204 Conn.App. 414
Conn. App. Ct.2021Background
- Joseph S. Elder, a Connecticut attorney, was suspended one year by the Superior Court for misrepresenting his identity in phone calls; that decision (the suspension decision) formed the basis of news coverage in August 2015.
- Matthew Kauffman wrote an August 1, 2015 Hartford Courant article (republished or echoed by other local papers) describing Elder as having "impersonated" a fellow lawyer; those articles omitted some details (e.g., that the officer initially posed as a prospective client).
- The Connecticut Supreme Court reversed the suspension on statute-of-limitations grounds in Disciplinary Counsel v. Elder (May 2017).
- Elder sued multiple reporters and publishers in 2017 alleging defamation and false light based on the 2015 articles; defendants moved for summary judgment invoking the fair report privilege.
- The trial court granted summary judgment for defendants, concluding the articles were substantially fair and accurate reports of an official proceeding; Elder appealed raising issues including authentication, reliance on government documents, substantial accuracy, malice, and a state-constitutional challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authentication of evidence supporting summary judgment | Defendants’ summary judgment evidence was inadmissible/improperly authenticated | Evidence was part of the record; plaintiff did not raise authentication below | Not preserved on appeal; appellate court declines to consider it |
| Requirement to prove reliance on government source | Elder: defendants must prove they actually relied on the government document/decision to invoke fair report privilege | Defendants: no additional proof of reliance required where articles and the court decision are before the court | No proof-of-reliance requirement here; privilege available based on articles and published decision |
| Substantial accuracy / fair abridgement | Elder: articles mischaracterized conduct ("impersonating") and omitted exculpatory facts, so they were not substantially accurate | Defendants: articles conveyed substantially correct account of the court decision and are protected leeway for paraphrase/summary | Articles were substantially fair and accurate renditions of the suspension decision; privilege applies |
| Malice defeating privilege | Elder: alleged malice requires trial; malice defeats the conditional privilege | Defendants: fair and accurate reporting negates basis for malice overcoming the privilege | Because reports were fair and accurate, malice claim fails as a matter of law; no trial required |
| State constitutional right to redress for reputation (Art. I, §10) | Elder: state constitutional right to remedy for reputational injury (and jury trial) overrides the common-law fair report privilege | Defendants: fair report privilege is consistent with state constitutional protections and bars claims based on accurate reports of official actions | Court: Elder’s state-constitutional claim was inadequately briefed; in any event, Article I §10 does not negate the privilege where reporting is substantially accurate |
Key Cases Cited
- Burton v. American Lawyer Media, Inc., 83 Conn. App. 134 (Conn. App. 2004) (sets out scope of the fair report privilege and the required substantial accuracy standard)
- Bufalino v. Associated Press, 692 F.2d 266 (2d Cir. 1982) (lack of actual reliance on proffered official records can defeat a fair-report privilege defense)
- Disciplinary Counsel v. Elder, 325 Conn. 378 (Conn. 2017) (Supreme Court decision reversing the underlying suspension)
- Strada v. Connecticut Newspapers, Inc., 193 Conn. 313 (Conn. 1984) (press has leeway for minor deviations/embellishments when recounting events)
- Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107 (Conn. 1982) (substantial truth protects media from false-light claims despite omissions)
- State v. Geisler, 222 Conn. 672 (Conn. 1992) (framework for analyzing state constitutional claims)
- Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185 (Conn. 1995) (summary judgment standard authority cited)
- Barry v. Quality Steel Products, Inc., 263 Conn. 424 (Conn. 2003) (plenary appellate review of summary judgment rulings)