MADELEINE GLEASON ET AL. v. JANICE SMOLINSKI ET AL.
(SC 19342)
Supreme Court of Connecticut
Argued April 27—officially released November 3, 2015
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.
John R. Williams, for the appellee (named plaintiff).
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the
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
Opinion
ROBINSON, J. On August 24, 2004, thirty-one year old William Smolinski, Jr. (Bill),1 disappeared from his home in the city of Waterbury, never to be seen or heard from again. Firmly convinced that the plaintiff Madeleine Gleason,2 who was Bill’s former girlfriend and a fellow school bus driver, either caused or knew more about Bill’s disappearance than she would say, and having noticed that the plaintiff and a friend, Fran Vrabel, were removing certain missing person flyers, the defendants, Janice Smolinski and Paula Bell,3 Bill’s mother and sister respectively, began to pressure the plaintiff into cooperating with the ongoing investigation. The defendants’ tactics included, among other things, saying disparaging things to the plaintiff’s friends and acquaintances on several occasions and posting copious numbers of missing person flyers depicting Bill along the plaintiff’s school bus route and near her home. These tactics led the plaintiff to bring the civil action that gave rise to this appeal against the defendants, claiming, inter alia, defamation and intentional infliction of emotional distress.
The defendants now appeal, upon our grant of their petition for certification,4
The record, including the Appellate Court’s opinion and the findings set forth in the trial court’s memorandum of decision, reveals the following relevant facts and procedural history. The plaintiff was, at all times relevant to the present case, employed by B and B Transportation, Inc., as a school bus driver. For a period of time, Bill worked at the same company. The two met there and began dating. Soon thereafter, Bill ended his relationship with the plaintiff and his employment at B and B Transportation, Inc. About one year later, Bill and the plaintiff began dating again. During a vacation together in Florida, however, they broke up because of problems in their relationship, including the fact that the plaintiff was much older than Bill, and his belief that she was cheating on him with Chris Sorensen, a local married politician.6
Shortly after his disappearance, the defendants and William Smolinski, Sr., Bill’s father, ‘‘started putting up missing [person] posters8 in various parts of the state. They then noticed some of the posters were being torn down or vandalized and discovered the plaintiff and [Vrabel] were engaged in this activity. The . . . defendants . . . then proceeded to follow [the plaintiff] and videotaped her activities in this regard. [The plaintiff] claims the posters were placed along her school bus route and generally where she lived, worked, and conducted some of her life activities. Eventually some of these activities led to the plaintiff going to the . . . police station [in the town of Woodbridge], where the defendants soon followed. A confrontation took place between the parties.’’ (Footnote altered; internal quotation marks omitted.) Id., 288.
The plaintiff then brought the present action against the defendants. As the Appellate Court noted, the plaintiff ‘‘claims the defendants’ activities interfered with and damaged her monetarily by interfering with her business of operating a school bus for a living. She also says she was defamed by the defendants who had characterized her as a murderer. She also states that her right to privacy was invaded and that generally the defendants intentionally inflicted great emotional stress on her, causing her much anxiety and torment.
‘‘The defendants countered the allegations by saying [that the] alleged actions
Following a court trial, the trial court, Hon. Thomas J. Corradino, judge trial referee, ‘‘found that the defendants’ conduct constituted intentional infliction of emotional distress and that their statements that the plaintiff was a murderer or was involved in murder constituted defamation. The court awarded the plaintiff compensatory damages of $32,000 on her claim of intentional infliction of emotional distress and $7500 on her claim of defamation, for a total compensatory damages award of $39,500. The court also awarded the plaintiff [$13,166.67 in] punitive damages . . . an amount equal to one third of the plaintiff’s total compensatory damages award . . . .’’ Id., 289.
The defendants appealed from the judgment of the trial court to the Appellate Court and claimed, inter alia,9 that: (1) the plaintiff’s intentional infliction of emotional distress claim was barred by the free speech clause of the
With respect to the defendants’
With respect to the plaintiff’s defamation claims, the Appellate Court reviewed the record and concluded that the trial court properly had found that the defen-dants had made three defamatory statements regarding the plaintiff, namely, by telling various people that the plaintiff was a ‘‘murderer’’ or otherwise involved in Bill’s disappearance. Id., 310. In particular, the Appellate Court relied on this court’s decision in Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952), and concluded that the defendants’ statements were defamatory per se, thus allowing a presumption that they had harmed the plaintiff’s reputation, and relieving her of the burden of proving such harm. Gleason v. Smolinski, supra, 149 Conn. App. 310–12. Accordingly, the Appellate Court rendered judgment affirming the judgment of the trial court. Id., 314. This certified appeal followed. See footnote 4 of this opinion.
On appeal, the defendants claim that: (1) the
I
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
We begin with the defendants’ contention that the Appellate Court improperly concluded that the
In response, the plaintiff argues that Snyder is factu-ally distinguishable because the conduct at issue therein was not as invasive as the defendants’ conduct in the present case, which they had specifically intended to be intimidating.13 The plaintiff also claims that accepting the defendants’ ‘‘broad notion that crime always is a legitimate matter of public concern’’ would encourage false accusations and ‘‘lynch mob style activity,’’ and mean that ‘‘false accusations of criminal wrongdoing never would be actionable as . . . intentional infliction of emotional distress or defamation, but instead would be protected by the
‘‘[T]he [
Nevertheless, ‘‘the heightened scrutiny that this court applies in
We begin with a review of Snyder, which is the leading United States Supreme Court decision on
‘‘The funeral procession passed within 200 to 300 feet of the picket site. Although [Snyder’s father] testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.’’ (Citations omitted.) Id., 449. A federal court jury subsequently awarded the Snyder’s father several million dollars in damages for his claims, which included intentional infliction of emotional distress, against Westboro and several of its members. Id., 450.
Relying on Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50–51, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988),16 the Supreme Court posited that ‘‘[w]hether the [
‘‘[N]ot all speech is of equal [
The court then observed that, although ‘‘the boundaries of the public concern test are not well defined,’’ it has ‘‘articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.’’ (Internal quotation marks omitted.) Id., 452. It explained that ‘‘[s]peech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community . . . or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public . . . . The arguably inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’’ (Citations omitted; internal quotation marks omitted.) Id., 453.
Further, ‘‘[d]eciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, as revealed by the whole record. . . . As in other [
Turning to the record before it, the Supreme Court observed that the ‘‘content of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of purely private concern,’’ despite the fact that their ‘‘messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.’’ (Internal quotation marks omitted.) Id., 454. The court observed that ‘‘even if a few of the signs—such as ‘You’re Going to Hell’ and ‘God Hates You’—were viewed as containing messages related to . . . Snyder or [his family] specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.’’ Id. The Supreme Court noted that the funeral context of Westboro’s speech did not ‘‘transform [its] nature’’; id., 454; emphasizing that Westboro ‘‘conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street.17 Such space occupies a special position in terms of [
The court further rejected the argument that Westboro’s conduct was a ‘‘personal attack on Snyder and his family,’’ which it had attempted to ‘‘immunize . . . by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic [c]hurch.’’ (Internal quotation marks omitted.) Id., 455. The court was ‘‘not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of . . . Snyder, and there can be no serious claim that Westboro’s picketing did not represent its honestly believed views on public issues. . . . There was no [preexisting] relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter.’’ (Citation omitted; internal quotation marks omitted.) Id. Thus, the court held that, because ‘‘Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to special protection under the [
Post-Snyder cases make clear the critical import of the threshold inquiry into the nature of the communications at issue in determining whether allegedly tortious speech is subject to
Our inquiry does not, however, end here, as we also must consider the
Nevertheless, although the existence of preexisting animus between parties might indicate circumstantially that a defendant is dressing intentionally tortious conduct in the garb of the
Turning to the record in the present case, we acknowledge the trial court’s finding that ‘‘one of the important lines of evidence relied on by the plaintiff to establish this tort [of intentional infliction of emotional distress] was the hanging of posters in areas where the plaintiff lived and worked for the sole purpose of intimidating and harassing the plaintiff. The plaintiff claims posters, showing a picture of . . . Bill . . . with contact information, were hung throughout her bus route, at places where she lived and worked and even near, if not on school grounds, where she picked up and dropped off children. This went on for months.’’20 The defendants’ preexisting intention to ‘‘hound’’ the plaintiff until she ‘‘broke’’ with respect to what she knew about Bill’s disappearance did not, however, necessarily transform the protected nature of their speech; see, e.g., Spacecon Specialty Contractors, LLC v. Bensinger, supra, 713 F.3d 1038; particularly given that the targeted content and location was consistent with the overarching public concern of gaining information about Bill’s disappearance, in
Moreover, the missing person posters created by the defendants in the present case were entirely content-neutral with respect to the plaintiff; none mentioned her
To this end, we find instructive the New Hampshire Supreme Court’s recent decision in Keene v. Cleaveland, N.H. , 118 A.3d 253 (2015). In Keene, a city brought tort claims for damages, alleging tortious interference with contract, civil conspiracy, and negligence, against persons who had engaged in an aggressive protest of the city’s parking enforcement policies by following and videotaping parking enforcement officers in the performance of their duties. Id., 255–56. Although acknowledging that the content of their speech was constitutionally protected, the city argued that the protesters’ behavior, ‘‘following closely, chas-ing, running after, approaching quickly from behind, lurking outside bathrooms, yelling loudly, and filming from close proximity—constitute improper interference with the [officers’] employment duties. The [c]ity contends that this conduct is significantly harassing behavior under the guise of political expression, and, therefore, not constitutionally protected. The [c]ity asserts, therefore, that a jury may impose tort liability without unconstitutionally burdening the [protesters’] right to free speech.’’22 (Internal quotation marks omitted.) Id., 258.
Guided heavily by this recent New Hampshire decision,24 which considered similarly targeted and harassing conduct, 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
Turning to the fourth prong of Golding, namely, whether reversal is required, we conclude that the plaintiff, as appellee, has not established that the constitutional violation was harmless beyond a reasonable doubt, given the apparent significance of the flyer campaign to the trial court’s finding on her intentional infliction of emotional distress claim. We cannot, however, direct judgment as a matter of law for the defendants because the record demonstrates that, in addition to the posters, which are constitutionally protected if not solely a contrived means for malicious harassment on a matter of private concern; see Snyder v. Phelps, supra, 562 U.S. 458–59; the defendants also engaged in other confrontational and harassing behavior, including calling the plaintiff offensive names, following her, and videotaping her activities.25 Some or
II
DEFAMATION CLAIMS
We next turn to the defendants’ claim that the Appellate Court improperly upheld the trial court’s conclusion that they had committed the tort of defamation. In support of this claim, the defendants contend, inter alia, that: (1) the Appellate Court improperly applied the clearly erroneous standard of review to all of the trial court’s conclusions; and (2) the plaintiff improperly was not required to carry the burden of proof constitu-tionally required insofar as the statements pertained to a
Before turning to the defendants’ claims regarding defamation, we note that the Appellate Court’s opinion sets forth the following additional relevant facts and procedural history, namely, that the trial court ‘‘found three statements made by the defendants to be defamatory. Specifically, it found two sets of statements made to the plaintiff’s friends . . . Vrabel and [Melissa] DePallo, to be defamatory: (1) ‘Janice Smolinski told [Vrabel] on several occasions that [the plaintiff] ‘‘did something to her son’’ and that ‘‘she believes that either [the plaintiff] or someone in her family murdered her son’’; and (2) ‘Janice Smolinski approached [DePallo] and said you do not know what [the plaintiff] is capable of; she said she does not believe [the plaintiff] killed her son, personally, but she knows where he is and [Janice] Smolinski thought ‘‘she’s involved.’’ The court also found the following statement made by the defendants to an unidentified man at the plaintiff’s gym to be defamatory: ‘[The plaintiff] drove to her gym, the defendants were following her, and [the plaintiff] says, ‘‘a guy came and said those people (referring to the Smolinskis) just followed you in and said you were a murderer.’’ ’ ’’28 Gleason v. Smolinski, supra, 149 Conn. App. 308.
Citing its decision in Murphy v. Lord Thompson Manor, Inc., 105 Conn. App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008),29 for the applicable standard of review, the Appellate Court upheld, as not clearly erroneous, the trial court’s conclusion that these statements were not ‘‘ ‘mere opinion’ ’’ that could not form the basis for a defamation claim, insofar as the plaintiff ‘‘ ‘was said to be a murderer or involved in a situation where murder occurred.’ ’’ Gleason v. Smolinski, supra, 149 Conn. App. 310. The Appellate Court also concluded that the trial court did not commit clear error in determining that the defendants had acted with actual malice in making these statements in reckless disregard for the truth, thus supporting the plaintiff’s claim for punitive damages. Id., 311. Finally, the Appellate
Our consideration of the defendants’ specific challenges to the Appellate Court’s decision is informed by the following general principles. Although defamation30 claims are rooted in the state common law, their elements ‘‘are heavily influenced by the minimum standards required by the [
‘‘A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . .’’ (Internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). It is well settled that ‘‘for a claim of defamation to be actionable, the statement must be false . . . and 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.’’ (Citations omitted.) Id., 228–29. Each statement furnishes a separate cause of action and requires proof of each of the elements for defamation. See id., 217.
Beyond these common-law principles, there are numerous federal constitutional restrictions that govern the proof of the tort of defamation, the applicability of which varies with ‘‘(a) the status of the plaintiff as a public or private figure, and (b) whether the subject of the speech
A
Standard of Appellate Review
Relying on Woodcock v. Journal Publishing Co., 230 Conn. 525, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S. Ct. 1098, 130 L. Ed. 2d 1066 (1995), the defendants first contend that the Appellate Court improperly applied the clearly erroneous standard of review, rather than engaging in an independent exami-nation of the entire record to ensure that the judgment did not violate their
In Woodcock v. Journal Publishing Co., supra, 230 Conn. 525–36, this court followed, inter alia, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), and Holbrook v. Casazza, supra, 204 Conn. 343, in declining to apply the clearly erroneous standard in reviewing a trial court’s ‘‘determination of actual malice in a case governed by New York Times Co. v. Sullivan [supra, 376 U.S. 254],’’ namely, one implicating defamation claims by a public figure on a matter of public concern. (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., supra, 525–36. Rather, consistent with the analysis applied in other
This independent review does not, however, mean that the reviewing court may disregard the facts as found by the trier of fact. This court has acknowledged that the independent review required by Bose Corp. v. Consumers Union of United States, Inc., supra, 466 U.S. 499–500, ‘‘preserves the due regard that is ordinarily given to the trial judge’s
other findings of fact in a defamation case are properly tested under the clearly erroneous standard of review.”36 (Citations omitted; emphasis omitted; internal quotation marks omitted.) Holbrook v. Casazza, supra, 204 Conn. 344. These other findings of fact include, for example, the falsity of the factual statement that constitutes the alleged defamation. See Flamm v. American Assn. of University Women, supra, 201 F.3d 149.
Thus, although “[w]e have considerable latitude in deciding whether the evidence supports a finding of actual malice,” the “constitutionally based rule of independent review does not mean that we disregard credibility determinations of the trier of fact. . . . Deference to factual determinations that turn on credibility assessment is essential because of the fact finder’s unique opportunity to observe and weigh witness testimony.” (Citations omitted; internal quotation marks omitted.) Tan v. Le, 177 Wn. 2d 649, 669-70, 300 P.3d 356 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 941, 187 L. Ed. 2d 784 (2014); see also Dacey v. Connecticut Bar Assn., supra, 170 Conn. 540 (“[T]he credibility of the witnesses and the weight to be accorded their testimony is a matter for the jury to decide. Further, we refrain from choosing among inferences as this is another jury function.”). Thus, we defer to the trier’s findings with respect to, for example, a party’s actual knowledge of a statement’s falsity, or whether he acted in good faith in publishing a statement later deemed defamatory. See Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 638-39; see also Nelson v. Tradewind Aviation, LLC, 155 Conn. App. 519, 540-41, 111 A.3d 887 (2015) (upholding actual malice determination because jury reasonably could have concluded that defendant knowingly made false statements about plaintiff’s employment history with improper motive); Tan v. Le, supra, 671-72 (deferring to jury’s finding of actual malice as based on decision not to credit defendants’ testimony that they had acted in good faith when publishing defamatory articles). We conclude, therefore, that the Appellate Court; see Gleason v. Smolinski, supra, 149 Conn. App. 310-11; improperly applied the clearly erroneous standard of review without tailoring it to the specific trial court determinations at issue, in particular the trial court’s actual malice finding, which was of constitutional import given the punitive damages awarded to the plaintiff. See, e.g., Gertz v. Robert Welch, Inc., supra, 418 U.S. 348-49; see also footnote 32 of this opinion.
B
Actual Malice and Constitutional Adequacy of Proof
We finally turn to the defendants’ burden of proof claim, which relies on Obsidian Finance Group, LLC v. Cox, supra, 740 F.3d 1284, for the proposition that when, as in this case, an allegedly defamatory statement relates to a matter of public concern, the first amendment requires the plaintiff, even if not a public figure, to prove by clear and convincing evidence that the defendant acted with actual malice in making it. To this end, the defendants contend that we should engage in an independent review of the record, and conclude that they lacked the requisite actual malice insofar as they were reasonable in believing that the plaintiff was involved in Bill’s disappearance because the plaintiff was the last person to see him alive, and refuses to take a polygraph to clear herself as a suspect in his disappearance and, they argue, admits that she continues to withhold information from the police. As the plaintiff acknowledges, the defendants in essence “claim that [she] had the burden of proving that she was innocent of murder in order to prevail on her defamation claim.”
In response, the plaintiff relies on Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112 and n.6, and Atwater v. Morning News Co., 67 Conn. 504, 520, 34 A. 865 (1896), for the proposition that, as a private figure, she does not bear the burden of proving the falsity of the defamatory statements, insofar as Connecticut follows the common-law rule that the truth is an affirmative defense in defamation cases involving private citizens. The plaintiff claims that the defendants’ arguments to the contrary would cause a radical change in the law of defamation, because it would render any victim of defamation a “limited purpose public figure”37 under Gertz v. Robert Welch, Inc., supra, 418 U.S. 323, resulting solely from the publication of the allegedly tortious statements.37 The plaintiff
We note at the outset that this claim was not preserved in the trial court. Nevertheless, and in the absence of a procedural objection by the plaintiff, we exercise our discretion to review it pursuant to State v. Golding, supra, 213 Conn. 239-40, despite the defendants’ failure to ask that we do so, because their main brief otherwise meets the predicates for Golding review insofar as it has “present[ed] a record that is [adequate] for review and affirmatively [demonstrates] that [their] claim is indeed a violation of a fundamental constitutional right.”38 (Internal quotation marks omitted.) State v. Elson, 311 Conn. 726, 754-55, 91 A.3d 862 (2014).
Our independent research demonstrates that neither of the parties’ briefs provides a completely accurate recitation of the law governing the proof of defamation claims like those at issue in the present case, namely, claims made by private figure plaintiffs, but relating to matters of public concern.39 The defendants rely on the decision of the United States Court of Appeals for the Ninth Circuit in Obsidian Finance Group, LLC v. Cox, supra, 740 F.3d 1284, for the proposition that, when an allegedly defamatory statement relates to a matter of public concern, a private plaintiff must prove by clear and convincing evidence that the defendant acted with actual malice in making it. Obsidian Finance Group, LLC, does not, however, stand for such a broad proposition. Indeed, the defendants’ reading of that case is directly foreclosed, as a matter of federal constitutional law, by the United States Supreme Court’s landmark decision in Gertz v. Robert Welch, Inc., supra, 418 U.S. 346, which rejected a claim that the actual malice standard adopted in New York Times Co. should extend to defamation actions brought by private individuals, even in cases concerning matters of public concern.40 Instead, the Supreme Court held in Gertz that “the [s]tates should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual”; id., 345-46; and that, “so long as they do not impose liability without fault, the [s]tates may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id., 347; see also id., 348 (requiring proof of at least negligence “recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation”). The court held, however, that this negligence standard applies only to “compensation for actual injury,” and that “[s]tates may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id., 349.
The defendants’ citation to Obsidian Finance Group, LLC, does, however, point us indirectly to the proper legal standard with respect to the proof of defamation claims brought by private figures relating to matters of public concern, insofar as it cites the decision of the United States Court of Appeals for the Second Circuit41 in Flamm v. American Assn. of University Women, supra, 201 F.3d 144. See Obsidian Finance Group, LLC v. Cox, supra, 740 F.3d 1291. In Flamm, the Second Circuit extended the rule of Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986), to nonmedia defendants42 and held that, when an allegedly defamatory statement is made about a plaintiff who is a private figure, but relates to a matter of public concern, those “defamatory statements must be provably false, and the plaintiff must bear the burden of proving falsity, at least in cases where the statements were directed towards a public audience with an interest in that concern.” Flamm v. American Assn. of University Women, supra, 149; see also Albert v. Loksen, 239 F.3d 256, 268 n.10 (2d Cir. 2001) (noting that New York common-law rule requiring defendant to plead and prove truth “survives in defamation suits by private-figure plaintiffs concerning statements on purely private matters,” but stating that “[f]or constitutional reasons . . . a private-figure plaintiff . . . generally has the burden of proving falsity, at least where the allegedly defamatory statements concern a matter of public interest” [citation omitted]).
In describing this burden shift away from the common-law rule, followed in Connecticut, that falsity is presumed and the truth is an affirmative defense; see, e.g., Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 112; the United States Supreme Court acknowledged that “requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so. Nonetheless, the [c]ourt’s previous decisions on the restrictions that the [f]irst [a]mendment places upon the common law of defamation firmly support our conclusion here with respect to the allocation of the burden of proof. In attempting to resolve related issues in the defamation context, the [c]ourt has affirmed that [t]he [f]irst [a]mendment requires that we protect some falsehood in order to protect speech that matters. . . . To provide breathing space . . . for true speech on matters of public concern, the [c]ourt has been willing to insulate even demonstrably false speech from liability, and has imposed additional requirements of fault upon the plaintiff in a suit for defamation.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. 778.43 The court further observed that this burden shift “adds only marginally to the burdens that the plaintiff must already bear as a result of our earlier decisions in the law of defamation. The plaintiff must show fault. A jury is obviously more likely to accept a plaintiff’s contention that the defendant was at fault in publishing the statements at issue if convinced that the relevant statements were false. As a practical matter, then, evidence offered by plaintiffs on the publisher’s fault in adequately investigating the truth of the published statements will generally encompass evidence of the falsity of the matters asserted.” Id.
“Whether a defendant has knowledge of the falsity of a defamatory statement is a question within the province of the trier of fact. . . . The proper inquiry is whether a defendant believes, honestly and in good faith, in the truth of his statements and whether he has grounds for such belief. . . . Notably, however, a trial court is not required merely to accept a defendant’s self-serving assertion that he published a defamatory statement without knowing that it was false. . . . As the United States Supreme Court aptly stated: The defendant in a defamation action . . . cannot . . . automatically [e]nsure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. . . .
“Although whether a defendant has published a false statement with reckless disregard for its truth is not easily captured in a simple definition, we have held that reckless disregard may be found when an individual publishes defamatory statements with a high degree of awareness of . . . probable falsity . . . or . . . entertained serious doubts as to the truth of [the] publication . . . . Moreover, [a] refusal to retract a statement that has been demonstrated to be false and defamatory might be relevant in showing recklessness at the time the statement was published.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 637-39.
Turning to the record of the present case, we conclude that the plaintiff did not establish actual malice under any standard of proof. See footnote 44 of this opinion. Unlike in our past cases wherein we have upheld findings of actual malice, neither the trial court nor the plaintiff cite any evidence in the record indicating that the defendants’ allegations that the plaintiff had some role in, or knowledge about, Bill’s disappearance were made, as the trial court found, reckless disregard for the truth. Further, our review of the record does not yield any evidence to support the trial court’s determination that “[w]e do not have a case of mere negligent utterances not based on fact but on suspicion and conjecture,” particularly given that the plaintiff never challenged at trial the defendants’ personal knowledge of the factual basis for their statements. Indeed, the evidence in the record supports the opposite conclusion, notwithstanding the fact that there need not be a “single smoking gun proving actual malice,” and that even the “clear and convincing evidence standard does not require defendants to admit on the record they entertained serious doubts as to the truth of their allegations.” (Internal quotation marks omitted.) Tan v. Le, supra, 177 Wn. 2d 674.
First, the
Although it would be probative evidence if there were other evidence of actual malice, the acrimony between the parties, including Janice Smolinski’s expressed desire to “break” the plaintiff and have her reveal information about Bill’s disappearance, does not suffice by itself to fill this evidentiary void. “[E]vidence of ill will or bad motives will support a finding of actual malice only when combined with other, more substantial evidence of a defendant’s bad faith.” (Internal quotation marks omitted.) Woodcock v. Journal Publishing Co., supra, 230 Conn. 544; see also, e.g., Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 638 (“proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice” [internal quotation marks omitted]). Accordingly, we conclude that the trial court’s failure to conduct the falsity analysis required by the first amendment requires a new trial on the defamation claim.52
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to the trial court for a new trial on the claims of intentional infliction of emotional distress and defamation.
In this opinion ROGERS, C. J., and PALMER, McDONALD and ESPINOSA, Js., concurred.