curcio
given that ‘‘the legislature has manifested a clear intent
to prohibit interlocutory appeals’’ from such orders).
‘‘We previously have determined . . . that certain
interlocutory orders have the attributes of a final judg-
ment and consequently are appealable under . . . § 52-
263. . . . In State v. Curcio, [supra, 191 Conn. 31], we
explicated two situations in which a party can appeal
an otherwise interlocutory order: (1) [when] the order
or action terminates a separate and distinct proceeding,
or (2) [when] the order or action so concludes the rights
of the parties that further proceedings cannot affect
them. . . .
‘‘The second prong of the Curcio test focuses on
the nature of the right involved. It requires the parties
seeking to appeal to establish that the trial court’s order
threatens the preservation of a right already secured
to them and that that right will be irretrievably lost
and the [party] irreparably harmed unless they may
immediately appeal. . . . Thus, a bald assertion that
the defendant will be irreparably harmed if appellate
review is delayed until final adjudication . . . is insuffi-
cient to make an otherwise interlocutory order a final
judgment. One must make at least a colorable claim
that some recognized statutory or constitutional right
is at risk.’’ (Footnote omitted; internal quotation marks
omitted.) Sena v. American Medical Response of Con-
necticut, Inc., supra, 333 Conn. 41.
Our case law establishes that ‘‘[t]he key to appellate
jurisdiction under the second prong of Curcio is not
so much that the right is already secured to a party;
indeed, what is at issue in an appeal is the effect of the
challenged order on the scope of the claimed right at
issue. Rather, the second prong of Curcio boils down
to whether, as a practical and policy matter, not allowing
an immediate appeal will create irreparable harm inso-
far as allowing the litigation to proceed before the trial
court will—in and of itself—function to deprive a party
of that right.’’ Halladay v. Commissioner of Correction,
supra, 340 Conn. 62–63; see Blakely v. Danbury Hospi-
tal, supra, 323 Conn. 746 (‘‘[t]he rationale for immediate
appellate review is that the essence of the protection
of immunity from suit is an entitlement not to stand
trial or face the other burdens of litigation’’ (internal
quotation marks omitted)).
Our recent decision in Halladay surveyed our final
judgment case law under the second prong of Curcio.
‘‘Paradigmatic examples of such rights that require
immediate vindication via an interlocutory appeal are
double jeopardy violations resulting in successive pros-
ecutions; see, e.g., State v. Crawford, 257 Conn. 769,
777, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138,
122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002); collateral
estoppel and res judicata; see, e.g., Lighthouse Land-
ings, Inc. v. Connecticut Light & Power Co., 300 Conn.
325, 328 n.3, 15 A.3d 601 (2011); and various immunities
from suit. See, e.g., Chadha v. Charlotte Hungerford
Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005)
(absolute immunity for statements made in judicial and
quasi-judicial proceedings); Shay v. Rossi, 253 Conn.
134, 166, 749 A.2d 1147 (2000) (colorable claim to state’s
sovereign immunity is appealable final judgment because
that ‘doctrine protects against suit as well as liability—
in effect, against having to litigate at all’), overruled in
part on other grounds by Miller v. Egan, 265 Conn.
301, 828 A.2d 549 (2003); see also Hartford Accident &
Indemnity Co. v. Ace American Reinsurance Co., supra,[279 Conn.] 233–34 (denial of motion for prepleading
security by unauthorized insurer pursuant to General
Statutes § 38a-27 (a) is appealable under second prong
of Curcio because, ‘once the trial has concluded, the
court will be unable to restore to the plaintiffs either
their right to have the defendants post security or their
right to obtain a default judgment against the defen-
dants’) . . . .’’ (Citation omitted.) Halladay v. Com-
missioner of Correction, supra, 340 Conn. 63–64; see
Sena v. American Medical Response of Connecticut,
Inc., supra, 333 Conn. 52 (legislature intended protec-
tions under state of emergency statute, General Statutes
§ 28-13, to provide political subdivisions of state with
‘‘immunity from suit and not just immunity from liabil-
ity,’’ thereby rendering denial of motion for summary
judgment appealable final judgment).
The defendants contend that § 52-196a confers a right
independent of the first amendment itself, namely, a
right to avoid the costly and onerous litigation process
altogether as a consequence of the exercise of their
first amendment rights.11 In considering the nature of
the right conferred by the anti-SLAPP statute for final
judgment purposes, we find particularly instructive the
legislative history of § 52-196a. See, e.g., U.S. Bank
National Assn. v. Crawford, 333 Conn. 731, 733–34,
743, 219 A.3d 744 (2019) (considering whether issue was
matter of public importance in determining whether
denial of foreclosure committee’s motion for fees and
expenses because of automatic bankruptcy stay was
immediately appealable); see also Lafferty v. Jones, 336
Conn. 332, 382 n.36, 246 A.3d 429 (2020) (purpose of
§ 52-196a is ‘‘instructive’’ in determining scope of trial
court’s discretion to order limited discovery in connec-
tion with special motion to dismiss), cert. denied,
U.S. , 141 S. Ct. 2467, 209 L. Ed. 2d 529 (2021).
Then Representative William Tong, the sponsor of
the bill in the House of Representatives that became
§ 52-196a, explained that the anti-SLAPP12 statute was
intended to address ‘‘situations in which people have
spoken out on matters of public concern including the
press and we’ve seen situations [in which] people file
litigation. There appears to be no basis to that litigation
but it’s designed to chill free speech and the expression
of constitutional rights and so this [legislation] pro-
vides for a special motion to dismiss so that early in
the process somebody who’s speaking and exercis[ing]
[his or her] constitutional rights can try to dismiss a
frivolous or abusive claim that has no merit and
[short-circuit] a litigation [when] it might otherwise
cost a great deal of money to continue to prosecute.
We think it’s an important measure . . . to promote
free speech and reporting by our news organizations
as well.’’13 (Emphasis added.) 60 H.R. Proc., Pt. 16, 2017
Sess., pp. 6879–80; see id., p. 6884, remarks of Represen-
tative Tong (describing ‘‘a significant amount of resources’’
expended by local news organization to defend against
frivolous defamation actions); id., pp. 6924–25, remarks
of Representative Tong (describing anti-SLAPP statute
as ‘‘focused on this phenomenon of fake news or alter-
native facts’’ and ensuring that ‘‘no person, no devel-
oper, no interest group, [and] no private party that has
substantial resources [is] able to abuse the litigation
process and leverage our court system to shut people
down and to do so by accusing them of peddling fake
news or . . . [alternative] facts’’). In explaining the
reach of the anti-SLAPP statute beyond just news orga-
nizations, Representative Tong stated that real estate
developers often filed false defamation claims to ‘‘bully’’
private citizens speaking out against proposed projects,
in order ‘‘to spend down’’ the objector and to ‘‘try to
use the litigation process to pressure them into standing
down.’’14 Id., p. 6901; see id., pp. 6901–6902, remarks of
Representative Richard A. Smith (‘‘I . . . would hate
to see somebody’s right to free speech and their right
to contest a hearing—whatever it might be on a zoning
level or anywhere else—to have that right stymied just
because somebody else has a bigger pocket book’’).
Most significant, in responding to a question from
Representative Smith about how much time a trial court
would have to rule on a special motion to dismiss under
the anti-SLAPP statute, Representative Tong empha-
sized the nature of the statutory right. He observed that
‘‘[t]ime is of the essence’’ because the special motion
to dismiss is ‘‘an extraordinary remedy and you want
to make sure that it is dispatched as quickly as possible
to avoid . . . undue litigation and abuse of the pro-
cess as . . . the cost of litigation is ever more expen-
sive and at an hourly rate when the meter’s running, it
can get pretty high pretty quickly, particularly on early
motion practice and particularly in civil practice, so
. . . we want to try to avoid that, particularly when
you’re dealing with an individual citizen who’s just try-
ing to speak on [a] matter of public concern. You don’t
want to run the bills up so that it becomes prohibitive
for them to vindicate their rights.’’15 (Emphasis added.)
Id., pp. 6921–22. Representative Tong went on to describe
the nature of the special motion to dismiss proceeding
under § 52-196a as a ‘‘substantial hearing’’ or a ‘‘[mini-
trial] at the outset,’’ akin to that for a prejudgment remedy.
Id., p. 6945.
The purpose of the ‘‘extraordinary remedy’’ provided
by the anti-SLAPP statute persuades us that its substan-
tive benefit—a right to avoid costly and burdensome
litigation on the merits—would be lost if defendants
were required to litigate putative SLAPP cases to con-
clusion following the erroneous denial of a special
motion to dismiss.16 Id., p. 6921, remarks of Representa-
tive Tong. The statute’s extensive legislative history
indicates that the legislature was particularly concerned
about defendants laboring under the burden of having
to defend against SLAPP suits, which are by definition
frivolous and oppressive, as a consequence of having
exercised their first amendment rights. This renders the
benefit conferred by the anti-SLAPP statute analogous
to other statutory and common-law rights to avoid litiga-
tion on the merits—such as double jeopardy, collateral
estoppel, res judicata, and absolute or sovereign immu-
nity—which this court has deemed to qualify as final
judgments under § 52-263 and Curcio because they can-
not be vindicated by an appeal following the conclusion
of trial before the trial court. See, e.g., Halladay v.
Commissioner of Correction, supra, 340 Conn. 63–64
(citing cases).
Indeed, the right to speak freely without reprisal from
frivolous and burdensome lawsuits, protected by § 52-
196a, is particularly analogous to a trial court’s denial
of a claim of collateral estoppel; see, e.g., Convalescent
Center of Bloomfield, Inc. v. Dept. of Income Mainte-
nance, 208 Conn. 187, 195, 544 A.2d 604 (1988); and
denials of summary judgment on the basis of the com-
mon-law absolute immunity accorded to participants
in judicial and quasi-judicial proceedings; see Chadha
v. Charlotte Hungerford Hospital, supra, 272 Conn.
786–87; both of which this court has held to be appeal-
able under the second prong of Curcio. In Convalescent
Center of Bloomfield, Inc., this court considered whether
a trial court’s order rejecting the defendant’s claim of
collateral estoppel and remanding the case for further
administrative proceedings was ripe for appellate
review. See Convalescent Center of Bloomfield, Inc. v.
Dept. of Income Maintenance, supra, 192. In concluding
that the trial court’s denial of a claim of collateral estop-
pel was appealable under the second prong of Curcio,
we held that, ‘‘[i]f the defendant is correct that the
plaintiffs are precluded from relitigating their entitle-
ment to reimbursement, it would be unfair to require
the defendant to expend its resources to defeat the
plaintiffs’ claims on the merits. We have held an inter-
locutory order to be final for purposes of appeal if it
involves a claimed right the legal and practical value
of which would be destroyed if it were not vindicated
before trial. . . . In this respect, the defense of collat-
eral estoppel is a civil law analogue to the criminal
law’s defense of double jeopardy, because both invoke
the right not to have to go to trial on the merits. Like
the case of a denial of a criminal defendant’s colorable
double jeopardy claim, [when] immediate appealability
is well established . . . the . . . judgment denying the
defendant’s claim of collateral estoppel is a final judg-
ment.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) Id., 194–95.
Likewise, our holding in Chadha that there was an
appealable judgment under Curcio’s second prong was
‘‘dictated by the underlying purpose of the immunity
afforded at common law to those who provide informa-
tion in connection with judicial and quasi-judicial pro-
ceedings, namely, that in certain situations the public
interest in having people speak freely outweighs the risk
that individuals will occasionally abuse the privilege by
making false and malicious statements. . . . Put sim-
ply, absolute immunity furthers the public policy of
encouraging participation and candor in judicial and
quasi-judicial proceedings. This objective would be
thwarted if those persons whom the common-law doc-
trine was intended to protect nevertheless faced the
threat of suit.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Chadha v. Charlotte
Hungerford Hospital, supra, 272 Conn. 786–87; see,
e.g., Dayner v. Archdiocese of Hartford, 301 Conn. 759,
770–72, 23 A.3d 1192 (2011) (concluding that denial of
motion to dismiss employment discrimination action
based on first amendment ministerial exception was
appealable final judgment because ‘‘the very act of liti-
gating a dispute that is subject to the ministerial excep-
tion would result in the entanglement of the civil justice
system with matters of religious policy, making the
discovery and trial process itself a first amendment
violation’’). But cf. Harger v. Odlum, 153 Conn. App.
764, 770–71, 107 A.3d 430 (2014) (denial of motion to
dismiss medical malpractice action based on failure to
file proper opinion letter required by General Statutes
§ 52-190a was not appealable final judgment under sec-
ond prong of Curcio because ‘‘the defendant [did] not
[allege] that health care professionals have any statu-
tory or constitutional right already secured to them that
shields them from litigation akin to the right against
double jeopardy or the other types of immunity from
suit in the civil context’’ (emphasis added)).
Put differently, the purpose of the special motion
to dismiss under § 52-196a puts it squarely within the
category of second prong Curcio cases, such as Conva-
lescent Center of Bloomfield, Inc., and Chadha, pursu-
ant to which ‘‘a colorable claim to a right to be free
from an action is protected from the immediate and
irrevocable loss that would be occasioned by having to
defend an action through the availability of an immedi-
ate interlocutory appeal from the denial of a motion to
dismiss. . . . The rationale for immediate appellate
review is that the essence of the protection of immunity
from suit is an entitlement not to stand trial or face the
other burdens of litigation.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Blakely v.
Danbury Hospital, supra, 323 Conn. 746. The anti-
SLAPP statute affords a defendant a substantive right
to avoid litigation on the merits that can be costly and
burdensome, and this is undoubtedly a right that would
be abrogated if not vindicated by an immediate appeal.17
We are further persuaded that a denial of a special
motion to dismiss under § 52-196a is an immediately
appealable final judgment because of the statute’s provi-
sion on attorney’s fees. The legislature has provided in
subsection (f) (1) of the statute that, ‘‘[i]f the court
grants a special motion to dismiss under this section,
the court shall award the moving party costs and reason-
able attorney’s fees, including such costs and fees incurred
in connection with the filing of the special motion to
dismiss.’’ General Statutes § 52-196a (f) (1). If a trial
court improperly denies a special motion to dismiss,
but the moving party cannot challenge that improper
denial in an immediate appeal, a moving party will not
be able to vindicate its entitlement to such an award
until after a resolution of the merits in its favor. It would
be inefficient to require the defendant, after prevailing
on the merits before the trial court, to then file an
appeal, in which the sole claim would be that the trial
court improperly denied a motion to dismiss at the very
outset of the case.
We disagree with the plaintiffs’ contention that per-
mitting interlocutory appeals in this context will open
the floodgates to endless appeals from denials of special
motions to dismiss under § 52-196a.18 First, a defendant
who files a special motion to dismiss that is deemed
‘‘frivolous and solely intended to cause unnecessary
delay’’ risks liability for an award of attorney’s fees
and costs pursuant to § 52-196a (f) (2). This potential
sanction provides a significant disincentive to a defen-
dant to file an immediate appeal from the denial of a
motion to dismiss because he or she may incur addi-
tional responsibility for attorney’s fees and costs incurred
by a plaintiff in defending that appeal.19 Second, defen-
dants who have failed to prevail on a special motion
to dismiss already have an inherent interest in pursuing
the most efficient resolution of the suit brought against
them. Unfounded interlocutory appeals would, in most
cases, only serve to increase the duration of the pro-
ceeding and the cost of the defense. Third, the existing
rules of practice permit a court to ‘‘impos[e] sanctions’’
for the ‘‘[p]resentation of a frivolous appeal or frivolous
issues on appeal.’’ Practice Book § 85-2 (5). Courts are
permitted to impose ‘‘appropriate discipline’’ on offend-
ers, including a prohibition against appearing in court
‘‘for a reasonable and definite period of time’’ and ‘‘costs
and payment of expenses, together with attorney’s fees
to the opposing party.’’ Practice Book § 85-2. Accord-
ingly, a party who loses a special motion to dismiss
under § 52-196a in the trial court will risk the imposition
of sanctions by the court if the party thereafter brings
a frivolous and meritless appeal from the trial court’s
denial of a special motion to dismiss.
Our Curcio jurisprudence also renders a flood of
frivolous interlocutory appeals unlikely. The dispositive
inquiry into whether the denial of a special motion to
dismiss under § 52-196a is an appealable final judgment
under the second prong of Curcio is whether the defen-
dant can assert a colorable claim of a right to avoid
litigation under the anti-SLAPP statute.20 An appellate
court will first have to address ‘‘the jurisdictional thresh-
old inquiry of whether the [defendant] has a colorable
claim’’ of a right to avoid litigation under the statute.
In re Santiago G., 325 Conn. 221, 231, 157 A.3d 60(2017). If colorability exists, then the inquiry will focus
on ‘‘whether the trial court’s judgment . . . was
proper, namely, the merits of the . . . claim . . . .’’
Id.; see id., 232 (‘‘[O]n appeal, two separate inquiries
must be made. First, the court must determine whether
the trial court’s decision . . . is a final judgment for
jurisdictional purposes; if it is not, then the appeal must
be dismissed. . . . If the court determines that the trial
court’s decision is a final judgment, then it properly
has subject matter jurisdiction to analyze and render a
decision as to the parties’ claims . . . .’’ (Citation omit-
ted.)). Noncolorable appeals from the denial of a special
motion to dismiss, like other noncolorable appeals, will
continue to be subject to dismissal for lack of a final
judgment. See, e.g., State v. Crawford, supra, 257 Conn.
776–77, 781 (dismissing appeal because defendant did
not present colorable claim of double jeopardy to sup-
port availability of interlocutory appeal); Clark v. Clark,
115 Conn. App. 500, 510, 974 A.2d 33 (2009) (dismissing
appeal for lack of final judgment because would-be
intervenor did not make colorable claim to intervention
as matter of right). This colorability inquiry will serve
to weed out frivolous appeals from being reviewed on
the merits and to prevent the appellate floodgates from
opening.21
Finally, our conclusion is consistent with a wealth
of federal and sister state case law that applies a Curcio-
esque analysis22 in holding that an interlocutory appeal
lies from the denial of a special motion to dismiss a
SLAPP suit.23 Most significant, our sister states have
found denials of motions to dismiss under their respec-
tive anti-SLAPP statutes to be appealable under juris-
prudence that mirrors the second prong of Curcio, even
in the absence of express language in the statute provid-
ing a right to an interlocutory appeal. In Fabre v. Walton,
436 Mass. 517, 781 N.E.2d 780 (2002), the Massachusetts
Supreme Judicial Court held that the denial of a special
motion to dismiss under the commonwealth’s anti-
SLAPP statute was appealable under the ‘‘doctrine of
present execution,’’ which is an exception to the com-
monwealth’s common-law final judgment rule that mir-
rors the second prong of Curcio.24 Id., 521; see id. (under
exception for ‘‘the doctrine of present execution . . .
immediate appeal of an interlocutory order is allowed
if the order will interfere with rights in a way that cannot
be remedied on appeal from the final judgment’’). The
court observed that the anti-SLAPP ‘‘statute provides
broad protections for individuals who exercise their
right to petition from harassing litigation and the costs
and burdens of defending against retaliatory lawsuits.
. . . In this regard, they are similar in purpose to the
protections afforded public officials by the doctrine of
governmental immunity.’’ (Citation omitted; footnote
omitted.) Id., 520. Analogizing the anti-SLAPP statute’s
protections to the commonwealth’s governmental immu-
nity from suit, under which ‘‘[i]nterlocutory orders . . .
are appealable pursuant to the doctrine of present exe-
cution’’; id., 521; the court concluded that ‘‘the denial
of a special motion to dismiss interferes with rights in
a way that cannot be remedied on appeal from the final
judgment. The protections afforded by the anti-SLAPP
statute against the harassment and burdens of litigation
are in large measure lost if the [defendant] is forced
to litigate a case to its conclusion before obtaining
a definitive judgment through the appellate process.
Accordingly . . . there is a right to interlocutory appel-
late review from the denial of a special motion to dis-
miss filed pursuant to the anti-SLAPP statute.’’ Id.,
521–22; see Blanchard v. Steward Carney Hospital,
Inc., 483 Mass. 200, 212–13, 130 N.E.3d 1242 (2019)
(reaffirming Fabre and observing that ‘‘[t]he doctrine
of present execution . . . applies to anti-SLAPP cases
in order to preserve a moving party’s ‘immunity’ from
being required to litigate a SLAPP suit’’); see also Morse
Bros., Inc. v. Webster, 772 A.2d 842, 848 (Me. 2001) (The
court recognized the exception to the common-law final
judgment rule in the case of a denial of a special motion
to dismiss because ‘‘[p]recluding the moving party from
appealing a decision on the motion would result in
continued litigation, which is the precise harm that the
[anti-SLAPP] statute seeks to prevent. In these circum-
stances, the cost and delay of litigating the claim does
constitute ‘a loss of substantial rights or permanent
foreclosure of relief.’ ’’);25 cf. Gundel v. AV Homes, Inc.,
264 So. 3d 304, 310–11 (Fla. App. 2019) (granting discre-
tionary certiorari review to allow interlocutory appeal
from denial of special motion to dismiss because harm
of improper denial could not be remedied on appeal
after final judgment, insofar as ‘‘the [a]nti-SLAPP statute
bears some similarity to statutes providing for immunity
from suit [when] the statutory protection cannot be
adequately restored once it is lost through litigation
and trial’’).26 But see Cedar Green Land Acquisition,
LLC v. Baker, 212 S.W.3d 225, 228 (Mo. App. 2007)
(holding that denial of special motion to dismiss was not
appealable because anti-SLAPP statute lacked ‘‘specific
language’’ conferring right to interlocutory appeal).
Similarly, the majority of the United States courts
of appeals have deemed denials of special motions to
dismiss under state anti-SLAPP statutes to be appeal-
able under the collateral order doctrine identified by
the United States Supreme Court in Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221,
93 L. Ed. 1528 (1949), which permits—pursuant to the
federal appellate statutes, 28 U.S.C. §§ 1291 and 1292—
the appeal of a ‘‘small class’’ of nonfinal orders that
implicate a ‘‘substantial public interest’’ and are ‘‘too
important to be denied review and too independent of
the cause itself to require that appellate consideration
be deferred until the whole case is adjudicated.’’27 (Inter-
nal quotation marks omitted.) Will v. Hallock, 546 U.S.
345, 349, 353, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006).
In so concluding, these courts have determined that
the anti-SLAPP statutes at issue effectively created a
substantive right to avoid litigation on the merits. See
Franchini v. Investor’s Business Daily, Inc., 981 F.3d
1, 7, 8 n.6 (1st Cir. 2020) (surveying federal courts of
appeals in holding that collateral order doctrine con-
ferred jurisdiction over interlocutory appeal from ‘‘a
substantive decision’’ under Maine’s anti-SLAPP law
because (1) decision presented question ‘‘distinct from
the merits of the action’’ given unique statutory proce-
dure, (2) decision ‘‘implicate[d] important societal inter-
ests in both [f]irst [a]mendment protections for media
outlets, and the substantive statutory rights created
under Maine law,’’ and (3) denial of special motion to
dismiss was ‘‘also effectively unreviewable on appeal
from a final order’’ insofar as defendant would be
‘‘denied meaningful relief if it must go through the time
and expense of fully litigating [the] matter before it
[could] address the anti-SLAPP issue’’); Los Lobos
Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d
659, 666–67 (10th Cir.) (rejecting argument under Cohen
that ‘‘the rights enshrined in New Mexico’s anti-SLAPP
statute could be protected after final judgment because
they [did] not shield defendants from the burden of
standing trial’’ because ‘‘the New Mexico anti-SLAPP
statute aims to nip harassing litigation in the bud, thus
protecting potential victims from the effort and expense
of carrying on a frivolous lawsuit’’), cert. denied,
U.S. , 139 S. Ct. 591, 202 L. Ed. 2d 427 (2018); NCDR,
LLC v. Mauze & Bagby, PLLC, 745 F.3d 742, 752 (5th
Cir. 2014) (concluding that denial of special motion to
dismiss filed pursuant to Texas anti-SLAPP statute was
interlocutory appeal under collateral order doctrine
because ‘‘[a] legislatively approved immunity from trial,
as opposed to a mere claim of a right not to be tried,
is imbued with a significant public interest,’’ and ‘‘[i]t
would be difficult to find a value of a high[er] order
than the [constitutionally protected] rights to free
speech and petition that are at the heart of [an] anti-
SLAPP statute’’ (internal quotation marks omitted));
Henry v. Lake Charles American Press, LLC, 566 F.3d
164, 178, 180–81 (5th Cir. 2009) (holding that denial of
special motion to dismiss filed pursuant to Louisiana’s
anti-SLAPP statute was appealable under collateral
order doctrine because it ‘‘provide[s] defendants the
right not to bear the costs of fighting a meritless defama-
tion claim,’’ statute’s ‘‘importance weigh[ed] profoundly
in favor appealability’’ because such statutes ‘‘aim to
curb the chilling effect of meritless tort suits [challeng-
ing] the exercise of [f]irst [a]mendment rights,’’ and
interlocutory appeals ‘‘are more freely allowed’’ in free
speech cases (internal quotation marks omitted)); C.
Barylak, Note, ‘‘Reducing Uncertainty in Anti-SLAPP
Protection,’’ 71 Ohio St. L.J. 845, 880–81 (2010) (support-
ing interlocutory appeals from denials of special motions
to dismiss insofar as ‘‘SLAPPs differ from other types
of litigation because victory and defeat lie not in final
judgment, but in the ability of one party to entangle the
other in burdensome, frivolous litigation,’’ and ‘‘[the]
[p]rovision for immediate appeal is consistent with both
the objectives of the collateral order doctrine and anti-
SLAPP laws’’). But see Ernst v. Carrigan, 814 F.3d 116,
119–22 (2d Cir. 2016) (order passing on merits of special
motion to strike filed pursuant to Vermont’s anti-SLAPP
statute was not appealable under collateral order doc-
trine because it did not ‘‘resolve an important issue
completely separate from the merits of the action’’
given that analysis of motion was ‘‘entangled in the
facts’’ and elements of claims, and rejecting analogy to
qualified immunity as not requiring fact based analysis
(emphasis in original; internal quotation marks omit-
ted)); Metabolic Research, Inc. v. Ferrell, 693 F.3d 795,
801–802 (9th Cir. 2012) (concluding that then effective
version of Nevada’s anti-SLAPP statute was not immedi-
ately appealable under collateral order doctrine given
statutory language suggesting that it provided ‘‘ ‘immu-
nity from civil liability,’ ’’ in comparison to California stat-
ute that provided interlocutory state court appeal and
immunity from suit).28
We deem these collateral order cases and scholarship
particularly persuasive, insofar as § 52-196a renders the
court’s determination on a special motion to dismiss
entirely independent of the merits of the case by provid-
ing that the ‘‘findings or determinations made’’ in con-
nection with the hearing on that motion or the attorney’s
fee determination ‘‘shall not be admitted into evidence
at any later stage of the proceeding or in any subsequent
action.’’ General Statutes § 52-196a (g). We conclude,
therefore, that the denial of a special motion to dismiss
based on a colorable claim of a right to avoid litigation
under § 52-196a is an immediately appealable final judg-
ment under the second prong of Curcio.
We next consider whether the defendants in the pres-
ent case have asserted a colorable claim that they are
entitled to protection under our anti-SLAPP statute,
which is required to warrant a conclusion that the trial
court’s denial of their special motion to dismiss is
appealable under Curcio. See State v. Curcio, supra,191 Conn. 34. The defendants argue that they have
asserted a colorable claim under both the statute’s ‘‘right
of free speech’’ and ‘‘right of association’’ categories.
It is well established that ‘‘[a] colorable claim is one
that is superficially well founded but that may ultimately
be deemed invalid . . . . For a claim to be colorable,
the defendant need not convince the trial court that he
necessarily will prevail; he must demonstrate simply
that he might prevail.’’ (Citation omitted; emphasis in
original; internal quotation marks omitted.) In re Santi-
ago G., supra, 325 Conn. 231; see id., 233 (‘‘our examina-
tion of whether a colorable claim exists focuses on the
plausibility of the appellant’s challenge to the denial of
the motion to intervene when the pleadings and motion
are viewed in light of the relevant legal principles’’);
State v. Komisarjevsky, 302 Conn. 162, 192–93, 25 A.3d
613 (2011) (Zarella, J., concurring in part and dissenting
in part) (trial court’s granting of motion to vacate order
sealing defendant’s witness list was appealable final
judgment because ‘‘[t]he facts in the record, all relied
on by the majority in its analysis of the merits of the
[claim],’’ established ‘‘a colorable claim that delay of
appellate review threaten[ed] to abrogate his due pro-
cess right to a fair trial’’); Hartford Accident & Indem-
nity Co. v. Ace American Reinsurance Co., supra, 279
Conn. 236–37 n.16 (‘‘[a]lthough we express no view
regarding the ultimate merits of the plaintiffs’ claim that
they are entitled to prepleading security under § 38a-
27 (a) . . . the plaintiffs have made a colorable claim
that, contrary to the conclusion of the trial court, that
statutory provision applies to their action against the
defendants’’ (citations omitted)); State v. Curcio, supra,191 Conn. 36 (‘‘[u]ndoubtedly, [when] defendants make
a colorable claim that a trial court proceeding subjects
them to double jeopardy, they are entitled to have this
challenge heard on appeal before trial’’).
On the basis of our review of the record, we conclude
that the defendants have asserted a colorable claim that
the conduct alleged in the complaint falls within the
meaning of the phrase ‘‘right of association,’’ as it is
used in our anti-SLAPP statute. That statute defines the
phrase ‘‘right of association’’ broadly to include any
‘‘communication among individuals who join together
to collectively express, promote, pursue or defend com-
mon interests . . . .’’29 General Statutes § 52-196a (a)
(4). Subsection (b) further requires that an exercise of
the right of association be in connection with a ‘‘matter
of public concern’’; General Statutes § 52-196a (b);
which, in turn, is defined in relevant part as ‘‘an issue
related to (A) health or safety, (B) environmental, eco-
nomic or community well-being . . . [or] (D) a public
official or public figure . . . .’’30 General Statutes § 52-
196a (a) (1). These categories are not further defined
in the statute, but courts have generally held that speech
on the topic of race relations or racial discrimination
is ‘‘a matter inherently of public concern’’ under the
first amendment. Connick v. Myers, 461 U.S. 138, 148
n.8, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); see, e.g.,
Calvit v. Minneapolis Public Schools, 122 F.3d 1112,
1117 (8th Cir. 1997) (criticism by employee of public
school’s policy based on racial classification was matter
of public concern under first amendment).
Before the trial court, the defendants argued that
their conduct falls under the ‘‘community well-being’’
category because the statute’s language warrants a
broad reading of the term ‘‘community.’’ In particular,
they argued that the controversy concerning the club’s
recognition, on which the flyers commented, is a con-
cern to, at the very least, both the Trinity community
and the community surrounding it.31
Before this court, the defendants likewise argue that
their claim under the right of association is colorable,
and that the trial court erred with respect to the merits,
because that category, as defined in § 52-196a (a) (4),
does not require that the conduct take place in a public
forum or impose a state action requirement. In support
of this assertion, the defendants note that there is no
express language in that definition imposing those
requirements, in contrast to the ‘‘public forum’’ lan-
guage in § 52-196a (a) (2).
We conclude that the defendants have asserted a
colorable claim that their conduct in posting the flyers
around campus, after the protests against the club’s
recognition began, constituted a ‘‘communication among’’
and with other students on campus who were joining
together to pursue a ‘‘common interest,’’ namely, pre-
venting the club from being recognized and funded by
the SGA, on a ‘‘matter of public concern.’’ Indeed, the
defendants in the present case have asserted a colorable
claim that their conduct relates to topics of race rela-
tions and racial discrimination, as the flyers contain
references to Smith’s previous remarks on race and
protest the club’s recognition because of its affiliation
with Smith’s remarks and sentiments. In other words,
the defendants have a superficially well founded claim
that their conduct relates to ‘‘community well-being.’’32
Although we recognize that the defendants’ claim under
the right of association may ultimately be deemed to
lack merit, we conclude that the defendants have ‘‘dem-
onstrate[d] simply that [they] might prevail’’ under § 52-
196a. (Emphasis in original; internal quotation marks
omitted.) State v. Crawford, supra, 257 Conn. 776. Accord-
ingly, we conclude that the defendants have asserted
a colorable claim that they are entitled to a right to
avoid litigation under the anti-SLAPP statute and, there-
fore, that the trial court’s denial of their special motion
to dismiss under § 52-196a constitutes an appealable
final judgment under Curcio.33
The appeal is transferred to the Appellate Court for
further proceedings according to law.
In this opinion McDONALD, MULLINS and PRES-
COTT, Js., concurred.
* This case was originally argued on October 12, 2022, before a panel
consisting of Chief Justice Robinson, and Justices McDonald, D’Auria, Mul-
lins, Ecker and Alexander. Thereafter, Judge Prescott was added to the
panel. He has read the briefs and appendices, and listened to a recording
of the oral argument prior to participating in this opinion.
1
‘‘SLAPP is an acronym for strategic lawsuit against public participation
. . . .’’ (Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332,
337 n.4, 246 A.3d 429 (2020), cert. denied, U.S. , 141 S. Ct. 2467, 209
L. Ed. 2d 529 (2021).
2
General Statutes § 52-196a provides in relevant part: ‘‘(b) In any civil
action in which a party files a complaint, counterclaim or cross claim against
an opposing party that is based on the opposing party’s exercise of its right
of free speech, right to petition the government, or right of association under
the Constitution of the United States or the Constitution of the state in
connection with a matter of public concern, such opposing party may file
a special motion to dismiss the complaint, counterclaim or cross claim.
***
‘‘(d) The court shall stay all discovery upon the filing of a special motion
to dismiss. The stay of discovery shall remain in effect until the court grants
or denies the special motion to dismiss and any interlocutory appeal thereof.
Notwithstanding the entry of an order to stay discovery, the court, upon
motion of a party and a showing of good cause, or upon its own motion,
may order specified and limited discovery relevant to the special motion
to dismiss.
***
‘‘[e] (3) The court shall grant a special motion to dismiss if the moving
party makes an initial showing, by a preponderance of the evidence, that
the opposing party’s complaint, counterclaim or cross claim is based on the
moving party’s exercise of its right of free speech, right to petition the
government, or right of association under the Constitution of the United
States or the Constitution of the state in connection with a matter of public
concern, unless the party that brought the complaint, counterclaim or cross
claim sets forth with particularity the circumstances giving rise to the com-
plaint, counterclaim or cross claim and demonstrates to the court that there
is probable cause, considering all valid defenses, that the party will prevail
on the merits of the complaint, counterclaim or cross claim. . . .’’
3
The plaintiffs also brought this action against a student newspaper at
Trinity and certain individuals associated with the newspaper, but they later
withdrew the complaint as to those defendants. For the sake of simplicity,
all references herein to the defendants are to Supple, Montejo, Xiong-Calmes,
and Moreno.
4
In 2017, Smith also published a post in the ‘‘Alumni for a Better Trinity
College’’ group on Facebook, which lamented the racism being experienced
by ‘‘Western’’ and ‘‘American’’ individuals. In that post, Smith wrote in
relevant part: ‘‘The new racism is every bit as ugly as the old; and it is every
bit as divisive. Until we get beyond this kind of hate, we have no real hope
of living together as fellow citizens and friends. . . .’’ Smith continued:
‘‘Trinity needs a genuine, open discussion of where we have arrived and
clarity about all the ways in which the new racism, with its anti-Western
and anti-American sentiments, is descending on [Trinity].’’
5
Although this language was taken from a particular Facebook post
authored by Smith; see footnote 4 of this opinion; the defendants’ flyers
neither contained quotation marks nor otherwise attributed a source.
6
General Statutes § 52-196a (a) (2) defines ‘‘right of free speech’’ as ‘‘com-
municating, or conduct furthering communication, in a public forum on a
matter of public concern . . . .’’ (Emphasis added.)
7
In reaching this conclusion, the trial court looked to the New Jersey
Supreme Court’s decision in State v. Schmid, 84 N.J. 535, 423 A.2d 615(1980), appeal dismissed sub nom. Princeton University v. Schmid, 455
U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982), which noted that another
private college, Princeton University, was a ‘‘predominantly private, unregu-
lated and autonomous’’ institution, lacking the ‘‘close nexus’’ to the state
necessary for it to be subject to the first amendment; (internal quotation
marks omitted) id., 548; and that ‘‘the attachment of [f]irst [a]mendment
requirements to [Princeton] University by virtue of the general public’s
permitted access to its property would still be problematic.’’ Id., 551.
8
General Statutes § 52-196a (a) (4) broadly defines ‘‘right of association’’
as ‘‘communication among individuals who join together to collectively
express, promote, pursue or defend common interests . . . .’’
9
Because the trial court found that the defendants had failed to meet
their burden under the first prong of § 52-196a (e) (3), it did not reach
the issue of whether the plaintiffs met their burden under the statute’s
second prong.
10
General Statutes § 52-263 provides: ‘‘Upon the trial of all matters of fact
in any cause or action in the Superior Court, whether to the court or jury,
or before any judge thereof when the jurisdiction of any action or proceeding
is vested in him, if either party is aggrieved by the decision of the court or
judge upon any question or questions of law arising in the trial, including
the denial of a motion to set aside a verdict, he may appeal to the court
having jurisdiction from the final judgment of the court or of such judge,
or from the decision of the court granting a motion to set aside a verdict,
except in small claims cases, which shall not be appealable, and appeals
as provided in sections 8-8 and 8-9.’’
11
Our determination of whether there is an appealable final judgment in
the present case turns in part on whether the anti-SLAPP statute confers a
right independent of the first amendment itself. The first amendment pro-
vides immunity from liability, and we have previously held that immunity
from liability is not appealable under Curcio. See Hartford Accident &
Indemnity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 232(‘‘There is a crucial distinction to be drawn between a right not to be tried
and a right [the] remedy [of which] requires the dismissal of charges. . . .
The former necessarily falls into the category of rights that can be enjoyed
only if vindicated prior to trial. The latter does not.’’ (Internal quotation
marks omitted.)).
12
Historically, the term ‘‘SLAPP,’’ or ‘‘strategic lawsuit against public par-
ticipation,’’ appears to have been coined in 1988, when it ‘‘was used in
two separate scholarly articles,’’ in which the authors, Professors Penelope
Canan and George W. Pring, ‘‘posited that there was a nationwide trend in
which large commercial interests utilized litigation to intimidate citizens
who otherwise would exercise their constitutionally protected right to speak
in protest against those interests. The scholars asserted that the goal of
such litigation was not to prevail, but to silence or intimidate the target, or
to cause the target sufficient expense so that he or she would cease speaking
out. . . . [S]een in this stark light, SLAPP suits are an improper use of our
courts.’’ LoBiondo v. Schwartz, 199 N.J. 62, 85–86, 970 A.2d 1007 (2009),
citing P. Canan & G. Pring, ‘‘Strategic Lawsuits Against Public Participation,’’
35 Soc. Probs. 506 (1988), and P. Canan & G. Pring, ‘‘Studying Strategic
Lawsuits Against Public Participation: Mixing Quantitative and Qualitative
Approaches,’’ 22 Law & Society Rev. 385 (1988).
13
The proceedings in the Senate on the anti-SLAPP statute were similar
to those in the House of Representatives. Speaking in support of the bill,
Senator Paul R. Doyle described the special motion to dismiss as intended
‘‘to assist people [who] are sued on [the basis of] their free speech rights
to have a means to quickly get rid of frivolous lawsuits.’’ 60 S. Proc., Pt. 6,
2017 Sess., p. 2235. He described it as ‘‘a mechanism that can save money
for defendants that are wrongly targeted for simply exercising their rights
. . . on the [first] [a]mendment and other matters of public concern.’’ Id.,pp. 2235–36, remarks of Senator Doyle; see id., pp. 2236–37, remarks of
Senator John A. Kissel (describing high costs of litigation and anti-SLAPP
statute as response to ‘‘someone with a lot of money [who] wants to develop
property . . . [or] wants to shut down newspaper[s] or broadcasters or
anything like that, or just people [who] . . . if you mention their name they
file a lawsuit and just hope for the best’’).
14
In the property development context, one court has aptly described
SLAPP suits as a ‘‘figurative litigation ‘asteroid,’ ’’ stating that ‘‘the [a]nti-
SLAPP statute aims to remedy the [fallout] from the unwarranted mainte-
nance of litigation launched to deter, punish or intimidate efforts at critical
public comment and participation in governmental proceedings involving
the [suit bringer’s] interests. Thus, metaphorically, the [wrongfully brought]
litigation, within the scope of the statute, is akin to a ‘killer asteroid’ intended
to make extinct the complaints and complainants opposing the plaintiff’s
initiatives that require governmental approval.’’ MCB Woodberry Developer,
LLC v. Council of Owners of Millrace Condominium, Inc., 253 Md. App.
279, 287, 265 A.3d 1140 (2021).
15
To this end, Representative Tong stated that the usual 120 day rule
would continue to apply to the trial court’s decision on the pending special
motion to dismiss; see 60 H.R. Proc., supra, p. 6920; see also General Statutes
§ 51-183b; but also indicated his ‘‘hope’’ and ‘‘expect[ation] that the court
would act before then . . . . I think the reason why it says as soon as
practicable in [§ 52-196a (e) (4)] is because of the constitutional rights
implicated . . . . They’re important. It’s important to vindicate those rights
often because when you’re speaking on a matter of public concern or you’re
trying to exercise a right to associate or petition the government, it’s time
sensitive.’’ 60 H.R. Proc., supra, p. 6921.
16
The plaintiffs argue that the statute’s legislative history makes it clear
that its purpose is to provide only a procedural means for short-circuiting
litigation. We acknowledge that the anti-SLAPP statute provides a procedural
mechanism to stay discovery and to dismiss a lawsuit before discovery
ensues. The statute, however, creates this procedural mechanism to achieve
an important substantive goal, namely, protecting the parties from expensive
and time-consuming lawsuits on the merits. In that sense, the statute pro-
vides an ‘‘expedited off-ramp’’ for a party to avoid further litigation.
17
The dissent places significant emphasis on the fact that the legislature
has not expressly provided for a right to an immediate appeal in our anti-
SLAPP statute. See part IV A of the dissenting opinion. We disagree. To
reiterate, the fact that § 52-196a does not itself provide an express right of
appellate jurisdiction does not thereby foreclose our inquiry under our final
judgment jurisprudence set forth in State v. Curcio, supra, 191 Conn. 31.
By definition, an analysis under the Curcio test is only ever required in
cases in which the legislature has not expressly provided a right to interlocu-
tory appeal within the statute at issue. See, e.g., Hartford Accident & Indem-
nity Co. v. Ace American Reinsurance Co., supra, 279 Conn. 238 (‘‘Although
the legislature is free to make it clear in the language of a statute that an
immediate appeal may be taken from an order of the court, the absence of
such language is not determinative of whether such a right exists. . . .
Rather, we presume that the legislature is aware of our [long-standing] final
judgment jurisprudence. . . . Consequently, unless the legislature has made
its intent clear regarding the appealability of an interlocutory order under
a particular statute, our determination of whether that order is immediately
appealable hinges on whether the order meets the test articulated in Curcio.’’
(Citations omitted.)). In deciding whether an order meets the test set forth
in Curcio, we previously have considered—as we consider today—among
other things, a statute’s purpose and legislative history, our own and other
courts’ final judgment jurisprudence, and public policy. See, e.g., id., 232–38;
see also, e.g., U.S. Bank National Assn. v. Crawford, supra, 333 Conn.
743; Sena v. American Medical Response of Connecticut, Inc., supra, 333
Conn. 46–52.
18
The plaintiffs correctly observe that this form of argument is best under-
stood as a policy consideration to be weighed by courts in determining
whether a final judgment exists under the second prong of Curcio. See U.S.
Bank National Assn. v. Crawford, supra, 333 Conn. 745–46.
19
The legislative history of the anti-SLAPP statute bears out the importance
of the attorney’s fees provision in ensuring the appropriate use of the special
motion to dismiss. Representative Tong described the attorney’s fees provi-
sion as a measure against ‘‘the very frivolousness that the statute is designed
to avoid or deter’’ because the special motion to dismiss is ‘‘an extraordinary
remedy . . . to terminate a litigation early’’; he emphasized that, ‘‘if a party
avails [itself] of this process [it] should do so in good faith as well and have
a good basis for doing so, so . . . the attorney’s fees provision is a check
on the parties because of the extraordinary nature of the relief sought to
ensure that . . . the parties do so in good faith and don’t waste the court’s
time.’’ 60 H.R. Proc., supra, pp. 6911–12; see id., pp. 6955–56, remarks of
Representatives Tong and Craig Fishbein (discussing purpose of mandatory
attorney’s fees provision).
20
As we discuss subsequently in this opinion, colorability requires only
a superficially well founded claim of a right to avoid litigation under the
anti-SLAPP statute. See, e.g., In re Santiago G., 325 Conn. 221, 231, 157
A.3d 60 (2017).
21
As our appellate courts start to address the substantive provisions of
the anti-SLAPP statute, the reach and the applicability of the statute will
become clearer. This will also allow the dividing line between colorable
and noncolorable claims that a trial court improperly denied a motion to
dismiss to become more discernable. Importantly, then, defendants consider-
ing an appeal from a denial of a special motion to dismiss will have guidance
in making that determination as our jurisprudence develops.
22
An examination of federal and sister state case law is particularly instruc-
tive with respect to the jurisdictional issue before us because the legislative
history of our anti-SLAPP statute signifies that it was modeled after anti-
SLAPP statutes that came before it in other states. Senator John A. Kissel
noted that Connecticut’s anti-SLAPP statute ‘‘is a compilation of some of
the best laws . . . from throughout the United States’’ and that ‘‘[w]e are
not the first state to move in this direction . . . .’’ 60 S. Proc., Pt. 6, 2017
Sess., p. 2236. Likewise, Representative Tong, advocating for the passage
of Connecticut’s anti-SLAPP statute, noted that ‘‘twenty-nine other states
have adopted . . . legislation very similar to the construct we have here.’’
60 H.R. Proc., supra, p. 6884.
23
In addition to the decisions discussed subsequently in this opinion,
we note that numerous other states have enacted legislation specifically
providing for interlocutory appeals of denials of anti-SLAPP special motions
to dismiss. See, e.g., Benton v. Benton, 39 Cal. App. 5th 212, 216–18, 252
Cal. Rptr. 3d 118 (2019) (noting that legislature provided for interlocutory
appeal from denial of special motion to strike under California’s anti-SLAPP
statute, Cal. Civ. Proc. Code § 425.16 (i), with commercial speech exception
provided by Cal. Civ. Proc. Code § 425.17 (e)), review denied, California
Supreme Court, Docket No. S258466 (November 26, 2019); Geer v. Phoebe
Putney Health System, Inc., 310 Ga. 279, 280, 282–85, 849 S.E.2d 660 (2020)
(discussing interlocutory appeal procedure under Georgia’s anti-SLAPP stat-
ute, Ga. Code Ann. § 9-11-11.1 (e)); Stark v. Lackey, 136 Nev. 38, 39 n.1, 458
P.3d 342 (2020) (discussing Nevada’s anti-SLAPP statute, Nev. Rev. Stat.
§ 41.670 (4), which makes denial of special motion to dismiss ‘‘independently
appealable’’ via interlocutory appeal to Nevada Supreme Court); Cordova
v. Cline, 396 P.3d 159, 163–65 (N.M. 2017) (concluding that interlocutory
appeal provided by New Mexico’s anti-SLAPP statute, N.M. Stat. Ann. § 38-
2-9.1, is available to parties regardless of whether they have pending counter-
claims); Steidley v. Community Newspaper Holdings, Inc., 383 P.3d 780,
782 (Okla. Civ. App. 2016) (discussing Okla. Stat. Ann. tit. 12, § 1437, ‘‘which
provides a specific right to appeal the denial of a motion to dismiss brought
pursuant to the Oklahoma Citizens Participation Act’’); Penllyn Greene Asso-
ciates, L.P. v. Clouser, 890 A.2d 424, 432 n.8 (Pa. Commw. 2005) (noting
right to ‘‘an interlocutory appeal as of right’’ from denial of special motion
to dismiss based on ‘‘immunity’’ under Pennsylvania’s anti-SLAPP statute,
27 Pa. Stat. and Cons. Stat. Ann. § 8303), appeal denied, 591 Pa. 719, 919
A.2d 960 (2007); Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651,
663–64 (Tenn. App. 2021) (noting that Tennessee’s anti-SLAPP statute, Tenn.
Code Ann. § 20-17-106, provides express right to interlocutory appeal to
intermediate appellate court from denial or grant of special motion to dis-
miss); In re Lipsky, 460 S.W.3d 579, 585–86 n.2 (Tex. 2015) (noting that
Texas legislature amended interlocutory appeal statute, Tex. Civ. Prac. &
Rem. Code Ann. § 51.014, to make denials of special motions to dismiss
appealable in light of conflicting decisions on that point from that state’s
intermediate appellate courts); cf. Ryan v. Fox Television Stations, Inc.,
979 N.E.2d 954, 958–59 n.1 (Ill. App. 2012) (discussing Ill. Sup. Ct. R. 306
(a) (9), which invoked Illinois Supreme Court’s authority under Illinois
constitution to allow interlocutory appeals from denials of special motions
to dismiss under anti-SLAPP statute).
24
Massachusetts’ anti-SLAPP statute is similar to ours. It provides ‘‘a
procedural remedy that permits the defendant in a SLAPP suit to file a
‘special’ motion to dismiss early in the litigation, which a judge shall grant,
‘unless the party against whom such special motion is made shows that:
(1) the moving party’s exercise of its right to petition was devoid of any
reasonable factual support or any arguable basis in law and (2) the moving
party’s acts caused actual injury to the responding party.’ [The statute] also
include[s] the automatic stay of discovery [upon] the filing of a special
motion to dismiss.’’ Fabre v. Walton, supra, 436 Mass. 520.
25
Maine’s anti-SLAPP statute, which is also similar in its wording to our
anti-SLAPP statute, provides in relevant part: ‘‘When a moving party asserts
that the civil claims, counterclaims or cross claims against the moving party
are based on the moving party’s exercise of the moving party’s right of
petition under the Constitution of the United States or the Constitution of
Maine, the moving party may bring a special motion to dismiss. . . . The
court shall grant the special motion, unless the party against whom the
special motion is made shows that the moving party’s exercise of its right
of petition was devoid of any reasonable factual support or any arguable
basis in law and that the moving party’s acts caused actual injury to the
responding party. In making its determination, the court shall consider the
pleading and supporting and opposing affidavits stating the facts upon which
the liability or defense is based. . . .’’ Me. Rev. Stat. Ann. tit. 14, § 556(2003). The statute then provides that ‘‘[a]ll discovery proceedings are stayed
upon the filing of the special motion under this section, except that the
court, on motion and after a hearing and for good cause shown, may order
that specified discovery be conducted. The stay of discovery remains in
effect until notice of entry of the order ruling on the special motion.’’ Me.
Rev. Stat. Ann. tit. 14, § 556 (2003).
26
We note that the Florida Supreme Court has not conclusively determined
whether, under Florida law, the denial of a special motion to dismiss creates
irreparable harm for purposes of certiorari jurisdiction over interlocutory
appeals. See Geddes v. Jupiter Island Compound, LLC, 341 So. 3d 353, 353
(Fla. App. 2022) (disagreeing with Gundel and certifying conflict to Florida
Supreme Court); WPB Residents for Integrity in Government, Inc. v.
Materio, 284 So. 3d 555, 556 (Fla. App. 2019) (same); see also H. Blum,
Note, ‘‘SLAPPing Back in Federal Court: Florida’s Anti-SLAPP Statute,’’ 76
U. Miami L. Rev. 345, 368 and n.160 (2021).
27
Subsequent United States Supreme Court case law has established that,
for an order to fall within the ‘‘small’’ and ‘‘narrow’’ class that qualifies
for interlocutory review under the collateral order doctrine, it must ‘‘[1]
conclusively determine the disputed question, [2] resolve an important issue
completely separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.’’ (Internal quotation marks
omitted.) Will v. Hallock, 546 U.S. 345, 349, 126 S. Ct. 952, 163 L. Ed. 2d 836(2006). This court previously has deemed collateral order doctrine case law
under Cohen instructive in our application of Curcio’s second prong. See
Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255–57, 520 A.2d 605 (1987)
(relying on Cohen and concluding that discovery orders, including those
implicating attorney-client privilege, are not appealable final judgments);
see also U.S. Bank National Assn. v. Crawford, supra, 333 Conn. 744 (‘‘we
consider federal court decisions to be persuasive when we are considering
the scope of [our] authority’’ to ‘‘treat appeals that are otherwise interlocu-
tory in character as appeals from final judgments if they satisfy Curcio,’’
despite lack of statutory discretionary jurisdiction such as that conferred
by 28 U.S.C. § 1292 (b)).
28
We note that the Ninth Circuit also previously held that the then effective
version of Oregon’s anti-SLAPP statute did not create a right to an immediate
appeal. See Englert v. MacDonell, 551 F.3d 1099, 1107 (9th Cir. 2009). In
that case, the court found it particularly instructive that the Oregon legisla-
ture had not made any special provision in the statute, similar to that
providing for an appeal in California’s anti-SLAPP statute, for appellate relief
from the denial of a motion to strike. See id., 1105–1106. The court held
that ‘‘[t]his provide[d] compelling evidence that [Oregon’s anti-SLAPP stat-
ute] was intended to do nothing more than provide the defendants with a
procedural device to obtain prompt review by a nisi prius judge of the
likelihood that the plaintiff would be able to come forward with sufficient
evidence to get to a jury.’’ Id., 1107. In contrast, our anti-SLAPP statute is
not devoid of any reference to an appeal. In fact, although § 52-196a does
not provide an express grant of an immediate appeal from denials of special
motions to dismiss, the language in subsection (d) very well may indicate
that the legislature intended for the availability of an immediate appeal
under the auspices of Curcio. See Hartford Accident & Indemnity Co. v.
Ace American Reinsurance Co., supra, 279 Conn. 237–38 (legislature is
presumed to be aware of Connecticut’s final judgment jurisprudence).
29
‘‘Although not expressly enumerated in the first amendment, the right
of association has been recognized as a fundamental right under the first
amendment as well. It is beyond debate that freedom to engage in association
for the advancement of beliefs and ideas is an inseparable aspect of the
liberty [en]sured by the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mend-
ment, which embraces freedom of speech.’’ (Internal quotation marks omit-
ted.) State v. Bonilla, 131 Conn. App. 388, 394, 28 A.3d 1005 (2011).
30
Before the trial court, the defendants specifically argued that their rights
under the anti-SLAPP statute were implicated because their conduct in
posting the flyers around campus was related to a ‘‘matter of public concern’’
under (1) the ‘‘health or safety’’ category, (2) the ‘‘environmental, economic
or community well-being’’ category, and (3) the ‘‘public official or public
figure’’ category. General Statutes § 52-196a (1) (A), (B) and (D).
31
The record indicates that, some time after the posting of the flyers,
local news organizations, such as The Hartford Courant and WFSB-TV,
reported on the controversy surrounding the club and the response on
campus. The record further indicates that, some time after the posting of
the flyers, a petition seeking to prevent the club’s formal recognition was
circulated on the Internet for signatures.
32
Regardless of whether ‘‘community’’ means the community at large or
the campus community at Trinity, an issue we need not conclusively address
for purposes of this appeal, the defendants have at a minimum asserted a
colorable claim by describing the general newsworthiness of the controversy
on and off of campus; see footnote 31 of this opinion; and that the controversy
impacts both the campus and surrounding community. In addition, the
defendants have at least a superficially well founded claim that, because
the definition of ‘‘right of free speech’’ requires use of a ‘‘public forum,’’
when the statutory definition of the ‘‘right of association’’ does not, the fact
that Trinity is a private institution has no bearing on the analysis of the
latter right under the first step of § 52-196a (e) (3). Similarly, the defendants
also have asserted a colorable claim that the trial court erred in imposing
a state action requirement under their right of association claim. The anti-
SLAPP statute was created to target actions when, often times, the underly-
ing dispute is between two private parties. See footnote 15 of this opinion and
accompanying text. Indeed, the tort of defamation itself typically involves
disputes between private parties, with the subject matter of the particular
dispute dictating the scope of the first amendment protections warranted.
See, e.g., Gleason v. Smolinski, 319 Conn. 394, 430–32, 125 A.3d 920 (2015).
33
Because we conclude that the defendants have asserted a colorable
claim under the ‘‘right of association’’ category on a matter relating to
‘‘community well-being,’’ we need not consider whether the conduct at issue
may also constitute an exercise of the ‘‘right to free speech’’ or a ‘‘matter
of public concern’’ relating to either ‘‘health or safety’’ or ‘‘public official[s]
or public figure[s],’’ as defined in § 52-196a (a). Because the trial court’s
decision in the present case focused exclusively on the first step of the
burden shifting analysis set forth in § 52-196a (e) (3), we likewise express
no opinion as to whether the plaintiffs may ultimately succeed in showing
that there is probable cause, considering all valid defenses, that they will
prevail. See footnote 9 of this opinion.