549 A.2d 683 | Conn. Super. Ct. | 1987
In this action for libel brought by the plaintiff, John Dow, Jr., because of an allegedly libelous newspaper article published by the named defendant, the New Haven Independent, Inc., the defendants1 seek summary judgment. The defendants' motion for summary judgment is predicated on three of their five special defenses:2 (1) the statements are not libelous *32 as a matter of law; (2) they are opinions protected by the state and federal constitutions; (3) they are comments protected by the common law privilege of fair comment. The court need not determine whether the statements come within the common law protection of fair comment, since the motion must be granted because the offending statements are either not libelous as a matter of law or are constitutionally protected opinion.
The plaintiff is the superintendent of the New Haven public schools. The defendants publish the New Haven Independent, a weekly newspaper with a general circulation in the New Haven area. This action for libel is based upon an editorial that appeared on the opinion-editorial page of the March 12, 1987 issue of the New Haven Independent in which Dow was criticized for his position on acquired immune deficiency syndrome (AIDS) and his demand for an advance deposit of $20,000 before he would allow a reporter to review his official correspondence. The full text of the editorial, clearly entitled "Opinion" and "Editorial," appears in the appendix attached to this opinion.
The background of the editorial is not in dispute. First, Dow has taken the position that "if youngsters have AIDS and we are aware of it, we are educating them outside the regular school environment," which he stated when interviewed on Connecticut Public Radio's "Open Air" program hosted by Faith Middleton on January 13, 1987. Second, in that same interview, Dow admitted that he had no formal policy on AIDS education.3 Third, when a reporter for the New Haven Register, *33 a daily newspaper with general circulation in the New Haven area, requested to see "all public letters to and from citizens, city officials and state officials on a weekly basis," Dow, on February 25, 1987, responded in part as follows: "Please be informed that my office will do its best to accommodate your request of January 23, 1987, as clarified in your above noted correspondence. However, as I indicated to you in a prior letter, we will require payment, in advance, for personnel needed to review the correspondence requested in order to insure that privacy and other rights of affected persons are not compromised. Therefore, we require an initial advance payment of $20,000 per year (salary and fringes) in order to commence compliance with your request and will forward additional billing as further costs arise for copying and fees for legal opinions."4
Specifically, after separating his own embellishments on the language used in the editorial, Dow complains that the following statements are libelous: (1) Dow has "backward views on pupils with AIDS and on education about the disease"; (2) Dow "has been looking more like an ignorant and spineless politician than an educational leader"; (3) Dow is "trying to block a New Haven Register reporter from routine examination of his correspondence files by demanding a $20,000 down payment"; (4) Dow is "seeking to thwart" freedom of information laws; (5) "The law is clear: Any but the most sensitive of municipal correspondence should be easily available to the public"; (6) "Five-figure `handling fees' are an almost laughable challenge to open government"; and (7) "Dow should go back to elementary school and take a civics class."5 *34
The court views the motion for summary judgment in the context of the seminal case of New York TimesCo. v. Sullivan,
It is essential to our democracy, as made clear in NewYork Times Co. v. Sullivan, supra, that our primary concern must be the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id., 270. Indeed, the language used in the editorial in this case — for example, that Dow looked more like "an ignorant and spineless politician," that he had "backward views" and that he "should go back to elementary school and take a civics class" — is vehement, caustic and unpleasant, but that does not make it libelous under the law.
A public official must expect, in a society that guarantees free speech, that at times he or she will be the subject of rhetorical hyperbole. Nevertheless, that alone cannot be the basis for an action for libel. In his concurring *35
opinion in New York Times Co. v. Sullivan,
supra, Justice Black, arguing for an absolute, unconditional constitutional privilege, wrote: "This Nation of ours elects many of its important officials [and appoints important officials through those elected]; so do the States, the municipalities, the counties and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as `obscenity' . . . and `fighting words' . . . are not expression within the protection of the
At least that portion of the statement to the effect that Dow was demanding a "$20,000 down payment" for a routine examination of his correspondence and the statement that the law was clear that "[a]ny but *37 the most sensitive of municipal correspondence should be easily available to the public" are not defamatory. They are not defamatory, taken alone, or placed in the context of the entire editorial. Furthermore, Dow concedes that he made such a demand for the $20,000.6
The Gertz court went on to hold, however, that "there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in `uninhibited, robust and wide-open' debate on public issues." Id., 340. By this statement and qualification, the Supreme Court raised to a level where they are absolutely protected by the
The determination of whether a specific statement is one of opinion or fact is difficult. The Supreme Court *38
in Gertz furnished no guidelines for making that determination and courts have gone in all directions. Some courts have held it to be a judgment call, others have selected a single determinative factor, and still others have adopted a multifactor test. Ollman v. Evans,
Some statements clearly fall within the protection of the
The statements made in the editorial upon which Dow bases his action are pure opinions and are thereby constitutionally protected. A fair reading of the editorial indicates the statements that Dow has "backward *39 views on pupils with AIDS and on education about the disease" and that "he has been looking more like an ignorant and spineless politician than an educational leader" are the "pure" type opinions of Dow's policy of requiring children with AIDS to receive their education outside the classroom8 and that he does not have a formal AIDS education policy. These facts of how children with AIDS are to be educated and the lack of an education policy, which Dow concedes to be true, were not stated in the editorial but are matters of common knowledge,9 were clearly stated by him in the interview on Connecticut Public Radio's "Open Air" program on January 13, 1987, and were subsequently published in the New Haven Independent, and are also the subject of at least one other newspaper article.
The opinions that Dow is "trying to block a New Haven Register reporter from routine examination of his correspondence," that he is attempting to "thwart" the freedom of information laws, and that his demand for "[f]ive-figure `handling fees' are an almost laughable challenge to open government," clearly refer to his demand that a reporter make an advance payment of $20,000 before Dow would make his official correspondence available. There was specific reference in the editorial to the fact that he demanded this payment, which Dow concedes he did in a letter to the reporter dated February 15, 1987. Furthermore, this was the subject of other newspaper articles and was common knowledge.
Finally, the statement in the editorial that "Dow should go back to elementary school and take a civics *40 class" is an opinion obviously based upon the above mentioned facts about his AIDS policy, lack of AIDS educational policy and his demand for a $20,000 advance payment.
Even if these statements could not be classified as pure opinion, it is clear that they are protected by the
Applying the Ollman analysis to the statements in this case, the court comes to the same conclusion that they are protected opinions entitled to an absolute privilege. Surely, the average reader would not infer any facts from the language that Dow has "backward views on pupils with AIDS, and on education about the disease," that he looks more like an "ignorant spineless politician than an educational leader," that he is "trying to block a New Haven Register reporter" from obtaining information, that he is "seeking to thwart" freedom of information laws, that his demand for "[f]ive-figure `handling fees' [is] an almost laughable challenge to open government," and that he should "go back to elementary school and take a civics class." The language is clearly opinion and does not purport to be fact because the statements are indefinite and ambiguous.
Nor are any of these statements objectively capable of proof or disproof. They may be unpleasant for Dow, but that is not the test for determining whether they are fact or opinion. They are just vague statements of opinion that the average person would perceive as merely being used in a loose manner and not readily verifiable.
A view of the entire editorial could only lead a person to believe that these were the opinions of the newspaper. No reader would take any of the statements *42
literally. The absurdity is clearly demonstrated by the statement that the superintendent of the entire school system who has his doctorate degree should go back to elementary school. What the Supreme Court of the United States has stated in reference to a published statement characterizing a plaintiff-legislator's negotiations as "blackmail" has equal application here. "[E]ven the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who consider [the plaintiff's] negotiating position extremely unreasonable."Greenblelt Cooperative Publishing Assn. v. Bresler,
Finally, the statements are contained in an editorial on the opinion-editorial page, which is of great significance. It is clearly entitled opinion and editorial in bold and outstanding letters. And it is obvious that editorial has its common, ordinary and elementary meaning — that is, an article in a publication expressing the opinion of its editors or publishers. Indeed, the present editorial is mild compared to the editorial comments about another newspaper and its editor that could not survive summary judgment. In Loeb v. GlobeNewspaper Co.,
Almost ninety years ago, in State v. McKee,
Because of the profound commitment to freedom of the press as demonstrated in §§ 410 and 511 of article
Justice Goldberg, urging in his concurring opinion in New York Times Co. v. Sullivan, supra, that the court adopt an "absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses," wrote the following, which is pertinent to the state constitution. "The prized American right `to speak one's mind' . . . about public officials and affairs needs `breathing space to survive' . . . . The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel." (Citations omitted.) NewYork Times Co. v. Sullivan, supra, 298-99 (Goldberg, J., concurring). *46
There is significant empirical data to suggest that the costs of defending defamation litigation have caused newspapers to soften or abandon coverage of controversial issues. "Whether a suit is settled, won, or lost, the legal fees alone can be chilling." R. Smolla, "Let the Author Beware: The Rejuvenation of the American Laws of Libel," 132 U. Pa. L. Rev. 1, 13 (1983). "The desultory pace of this . . . litigation gives little comfort to those who would assert their constitutional right to free speech about public affairs. This is especially true of the many smaller journals and local newspapers which have played an important role in the affairs of [a state] but which cannot withstand high litigation costs." Maressa v. New Jersey Monthly,
Of course, the constitutional rights of freedom of the press must not be allowed to infringe on the constitutional right that all courts be open to redress an injury. Conn. Const., art.
The motion for summary judgment in favor of the defendants is hereby granted and costs may be taxed against the plaintiff.
"Government accountability is a [sic] one of the first principles taught in social studies. It's also the guiding force behind Connecticut's admirable Freedom of Information law, which Dow is seeking to thwart. The law is clear: any but the most sensitive of municipal correspondence should be easily available to the public. Five-figure `handling fees' are an almost laughable challenge to open government.
"Dow should go back to elementary school and take a civics class. In the meantime, his students can watch while he tries to justify a paranoid and arrogant policy before a skeptical Freedom of Information Commission. They'll get a valuable lesson on how democracy works — at their superintendent's expense."