Dan Hynes v. New Hampshire Democratic Party & a. ( 2023 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 2021-0551
DAN HYNES
v.
NEW HAMPSHIRE DEMOCRATIC PARTY & a.
Submitted: September 8, 2022
Opinion Issued: June 1, 2023
Dan Hynes, self-represented party, on the brief.
Shaheen & Gordon, P.A., of Concord (William E. Christie on the brief), for
the defendants.
HANTZ MARCONI, J. The plaintiff, Dan Hynes, appeals two orders of the
Superior Court granting in part the motion to dismiss filed by the defendants,1
the New Hampshire Democratic Party (NHDP) and Raymond Buckley, and
granting the defendants’ motion for summary judgment. We affirm in part,
reverse in part, vacate in part, and remand.
1 Bridge Communications was initially a party to this action but was removed as a defendant
during the course of the litigation. As a result, Bridge Communications is not a party to this
appeal.
I
The record supports the following facts. At all times relevant to this
appeal, the plaintiff was an attorney in the State of New Hampshire. In 2009,
the plaintiff was convicted of theft by extortion, which was later annulled
pursuant to RSA 651:5, X. As a result of the conviction, the plaintiff was
temporarily suspended from the practice of law, but he was not disbarred.
In 2018, the plaintiff was “the Republican nominee for New Hampshire
State Senate District 9.” During the course of the plaintiff’s campaign, the
defendants “contracted with Bridge Communications to prepare mail pieces for
certain state senate candidates,” including the plaintiff’s opponent for the state
senate seat. Bridge Communications, with the aid of an NHDP staffer,
prepared a political message that was distributed by mail (the mailer or flyer).
The mailer contained the message:
THE WRONG KIND OF CONVICTIONS.
[The plaintiff] targeted woman-owned businesses for extortion. [He]
was charged by Republican Attorney General Kelly Ayotte, convicted
by the state of New Hampshire for “theft by extortion” and disbarred.
The back of the mailer cited two hyperlinks, which directed the reader to: (1) a
letter to the editor concerning the plaintiff’s conviction, annulment, and
suspension; and (2) a New Hampshire Supreme Court decision related to the
plaintiff’s convictions. The mailer was distributed “to prospective voters in
State Senate District 9.”
The plaintiff subsequently filed a lawsuit against the defendants in
superior court based on the content of the mailer, claiming that the statements
contained therein constituted: (1) defamation per se; (2) defamation per quod;
(3) libel; (4) invasion of privacy — false light; and (5) violation of RSA 651:5
(2016). The defendants moved to dismiss, asserting, inter alia, that the
statements were “true or substantially true” and were not made “with
knowledge of [their] falsity or with reckless disregard of the truth.” The
defendants further argued that RSA 651:5 does not create a private right of
action and that the plaintiff failed to state a claim for invasion of privacy —
false light.
The Trial Court (Brown, J.) granted the motion to dismiss in part,
dismissing the defamation and libel claims as they related to the statement
that the plaintiff had been convicted of theft by extortion. Specifically, the trial
court determined that the “statement that plaintiff had been convicted of a
crime was not defamatory” because it was true. The trial court also dismissed
counts four and five, determining that the plaintiff failed to state a claim for
false light — invasion of privacy and that RSA 651:5 does not create a civil
2
cause of action. It did not, however, dismiss the defamation and libel claims as
they related to the statement that the plaintiff was disbarred, finding that
whether the statement was substantially true was a question for the jury.
After a period of discovery, the defendants moved for summary judgment
on the plaintiff’s disbarment-based libel and defamation claims. The Trial
Court (Anderson, J.) granted the defendants’ motion for summary judgment,
finding that “the statement that plaintiff was disbarred was substantially true
in context” and that the plaintiff, as a public figure, “failed to meet his burden
to show actual malice in the publication of the flyer.” The plaintiff filed a
motion for reconsideration, which the court denied. Thereafter, the plaintiff
appealed both the trial court’s order on the motion to dismiss and its order on
summary judgment.
II
We note that this case arises from political activity. “Discussion of public
issues and debate on the qualifications of candidates are integral to the
operation of the system of government established by our Constitution.”
Buckley v. Valeo, 424 U.S. 1, 14 (1976). Thus, “[t]he First Amendment affords
the broadest protection to such political expression in order to assure the
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.” Id. (quotation and alterations omitted). There
is “a 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.” New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964). “[E]rroneous statement[s] [are] inevitable in free debate,” and,
as such, they “must be protected if the freedoms of expression are to have the
breathing space that they need to survive.” Id. at 271-72 (quotation and
alterations omitted).
However, the Federal Constitution does not prohibit actions in
defamation brought by a public official or political candidate. See id. at 279-
81. Rather, the Supreme Court of the United States has recognized “a federal
rule that prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with ‘actual malice’ — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.” Id. at 279-80. We
employ this same standard in New Hampshire. See, e.g., MacDonald v. Jacobs,
171 N.H. 668, 674-75 (2019). While we understand that the dissent imports
these First Amendment principles into its evaluation of whether a statement is
true or false, we believe the First Amendment protections for political speech
are properly captured in the heightened actual malice standard. It is with this
background in mind that we turn to the issues presented by this appeal.
3
III
We first turn to the plaintiff’s appeal of the trial court’s order granting in
part the defendants’ motion to dismiss. In reviewing an order granting a
motion to dismiss, we assume the truth of the facts as alleged in the plaintiff’s
pleadings and construe all reasonable inferences in the light most favorable to
the plaintiff. Beane v. Dana S. Beane & Co., 160 N.H. 708, 711 (2010). The
standard of review in considering a motion to dismiss is whether the plaintiff’s
allegations are reasonably susceptible of a construction that would permit
recovery. Id. This threshold inquiry involves testing the facts alleged in the
pleadings against the applicable law. Id. We may also consider documents
attached to the plaintiff’s pleadings; or documents the authenticity of which are
not disputed by the parties, official public records, or documents sufficiently
referred to in the complaint. Id. We will uphold the granting of the motion to
dismiss if the facts pled do not constitute a basis for legal relief. Id.The plaintiff first argues that the trial court erred in dismissing counts I,
II, III, and V related to the “defendants knowingly disclosing an annulled
conviction.” He argues that “RSA 651:5 specifically lays out when there can be
a civil cause of action,” and “in order to not be held civilly liable, one must
. . . comply with the requirements of RSA 651:5[, XVI].” We construe the
plaintiff’s argument, in part, as challenging the trial court’s determination that
no civil cause of action exists under RSA 651:5.
Determining whether RSA 651:5 creates a civil cause of action requires
us to engage in statutory interpretation. We review the trial court’s statutory
interpretation de novo. In re D.O., 173 N.H. 48, 52 (2020). We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning. Id. We interpret the statute as written and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We construe all parts of a statute
together to effectuate its overall purpose and to avoid an absurd or unjust
result. Id. Moreover, we do not consider words and phrases in isolation, but
rather within the context of the statute as a whole. Id.RSA 651:5 states, in pertinent part:
Annulment of Criminal Records.
....
X. Upon entry of an order of annulment:
(a) The person whose record is annulled shall be treated in all
respects as if he or she had never been arrested, convicted or
sentenced.
....
4
XVI. A journalist or reporter shall not be subject to civil or criminal
penalties for publishing or broadcasting:
(a) That a person had a criminal record that has been
annulled, including the content of that record.
(b) That a person has a criminal record, including the
content of such record, without reporting that the record
has been annulled, if the journalist or reporter does not
have knowledge of the annulment.
RSA 651:5, X(a), XVI(a)-(b). The plaintiff’s arguments rely, in part, on the
premise that these provisions of RSA 651:5 create a cause of action to hold the
defendants civilly liable because they are not journalists, reporters, or
members of the media. We disagree.
We have previously held that RSA 651:5 “does not provide a civil remedy
to the person whose record is disclosed.” Lovejoy v. Linehan, 161 N.H. 483,
487 (2011). The plaintiff seems to rely specifically on the language in RSA
651:5, XVI, which was added to the statute by amendment in 2011 after
Lovejoy was decided, to support his position that RSA 651:5 creates a private
right of action. See Laws 2011, ch. 219; see also RSA 651:5, XVI(a)-(b).
However, there is no language, either in paragraph XVI, or in any other
amendment to the statute, that serves to create a civil cause of action. See
RSA 651:5. Rather, paragraph XVI prevents any common law or statutory
cause of action from being brought against a journalist or reporter who
publishes the fact of an individual’s conviction under certain circumstances.
See RSA 651:5, XVI(a)-(b). Thus, we agree with the trial court that “RSA 651:5
does not provide plaintiff a separate cause of action.”
This conclusion, however, does not end our inquiry. The plain language
of RSA 651:5, XVI evinces the legislature’s acknowledgement that a cause of
action may exist where the publisher is aware that a criminal record has been
annulled but fails to include that fact in the publication. See RSA 651:5, XVI.
As a result, we note that, although the statute does not create a private right of
action, it does not prevent the plaintiff from filing a defamation claim under the
common law.
To that end, the plaintiff argues that the trial court erred when it
concluded that the statement that the plaintiff was “convicted by the State of
New Hampshire for ‘theft by extortion’” is true and, therefore, an absolute
defense to a defamation claim. A plaintiff establishes defamation by showing
that the defendants failed to exercise reasonable care in publishing a false and
defamatory statement of fact about the plaintiff to a third party, unless a valid
privilege applies to the communication. Thomas v. Telegraph Publ’g Co., 155
N.H. 314, 327 (2007). However, one who publishes a defamatory statement of
fact is not subject to liability for defamation if the statement is true. Id. at 335.
5
In the law of defamation, truth is defined as substantial truth, as it is not
necessary that every detail be accurate. Id. In other words, the literal truth of
a statement is not required so long as the imputation is substantially true so
as to justify the gist or sting of the remark. Id. Where, as here, the plaintiff is
a public figure, he must also prove that the statement was made with “actual
malice,” meaning “‘with knowledge that [the statement] was false or with
reckless disregard of whether it was false or not.’” MacDonald v. Jacobs, 171
N.H. at 674-75 (quoting New York Times Co., 376 U.S. at 280 (brackets
omitted)).
The plaintiff argues that because his criminal conviction was annulled, it
is treated “in all respects as if he . . . had never been arrested, convicted or
sentenced,” and therefore he “does not have a conviction as a matter of law.”
We agree. Although the legislature did not create a private right of action, the
plain language of RSA 651:5 nonetheless makes clear the legal effect and
consequences of an annulment. As noted above, the statute states that a
“person whose record is annulled shall be treated in all respects as if he or she
had never been arrested, convicted or sentenced . . . .” RSA 651:5, X(a)
(emphases added). We begin with the word “annulment.” Its plain meaning is:
“[t]he act of nullifying or making void.” Black’s Law Dictionary 114 (11th ed.
2019). Because a criminal arrest, conviction or sentence potentially implicates
one’s personal freedom, these are the most extreme steps the State can take
against individuals. The effect of New Hampshire’s annulment statute is to, as
a matter of law, render the arrest, conviction, or sentence void for the purposes
of public discourse. Cf. State v. Williams, 173 N.H. 540, 548 (2020) (“[T]he
purpose of [the annulment statute] is to reduce the collateral consequences of a
criminal conviction and to afford an offender a chance to start anew without
this stigma in his record.” (quotation omitted)). We note that other
jurisdictions with similar laws rely upon different statutory framework. See,
e.g., G.D. v. Kenny, 15 A.3d 300, 311-15 (N.J. 2011) (concluding that N.J.S.A.
ch. 52, titled “Expungement of Records Statute,” applies to government
agencies record keeping, but does not prevent disclosure of the conviction as a
matter of public discourse); see also Martin v. Hearst Corp., 777 F.3d 546, 550-
52 (2d Cir. 2015) (explaining that Connecticut courts have concluded that the
Connecticut “Erasure of criminal records” statute, Conn. Gen. Stat. Ann. § 54-
142a (West 2012), provides that the person subject to the erasure of their
record “shall be deemed to have never been arrested within the meaning of the
general statutes,” but it does not “purport to wipe from the public record the
fact that certain historical events have taken place” (quotations omitted)
(emphasis added)). RSA 651:5 is different from these statutes in other
jurisdictions in that it expressly provides that the annulment has the effect of
allowing that the “person whose record is annulled shall be treated in all
respects as if he or she had never been arrested, convicted or sentenced,”
which we conclude includes within the public discourse. See RSA 651:5, X(a),
XVI(a)-(b) (emphasis added). Given New Hampshire’s unique statutory scheme
6
conferring an annulment, the dissent’s reliance on decisions from other
jurisdictions does not advance our primary duty: to interpret and apply our
law.
In light of the statute’s effect of annulling an arrest, conviction or
sentence, the legislature has carefully prescribed how the records of an arrest,
conviction or sentence should be treated and how they should be characterized
to the public. See RSA 651:5. For example, a person whose record has been
annulled shall receive “a certificate stating that such person’s behavior after
the conviction has warranted the issuance of the order, and that its effect is to
annul the arrest, conviction and sentence” and the criminal records unit, as
well as the arresting and prosecuting agencies, shall be notified. RSA 651:5,
X(b). Those agencies “shall clearly identify in their respective files and in their
respective electronic records that the arrest or conviction and sentence have
been annulled.” RSA 651:5, X(e) (emphasis added).
In addition, a “journalist or reporter shall not be subject to civil or
criminal penalties for publishing” that “a person had a criminal record that has
been annulled,” or that “a person has a criminal record, including the content
of such record, without reporting that the record has been annulled, if the
journalist or reporter does not have knowledge of the annulment.” RSA 651:5,
XVI(a)-(b) (emphasis added). The statute further requires that, “[i]n any
application for employment, license or other civil right or privilege, or in any
appearance as a witness in any proceeding or hearing, a person may be
questioned about a previous criminal record only in terms such as ‘Have you
ever been arrested for or convicted of a crime that has not been annulled by a
court?’” RSA 651:5, X(f) (emphasis added).
The rationale is plain. Annulment provides the potential for a clean slate
when a person’s “behavior after the conviction has warranted” it. RSA 651:5,
X(b); see also Williams, 173 N.H. at 548. Commentators have described the
adverse socioeconomic consequences of criminal convictions and the potential
benefits of expungement-like procedures. See, e.g., J.J. Prescott & Sonja B.
Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L.
Rev. 2460 (2020). Numerous states, including New Hampshire, have expanded
the reach of their laws in recent years. See, e.g., id.; RSA 651:5-b. The
unambiguous language of RSA 651:5 advances the possibility of achieving a
clean slate by minimizing the reputational harm flowing from a criminal
conviction. See Thomas, 155 N.H. at 323. Thus, just as the legislature has
defined the underlying offense in the Criminal Code, it has also defined, in the
Criminal Code, how an annulled conviction must be characterized. See RSA
651:5. New Hampshire law is clear: after an annulment has been granted,
what was once a conviction becomes a conviction that “has . . . been annulled.”
RSA 651:5, X(f).
7
Here, the flyer’s statement that the plaintiff was “convicted by the state of
New Hampshire for ‘theft by extortion’” is contrary to RSA 651:5 and, therefore,
false. The fact that the plaintiff was convicted undeniably exists, but as a
matter of New Hampshire law, upon annulment, it is false and misleading to
fail to state that the conviction was annulled. Our conclusion is grounded in
the statutory analysis set forth above. In particular, we note that to conclude
otherwise would be to render the legislature’s grant of civil and criminal
immunity to journalists and reporters surplusage. See RSA 651:5, XVI(a)-(b).
It would also undermine the legislature’s express objective to create a clean
slate “in all respects” for those whose convictions have been annulled. RSA
651:5, X(a). In the context of this case, to conclude otherwise could discourage
those with annulled criminal records from seeking elective office, a
constitutionally protected right. N.H. CONST. pt. I, art. 11 (“Every inhabitant
of the state, having the proper qualifications, has equal right to be elected into
office.”); cf. RSA 651:5, X(f) (providing that in any application for a “civil right or
privilege,” “a person may be questioned about a previous criminal record only
in terms such as ‘Have you ever been arrested for or convicted of a crime that
has not been annulled by a court?’”).
Moreover, as a general matter, where the State has, as a matter of law,
altered a previously taken action, it would be false and misleading to
characterize the previously taken action in its unaltered form. If, for example,
a state licensing board revokes a professional’s license, it is unlawful for that
professional to advertise that she or he is still licensed. See RSA 310-A:1-m,
VIII (Supp. 2022). Similarly, where a statute or regulation requires disclosure
of additional facts, the partial disclosure may carry defamatory meaning. See,
e.g., Martin, 777 F.3d at 552 (“But in certain circumstances even a technically
true statement can be so constructed as to carry a false and defamatory
meaning by implication or innuendo. Where a publication implies something
false and defamatory by omitting . . . key facts, the publication may be
actionable even though all of the individual statements are literally true when
considered in isolation.”); see also Turner v. Connecticut Lottery Corporation,
No. 3:20-cv-1045, 2021 WL 4133757 at *15 (D. Conn. Sept. 10, 2021) (finding
that the publication of a letter placing the plaintiff on administrative leave that
omitted the reason she was placed on leave — information that is required to
be included in a termination under the relevant local regulation — could give
rise to an actionable defamatory implication). Therefore, while we appreciate
the dissent’s reliance on the presence of historical facts evidencing the
conviction, those historical facts have been qualified by the annulment.
Although the dissent accurately posits that the “safe harbor” provision of RSA
651:5, XVI does not create liability for the unqualified disclosure of a
conviction, it overlooks that the provision acknowledges that such liability may
independently exist. Moreover, we are unpersuaded that the statute does not
apply to private persons acting as journalists and publishers.
8
For the foregoing reasons, we conclude that the trial court erred in
finding that the statement on the flyer was true. As a matter of New
Hampshire law, a true and accurate characterization of the conviction had to
include the fact of the conviction’s annulment. Thus, failure to include the fact
of the conviction’s annulment renders the statement false as a matter of law.
See RSA 651:5. Accordingly, we reverse the trial court’s dismissal of the
plaintiff’s defamation claim.
The plaintiff next argues that the trial court erred in dismissing his claim
for invasion of privacy — false light. The trial court dismissed the claim,
concluding that it failed to state a claim for false light as articulated in the
Restatement (Second) of Torts § 652E. The trial court premised its decision on
the conclusion that “the ‘gist’ of the statement is that plaintiff had been a [sic]
convicted of a crime, which was substantially true.” As we have just explained,
as a matter of New Hampshire law, articulating the fact of plaintiff’s conviction
without including the fact of the conviction’s annulment is a falsehood. Thus,
the trial court’s decision on whether the plaintiff had failed to state a claim for
false light was premised on an erroneous conclusion. For this reason, we
vacate the trial court’s decision and remand for review consistent with this
opinion.
We note, however, that we have yet to recognize the false light variation
of the invasion of privacy tort under New Hampshire law. See, e.g., Hamberger
v. Eastman, 106 N.H. 107 (1964). In any case in which we are asked to
recognize a new cause of action, it is a question of policy whether it would be
wise to provide the relief that the plaintiff seeks. Rockhouse Mt. Property
Owners Assoc., Inc. v. Town of Conway, 127 N.H. 593, 597 (1986). Reaching
an answer to this question requires two quite separate steps, for we must
determine whether the interest that the plaintiff asserts should receive any
legal recognition and, if so, whether the relief that the plaintiff requests would
be an appropriate way to recognize it. Id. at 597-98.
Here, neither party has briefed whether we should adopt the tort of
invasion of privacy — false light. For this reason, we conclude that the issue of
whether we would recognize a claim of false light is insufficiently developed for
our review at this time. See White v. Auger, 171 N.H. 660, 665 (2019) (“[W]e
will not address arguments that a party has not sufficiently developed in its
brief.”). However, on remand, the parties are free to present arguments to the
trial court and further develop the record on this issue.
IV
We next turn to the plaintiff’s appeal of the trial court’s 2021 order
granting the defendants’ motion for summary judgment. The plaintiff asserts
9
that the trial court erred in finding: (1) the statement that he was disbarred
was “substantially true”; and (2) the plaintiff failed to present evidence of actual
malice. We will consider each of the plaintiff’s arguments in turn.
When reviewing a trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Loeffler v. Bernier, 173
N.H. 180, 183 (2020). If there is no genuine issue of material fact, and if the
moving party is entitled to judgment as a matter of law, we will affirm the grant
of summary judgment. Id. We review the trial court’s application of the law to
the facts de novo. Id.The plaintiff first argues “[w]hether the word ‘disbarred’ is substantially
true is a question of fact that should be left up to a jury.” (Bolding omitted.)
The defendants respond that the trial court was correct in concluding that the
statement was substantially true because “[t]he purpose of the flyer in its
entirety [was] to notify potential voters of Plaintiff’s previous criminal activity
and that, as a result of such criminal activity, his law license was adversely
affected.” (Italics omitted.) We agree with the plaintiff.
The trial court found that the term “disbarred” was substantially true,
because “it is not apparent that Plaintiff’s reputation would have fared better if
Defendants had used the word ‘suspended’ as opposed to ‘disbarred,’ as the
reader’s takeaway remains the same.” We disagree. The difference between
the terms “suspended” and “disbarred” is significant. “Suspension” from the
practice of law, as it is commonly understood, means “a fairly stringent level of
lawyer discipline that prohibits the lawyer from practicing law for a specified
period.” Black’s Law Dictionary 1748 (11th ed. 2019). In the New Hampshire
attorney discipline system, “[s]uspension” is defined as “the suspension of an
attorney’s right to practice law in this State, for a period of time specified by the
court or by the professional conduct committee.” Sup. Ct. R. 37(2)(j).
“Disbarment,” on the other hand, generally means “[t]he expulsion of a lawyer
from the bar or from the practice of law, usu[ally] because of some disciplinary
violation . . . typically a permanent removal from the practice of law.” Black’s
Law Dictionary 581 (11th ed. 2019). Further, in the New Hampshire attorney
discipline system, “[d]isbarment” is defined as “the termination of a New
Hampshire licensed attorney’s right to practice law in this State and automatic
expulsion from membership in the bar of this State.” Sup. Ct. R. 37(2)(d).
Therefore, as the trial court noted in its order on the motion to dismiss in
this case, “[t]he statement that plaintiff was disbarred rather than suspended
harms his reputation by implying that he had been lying about the current
state of his bar licensure and employment in the course of his campaign and
that he had been practicing law illegally.” This potentially adverse effect on the
10
plaintiff’s reputation presented a genuine issue of material fact precluding
summary judgment because we cannot say, as a matter of law, that the “gist or
sting” of the word “disbarred” as opposed to “suspended” is substantially the
same in the mind of the average reader. Loeffler, 173 N.H. at 183. Thus,
although we note that the dissent would make the same factual determination
as the trial court, in our view, the issue of whether the “disbarred” language is
substantially true is a question best left to the province of the jury.
Finally, the plaintiff argues that the trial court erred in granting
summary judgment because “there was a dispute of material fact as to whether
defendants acted with actual malice.” (Capitalization and bolding omitted.)
Conversely, as an alternate ground for summary judgment, the defendants
assert that the plaintiff “failed to present clear and convincing evidence of
actual malice.” (Emphasis and capitalization omitted.) We agree with the
plaintiff that there remains a dispute of material fact as to actual malice, thus
rendering the issue unsuitable for summary judgment. See id.
The trial court based its decision on the fact that the plaintiff “has put
forth no evidence that Defendants seriously doubted the truth of the
publication,” highlighting that the plaintiff had not put forth evidence “of
Defendants’ subjective intent or knowledge on this issue.” We disagree. The
plaintiff attached to his complaint the Nashua Telegraph article cited in the
defendants’ mailer, which plainly states: “[The plaintiff] is a lawyer (although he
was suspended from practicing law for a period).” Nowhere in this article, nor
in the supreme court decision also cited by the mailer, see State v. Hynes, 159
N.H. 187 (2009), does the word “disbarred” appear. The inclusion of this
citation in the mailer could lead a reasonable jury to find that the defendants
were subjectively aware that the plaintiff had not been disbarred and,
therefore, subjectively aware that the language in the mailer was untrue. It is
for the jury to decide whether the statement was made “with knowledge that
the statement was false or with reckless disregard of whether it was false or
not.” MacDonald, 171 N.H. at 674-75 (quotation and brackets omitted). For
these reasons, we conclude that the trial court erred in granting summary
judgment on the remaining libel and defamation claims in favor of the
defendants. Accordingly, we reverse the 2021 order granting summary
judgment.
Affirmed in part; reversed in part;
vacated in part; and remanded.
MACDONALD, C.J., and DONOVAN, J., concurred; HICKS, J., concurred
in part and dissented in part.
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HICKS, J., concurring in part and dissenting in part. This case involves
statements made in the heat of a political campaign for state senate. “The right
to speak freely on matters of public concern and the right to criticize a
candidate for public office implicate core values protected by” the Federal
Constitution. G.D. v. Kenny, 15 A.3d 300, 316 (N.J. 2011). “[D]ebate on the
qualifications of candidates is integral to the operation of the system of
government established by our [Federal] Constitution.” Eu v. San Francisco
County Democratic Central Committee, 489 U.S. 214, 223 (1989) (quotation
and brackets omitted). “A political challenger must be afforded leeway to
characterize the conduct of his opponent, even if such characterization takes
the most negative perspective, in order to ensure ‘uninhibited, robust, and
wide-open’ debate on public issues.” Issa v. Applegate, 242 Cal. Rptr. 3d 809,
825-26 (Ct. App. 2019) (quoting New York Times Co. v. Sullivan, 376 U.S. 254,
270 (1964)). “When a candidate enters the political arena, he or she must
expect that the debate will sometimes be rough and personal, and cannot ‘cry
Foul!’ when an opponent . . . attempts to demonstrate that he or she lacks the
‘sterling integrity’ trumpeted in campaign literature and speeches.” Harte-
Hanks Communications v. Connaughton, 491 U.S. 657, 687 (1989) (quotations
and citation omitted). “[T]he First Amendment has its fullest and most urgent
application to speech uttered during a campaign for political office.” Eu, 489
U.S. at 223 (quotation omitted). “Thus we consider this case against the
background of a 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.” Sullivan, 376 U.S. at 270.
In Sullivan, the United States Supreme Court concluded that the
constitutional guarantee of freedom of speech limits the ability of states to
provide common law remedies for defamation: the Court explained that what a
State may not constitutionally bring about by means of a criminal statute is
likewise beyond the reach of its civil law — the fear of damage awards may be
more inhibiting than the fear of prosecution under a criminal statute. See id.
at 277. Thus, the First Amendment “has its fullest and most urgent
application” to the defendants’ speech in this case. Eu, 489 U.S. at 223(quotation omitted). Application of these fundamental constitutional principles
should lead us to affirm the judgment of the trial court.
In 2018, during the course of the plaintiff’s campaign for the state
senate, the defendants caused a campaign mailer to be distributed that
contained the following:
THE WRONG KIND OF CONVICTIONS.
Dan Hynes targeted woman-owned businesses for extortion. Hynes was
charged by Republican Attorney General Kelly Ayotte, convicted by the
state of New Hampshire for “theft by extortion” and disbarred.
12
The plaintiff sued, claiming, inter alia, that the statements that he was
convicted of theft by extortion, and that he was disbarred, were defamatory.2
In addition, the plaintiff brought a claim for invasion of privacy — false light.
On a motion to dismiss, the trial court ruled that the first statement — that the
plaintiff was convicted for theft by extortion — is true and therefore not
defamatory. In addition, it dismissed the claim for invasion of privacy — false
light. On a motion for summary judgment, the court ruled, inter alia, that the
second statement — that the plaintiff was disbarred — is substantially true
and therefore not defamatory. I agree with the trial court.
I. The Defamation Claims
In order to be actionable, the language complained of must be
defamatory in the sense that it must tend to lower the plaintiff in the esteem of
any substantial and respectable group. Thomson v. Cash, 119 N.H. 371, 373
(1979). The defamatory meaning must be one that could be ascribed to the
words by hearers of common and reasonable understanding. Id. A public
official can have a civil remedy for defamation only if the public official
establishes that the utterance is false — if a defendant’s statements are true,
“they are protected by the First Amendment.” Id. at 377; see Garrison v. State
of Louisiana, 379 U.S. 64, 74 (1964) (public official allowed civil defamation
remedy only if public official establishes that the utterance was false). “Truth
may not be the subject of either civil or criminal sanctions where discussion of
public affairs is concerned.” Garrison, 379 U.S. at 74; see Grimmett v.
Freeman, 59 F.4th 689, 692 (4th Cir. 2023); Thomas v. Telegraph Publishing
Co., 155 N.H. 314, 335 (2007) (stating that “[o]ne who publishes a defamatory
statement of fact is not subject to liability for defamation if the statement is
true” (quotation omitted)). The plaintiff admits that he is to be considered a
“public official” with respect to his defamation claims in this case. He does not
dispute that he was convicted for theft by extortion. See State v. Hynes, 159
N.H. 187 (2009) (affirming plaintiff’s conviction after jury trial of one count of
theft by extortion). Nor has he challenged as defamatory the statement that
“Dan Hynes targeted woman-owned businesses for extortion.”
A. The First Statement — Plaintiff Was Convicted For Theft By Extortion
With respect to the first statement at issue — that the plaintiff was
convicted for theft by extortion — the trial court ruled that the statement was
true, and therefore dismissed the plaintiff’s claim that it was defamatory. On
2 The plaintiff also unsuccessfully raised a claim alleging violation of RSA 651:5 (2016)
(amended 2016, 2017, 2018, 2020). The majority affirms the trial court’s decision that no civil
cause of action exists under RSA 651:5. I agree that that decision should be affirmed, and
therefore concur in the result reached by the majority to the extent that it affirms the trial
court’s decision on that claim.
13
appeal, the plaintiff does not dispute either that he committed theft by
extortion or that he was convicted for theft by extortion. Rather, he argues that
his conviction was annulled in 2014, and, therefore, pursuant to the
annulment statute, RSA 651:5, he “does not have a conviction as a matter of
law. . . . To put it another way, the statement: ‘Mr. Hynes was convicted of theft
by extortion’ is legally and factually false, and can give rise to a defamation
claim.” The majority agrees. I cannot.
In Lovejoy v. Linehan, 161 N.H. 483, 486 (2011), we agreed “that an
annulment under RSA 651:5 does not expressly turn the public event of a
criminal conviction into a private, secret, or secluded fact.” Lovejoy, 161 N.H.
at 486 (quotation and brackets omitted). Nor does an annulment “‘transmute a
once-true fact into a falsehood.’” Grafton County Attorney’s Office v. Canner,
169 N.H. 319, 326 (2016) (quoting G.D., 15 A.3d at 315-16). Rather,
“annulment creates a legal fiction that a person has never been . . . convicted.”
Wolfgram v. N.H. Dep’t of Safety, 169 N.H. 32, 38 (2016) (emphasis added); see
The Free Dictionary (https://legal-
dictionary.thefreedictionary.com/legal+fiction) (stating that a legal fiction is an
“assumption that something occurred or someone or something exists which,
in fact, is not the case”).
Significantly, the annulment statute has no effect upon the underlying
facts that gave rise to the conviction. See Panas v. Harakis & K-Mart Corp.,
129 N.H. 591, 611-12 (1987). The plain language of the statute states that a
“record of arrest, conviction and sentence of any person” may be annulled.
RSA 651:5, I. Upon entry of an order of annulment, the person whose record is
annulled shall be treated “as if he or she had never been arrested, convicted or
sentenced.” RSA 651:5, X(a). Nothing in the statute provides, however, that
the person whose record is annulled shall be treated as if the person did not
commit the criminal acts for which he or she was convicted — it is the record of
the arrest, conviction and sentence that is annulled, not the underlying
criminal conduct itself. Panas, 129 N.H. at 611 (annulment statute only
extends as far as evidence of the conviction itself; it has no such effect upon
the facts giving rise to the conviction). Annulment creates the legal fiction that
a person has never been convicted; it does not purport to create the fiction that
the person never committed the underlying criminal acts.
Thus, our case law should control here — we have already explained that
RSA 651:5 does not “create an Orwellian scheme whereby previously public
information—long maintained in official records—now becomes beyond the
reach of public discourse.” Canner, 169 N.H. at 326 (quotation omitted). RSA
651:5 does not alter the metaphysical truth of the plaintiff’s past, nor does it
impose a regime of silence on those who know the truth. Id. In this case, the
public information in question includes the fact that the plaintiff was convicted
14
for theft by extortion. RSA 651:5 does not transmute the truth of that
statement into a falsehood. Id. Prior annulled convictions “remain a historical
reality.” Wolfgram, 169 N.H. at 38.3
Moreover, nothing in RSA 651:5 supports the conclusion that upon
annulment, the historically true statement that the plaintiff was convicted
becomes a false statement. First, nothing in the annulment statute purports to
classify any statement as “false.” The statute instead directs how certain
government agencies will handle records related to an annulled conviction.
Court records relating to the annulled conviction are generally sealed, RSA
651:5, X(c), while the arresting agency and prosecuting agency are required to
identify in their files and electronic records that the conviction has been
annulled, RSA 651:5, X(e). Upon payment of a fee, the state police criminal
records unit shall remove the annulled criminal record. RSA 651:5, X(d).
Supreme court records relating to opinions published in the New Hampshire
Reports, on the other hand, which include the records relating to the supreme
court opinion that affirmed the plaintiff’s conviction for theft by extortion,
cannot be annulled. RSA 651:5, XV.
Nothing in RSA 651:5 mandates that a disclosure of the conviction by a
member of the public include the fact of the conviction’s annulment. To the
contrary, the statute contains a specific requirement that only the arresting
agency and the prosecuting agency identify in their files and records that a
conviction has been annulled. RSA 651:5, X(e). The defendants are not,
however, either an arresting or prosecuting agency. No other provision of RSA
651:5 requires that disclosures of a conviction identify the conviction as having
been annulled, and nowhere does the statute impose any obligation upon a
member of the public who is aware of an annulled conviction to not disclose it
without also stating that it has been annulled. See generally Rogers v. Rogers,
171 N.H. 738, 745 (2019) (we interpret legislative intent from the statute as
written and will not add words that the legislature did not include).
3 Other authorities agree that an order annulling or expunging an arrest or conviction does not
make the statement that the plaintiff was arrested or convicted untrue. See G.D., 15 A.3d at
315 (stating that “the expungement statute does not transmute a once-true fact into a
falsehood”); Farach v. Rivero, 305 So. 3d 54, 57 (Fla. App. Ct. 2019) (same); Rzeznik v. Chief of
Police of Southampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (stating that nothing in statute or
legislative history suggests “that, once the fact of a conviction is sealed, it becomes nonexistent,
and hence untrue for the purposes of the common law of defamation”); Martin v. Hearst Corp.,
777 F.3d 546, 551 (2d Cir. 2015) (expungement statute “creates legal fictions, but it does not
and cannot undo historical facts or convert once-true facts into falsehoods”); cf. Hardiman v.
Aslam, 125 N.E.3d 1185, 1193-94 (Ill. App. Ct. 2019) (statement that plaintiff had conviction
for misdemeanor domestic violence was substantially true even though his conviction was in
fact for simple battery against his wife, and even accepting as true plaintiff’s assertion that his
conviction had been expunged).
15
The language of the statute reveals the legislature’s understanding that it
was creating a legal fiction. For example, RSA 651:5, X(a) provides that upon
entry of an order of annulment, “[t]he person whose record is annulled shall be
treated in all respects as if he or she had never been . . . convicted,” with
various exceptions. (Emphasis added.) The use of “as if” acknowledges that
the person was, in fact, convicted. Thus, after a conviction is annulled, it
remains a fact that the person was convicted; the statute provides simply that
the person is to be treated “as if” he or she had not been convicted — hence,
our case law explaining that the annulment statute creates a legal fiction that
the person has not been convicted. Wolfgram, 169 N.H. at 38. This is fully
consistent with the purpose of an annulment, which is to limit the legal effect
of the prior conviction, not to conceal the fact that it occurred. See Canner,
169 N.H. at 326 (explaining that allowing public access to records of arrests
and prosecutions that have been annulled will not subvert the legal fiction
created by the annulment statute that the person be treated in all respects as if
he had never been arrested, convicted or sentenced, because, if the person is
asked if he had been arrested, he could answer in the negative).
Thus, in my view, nothing in RSA 651:5 suggests either that the true
statement that the plaintiff was convicted of theft by extortion is, by operation
of the statute, now a false statement (and thus subject to civil liability for
defamation), or that a statutory mandate exists requiring any communication
about a conviction to disclose as part of the communication that the conviction
has been annulled.4
If RSA 651:5 is construed as making the defendants’ statement that the
plaintiff was convicted of theft by extortion false and defamatory, then I believe
4
A safe harbor provision for journalists and reporters in RSA 651:5, XVI was adopted in 2011
when the statute provided in part that a person was guilty of a misdemeanor if, during the life
of another who has had a record of arrest or conviction annulled pursuant to this section, he
discloses or communicates the existence of such record. In 2011, RSA 651:5 was amended to
limit the scope of the misdemeanor crime by, inter alia, adding the safe harbor provision for
journalists and reporters. See Laws 2011, ch. 219. Thereafter, in 2012, the criminal penalty
in RSA 651:5 was repealed, leaving the statute silent on the question of civil and criminal
liability for disclosing annulled convictions. Had the immunity provisions for journalists and
reporters also been repealed, the result would have been uncertainty as to what could be
published without fear of civil or criminal liability. Because the statute was silent on that
issue, resolution of that issue would be left to the courts. The legislature could rationally have
intended the immunity provisions for reporters and journalists to be a safe harbor going
forward. A safe harbor allows journalists and reporters relief from any uncertainty that exists
regarding civil or criminal liability, such as from a common law defamation action. Providing
the press with a safe harbor from uncertainty does not, by negative implication, create civil or
criminal liability for actions that do not fall within the safe harbor.
Finally, the safe harbor provision protects journalists and reporters from all civil and
criminal liability, not simply from liability for defamation. Thus, the safe harbor provision
would not be rendered surplusage by concluding, in accordance with our precedent, that the
annulment statute does not transform truth into falsity.
16
that the statute as applied is unconstitutionally vague and a sharp departure
from our established jurisprudence.
Our case law explicitly states that RSA 651:5 does not transmute a true
fact into falsity. In interpreting RSA 651:5, we have stated, inter alia, that
annulment “creates a legal fiction that a person has never been . . . convicted,”
Wolfgram, 169 N.H. at 38; that “prior convictions remain a historical reality,”
id., that the statute “does not alter the metaphysical truth of [the person whose
conviction has been annulled’s] past,” Canner, 169 N.H. at 326 (quotation
omitted); and that the statute “does not transmute a once-true fact into a
falsehood,” id. (quotation omitted). The relevant language in RSA 651:5 has
not changed since those cases were decided in 2016. It is fundamentally
unfair to hold that the defendants should have predicted that the language in
RSA 651:5 that we repeatedly indicated did not alter the truth of the past
would be construed as altering the truth of the past. See Appeal of Mullen,
169 N.H. 392, 397 (2016) (ultimate standard for judging whether a party has
been afforded due process is the notion of fundamental fairness); see also
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498-99 (1982) (laws must give person of ordinary intelligence reasonable
opportunity to know what is prohibited, especially if law interferes with right of
free speech).
If the annulment statute did purport to make the defendants’ statement
“factually false” for purposes of a defamation action, then, in my view,
application of the statute here would also violate the First Amendment.
[E]fforts to impose liability for disclosure of the facts of a criminal record
by deeming them constructively false and imposing defamation damages
will not work. Constructive falsity would allow us to assume the falsity
of the report of a criminal record while simultaneously understanding
full well that the presumption of falsity is not fact. Would the [Supreme]
Court permit such sleight of hand? A fair reading of the Supreme
Court’s opinions counsel that it would not.
Doris Del Tosto Brogan, Expungement, Defamation, and False Light: Is What
Happened Before What Really Happened or is There a Chance for a Second Act
in America?, 49 Loy. U. Chi. L. J., 1, 38 (2020).
The First Amendment protects true statements from civil defamation
liability. That protection would be weak indeed if a government were able to
impose defamation liability for any statement that the government chose to
define by law as “false.” See Rushman v. City of Milwaukee, 959 F. Supp.
1040, 1041 (E.D. Wis. 1997) (“the First Amendment forbids the government
from arbitrating truth and fiction”). In my opinion, the defendants’ statement
17
that the plaintiff was convicted for theft by extortion is protected by the First
Amendment.5
Furthermore, that a statement is deemed “false” pursuant to a statute
does not determine whether the same statement is “false” for purposes of a
defamation action. In the law of defamation, truth is defined as “substantial
truth,” as it is not necessary that every stated detail be accurate. The literal
truth of a statement is not required so long as the imputation is substantially
true so as to justify the gist or sting of the remark. Thomas, 155 N.H. at 327.
Thus, today’s holding that the defendants’ statement is “false” in light of RSA
651:5 does not resolve the question of whether the defendants’ statement is
nevertheless “substantially true” so as to justify the gist or sting of the remark.
In this case, the trial court ruled that the defendants’ statement was
“true,” and thus the trial court had no reason to consider the defense of
“substantial truth.” See id. at 335 (“substantial truth is a defense to a . . .
defamation claim”). Accordingly, it remains open, on remand, for the
defendants to argue that the statement that the plaintiff was convicted for theft
by extortion is “substantially true.”6
The right to free speech “allows for an ‘uninhibited, robust, and wide-
open’ discussion of public issues that ‘may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials,’”
5 Mandating that one who discloses a conviction must also state that the conviction was
annulled also raises First Amendment concerns. “Mandating speech that a speaker would not
otherwise make necessarily alters the content of the speech.” Riley v. National Federation of
the Blind of North Carolina, Inc., 487 U.S. 781, 795 (1988). Therefore, the statute would be
considered a content-based regulation of speech. See id. The First Amendment guarantees
“freedom of speech,” which comprises “the decision both what to say and what not to say.” Id.
at 796-97. Compelled statements of fact may unconstitutionally burden protected speech. Id.
at 797-98. Thus, a statute that purports to compel the defendants to say that the plaintiff’s
conviction was annulled may well violate the First Amendment.
6 “A statement is substantially true if the statement would not have a different effect on the
mind of the reader from that which the pleaded truth would have produced.” Tannerite Sports,
LLC v. NBCUniversal News Group, 864 F.3d 236, 242 (2d Cir. 2017) (quotation and brackets
omitted). If the inaccuracy does not have a materially different effect upon the reader than that
which the literal truth would produce, then it is substantially true. See Mark v. Seattle Times,
635 P.2d 1081, 1093 (Wash. 1981); Riley v. Moyed, 529 A.2d 248, 253 (Del. 1987); see also
Thomas, 155 N.H. at 336 (“If the defamatory statement is a specific allegation of the
commission of a particular crime, the statement is deemed true for purposes of a substantial
truth defense if the plaintiff did commit that crime.”); Eugene Volokh, Libel by Omission of
Exculpatory Legal Decisions, 97 Notre Dame L. Rev. 351, 355 (2021) (“[S]ometimes omitting the
follow-up information doesn’t sharply change the gist of the original information: an
expungement or settlement, for instance, doesn’t demonstrate innocence of the original charge.
In that situation, omitting that information isn’t libelous. Thus, for instance, it isn’t libelous to
mention an arrest without mentioning that it was expunged or that charges were dismissed for
non-innocence-related reasons.” (emphasis added)).
18
G.D., 15 A.3d at 316 (quoting Sullivan, 376 U.S. at 270), and permits a public
official to have a civil remedy for defamation only if the public official
establishes that the utterance was false, Garrison, 379 U.S. at 74. The
legislature cannot alter the metaphysical truth of the plaintiff’s past — for
purposes of the First Amendment, the statement that the plaintiff was
convicted for theft by extortion both was, and is, true.
B. The Second Statement — Plaintiff Was Disbarred
I now turn to the defendants’ statement that the plaintiff was disbarred,
when, in fact, he was suspended from the practice of law. Here, I agree with
the majority that consideration of the defense of substantial truth is
appropriate.
One who publishes a defamatory statement of fact is not subject to
liability for defamation if the statement is true. In the law of defamation,
truth is defined as substantial truth, as it is not necessary that every
detail be accurate. In other words, literal truth of a statement is not
required so long as the imputation is substantially true so as to justify
the gist or sting of the remark.
Thomas, 155 N.H. at 335 (quotation omitted). The notion of substantial truth
“necessarily implies a thread of untruth.” Id. Here, the “thread of untruth” is
the erroneous statement that the plaintiff was disbarred. Thus, we must
determine whether that thread of untruth has a sufficient defamatory effect to
justify a civil remedy. See Eric M. Raudenbush, Variations on a Theme:
Application of Masson v. New Yorker Magazine, Inc. to a Spectrum of
Misquotation Libel Cases, 48 Wash. & Lee L. Rev. 1441, 1460 (1991) (under
doctrine of substantial truth, a defendant “can be liable only if an actionable
amount of reputational harm to the plaintiff actually arises from a falsification
— otherwise, the plaintiff can have no cause of action for libel”). As previously
noted, that determination is made by using the following test: “A statement is
substantially true if the statement would not have a different effect on the mind
of the reader from that which the pleaded truth would have produced.”
Tannerite Sports, LLC, 864 F.3d at 242 (quotation and brackets omitted). If
the inaccuracy does not have a materially different effect upon the reader than
that which the literal truth would produce, then it is substantially true. See
Mark, 635 P.2d at 1093; Riley, 529 A.2d at 253; Raudenbush, supra at 1461
(stating that “the core purpose of the substantial truth doctrine is simply to
discern whether the defamatory effect of a contested statement arises
overwhelmingly from a gleam of truth shining through any falsity, or whether
the falsity superimposed upon the truth also contributes an actionable
injurious effect”). As the Tenth Circuit Court of Appeals has explained, it is the
plaintiff’s burden to show that a statement is not only false, but “materially
false.” Brokers’ Choice of America, 861 F.3d at 1107. “To be material, an
19
alleged falsehood must be likely to cause reasonable people to think
significantly less favorably about the plaintiff than they would if they knew the
truth.” Id. (emphasis added; quotation omitted); see Bustos v. A&E Television
Networks, 646 F.3d 762, 765 (10th Cir. 2011); Pope v. Chronicle Pub. Co., 95
F.3d 607, 613 (7th Cir. 1996) (implicit in the defense of substantial truth “is
the idea that publication as it stood must make the plaintiff significantly worse
off than a completely or literally truthful publication would have” (emphasis
added)). “A misstatement is not actionable if the comparative harm to the
plaintiff’s reputation is real but only modest.” Broker’s Choice of America, 861
F.3d at 1107 (quotation and brackets omitted); see Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (news report containing falsehood is
actionable only when significantly greater opprobrium results than would
result from report without the falsehood).
The First Amendment requires that the burden of proving falsity, when
the plaintiff is a public figure or the statement involves a matter of public
concern, lies with the plaintiff. Bustos, 646 F.3d at 764; see Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986). Here, while disbarment
is a more serious punishment than suspension, I note that a disbarred
attorney may at a later date apply to be readmitted to the bar, see Sup. Ct. R.
37(14), and that suspensions may be lengthy. The gist or sting of the mailer is
the plaintiff’s criminal history. Nothing in the mailer alleges or suggests that at
any time after his conviction, the plaintiff engaged in the unauthorized practice
of law. Rather, as the trial court found:
The purpose of the flyer in its entirety is to notify potential voters of
Plaintiff’s previous criminal activity and that, as a result of such criminal
activity, his law license was adversely affected. . . . [I]t is not apparent
that Plaintiff’s reputation would have fared better if Defendants had used
the word ‘suspended’ as opposed to ‘disbarred,’ as the reader’s takeaway
remains the same.
I believe that our decision in Thomas is dispositive. There, the plaintiff
argued that the trial court erred in ruling that certain inaccurate statements
were substantially true. Four of the statements pertained to a conviction or
sentence the plaintiff received in connection with criminal activity. We agreed
with the trial court, stating: “‘If the defamatory statement is a specific
allegation of the commission of a particular crime, the statement is deemed
true for purposes of a substantial truth defense if the plaintiff did commit that
crime.’” Id. at 336-37 (quoting Restatement (Second) of Torts § 581A comment
c at 236) (brackets omitted).
Similarly, here the inaccurate statement pertains to the legal
consequences that the plaintiff received in connection with his criminal
activity. The statement is substantially true because the plaintiff in fact did
20
commit the underlying crime. See id.; see also Panas, 129 N.H. at 611(annulment statute has no effect upon the facts giving rise to the conviction).
A similar issue was presented in Behr v. Meredith Corp., 414 N.W.2d 339(Iowa 1987), where the defendant published an article entitled “How Farmers
Steal From the Government” that stated that the plaintiff had understated his
1980 soybean crop by 11,000 bushels and had insured his beans for $6.00 per
bushel. Behr, 414 N.W.2d at 340-41. It then stated that the plaintiff “received
more than $100,000 in indemnity claims.” Id. at 341. The Iowa Supreme
Court agreed with the plaintiff that this sentence could be construed to mean
that he received money, which was not true. Id. at 342-43. The report then
accurately stated that the plaintiff was sentenced to thirty days in prison, one
year probation, 400 hours of community service, and fined $10,000. Id. at
343.
The court explained that the gist or sting of the paragraph about the
plaintiff was that he was adjudged guilty of a crime involving fraud against the
federal government, as were other farmers mentioned in the article. Id.
Whether the plaintiff received any money as a result of his conduct was
immaterial to the truth of the gist or sting, because receiving money was not
the essence of the offense. Id. The essence of the offense was the filing of false
claims, which was correctly reported. Id. Therefore, the court ruled, as a
matter of law, that the article was substantially true, and ordered that
summary judgment be entered in favor of the defendants. Id. at 343-44.
Here, the gist or sting of the challenged statement is the plaintiff’s
criminal conduct. The defendants accurately stated the underlying crime, but
erred in their use of legal terminology regarding one of the consequences of the
criminal conduct. “The man in the street would be likely to characterize the
mistake as a ‘technicality.’” Id. at 344 (quotation omitted); cf. Boyle v. Dwyer,
172 N.H. 548, 554 (2019) (defamatory meaning must be one that could be
ascribed to the words by persons of “common and reasonable understanding”).
As noted above, it is the plaintiff’s burden to show that a statement is not
only false, but “materially false.” Brokers’ Choice of America, 861 F.3d at
1107. “To be material, an alleged falsehood must be likely to cause reasonable
people to think significantly less favorably about the plaintiff than they would if
they knew the truth.” Id. (emphasis added; quotation omitted). Here, the
misstatement, which used the wrong label in referring to the degree of one of
the consequences of the plaintiff’s criminal conduct, was not materially false.
II. The Invasion of Privacy — False Light Claim
In its order dismissing the plaintiff’s false light claim, the trial court
stated: “As an initial matter, the Court notes that New Hampshire has never
21
recognized a cause of action for false light invasion of privacy.” The court then
proceeded to assume for purposes of the order that such a cause of action, as
set forth in the Restatement (Second) of Torts, exists and concluded that the
plaintiff failed to state a claim upon which relief can be granted.
On appeal, the plaintiff challenges only one of the two grounds upon
which the trial court ruled — he argues that he stated a claim that would
satisfy the elements of the tort as set forth in the Restatement. Because the
trial court set forth two grounds that independently support its ruling,
however, the plaintiff was obliged to challenge both grounds on appeal. Here
the plaintiff neither challenges the trial court’s ruling that New Hampshire has
not recognized a cause of action for false light invasion of privacy, nor argues
that this court should now recognize such a cause of action. Accordingly, we
should affirm the dismissal of his claim. See Koor Communication v. City of
Lebanon, 148 N.H. 618, 624 (2002) (where trial court order set forth two
grounds supporting grant of summary judgment but appellant’s brief
challenged only one of them, court upheld grant of summary judgment on the
basis of the unchallenged ground without addressing merits of appellant’s
arguments as to other ground).
As explained above, I also disagree with the majority’s conclusion that as
a matter of New Hampshire law, “conveying the plaintiff’s conviction without
including the fact of the conviction’s annulment is a falsehood.” Thus, I would
affirm the trial court’s dismissal of this claim.
III. Conclusion
Bushels and beans aside, in my mind the majority opinion is
inconsistent with the plain language of RSA 651:5 and with fundamental First
Amendment principles. I would affirm the decision below in its entirety.
22