Gleason v. Smolinski

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
GLEASON v. SMOLINSKI—DISSENT
EVELEIGH, J., with whom ZARELLA, J., joins, dis-
senting. I respectfully dissent. Free speech may not
be invoked as a mere contrivance to shield tortious
conduct—directed at a private party on a purely private
matter—from liability. See Snyder v. Phelps, 562 U.S.
443, 455, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). In
my view, the majority accepts a contrived, post hoc
rationalization for the harassing conduct by the defen-
dants, Janice Smolinski and Paula Bell,1 allowing a hol-
low invocation of the first amendment to the United
States constitution in order to protect conduct not
deserving of its aegis. I remain dedicated to safe-
guarding free speech, the hallmark of which ‘‘is to allow
free trade in ideas—even ideas that the overwhelming
majority of people might find distasteful or discom-
forting.’’ (Internal quotation marks omitted.) State v.
Krijger, 313 Conn. 434, 448, 97 A.3d 946 (2014). As the
trial court’s findings demonstrate, however, no pro-
tected ideas were intended to be expressed by the
defendants in continuously bombarding the plaintiff,
Madeleine Gleason,2 with flyers at her residence and
place of employment. Instead, the trial court found that
‘‘what is unacceptable here and worthy of a finding
of outrageous and extreme behavior is the continuing
aggravated nature of the [defendants’] activity in hound-
ing [the plaintiff] where she lived and worked and
engaged in the ordinary activities of life. . . . Posters
of a missing person were placed so as to indicate to
[the plaintiff] that the very purpose of the poster cam-
paign was to underline her supposed knowledge of the
criminal disappearance of [William Smolinski, Jr.
(Bill)].’’3 (Citation omitted.) The trial court further con-
cluded: ‘‘[T]he [plaintiff’s] emotional distress . . . was
severe. She, in effect, felt she was being constantly
hounded—not as the result of a general effort by the
[defendants] to find their son and brother but part of
an effort to break her. . . . [T]he defendants would
not be satisfied unless [the plaintiff] admitted to what
they were convinced she knew and they pursued their
action with these purposes in mind.’’ Respectfully, only
by overturning these factual findings—and making a
new finding that ‘‘the targeted content and location
was consistent with the overarching public concern of
gaining information about Bill’s disappearance’’—can
the majority justify the conclusion that the defendants’
conduct merits the first amendment’s protections. The
majority does so notwithstanding the fact that, at oral
argument, the defendants conceded that they were not
asking this court to overturn any of the trial court’s
factual findings. See footnote 4 of this dissenting
opinion.
In light of the standard of review we must apply
today, which requires this court to search the record
to make sure there is no intrusion on first amendment
rights and to disturb the trial court’s factual findings
only when they are clearly erroneous, as well as the
defendants’ concession that they do not ask this court to
overturn the trial court’s factual findings, respectfully, I
cannot agree with the majority’s apparent sub silentio
disregard of the trial court’s crucial factual findings. If
it is unable to disregard the trial court’s critical factual
finding, the majority essentially concedes, through its
citation to State v. Carpenter, 171 P.3d 41 (Alaska 2007),
that such conduct is not protected speech. See id., 59
(‘‘[e]ven speech that relates to a matter of public interest
loses its protection and can give rise to an [intentional
infliction of emotional distress] claim if . . . it is
uttered with an intent merely to harass and with no
intent to persuade, inform, or communicate’’). There-
fore, I would affirm the judgment of the Appellate Court
which concluded that, notwithstanding an independent
review of the whole record, the trial court’s factual
findings must stand, as they are amply supported by
the record and, therefore, unable to support the legal
conclusion that the defendants’ harassing conduct is
speech of public concern. See Gleason v. Smolinski,
149 Conn. App. 283, 293–94, 88 A.3d 589 (2014); id., 306
(‘‘[u]ltimately, the [trial] court credit[ed] the testimony
of the plaintiff . . . because although the defendants
testified that they did not engage in the conduct of
hanging missing person posters in order to harass the
plaintiff, other evidence presented . . . [showed] that
the defendants had a strong motive to act in the way
. . . alleged by the plaintiff’’ [internal quotation
marks omitted]).
The defendants did not intend to convey a protected
message through their intentional efforts to ‘‘hound’’
the plaintiff until she ‘‘broke.’’ No ideas were expressed
through the other harassing conduct that formed the
basis for the trial court’s judgment. The only message
a reasonable person could have gleaned from the defen-
dants’ conduct, including their targeted placement of
posters, is one of harassment. Such tactics included
calling the plaintiff and threatening to kill her, calling
the plaintiff’s employer and the employer’s clients to
accuse the plaintiff of murder, following the plaintiff
and her friends on the street and videotaping her, threat-
ening the plaintiff and her friends in person, swearing
at and calling the plaintiff names such as ‘‘ho’’ and
‘‘slut’’ and ignoring admonishments by the police to
stop escalating matters before things got out of hand.
Shielding this harassing conduct, the sum of which
caused the plaintiff ‘‘to fear for her safety and that of
her child,’’ cannot be tolerated in a decent society and is
neither envisioned nor dictated by our first amendment
jurisprudence. For these reasons, I respectfully dissent.
I
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
I begin by discussing the majority’s opinion, first, by
noting the cases it cites in setting forth relevant first
amendment jurisprudence. I then discuss how, in my
view, the majority has overturned a crucial finding of
fact in order to conclude that the present case involves a
violation of the first amendment. Because I respectfully
disagree with the majority’s disregard of this crucial
finding, I then conclude that the cases cited by the
majority, as well as additional case law, demonstrate
that there is no basis for finding a constitutional viola-
tion in the present case under the third prong of State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
Specifically, I conclude that the defendants’ targeted
posters cannot be shielded from forming the basis of
liability because it is not speech of public concern.
The majority accurately sets forth the standard of
review and substantive law concerning speech of public
concern. See Snyder v. Phelps, supra, 562 U.S. 453–54
(‘‘Deciding whether speech is of public or private con-
cern requires us to examine the content, form, and
context of that speech, as revealed by the whole record.
. . . As in other [f]irst [a]mendment cases, the court is
obligated to make an independent examination of the
whole record in order to make sure that the judgment
does not constitute a forbidden intrusion on the field
of free expression. . . . In considering content, form,
and context, no factor is dispositive, and it is necessary
to evaluate all the circumstances of the speech, includ-
ing what was said, where it was said, and how it was
said.’’ [Citations omitted; internal quotation marks omit-
ted.]); State v. Krijger, supra, 313 Conn. 447 (‘‘[T]he
heightened scrutiny that this court applies in first
amendment cases does not authorize us to make credi-
bility determinations regarding disputed issues of fact.
Although we review de novo the trier of fact’s ultimate
determination that the statements at issue [were not
protected by the first amendment], we accept all subsid-
iary credibility determinations and findings that are not
clearly erroneous.’’). In undertaking an independent
examination of the whole record to determine whether
the defendants’ targeted placement of posters consti-
tutes speech of public concern, an inquiry concededly
made more difficult by the defendants’ failure to assert
entitlement to the first amendment’s protections at trial,
the majority begins by examining the content, context,
and form of the speech at issue.
As to the first of three factors to consider, the content
of the speech, the majority examines the ‘‘objective
nature of the speech at issue in the count of the com-
plaint alleging intentional infliction of emotional dis-
tress, namely, the defendants’ extensive campaign of
missing person posters.’’ It notes the ‘‘well established’’
principle that ‘‘ ‘[t]he commission of crime, prosecu-
tions resulting from it, and judicial proceedings arising
from the prosecutions . . . are without question
events of legitimate concern to the public . . . .’ Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.
Ct. 1029, 43 L. Ed. 2d 328 (1975).’’ After noting that the
posters seek information about Bill without specifically
referencing the plaintiff, the majority concludes that
the content of the communications relates to a matter of
public concern—namely, ‘‘matters pertaining to missing
persons.’’ I agree that the content of the posters, without
more, ostensibly relates to a matter of public concern.
The majority then discusses case law pertaining to
the second and third factors: the context and form of
the speech. As to context, the majority concedes that
‘‘the existence of preexisting animus between parties
might indicate circumstantially that a defendant is
dressing intentionally tortious conduct in the garb of
the first amendment,’’ though it explains that a motive
to harm ‘‘ ‘does not necessarily render the messages
conveyed . . . matters of purely private rather than
public concern.’ Spacecon Specialty Contractors, LLC
v. Bensinger, 713 F.3d 1028, 1038 (10th Cir. 2013).’’ The
cases cited by the majority conclude that, if the motive
to harm or harass is the sole basis for speech uttered
‘‘with no intent to persuade, inform, or communicate’’
on a protected matter, the first amendment’s protec-
tions do not apply because it is speech on a matter of
purely private concern. State v. Carpenter, supra, 171
P.3d 59. In my view, this jurisprudence applies precisely
to the present case. However, I acknowledge that, if an
improper motive to harm is not the sole basis for
uttering speech, and there exists a bona fide intent to
communicate on a protected matter—which, if con-
demned, the protected speech will have been improp-
erly chilled—the speech remains protected by the first
amendment. See Spacecon Specialty Contractors, LLC
v. Bensinger, supra, 1037–39 and 1039 n.4 (documentary
inspired by news reports about company’s dubious
employment practices and alleged abuse of foreign
workers ‘‘not shown in a purely private context,’’ even
though it was product of some motivation to harm com-
pany’s reputation, because ‘‘[t]hat the film elucidated
those matters of public concern while simultaneously
advancing the [u]nion’s private interests does not ren-
der the matter entirely private’’). As acknowledged by
the majority, the inquiry into context, form, and motive
is fundamental to determining whether speech is of
public concern. Without such an inquiry, as the majority
notes, the first amendment risks becoming an all-pur-
pose tort shield that is ‘‘used as a cloak or veil for
intentionally tortious conduct that is only tangentially
related to the claimed matter of public concern.’’ See
also Greene v. Tinker, 332 P.3d 21, 34–35 (Alaska 2014)
(rejecting argument that all ‘‘speech involving a matter
of public concern is inactionable’’ [internal quotation
marks omitted]).
The majority then turns to the factual findings of the
trial court to determine whether the context and form
of the targeted placement of posters demonstrates the
defendants’ bona fide attempt to communicate a mes-
sage to the public or, rather, an attempt purely and
solely intended to harass the plaintiff. The majority
alludes to the trial court’s finding that the defendants’
targeted posters, were located primarily on, or adjacent
to, public roadways, were placed ‘‘not as the result of
a general effort by the [defendants] to find their son
and brother but [rather] part of an effort to break her’’—
uttered without an attempt to communicate a protected
matter to the public—and yet the majority concludes
that the targeted placement of posters ‘‘was consistent
with the overarching public concern of gaining informa-
tion about Bill’s disappearance . . . .’’ Having appar-
ently disregarded the trial court’s crucial factual
findings, the majority then concludes that ‘‘a substantial
portion of the defendants’ conduct . . . was, in fact,
protected by the first amendment.’’
The majority asserts that ‘‘[n]othing in the trial court’s
memorandum of decision indicates that it considered
the first amendment in deciding this case. We, of course,
do not fault the trial court for this. The first amendment
claims were not properly preserved and must be
reviewed on appeal pursuant to Golding.’’ See footnote
21 of the majority opinion. I disagree. A review of the
trial court opinion reveals that the trial court did con-
sider free speech issues when deciding this matter.
First, the trial court explained that ‘‘the court under-
stands the comments in [Petyan v. Ellis, 200 Conn. 243,
254, 510 A.2d 1337 (1986)], to the effect that certain
conduct which would otherwise be considered extreme
and outrageous can be privileged. The [defendants] can-
not be faulted for bringing their concerns and suspi-
cions to the attention of the police and even the media.
Nothing, for example, has been introduced into evi-
dence that the . . . relationship [between Bill and the
plaintiff] did not break down under circumstances
involving a rival for [the plaintiff’s] affection and the
[defendants] concede that Bill . . . made a threatening
[tele]phone call to the rival the day before [Bill] disap-
peared. The nature of that person’s business—long-haul
trucking—and the occupation of [the plaintiff’s] now
deceased son as a grave digger are not disputed and it
would be an unacceptable restriction on free speech
and even hamper police investigations if people did not
have a right to bring such facts to the police’s or even
[the] public’s attention. In fact, the [defendants] are to
be admired for their persistent efforts to bring [Bill’s]
disappearance and their complaints to the highest levels
of state government and the federal authorities. One
cannot help sympathizing with their pain and frustra-
tion.’’ (Emphasis added.) Furthermore, the trial court
also reasoned as follows: ‘‘The foregoing also leads the
court to conclude that the third and fourth element[s]
of the tort have been met. [The plaintiff and other wit-
nesses] testified to the emotional distress caused [to
the plaintiff] by the activities of the defendants. The
enumerated facts and findings made by the court on
those facts lead to the conclusion that the actions of the
defendants caused [the plaintiff] emotional distress—in
fact they were meant to do so. Also, it is not surprising
that, given the facts, the emotional distress caused [to
the plaintiff] was severe. She, in effect, felt she was
being constantly hounded—not as the result of a gen-
eral effort by the [defendants] to find their son and
brother but part of an effort to break her.’’ (Empha-
sis added.)
The majority explains that it does ‘‘not suggest that
the trial court was completely unaware that the general
subject matter of this case has first amendment implica-
tions. The dissent’s discussion of the trial court’s refer-
ences to the defendants’ free speech rights focuses,
however, on conduct whose propriety and protected
nature is not at issue in this appeal, namely, the defen-
dants’ rights to speak to law enforcement authorities
or the public about details surrounding Bill’s disappear-
ance. There is nothing in the trial court’s opinion indi-
cating that it considered the first amendment
implications of the defendants’ flyer campaign, which
were a substantial basis for the plaintiff’s intentional
infliction of emotional distress claim.’’ See footnote 21
of the majority opinion. I disagree. First, it is not reason-
able to assume that the trial court could be aware ‘‘that
the general subject matter of this case has first amend-
ment implications’’ and consider it in regard to some
of the defendants’ conduct, but not the conduct involv-
ing the posters. Second, the trial court’s statement that
‘‘it would be an unacceptable restriction on free speech
and even hamper police investigations if people did not
have a right to bring such facts to the police’s or even
[the] public’s attention’’ belies the majority’s reading
of the trial court’s memorandum of decision. (Emphasis
added.) A reasonable reading of the trial court’s refer-
ence to the public’s attention would include the defen-
dants’ placement of posters. Furthermore, contrary to
the majority’s claim that I am addressing an issue not
briefed by the parties—namely, whether the Appellate
Court properly applied Golding review to these
claims—my focus on this language in the trial court’s
memorandum of decision regarding free speech is in
response to the majority’s explicit statement that
‘‘[n]othing in the trial court’s memorandum of decision
indicates that it considered the first amendment in
deciding this case.’’ See footnote 21 of the majority
opinion.
I respectfully disagree with the majority’s apparent
disregard of the factual findings and credibility determi-
nations of the trial court. First and foremost, at oral
argument, the defendants conceded that they were not
asking this court to overturn the trial court’s factual
findings as clearly erroneous.4 Having conceded as
such, and despite Golding review and an ‘‘independent
examination’’ of the whole record, I respectfully dis-
agree that the defendants—or the majority—are able
to show that the first amendment’s protections apply
in light of these crucial findings. But notwithstanding
the defendants’ concession, the majority fails to
acknowledge, and implicitly overturns, the trial court’s
finding that the defendants’ targeted placement of post-
ers served no purpose beyond harassing the plaintiff
and expressed no protected message. Respectfully, dis-
regarding this crucial finding does not square with the
standard of review the majority purports to apply,
which would require it to overturn as clearly erroneous
the trial court’s credibility determination that the defen-
dants’ contrived justification for their harassing con-
duct was, in fact, unbelievable. The majority is unable
to find clear error and, absent clear error as to this
crucial finding, therefore, the majority’s conclusion that
the defendants’ harassing conduct is of public concern
cannot stand in light of our first amendment juris-
prudence.
Assuming that the majority chooses to overturn—
without saying so and notwithstanding the defendants’
concession—as clearly erroneous the trial court’s fac-
tual finding that the defendants’ sole purpose in placing
posters near the plaintiff’s home and work was to harass
her, a review of the record is warranted. As noted by
the majority, the standard of review requires deference
to the factual findings of the trial court, especially credi-
bility determinations regarding disputed issues of fact,
unless clearly erroneous. ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) State v. Krijger, supra, 313 Conn. 446. Only
after review of the trial court’s subsidiary credibility
determinations and findings of fact for clear error may
this court review, de novo, ‘‘whether the defendants’
conduct, as found by the trial court, was subject to first
amendment protection.’’ Id. Even Golding review, as
the majority notes, ‘‘does not permit us to disregard
the trial court’s findings of historical fact resolving con-
flicting evidence in favor of our own view of the factual
record, or to make our own findings when the record
reveals conflicting or inconclusive evidence on a factual
point.’’ See footnote 15 of the majority opinion. In my
view, however, the majority has done just that.
The majority acknowledges, in a footnote, the follow-
ing subordinate factual findings undergirding the trial
court’s critical finding that the defendants’ sole purpose
in placing posters near the plaintiff’s home and work
was to intimidate and harass the plaintiff until she
broke: that posters placed in other towns were generally
well spaced out and yet posters were placed outside
of the plaintiff’s place of employment and saturated
‘‘every nook and cranny’’ of her bus route; that there
were a large quantity of posters on one pole outside
the plaintiff’s house, that were replaced when taken
down, and yet posters were placed nowhere else on
the street; that the placement of posters continued for
months and followed the plaintiff as she changed resi-
dences to avoid them; and that there was no evidence
that the placement of posters along the plaintiff’s bus
route was necessary to aid in locating Bill. See footnote
20 of the majority opinion. The majority also acknowl-
edges other factual findings—though elsewhere in its
opinion and, in my view, absent from its analysis regard-
ing the posters—as to additional ‘‘confrontational and
harassing’’ conduct by the defendants that formed the
basis of the effort to ‘‘break’’ the plaintiff and that very
well may justify a judgment for intentional infliction of
emotional distress upon remand: a confrontation at a
police station in the town of Woodbridge during which
the defendants threatend to kill the plaintiff; incidents
during which the defendants called the plaintiff offen-
sive names, followed her, videotaped her activities, and
told various people that the plaintiff was a ‘‘murderer’’
or otherwise involved in Bill’s disappearance. The
majority even credits the defendants’ representation
that it was the actions of the plaintiff in tearing down
the posters—in allegedly thwarting the defendants’
legitimate efforts—that caused the defendants to target
her, again, contrary to the trial court’s finding that ‘‘it
cannot be deduced from the evidence and testimony
that the concentration of poster activity where [the
plaintiff] lived and worked only commenced in reaction
to [the plaintiff’s] tearing down posters in that area.
. . . [T]he poster hanging activity in towns where [the
plaintiff] worked and lived was apparently done from
the beginning of the poster hanging activity.’’5 These
subsidiary factual findings in the record provide ample
support for the trial court’s critical finding that the ‘‘sole
purpose’’ of the defendants’ placement of posters near
the plaintiff’s home and work was done for the purpose
of ‘‘intimidating and harassing the plaintiff.’’ In my view,
the majority cannot ‘‘acknowledge’’ these subsidiary
factual findings without upholding the crucial finding
it has overturned.
Under our standard for clear error and in light of the
ample support in the record, therefore, the majority
could only have overturned the trial court’s critical find-
ing if it had been left with the definite and firm convic-
tion that a mistake had been committed, a conclusion
the majority has not made. And if the majority made
such a conclusion, it could only have done so by its
further disregard of additional relevant facts found by
the trial court: that Janice Smolinski admitted to ‘‘inten-
tionally saturating all the areas where she knows [the
plaintiff] frequents ‘because she was trying to break
her’ ’’ so that the plaintiff would admit her involvement
in Bill’s disappearance; that both defendants admitted
to the police, the Waterbury Observer, and other parties
their plans to harass the plaintiff and her friend until
one of them broke down and gave them information;
that Janice Smolinski admitted to the Waterbury
Observer that these actions could land her in jail; and
that the poster campaign was part of—and not even
the exclusive means of—a larger effort to intimidate
the plaintiff, intended to, and in fact becoming, the
cause of the plaintiff’s severe emotional distress. In
light of the defendants’ admission that the posters were
deliberately placed to affect only the plaintiff—a per-
son who undeniably already understood that the defen-
dants sought information about Bill’s whereabouts—I
would uphold the trial court’s finding that this conduct
did not convey a message to the public or advance
legitimate speech.
Most importantly, the trial court, having had the
opportunity to view the demeanor of the parties and
determine their credibility, clearly resolved the conflict
in the parties’ testimony to make its crucial factual
finding. The trial court characterized the parties’ con-
duct as a ‘‘ ‘cat and mouse game’ ’’ for which ‘‘both
sides can be faulted for the antagonistic activity that
developed.’’ Additional review of the trial transcript
reveals just how deep the acrimony between the parties
ran—at one point during the plaintiff’s testimony,
Janice Smolinski interrupted the plaintiff stating: ‘‘Stop
it. . . . Stop it. It’s not all about you, it’s not. Stop.’’
The court took a recess after this outburst, after which
the plaintiff’s attorney noted that, during the recess, a
family member of the defendants ‘‘directed an obscen-
ity’’ at the plaintiff. The trial court then attempted to
calm the parties, though it acknowledged that ‘‘emo-
tions are boiling . . . .’’ A fair review of the record
cannot, without overturning the trial court’s determina-
tion as to the defendants’ credibility, lead to the definite
and firm conviction that a mistake has been commit-
ted—instead, the record indicates the turn of a blind
eye toward the facts that the majority should have con-
sidered. Contrary to its statement that Golding review
does not permit it to do so, the majority has made
several of its own factual ‘‘findings when the record
reveals conflicting or inconclusive evidence on a factual
point.’’ See footnote 15 of the majority opinion.
To the extent the majority might have come to its
conclusion by ‘‘[performing] a fresh examination of cru-
cial facts under the rule of independent review’’; (inter-
nal quotation marks omitted) DiMartino v. Richens,
263 Conn. 639, 662, 822 A.2d 205 (2003); it has not stated
how it performed this examination without disregarding
credibility determinations made by the trial court,
which our first amendment jurisprudence does not
allow us, and the defendants have not asked us, to do.
See State v. Krijger, supra, 313 Conn. 447. The majority
suggests that a proper application of the rule of indepen-
dent review would involve a species of ‘‘the clearly
erroneous standard of review [while] tailoring [the
review] to the specific trial court determinations at
issue . . . .’’ But as the Appellate Court noted, it is
unclear how that standard permits us to overcome the
trial court’s finding that the defendants’ sole intent was
to harass without discounting the trial court’s consider-
ation of the parties’ credibility as to this crucial issue
of fact. See Gleason v. Smolinski, supra, 149 Conn. App.
306 (‘‘[u]ltimately, the court credit[ed] the testimony of
the plaintiff . . . because although the defendants tes-
tified that they did not engage in the conduct of hanging
missing person posters in order to harass the plaintiff,
other evidence presented . . . [showed] that the
defendants had a strong motive to act in the way . . .
alleged by the plaintiff’’ [internal quotation marks omit-
ted]). This crucial finding must stand.
If, therefore, the majority could not have overturned
as clearly erroneous the factual finding that the defen-
dants’ sole intent in targeting posters at the plaintiff
was to harass her until she broke, given its citation to
relevant case law, the majority essentially concedes
that its conclusion cannot stand. See State v. Carpenter,
supra, 171 P.3d 59 (‘‘[e]ven speech that relates to a
matter of public interest loses its protection and can
give rise to an [intentional infliction of emotional dis-
tress] claim if . . . it is uttered with an intent merely
to harass and with no intent to persuade, inform, or
communicate’’). No other cases cited by the majority
support the conclusion that the defendants’ conduct in
the present case is speech of public concern. Indeed,
no case has afforded the first amendment’s protections
to speech of facially acceptable content expressed in
a traditional public forum, where the speech: (1) is
uttered in a context that consists of the sole and exclu-
sive desire to harm the plaintiff and, concomitantly, no
intent to convey a protected idea or message to the
public; (2) is inextricably linked to intimidating conduct
that borders on harassment of a private party on a
purely private matter; and (3) if condemned, does not
chill protected speech or pose a risk of self-censorship.
To conclude as it has, the majority has, in effect, applied
the first amendment as an all-purpose tort shield ‘‘used
as a cloak or veil for intentionally tortious conduct that
is only tangentially related to the claimed matter of
public concern.’’ See Greene v. Tinker, supra, 332 P.3d
34–35. In my view, the majority’s citation to Spacecon
Specialty Contractors, LLC v. Bensinger, supra, 713
F.3d 1039, and State v. Carpenter, supra, 171 P.3d 59,
as discussed previously in this opinion, are sufficient
to establish that the defendants’ speech is not of pub-
lic concern.
My review of additional first amendment case law
also supports my conclusion. Keene v. Cleaveland,
N.H. , 118 A.3d 253 (2015), is instructive, containing
facts most similar to those in the present case and
differing only by factual findings regarding the legiti-
macy of the actors’ intent to express protected speech
to the public and the extent to which protected speech
would be chilled if the conduct were condemned. In
Keene, the Supreme Court of New Hampshire con-
fronted a claim that the first amendment protects con-
duct intended to harass parking enforcement officers
issuing parking tickets. Id., 255. The facts of Keene are
set forth in the majority opinion and, therefore, need
not be repeated here. See footnote 22 of the majority
opinion. I emphasize, however, that in conceding that
the content and locational context favored protection,
the plaintiff in that case, the city of Keene, argued that
certain other facts indicated that the conduct at issue
constituted ‘‘ ‘significantly harassing behavior under the
guise of political expression,’ and, therefore, [rendered
the conduct] not constitutionally protected.’’ Keene v.
Cleaveland, supra, 258. Specifically, the plaintiff in that
case argued that aspects of the defendants’ conduct,
namely ‘‘following closely, chasing, running after,
approaching quickly from behind, lurking outside bath-
rooms, yelling loudly, and filming from close proximity’’
had a tortious impact on the parking enforcement offi-
cers. (Internal quotation marks omitted.) Id., 260. The
New Hampshire Supreme Court disagreed that this
impact rendered the speech a matter of private concern,
highlighting the fact that the defendants ‘‘intended [this
conduct] to draw attention to the [c]ity’s parking
enforcement operations and to persuade the [parking
enforcement officers] to leave their positions.’’ (Empha-
sis added.) Id., 261. Because the challenged conduct
was the vehicle for the defendants’ bona fide political
protest, imposing liability for the conduct would
infringe upon the defendants’ right to free speech,
undermine the free and robust debate of public issues,
and pose the risk of a reaction of self-censorship on
matters of public import. Id.; see also NAACP v. Claib-
orne Hardware Co., 458 U.S. 886, 910, 102 S. Ct. 3409,
73 L. Ed. 2d 1215 (1982) (first amendment protects
rights of individuals to engage in public protest, even
if protest activity causes economic harm, for purpose of
influencing societal or governmental change, because
speech ‘‘does not lose its protected character . . . sim-
ply because it may embarrass others or coerce them
into action’’).
The defendants’ use of posters touches on the same
first amendment concerns as the defendants’ conduct
in Keene. Specifically, the content of the speech related
to a matter of public concern, the activities generally
occurred in traditional public fora, and the context of
the speech involved types of harassment. But the criti-
cal difference between the two cases, as mentioned
previously, is the factual finding regarding the actors’
intent to express a message or idea traditionally pro-
tected by the first amendment to the public.
In Keene, the defendants engaged in harassing activ-
ity that, as a matter of fact, was inextricably linked to,
and intended to advance, their protected message to
the public—a message protesting the government. Such
speech is worthy of the strongest first amendment pro-
tections. See State v. Krijger, supra, 313 Conn. 450
(reiterating the ‘‘ ‘profound national commitment to the
principle that debate on public issues should be uninhib-
ited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials’ ’’), quoting
New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84
S. Ct. 710, 11 L. Ed. 2d 686 (1964); see also State v.
Peter, 798 N.W.2d 552, 553 (Minn. App. 2011) (reversing
conviction for disorderly conduct for protesters outside
fur store because ‘‘their statements and conduct did
not rise to the level of ‘fighting words,’ and their loud
chanting and yelling were ‘inextricably intertwined’
with their political protest, which was protected by the
[f]irst [a]mendment’’).
By stark contrast, in the present case, the trial court
found that the defendants’ targeting of the plaintiff, in
the context of their other intimidating activities, was
not a bona fide expression to the public of a message
that the first amendment protects. Specifically, the trial
court found that ‘‘the poster campaign in areas where
[the plaintiff] lived and worked [was] part of a larger
effort to intimidate her. . . . [The plaintiff] was being
constantly hounded—not as the result of a general
effort by the [defendants] to find their son and brother
but part of an effort to break [the plaintiff]. . . . [The
defendants] pursued their action with these purposes
in mind.’’ See Connick v. Myers, 461 U.S. 138, 148 n.8,
103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (‘‘[A] question-
naire not otherwise of public concern does not attain
that status because its subject matter could, in different
circumstances, have been the topic of a communication
to the public that might be of general interest. [W]hether
[the utterances] . . . could be matters of public con-
cern is beside the point—it does not answer whether
this [utterance] is such speech.’’ [Emphasis in origi-
nal.]). The defendants’ conduct might have tangentially
involved protected speech, but the other actions of the
defendants, made transparent by their own admissions
as to their purpose to harass, formed the basis of the
trial court’s credibility determination that this conduct
was merely and solely tortious conduct directed at a
private party in an antagonistic, private dispute. See
People v. Little, Docket No. 4-13-1114, 2014 WL 7277785,
*7 (Ill. App. December 22, 2014) (conviction for stalking
affirmed, statute not unconstitutionally overbroad and
properly applied to defendant’s conduct because ‘‘pre-
existing relationship and conflict [between the defen-
dant and his wife] strongly suggest [the] defendant is
attempting to mask an attack on [his wife] over a private
matter as a protest of a matter of public concern’’ and
because ‘‘nothing in the evidence suggests that in driv-
ing by [the women’s shelter], [the] defendant intended
to peacefully protest a matter of public concern in a
public forum . . . [or] ‘convey his position on abortion
utilizing a method designed to reach as broad a public
audience as possible’ ’’). As the trial court found, noth-
ing in the evidence suggests that, in hounding the plain-
tiff and placing posters near every place she frequented,
the defendants intended to advance a message—a mes-
sage that was found to have been protected in the defen-
dants’ other actions in other contexts—to the public.
Rather, this conduct was ‘‘not as the result of a general
effort by the [defendants] to find their son and brother,
but [rather], part of an effort to break [the plaintiff].’’6
(Emphasis added.)
The comparison between the protected speech in
Keene and the unprotected speech in the present case
is reinforced when one examines whether a judgment
for money damages would run the risk of chilling pro-
tected speech. In Keene, a judgment against the defen-
dants would mean that the defendants, believing as they
did that the government’s actions in issuing parking
tickets should not be tolerated and hoping to broadcast
this belief to the public, would be penalized for express-
ing this message. It would also mean that future protest-
ers of governmental action in New Hampshire would
think twice and potentially self-censor before launching
an unpleasantly sharp attack on their government or
its officials. By contrast, the judgment against the defen-
dants in the present case does not pose these risks: the
judgment does not penalize the defendants for search-
ing for Bill or bringing their grievances about the author-
ities’ lack of diligence to public light, undeniably
protected conduct. The trial court concluded that these
bona fide efforts—the efforts in publicizing the case on
television and in the Waterbury Observer, the efforts
to hang posters in multiple states in a manner actually
intended to yield tips as to Bill’s whereabouts and to
advance their cause—merited admiration and encour-
agement. The trial court stated that ‘‘it would be an
unacceptable restriction on free speech and even ham-
per police investigations if people did not have a right
to bring such facts to the police’s or even [the] public’s
attention.’’ The trial court further concluded that ‘‘the
defendants [cannot] be held accountable [for] . . .
[t]he publicity about the case . . . [and] had a right to
voice what they felt were valid criticisms of the way
law enforcement authorities handled the investigation
and their pleas for help in order to try to ensure that
the intensity of the investigation would be increased
and relevant areas of inquiry would be pursued. This
is a commonly exercised right of citizens in dealing
with what they consider to be unresponsive authorities
and a crucial aspect of preserving a functioning
democracy.’’
As the trial court found and the Appellate Court
affirmed, however, expressing criticism of the police
or engaging in the public search for Bill was not the
defendants’ intent when they targeted the plaintiff with
posters. See Gleason v. Smolinski, supra, 149 Conn.
App. 306. Affirming the judgment against the defendants
would penalize them only for going ‘‘beyond the accept-
able parameters’’ of a decent society and engaging in
opprobrious behavior wholly divorced from any pro-
tected message. Instead of chilling speech or posing
any risk of self-censorship, the judgment prevents the
actions of these defendants—and thereby future indi-
viduals—from targeting, intimidating, harassing, and
intentionally inflicting emotional distress upon any
person they believe to have previously engaged in the
commission of a crime. Affirming the judgment would
not require the defendants to take down all of their
posters or cease their search for Bill; it is consistent
with the protections afforded by the first amendment
while vindicating our state’s ‘‘legitimate interest in
redressing wrongful injury’’; Gertz v. Robert Welch, Inc.,
418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974);
by reaching ‘‘no farther than is necessary to protect the
legitimate interest involved.’’ Id., 349.
Affirming the judgment of the trial court is also con-
sistent with Snyder, from which the majority quotes
extensively and upon which the majority appears to
rely. In my view, reliance on Snyder is not apt. As in
the present case, the content of the speech in Snyder
related to a matter of public concern—a viewpoint criti-
cal of the government. But contrary to the present case,
the context of the speech revealed that the defendants
actually intended to convey this viewpoint to the public
by way of its picketing. In Snyder, the United States
Supreme Court concluded that the defendants ‘‘had
been actively engaged in speaking on the subjects
addressed in its picketing long before it became aware
of [Marine Lance Corporal] Matthew Snyder, and there
can be no serious claim that [the defendants’] picketing
did not represent its ‘honestly believed’ views on public
issues.’’ Snyder v. Phelps, supra, 562 U.S. 455. ‘‘There
was no [preexisting] relationship or conflict between
[the defendants] and [the plaintiff] that might suggest
[the defendants’] speech on public matters was
intended to mask an attack on [him] over a private
matter.’’ Id. Moreover, the plaintiff’s distress in Snyder
was not caused by harassing conduct; instead, ‘‘any
distress occasioned by [the defendants’] picketing
turned on the content and viewpoint of the message
conveyed, rather than any interference with the funeral
itself.’’ Id., 457. In other words, it was the content of
the speech—the honestly believed, protected message
that the defendants in Snyder wished to communicate
to the public—that caused the distress, not the context
in which the speech occurred.7
By contrast, the distress experienced by the plaintiff
in the present case resulted solely from the context in
which the speech occurred—the relentless hounding
of the plaintiff where she lived and worked—not the
content of the posters. See Watts v. Chittenden, 305
Conn. 575, 605, 22 A.3d 1214 (2011) (‘‘it is the repetition
of the misconduct that makes it extreme and outra-
geous’’); see also A. Caplan, Free Speech and Civil
Harassment Orders,’’ 64 Hastings L.J. 781, 838 (2013)
(‘‘[T]hroughout much civil harassment litigation . . .
the petitioner’s emotional state is often a reaction to the
content of [the] respondent’s speech. The constitutional
evil of content discrimination can often be avoided in
practice by recasting allegations about content as alle-
gations about unwanted contact. Ending unconsented
contact [regardless of the content that may be conveyed
during the contact] is a permissible exercise of the
government’s power to regulate, on a content neutral
basis, the noncommunicative aspects of expressive
activity.’’). The acrimonious, preexisting relationship
between the parties from the very start, the abundance
of other harassing conduct, and especially the defen-
dants’ admissions that their actions were meant to
hound the plaintiff until she broke, indicate no honestly
believed, protected message intended to be conveyed
to the public, but rather a relentless, private attack on
the plaintiff to vindicate a perceived wrong.
In addressing the possibility that speech could be
chilled by affirming the judgment for intentional inflic-
tion for emotional distress in Snyder, the United States
Supreme Court recognized that, by condemning the
defendants’ speech, the jury could have imposed liabil-
ity on the basis of their ‘‘tastes or views, or perhaps
. . . their dislike of a particular expression . . .
[which would pose] a real danger of becoming an instru-
ment for the suppression of . . . vehement, caustic,
and sometimes [unpleasant] expression.’’ (Citation
omitted; internal quotation marks omitted.) Snyder v.
Phelps, supra, 562 U.S. 458. By contrast, condemnation
of the defendants’ harassing conduct in the present case
does not pose any risk of having resulted from differing
tastes or views on what the posters conveyed or the
ideas they espoused, nor does it pose a risk of sup-
pressing unpleasant expression. It merely imposes lia-
bility for the ‘‘continued, aggravated nature of the
defendants’ activity in hounding [the plaintiff] where
she lived and worked’’ for the sole purpose of intimidat-
ing and harassing the plaintiff and ‘‘not as the result of
a general effort by the [defendants] to find [Bill].’’
In light of the foregoing, I would uphold the critical
factual findings of the trial court which, in the absence
of any case law to the contrary8 and as essentially con-
ceded by the majority by its citation to State v. Carpen-
ter, supra, 171 P.3d 58–59, cannot reasonably render
the defendants’ conduct to be speech of public concern.
See id., 56–57 (‘‘We distinguish between speech, how-
ever crude . . . directed at persuading the ultimate tar-
get to change her mind about a matter of public concern,
and speech intended merely to harass or cause others
to harass the target. Speech of the latter sort is not
entitled to [f]irst [a]mendment protection.’’). To the
extent the majority would conclude that the defendants
could properly harass the plaintiff to persuade her to
divulge information about her involvement in Bill’s dis-
appearance, the content of this ‘‘communication’’
ceases to be of public concern because it no longer
advances any interest in informing the public about the
commission of crime; see Cox Broadcasting Corp. v.
Cohn, supra, 420 U.S. 492; but rather amounts to draw-
ing out a confession from a private citizen by way of
tortious conduct. I would affirm the judgment of the
Appellate Court, which concluded that the defendants
have not satisfied the third prong of Golding review
because they have not established any constitutional
violation. See Gleason v. Smolinski, supra, 149 Conn.
App. 293–95.
But even assuming, arguendo, that the defendants’
targeted posters represented speech of public concern
and that the defendants established a constitutional
violation under the third prong of Golding, I respectfully
disagree with the majority’s conclusion that the fourth
prong of Golding requires a remand because of the
‘‘apparent significance of the flyer campaign to the trial
court’s finding on her intentional infliction of emotional
distress claim.’’ In my view, the constitutional violation,
if any, is harmless beyond a reasonable doubt. The
majority has conceded the existence of extensive and
continuous ‘‘confrontational and harassing behavior,
including calling the plaintiff offensive names, following
her, and videotaping her activities’’ that, as detailed
previously in this dissenting opinion, is a sound, inde-
pendent basis for the judgment. Including the other
relevant facts that, in my view, the majority should have
considered—such as the fact that the plaintiff received
threatening telephone calls from Bell, causing the plain-
tiff to fear for her safety and that of her child—any
constitutional violation is harmless beyond a reason-
able doubt.9
Like the Appellate Court, I would conclude that the
defendants did not satisfy the third prong of Golding
because they have not established a violation of their
first amendment rights. See Gleason v. Smolinski,
supra, 149 Conn. App. 293–95.
II
DEFAMATION
I next turn to the majority’s discussion of the plain-
tiff’s claim of defamation. I agree with the majority’s
analysis and conclusion that the three statements at
issue—private accusations to private individuals that
the plaintiff was a ‘‘murderer’’—were defamatory state-
ments of fact, not of opinion. I respectfully disagree,
however, with the remainder of the majority’s analysis,
in particular, its conclusion that the statements at issue
constitute speech of public concern meriting the protec-
tions of the first amendment. In my view, a proper
inquiry into the content, context, and form of these
private accusations leads to the conclusion that the first
amendment’s protections are unwarranted. Without
analysis, the majority concludes that ‘‘the parties do
not dispute for purposes of the defamation claim that
the oral statements at issue, which pertain to the plain-
tiff’s role in Bill’s death or disappearance, implicate a
matter of public concern for first amendment pur-
poses.’’ I respectfully disagree.
Contrary to the precedent to which it cites,10 the
majority fails to conduct any analysis of the content,
context, and form of the defamatory utterances at issue,
affording them the first amendment’s protections with-
out inquiry. See Snyder v. Phelps, supra, 562 U.S. 453
(‘‘[d]eciding whether speech is of public or private con-
cern requires us to examine the content, form, and
context of that speech’’ [emphasis added; internal quota-
tion marks omitted]). Failure to make this inquiry is
inconsistent with a de novo standard of review, notwith-
standing that the present case comes to us on Golding
review or with less than clear briefing. See State v.
Krijger, supra, 313 Conn. 446 (‘‘[A]n appellate court is
compelled to examine for [itself] the . . . statements
[at] issue and the circumstances under which they
[were] made to [determine] whether . . . they . . .
are of a character [that] the principles of the [f]irst
[a]mendment . . . protect. . . . This rule of indepen-
dent review was forged in recognition that a[n] [appel-
late] [c]ourt’s duty is not limited to the elaboration of
constitutional principles . . . . [Rather, an appellate
court] must also in proper cases review the evidence
to make certain that those principles have been consti-
tutionally applied.’’ [Citation omitted; internal quotation
marks omitted.]).
Instead of performing its own independent review of
the whole record, the majority merely cites to three
cases to support its position that the statements are of
public concern because they ‘‘pertain to the plaintiff’s
role in Bill’s death or disappearance . . . .’’ None of
the three cases created a per se rule that any accusation
of crime garners the first amendment’s protections.
Instead of creating per se rules, the court in each of
those cases engaged in its own requisite inquiry into
content, context, and form of the defamatory state-
ments to come to a legal conclusion that the statements
merited the first amendment’s protections. As for their
ultimate legal conclusions, all of the cases predicated
the first amendment’s protections on bases not applica-
ble to the present case; see footnote 8 of this dissenting
opinion; Holloway v. American Media, Inc., 947 F.
Supp. 2d 1252, 1261 n.8 (N.D. Ala. 2013) (article pub-
lished involved public figure); Miles v. Ramsey, 31 F.
Supp. 2d 869, 875 (D. Colo. 1998) (article published was
matter of public concern because murder was national
‘‘media spectacle’’); Shoen v. Shoen, 292 P.3d 1224,
1229–30 (Colo. App. 2012) (statements were made on
television program ‘‘during a two-hour interview, in
which—among other things—[the speaker] criticized
the quality and completeness of the [s]heriff’s investiga-
tion’’ and therefore ‘‘related to a matter of public con-
cern because they addressed [the speaker’s] views
about the adequacy of the investigation by public law
enforcement officers when unanswered questions
remained’’). Though the content of the speech in those
cases might have touched on a matter of public concern,
the context of the speech involved attempts to convey a
message to the public, vastly differing from the intended
audience—private individuals—in the present case.
I would conclude, instead, that Sartain v. White, 588
So. 2d 204 (Miss. 1991), is instructive. In Sartain, neigh-
bors were embroiled in a terrible conflict over a period
of years. Id., 205. The defendants alleged that the plain-
tiff, a woman with arguable mental capacity, accused
them, verbally in public and in letters to third parties,
of various criminal acts including murder. Id., 206. After
the defendants prevailed on their claim for defamation,
the plaintiff appealed, citing to Gertz and claiming the
protections of the first amendment in accusing the
defendants of various crimes. Id., 213. The Supreme
Court of Mississippi concluded that only if the plaintiff’s
accusations amounted to speech of public concern
would the first amendment have been applicable. Id.
After detailing the plaintiff’s borderline delusional
behavior, the court discussed the content, context, and
form of the accusations, concluding as follows: ‘‘The
content of the debate in question involves whether the
[defendants] are murderers, robbers and terrorists. The
form of the debate involved various pleadings, letters
to city officials, and oral tirades within a neighborhood.
The context of the debate involves a dispute between
a respectable family as the accused and an accuser
with a rather notorious past. Though accusations of
this nature generally are a matter of public concern, in
this context and emanating from this source, we find
that they are not in this case.’’11 Id.
Assuming, arguendo, that the defendants’ accusa-
tions in the present case touched on a matter of public
concern, which is far from a settled proposition; see
footnote 8 of this dissenting opinion; the facts sur-
rounding this case, like those in Sartain, reveal that
the defendants’ utterances were merely part and parcel
of harassing conduct. As the record amply demon-
strates, the parties have been embroiled in an emotion-
ally-charged and very private dispute in which, as the
trial court put it, ‘‘[t]wo sets of basically decent people
found themselves in conflict and involved in a series
of mutually antagonistic events because of a tragic
event . . . .’’ These accusations occurred during con-
frontations with the plaintiff’s friends, and to a stranger
during the course of following the plaintiff—conduct
the majority concedes is not subject to the first amend-
ment’s protections. Indeed, unlike in the three cases
cited by the majority, the fact that the utterances in the
present case were not directed to the public at large
belies the claim that this speech is of public concern.
See Obsidian Finance Group, LLC v. Cox, 740 F.3d
1284, 1292 (9th Cir.) (public nature of allegation against
appointed bankruptcy trustee militated in favor of con-
clusion that allegation was of public concern), cert.
denied, U.S. 134 S. Ct. 2680, 189 L. Ed. 2d 223
(2014); Flamm v. American Assn. of University
Women, 201 F.3d 144, 150 (2d Cir. 2000) (‘‘[that the
challenged utterance] was also distributed to a public
audience with an interest in issues of gender discrimina-
tion . . . [and] mailed, at a minimum, to hundreds of
[the plaintiff’s] peers and fellow professionals nation-
wide . . . [makes it more likely that the utterance was]
clearly intended to, and can reasonably be viewed as
an attempt to, influence public discourse and affect the
public response to incidents of gender discrimination’’);
Johnson v. Ryan, 186 Wash. App. 562, 575, 346 P.3d
789 (2015) (‘‘there should be some degree of closeness
between the challenged statements and the asserted
public interest’’ [internal quotation marks omitted]).
I would conclude that the defendants’ private accusa-
tions of murder were ‘‘solely in the individual interest
of the speaker . . . [and therefore warrant] no special
protection . . . .’’ (Citation omitted.) Dun & Brad-
street, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
762, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985) (plurality
opinion). It is worth stressing that these private accusa-
tions forming the basis of the judgment lie in stark
contrast to the defendants’ other, protected speech not
forming the basis of the judgment: namely, the defen-
dants’ speech that brings to the public’s attention in
the Waterbury Observer and on television the authori-
ties’ lack of diligence in pursuing the case in light of
allegations that the plaintiff was involved in a love trian-
gle. But far from the context of the defendants’ legiti-
mate attempts to exercise their free speech rights, and,
instead, just as in Sartain, the context of the statements
forming the basis of the judgment evinces a purely
private conflict that simply cannot be attributed to any
exposition on a public matter. See also Connick v.
Myers, supra, 461 U.S. 148 n.8 (‘‘[A] questionnaire not
otherwise of public concern does not attain that status
because its subject matter could, in different circum-
stances, have been the topic of a communication to the
public that might be of general interest. [W]hether [the
utterances] . . . could be matters of public concern
is beside the point—it does not answer whether this
[utterance] is such speech.’’ [Emphasis in original.]).
The majority’s extension of the first amendment’s
protections to the defendants’ defamatory statements
has serious consequences, namely, a shift in the burden
of proof as to the truth or falsity of the alleged defama-
tory statement from the defendants to the plaintiff. The
burden of proof is often dispositive of actions for defa-
mation, especially in cases involving defamatory state-
ments difficult to prove or disprove, often the same
cases in which the parties present scant evidence. See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
776–78, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986) (‘‘the
burden of proof is the deciding factor only when the
evidence is ambiguous’’ and although ‘‘requiring the
plaintiff to show falsity will insulate from liability some
speech that is false, but unprovably so . . . [this rule
is justified in order] to protect speech that matters’’
[internal quotation marks omitted]). Without a reasoned
legal conclusion that the defendants’ speech is of public
concern, affording the defendants protection under the
first amendment serves only to shield false criminal
accusations made by one private party against another
private party. Such a result is inconsistent with first
amendment jurisprudence. Cf. Wolston v. Reader’s
Digest Assn., Inc., 443 U.S. 157, 168–69, 99 S. Ct. 2701,
61 L. Ed. 2d 450 (1979) (rejecting contention that ‘‘any
person who engages in criminal conduct automatically
becomes a public figure’’ because ‘‘[t]o hold otherwise
would create an ‘open season’ for all who sought to
defame persons convicted of a crime’’); see Gertz v.
Robert Welch, Inc., supra, 418 U.S. 341 (‘‘[w]e would
not lightly require the [s]tate to abandon [the underlying
state interest in compensating individuals for harm
inflicted on them by defamatory falsehoods]’’). This
result is also inconsistent with our classification of such
statements as defamatory per se, which operates to
lighten the burden on a plaintiff by presuming injury
to a plaintiff’s reputation. See Gaudio v. Griffin Health
Services Corp., 249 Conn. 523, 551, 733 A.2d 197 (1999).
An inquiry into the content, context, and form of the
defamatory statements at issue, the harassing context
of which is discussed at length previously in this dis-
senting opinion, leads me to conclude that the defama-
tory statements at issue in the present case are not
speech of public concern and, therefore, are not entitled
to protection under the first amendment. The defen-
dants intended to convey no protected message on any
matter of concern to the public and, therefore, affirming
the judgment in the present case chills no protected
speech. The constitutional guarantees of the first
amendment ‘‘ ‘can tolerate sanctions against calculated
falsehood without significant impairment of their essen-
tial function.’ [Time, Inc. v. Hill, 385 U.S. 374, 389–90,
87 S. Ct. 534, 17 L. Ed. 2d 456 (1967)]. Indeed, [f]irst
[a]mendment protections must function in balance with
competing interests protected by state tort law, among
which the sanctity of reputation . . . [is] seminal to
our jurisprudence.’’ Krajewski v. Gusoff, 53 A.3d 793,
808 (Pa. Super. 2012), appeal granted, 621 Pa. 117, 74
A.3d 119, appeal dismissed, 624 Pa. 224, 84 A.3d 1057
(2014).
Because I would conclude that the plaintiff’s defama-
tion claim does not implicate the first amendment—
because it involves a private plaintiff, private defen-
dants, and a matter of purely private concern—I would
apply the common law of defamation in the present
case and, accordingly, I would not have shifted the
burden of proving falsity to the plaintiff. Without this
shift, I would conclude that the plaintiff met her burden
of proving a common-law defamation claim by a prepon-
derance of the evidence. I would then conclude that
the defendants neither pleaded nor proved the common-
law affirmative defense of truth by a preponderance of
the evidence. See Cweklinsky v. Mobil Chemical Co.,
267 Conn. 210, 228–29, 837 A.2d 759 (2004) (‘‘under
the common law, truth is an affirmative defense to
defamation . . . the determination of the truthfulness
of a statement is a question of fact for the jury’’ [citation
omitted]). Finally, I would conclude that the plaintiff
established entitlement to punitive damages in the pres-
ent case.
I begin with the trial court’s decision, which correctly
set forth the common law of defamation, and review
the record to determine whether the plaintiff proved a
prima facie case. The majority appears to concede, and
I agree, that the plaintiff proved a common-law prima
facie case for defamation, not disputing that the defen-
dants’ statements are properly classified as defamatory
per se because they charge crimes punishable by impris-
onment. But the inquiry into whether the defendants
proved the truth of the defamatory statements as an
affirmative defense is rendered more difficult because
the defendants neither pleaded nor proved this defense.
Indeed, at trial, the defendants decided to deny calling
the plaintiff a murderer, instead of justifying having
made those utterances by pleading and proving their
truth. The defendants’ failure to proffer evidence that
the plaintiff murdered Bill is therefore unsurprising, as
that issue was raised for the first time on appeal. Even if
the defendants had properly pleaded, and subsequently
attempted to prove, the truth of their defamatory utter-
ances, the defendants would have needed to show that
the plaintiff was a murderer by a preponderance of the
evidence, meaning that ‘‘the evidence, considered fairly
and impartially, induce[s] in the mind of the trier a
reasonable belief that it [is] more probable than other-
wise that the facts involved in that element [are] true.’’
(Internal quotation marks omitted.) Gaudio v. Griffin
Health Services Corp., supra, 249 Conn. 535 n.8. On
appeal of ‘‘a defamation case brought by an individual
who is not a public figure, the factual findings underpin-
ning a trial court’s decision will be disturbed only when
those findings are clearly erroneous, such that there is
no evidence in the record to support them.’’ Gambar-
della v. Apple Health Care, Inc., 291 Conn. 620, 628–29,
969 A.2d 736 (2009).
A review of the memorandum of decision demon-
strates that the defendants failed to prove that the plain-
tiff murdered Bill by a preponderance of the evidence
and that the trial court implicitly found as such. By
repeatedly referring to the statements as ‘‘defamatory,’’
the trial court was implicitly finding that the defendants
had not proven the statements to be true. Our case
law, however imprecisely, has at times used the term
‘‘defamatory’’ as a synonym for ‘‘false’’ in defamation
actions, as it represents the legal conclusion that a
prima facie case has been presented. See, e.g., Gamba-
rdella v. Apple Health Care, Inc., supra, 291 Conn. 639;
Woodcock v. Journal Publishing Co., 230 Conn. 525,
534, 543, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149,
115 S. Ct. 1098, 130 L. Ed. 2d 1066 (1995); Cweklinsky
v. Mobil Chemical Co., supra, 267 Conn. 228. Even our
model jury instructions define a ‘‘defamatory state-
ment’’ as ‘‘a false communication . . . .’’ Connecticut
Civil Jury Instructions (4th Ed. 2008) § 3.11-1, available
at http://www.jud.ct.gov/JI/civil/part3/3.11-1.htm (last
visited October 19, 2015). The trial court reinforced this
implicit finding in its discussion of actual malice, in
which it stated that the defendants presented absolutely
no evidence that the plaintiff murdered Bill: ‘‘We do
not have a case of mere negligent utterances not based
on fact but on suspicion and conjecture.’’
Because I read the trial court’s thorough memoran-
dum of decision as setting forth a finding that the defen-
dants did not prove truth of their assertion that the
plaintiff was a murderer, I now review the record to
determine whether that factual finding is clearly errone-
ous. The defendants never alleged, either in their plead-
ings or at trial, that the plaintiff murdered Bill. They
neither attempted to, nor succeeded in, presenting any
evidence that could have led the trial court to conclude
that it was more probable than not that the plaintiff
murdered Bill. My own review confirms that the record
is, in fact, devoid of any such evidence; there is no
body, no weapon, and no evidence of foul play. The
plaintiff, her friends, and all of the other witnesses at
trial made no statements accusing the plaintiff of Bill’s
murder. Even after having hired a private detective, the
defendants offered nothing other than conjecture to
support their claim. That the plaintiff declines to speak
to the police on advice of counsel does not inject clear
error into the trial court’s findings, nor does it establish
that it is more probable than not that the plaintiff mur-
dered Bill. At most, this evidence might suggest that,
according to the majority, ‘‘the plaintiff, at the very
least, knows more than she is saying about Bill’s disap-
pearance.’’ But that is a far cry from establishing that the
plaintiff is a ‘‘murderer,’’ which is the actual defamatory
statement forming the basis of the judgment in the
present case. Because there is no competent evidence
in the record to contradict the trial court’s implicit
finding that the defendants failed to prove that the plain-
tiff murdered Bill, the trial court’s finding that the defen-
dants failed to prove the truth of the defamatory
statements is not clearly erroneous. Accordingly, I
would affirm the judgment of the trial court on this
count.
This does not end the inquiry, however, because the
plaintiff sought and was awarded punitive damages.
Because, in my view, this case lacks first amendment
significance, and in light of the standard of review, I
would conclude that the plaintiff proved her entitlement
to common-law punitive damages. The trial court and
the Appellate Court appropriately concluded that, to be
awarded punitive damages in a defamation case lacking
first amendment significance, the common law of dam-
ages applies. See Gleason v. Smolinski, supra, 149
Conn. App. 312–14, citing DeVito v. Schwartz, 66 Conn.
App. 228, 236, 784 A.2d 376 (2001); see also Johnson
v. Johnson, 654 A.2d 1212, 1215–16 (R.I. 1995).
Common-law ‘‘[p]unitive damages are awarded when
the evidence shows a reckless indifference to the rights
of others or an intentional and wanton violation of those
rights.’’ Vandersluis v. Weil, 176 Conn. 353, 358, 407
A.2d 982 (1978). ‘‘If the evidence discloses that a defen-
dant was recklessly indifferent to the rights of a plaintiff,
an actual intention to do harm to the plaintiff is not
necessary.’’ Berry v. Loiseau, 223 Conn. 786, 811, 614
A.2d 414 (1992). ‘‘[T]he trial court has broad discretion
in determining whether damages are appropriate. . . .
Its decision will not be disturbed on appeal absent a
clear abuse of discretion.’’ (Internal quotation marks
omitted.) Bhatia v. Debek, 287 Conn. 397, 420, 948 A.2d
1009 (2008). In the present case, the trial court con-
cluded ‘‘when all is said and done, [the plaintiff] was
subject to intentional infliction of emotional distress.’’
Moreover, having chosen a trial strategy of denying
having made the defamatory statements instead of jus-
tifying having made them, the defendants even offered
no self-serving testimony to the effect that they actually
believed the plaintiff murdered Bill, testimony the trial
court could have easily utilized in assessing whether
punitive damages were warranted. Cf. St. Amant v.
Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed.
2d 262 (1968) (‘‘[i]t may be said that [the test for actual
malice] . . . permits the issue to be determined by the
defendant’s testimony that he published the statement
in good faith and unaware of its probable falsity’’); see
also Gambardella v. Apple Health Care, Inc., supra, 291
Conn. 641–42 (‘‘The fact that the defendants continued
to assert that they believed that the plaintiff had [com-
mitted a crime] was not dispositive of the issue of
whether they had known that their statements were
false or recklessly disregarded their truth. A trial court
must evaluate a defendant’s testimony, including
whether there are grounds to support it, and is not
constrained simply to accept a defendant’s assertion
that he did not know that his statement was false.’’).
In light of the exhaustive evidence of the defendants’
hostility and spite, I would conclude that the trial court’s
decision to award punitive damages was not an abuse
of discretion and, therefore, affirm the judgment of the
trial court in full.
Although I would conclude that the first amendment
does not protect the defendants’ accusations of murder,
because the majority has applied the first amendment
to the present case, I briefly address several concerns
I have with the majority’s analysis.
First, I am not convinced that the majority should
even have reached the issue of whether the plaintiff
proved falsity as part of a prima facie case for defama-
tion concerning speech of public concern. The majority
acknowledges that neither party asked us to reach this
issue, stating that ‘‘this claim was not preserved in the
trial court’’ and ‘‘we exercise our discretion to review
it . . . despite the defendants’ failure to ask that we
do so . . . .’’ (Citation omitted.) The defendants only
asked that we review whether the plaintiff proved actual
malice so that we would reverse the award of punitive
damages. See Cox v. Galazin, 460 F. Supp. 2d 380,
388 (D. Conn. 2006) (‘‘If the plaintiff were a private
individual and the statements concerned a purely pri-
vate matter, the plaintiff would not need to show actual
malice in order to establish liability. Further, in such a
situation, if the statements constituted defamation per
se, the plaintiff would also not need to prove actual
injury and could recover presumed general damages.’’);
Gleason v. Smolinski, supra, 149 Conn. App. 312–14
(affirming award of punitive damages).
Second, having reached the issue of falsity despite
the failure of any party to request that we do so, and
even assuming arguendo that the defendants’ defama-
tory statements were speech of public concern, thereby
shifting the burden to the plaintiff to prove that she did
not murder Bill, the majority does not explain by what
burden of persuasion the plaintiff must prove her inno-
cence on remand. Though the majority concludes that
a new trial is warranted because, in its view, the trial
court failed to conduct a falsity analysis, the majority
does no more than note that there is a ‘‘debate as to
whether the element of falsity must be established by
clear and convincing evidence or by a preponderance
of the evidence.’’ Harte-Hanks Communications, Inc.
v. Connaughton, 491 U.S. 657, 661 n.2, 109 S. Ct. 2678,
105 L. Ed. 2d 562 (1989). Because the proper burden
of persuasion is likely to arise on remand; see Weaver
v. McKnight, 313 Conn. 393, 417–18, 97 A.3d 920 (2014);
in my view, the majority should have set forth the bur-
den of persuasion a private plaintiff must meet in prov-
ing the falsity of a defamatory statement of public
concern.12
Lastly, I respectfully disagree with the majority’s con-
clusion that the plaintiff failed to prove by clear and
convincing evidence that the defendants uttered their
defamatory statements with actual malice. At the out-
set, I note that the defamatory statement for which the
majority appears to test the record is the statement ‘‘to
other people that the plaintiff, at the very least, knows
more than she is saying about Bill’s disappearance.’’ I
respectfully disagree. The majority’s characterization
of the defamatory statement at issue is a far cry from
the actual defamatory statement at issue in the present
case—‘‘murderer’’—forming the basis of the judgment.
In my view, to properly address the issues in the present
case, the majority must test the record to determine
whether the defendants acted with actual malice in
accusing the plaintiff of murdering Bill. As the trial
court noted, ‘‘[e]specially in a case like this, where the
pain and emotions are so apparent and understandable,
it is important that things be gotten right so as not to
add to the pain and suffering of what to the court at least
are sympathetic parties caught in a difficult maelstrom.’’
Assuming that the majority’s analysis nevertheless
addresses whether the plaintiff proved that the defen-
dants acted in reckless disregard for the truth of
whether she murdered Bill, I turn now to the majority’s
analysis. The majority accurately sets forth the substan-
tive law and standard of review for actual malice in a
defamation case. The majority agrees that ‘‘[t]he proper
inquiry is whether a defendant believes, honestly and
in good faith, in the truth of his statements . . . .’’
Gambardella v. Apple Health Care, Inc., supra, 291
Conn. 638. It also agrees that ‘‘we defer to the trier’s
findings with respect to, for example . . . whether [a
party] acted in good faith in publishing a statement later
deemed defamatory.’’
In the present case, the trial court found as follows:
‘‘The statements referenced . . . to [Melissa] DePallo
and [Fran] Vrabel and the man at the gym, in the court’s
opinion meet the requirements of defamation as set
forth in [Cweklinsky v. Mobil Chemical Co., supra, 267
Conn. 217].
‘‘The statements to DePallo and Vrabel say directly
[that the plaintiff] was a murderer or involved in the
murder of Bill . . . . The statements made to DePallo
and Vrabel were obviously ‘published’ to them. The
statement made to the man at the gym was published
to him. In all these situations [the plaintiff] was identi-
fied to the listener and since [the plaintiff] was being
accused of murder or involved with murder the defama-
tions are per se accusations since murder clearly
involves a crime of ‘moral turpitude’ or ‘infamous pen-
alty.’ We do not have here mere opinion—[the plaintiff]
was said to be a murderer or involved in a situation
where murder occurred.
‘‘The statements if made were made with actual mal-
ice under the law as the court interprets it. There was
reckless disregard of whether the statements that were
alleged to have been made were truthful. We do not
have a case of mere negligent utterances not based on
fact but on suspicion and conjecture.’’ I agree with the
trial court. In light of the ample evidence demonstrating
the defendants’ hostility and spite, which has been dis-
cussed at length previously in this opinion, I would
conclude that the plaintiff established by clear and con-
vincing evidence that the defendants recklessly disre-
garded whether their statements were truthful.
Therefore, I would affirm the award of punitive
damages.
For the reasons set forth previously in this opinion,
I do not view the present case as one implicating the
first amendment. Consequently, I would affirm the judg-
ment of the Appellate Court in all respects. Therefore,
I respectfully dissent.
1
I note that, although John Murray was also named as defendant in the
present case, the claims made against him are not at issue in the present
appeal. See footnote 3 of the majority opinion. For the sake of simplicity,
I refer to Janice Smolinski and Bell collectively as the defendants and
individually by name.
2
Although B and B Transportation, Inc., was also a plaintiff in the underly-
ing action, it is not a party to the present appeal. See footnote 2 of the
majority opinion. I therefore refer to Gleason as the plaintiff.
3
For the sake of consistency with the majority opinion, I hereinafter refer
to William Smolinski, Jr., as Bill. See footnote 1 of the majority opinion.
4
The following colloquy during oral argument before this court evinces
the defendants’ concession:
‘‘The Court: Didn’t the trial court find that your client had said that the
reason that she was putting up these posters was to ‘break’ the plaintiff to
get her to cooperate? . . .
‘‘[The Defendants’ Counsel]: It is a finding, Your Honor, but I don’t think
it’s supported by the record. . . .
‘‘The Court: The trial court found that the defendants were posting the
‘murdered’ posters on the dead end road where the plaintiff was staying,
they were found to have specifically targeted the plaintiff’s home and the
homes where she stayed. So you’re asking us to find that all . . . of those
[findings] were clearly erroneous . . .? Did you specifically ask us to do that?
‘‘[The Defendants’ Counsel]: Your Honor, I don’t think that it matters that
they’re targeted. . . .
‘‘The Court: I understand . . . but you seem to be saying . . . that the
[trial] court was factually incorrect . . . as to where [the posters] were
being tacked up and the question about whether [the defendants] was trying
to ‘break’ her.
‘‘[The Defendants’ Counsel]: The issue of trying to ‘break’ her . . . is one
of semantics. I think if you look at the total record, the record just doesn’t
support that my client[s] had any axe to grind against [the plaintiff]. My
client[s] [were] trying to replace posters in an effort to find [Bill] . . . .
And so . . . whether the trial court’s opinion is clearly erroneous is irrele-
vant. . . .
‘‘The Court: Did you ask us to make a finding that all of these findings
are clearly erroneous? Or are you saying that, even with these factual find-
ings, you win because targeting shouldn’t matter?
‘‘[The Defendants’ Counsel]: The latter, Your Honor.’’
5
The trial court, instead, noted that an incident during which the plaintiff
ripped down posters directly in front of the defendants, leading to a physical
confrontation, merely factored in to reducing the amount of damages she
could be awarded because the plaintiff played a part in escalating tensions
in that specific moment. In addition, the majority also finds that ‘‘it is
undisputed that all of the posters were placed on or adjacent to public
roadways,’’ even though it admits that Janice Smolinski was arrested for
trespass and disorderly conduct for placing the posters on private property
at the plaintiff’s workplace.
6
The majority asserts that it ‘‘find[s] instructive the New Hampshire
Supreme Court’s recent decision in Keene’’ and that ‘‘[g]uided heavily by
this . . . decision, which considered similarly targeted and harassing con-
duct, we conclude that a substantial portion of the defendants’ conduct that
the trial court found to constitute the intentional infliction of emotional
distress was, in fact, protected by the first amendment. This is particularly
so, given that the trial court’s finding that it was solely intended to harass
and ‘break’ the plaintiff did not consider whether those actions were intended
to persuade the plaintiff with regard to a matter of public concern as in
Keene, rather than merely torture her gratuitously with regard to a purely
private matter.’’ (Footnote omitted.) I disagree. First, as I have explained
previously in this opinion, the trial court did consider whether the defen-
dants’ conduct was intended to persuade her with regard to a matter of
public concern, and in fact, concluded that the defendants’ conduct was
‘‘not as the result of a general effort by the [defendants] to find their son
and brother but part of an effort to break her.’’ As the trial court determined,
the defendants’ conduct was not part of a public concern regarding missing
persons, but it was about forcing a confession out of a private individual.
In contrast, the conduct in Keene was intended to convince government
actors to quit their job because the protestors believed that parking enforce-
ment was not a legitimate role for government. As the trial court in the
present case concluded ‘‘it would be an unacceptable restriction on free
speech and even hamper police investigations if people did not have a right
to bring [facts relevant to persons of interest in an investigation] to the
police’s or even [the] public’s attention,’’ but harassing a private individual
to hound a confession from the private individual is not a matter of public
concern and free speech is not implicated.
7
That the context of the speech so clearly demonstrated its bona fide
attempt to convey a protected message to the public has led commentators
to wonder why the United States Supreme Court granted certiorari in the
first instance. E.g., A. Brownstein & V. Amar, ‘‘Afterthoughts on Snyder v.
Phelps,’’ 2011 Cardozo L. Rev. De Novo 43, 43–44 (‘‘From a scholarly and
professional perspective . . . [Snyder] added little to the development of
free speech doctrine. . . . [O]ne can only wonder why the [c]ourt thought
it appropriate to grant review in this matter in the first place. . . . [W]e
think the [c]ourt may have spent more ink than was necessary on the
question of whether the content of [the defendant’s] speech constituted a
matter of public or private concern. Other factors really did the lion’s share
of the analytic work in this case. . . . The protest was directed to the public
at large. This was public discourse, not speech exclusively, or at least
primarily, directed at a target audience. If all of these conditions are satisfied,
it is not clear to us that classifying speech as a matter of public or private
concern is terribly important.’’ [Footnotes omitted.]); A. Caplan, ‘‘Free
Speech and Civil Harassment Orders,’’ 64 Hastings L.J. 781, 823 (2013) (‘‘[the
court’s] focus [on the content of the speech] was largely irrelevant to the
outcome of the case’’).
8
I briefly note that no other cases cited by the majority support its conclu-
sion. With respect to the cases offered for the proposition that the reporting
of crime is a matter of public concern, some are inapposite to the present
case because the speakers were members of the media fulfilling their role
as the press in reporting the existence of truthful facts. See Cox Broadcasting
Corp. v. Cohn, supra, 420 U.S. 492 (broadcast company’s broadcast of truthful
facts surrounding crime in light of ‘‘a society in which each individual has
but limited time and resources with which to observe at [firsthand] the
operations of his government, [and therefore] he relies necessarily upon
the press to bring to him in convenient form the facts of those operations’’);
Best v. Berard, 776 F. Supp. 2d 752, 757–58 (N.D. Ill. 2011) (broadcast
company’s broadcast of plaintiff’s arrest analogous to ‘‘police blotter’’);
Dumas v. Koebel, 352 Wis. 2d 13, 29–30, 841 N.W.2d 319 (App. 2013) (news
broadcast intended to inform public about bus drivers’ criminal histories
and criticize school district’s hiring practices). Others are inapposite because
the statements at issue criticized public officials in the conduct of their
public business. See Shoen v. Shoen, 292 P.3d 1224, 1230 (Colo. App. 2012)
(statements ‘‘related to a matter of public concern because they addressed
[the speaker’s] views about the adequacy of the investigation by public law
enforcement officers when unanswered questions remained’’); Wiemer v.
Rankin, 117 Idaho 566, 571, 790 P.2d 347 (1990) (‘‘[t]he article addressed the
performance of the prosecutor’’). Others predicated the first amendment’s
protections on bases not relevant to the present case; see Hobbs v. Pasdar,
682 F. Supp. 2d 909, 927–28 (E.D. Ark. 2009) (plaintiff was limited purpose
public figure); Miles v. Ramsey, 31 F. Supp. 2d 869, 875 (D. Colo. 1998)
(article was matter of public concern because murder was national ‘‘media
spectacle’’); Holloway v. American Media, Inc., 947 F. Supp. 2d 1252, 1261
n.8 (N.D. Ala. 2013) (plaintiff was public figure); or performed incomplete
analyses. See Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1292
(9th Cir.) (no discussion of content, context, and form), cert. denied,
U.S. , 134 S. Ct. 2680, 189 L. Ed. 2d 223 (2014).
9
Nevertheless, because the majority remands the case, I am convinced
that the trial court will have no trouble in finding the intentional infliction
of emotional distress by a preponderance of the evidence.
10
The majority concedes that ‘‘an accusation of criminal conduct [may
be] topically [on] a matter of public concern . . . [which] is a significant,
but not dispositive, factor in determining whether speech or conduct is
constitutionally protected for purposes of tort liability. Indeed, should an
accusation be false, the first amendment does not foreclose liability under
a defamation theory in a well pleaded and proven case.’’ See footnote 26
of the majority opinion. The majority also cites to a Mississippi case that,
with facts largely identical to the facts of the present case, evinces the
requirement that reviewing courts must undertake the relevant first amend-
ment inquiry before affording accusations of criminal conduct the protec-
tions of the first amendment. See Sartain v. White, 588 So. 2d 204, 213
(Miss. 1991) (conducting content, context, and form inquiry to conclude
that defamatory accusations of various crimes are generally matter of public
concern but not in specific context of acrimonious neighbor dispute).
11
The majority asserts that ‘‘the Mississippi Supreme Court’s decision in
Sartain is a jurisprudential odd duck, which arose from a neighborhood
dispute wherein defamation allegations arose from one party’s accusations
in numerous public fora, such as tirades and letters to public officials, that
her neighbors were murderers, robbers, and terrorists.’’ See footnote 33 of
the majority opinion. I disagree that Sartain is a ‘‘jurisprudential odd duck’’
and, instead, assert that it properly applied the law to allegations made in
a personal dispute between families in a neighborhood. Similarly, the present
case arose from a personal dispute between two families that knew each
other. Like the dispute in Sartain, the accusations involved in the present
case did not relate to the actions of government officials, but were personal
attacks designed to elicit a response from a private individual.
12
Though I would not reach the issue, I would also conclude that, had
she retained the burden of persuasion to prove that she did not murder Bill
ab initio, the plaintiff met this burden under any standard. In my view, the
plaintiff’s testimony that she was unaware of Bill’s disappearance until three
days after it happened, as well as the trial court’s crediting her testimony
in other contexts and the lack of any competent evidence to the contrary,
is sufficient to establish that she did not murder Bill.