Gleason v. Smolinski

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 MADELEINE GLEASON ET AL. v. JANICE
SMOLINSKI ET AL.
(SC 19342)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued April 27—officially released November 3, 2015

Steven J. Kelly, pro hac vice, with whom were Chris-
topher P. DeMarco and, on the brief, Anne T. McKenna,
pro hac vice, for the appellants (named defendant et al.).
John R. Williams, for the appellee (named plaintiff).
 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 investiga-
tion. 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 inten-
tional infliction of emotional distress.
The defendants now appeal, upon our grant of their
petition for certification,4 from the judgment of the
Appellate Court affirming the trial court’s judgment
awarding the plaintiff compensatory and punitive dam-
ages on her claims of intentional infliction of emotional
distress and defamation. Gleason v. Smolinski, 149
Conn. App. 283, 285–86, 88 A.3d 589 (2014). The defen-
dants’ first claim on appeal, which relies on, inter alia,
Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed.
2d 172 (2011), is that the plaintiff’s claim of intentional
infliction of emotional distress is barred because it
arises from speech protected by the first amendment
to the United States constitution,5 namely, the act of
posting missing person flyers on public roadways. The
defendants then claim that the Appellate Court improp-
erly upheld the trial court’s determination that they had
committed the tort of defamation because, inter alia: (1)
the Appellate Court applied an improperly deferential
standard of review; (2) their allegedly defamatory state-
ments were protected opinion; and (3) the plaintiff
failed to carry the requisite burden of proof. We con-
clude that a new trial is required because the trial court’s
findings on the plaintiff’s claims of defamation and
intentional infliction of emotional distress did not con-
sider, and are not consistent with, the various limita-
tions placed on these torts by the first amendment.
Accordingly, we reverse the judgment of the Appel-
late Court.
The record, including the Appellate Court’s opinion
and the findings set forth in the trial court’s memoran-
dum 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
Two days after returning from his trip to Florida with
the plaintiff, Bill disappeared without a trace. ‘‘The trial
testimony revealed that because of the plaintiff’s alleged
affair with Sorensen . . . the defendants formed the
belief [t]hat [the plaintiff] was in a love triangle with
[Bill] and . . . another fellow . . . and that [Bill] had
gone missing, and that they . . . thought that [the
plaintiff] had done something to him . . . .’’ (Internal
quotation marks omitted.) Gleason v. Smolinski, supra,
149 Conn. App. 287 n.3. The day before Bill disappeared,
Sorensen received a threatening message on his answer-
ing machine; both the plaintiff and Bell identified the
voice as belonging to Bill.7
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 . . . defen-
dants . . . 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 con-
ducted 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 quota-
tion marks omitted.) Id., 288.
The plaintiff then brought the present action against
the defendants. As the Appellate Court noted, the plain-
tiff ‘‘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 critical of them were, generally
speaking, all lies. They deny entering a bus which [the
plaintiff] was driving or going on school property to
post a missing [person] poster at a school where [the
plaintiff] brought and dropped off students. They deny
calling [the plaintiff] a murderer or harassing her on
the phone. The plaintiff and the defendants trade mutual
accusations about being followed by [each other].’’
(Internal quotation marks omitted.) Id., 288–89.
Following a court trial, the trial court, Hon. Thomas
J, Corradino, judge trial referee, ‘‘found that the defen-
dants’ conduct constituted intentional infliction of emo-
tional distress and that their statements that the plaintiff
was a murderer or was involved in murder constituted
defamation. The court awarded the plaintiff compensa-
tory 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 dam-
ages 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 first amendment, as explicated by the Supreme
Court’s decision in Snyder v. Phelps, supra, 562 U.S.
443, as their conduct was constitutionally protected
‘‘speech related to a matter of public concern because
the missing person posters were designed to uncover
information about [Bill’s] disappearance, and to assist
with the ongoing investigation and potential prosecu-
tion of a crime’’; and (2) the plaintiff had failed to intro-
duce sufficient evidence to support her defamation
claims. See Gleason v. Smolinski, supra, 149 Conn.
App. 286.
With respect to the defendants’ first amendment
claim, the Appellate Court first determined that it was
unpreserved, and considered it under State v. Golding,
213 Conn. 213, 239–40, 567 A.2d 823 (1989).10 Gleason v.
Smolinski, supra, 149 Conn. App. 289–90. The Appellate
Court concluded that the defendants could not establish
the constitutional violation required by the third prong
of Golding because, in contrast to the matters of public
import that were discussed—albeit crudely and offen-
sively—on the Westboro Baptist Church (Westboro)
members’ protest signs in Snyder, it agreed with the
trial court’s finding that, ‘‘[w]hile the content of the
posters makes no specific reference to the plaintiff . . .
the context and placement of the posters was designed
to ‘hound’ the plaintiff into providing the defendants
with information about [Bill’s] disappearance . . .
rather than to raise a matter of public concern’’ by
seeking further information from the public about his
disappearance. Id., 295.
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. Hart-
ford 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 first
amendment bars the plaintiff’s claims of intentional
infliction of emotional distress; and (2) the Appellate
Court improperly upheld the trial court’s conclusion
that they had committed the tort of defamation. Addi-
tional relevant facts and procedural history will be set
forth where appropriate. We address each claim in turn.
I
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
We begin with the defendants’ contention that the
Appellate Court improperly concluded that the first
amendment did not bar the plaintiff’s claim of inten-
tional infliction of emotional distress, insofar as it arose
from their constitutionally protected conduct in putting
up missing person posters on public roadways, despite
that conduct’s design to target the plaintiff. The defen-
dants argue that the Appellate Court, which treated the
first amendment issue as an unpreserved constitutional
claim reviewable under State v. Golding, supra, 213
Conn. 239–40,11 improperly deferred to the trial court’s
findings of fact, even though the trial court did not
address the constitutional issue.12 The defendants then
contend that the Appellate Court’s conclusion that the
first amendment did not bar the plaintiff’s claim of
intentional infliction of emotional distress is ‘‘directly
at odds’’ with the United States Supreme Court’s deci-
sion in Snyder v. Phelps, supra, 562 U.S. 443. They
posit that their poster campaign was constitutionally
protected speech that pertained to a matter of legitimate
public concern, namely, solving a serious crime and
finding a missing person, and that the aspect of their
conduct that ‘‘target[ed]’’ the plaintiff did not detract
from the campaign’s protected status because all of the
flyers were posted in public places in a peaceful man-
ner, and none mentioned the plaintiff by name, despite
the trial court’s finding that they were intended to
‘‘hound’’ her into giving them information about Bill’s
disappearance.
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 first amendment.’’ We agree, how-
ever, with the defendants, and conclude that, given our
review under State v. Golding, supra, 213 Conn. 239–40,
a new trial is required on this count, taking into consid-
eration the governing legal standards under the first
amendment, because the trial court’s findings with
respect to intentional infliction of emotional distress
are largely supported by conduct that is constitutionally
protected and, therefore, not actionable.
‘‘[T]he [f]irst [a]mendment bars . . . damages under
the generally applicable laws of intentional and negli-
gent infliction of emotional distress where those claims
are based on constitutionally protected conduct.’’14
Cowras v. Hard Copy, 56 F. Supp. 2d 207, 209–10 (D.
Conn. 1999); see, e.g., Snyder v. Phelps, supra, 562 U.S.
451 (‘‘[t]he [f]ree [s]peech [c]lause of the [f]irst [a]mend-
ment . . . can serve as a defense in state tort suits,
including suits for intentional infliction of emotional
distress’’). ‘‘In certain first amendment contexts . . .
appellate courts are bound to apply a de novo standard
of review. . . . [In such cases], the inquiry into the
protected status of . . . speech is one of law, not fact.
. . . As such, an appellate court is compelled to exam-
ine for [itself] the . . . statements [at] issue and the
circumstances under which they [were] made to [deter-
mine] whether . . . they . . . are of a character [that]
the principles of the [f]irst [a]mendment . . . protect.
. . . [I]n cases raising [f]irst [a]mendment issues [the
United States Supreme Court has] repeatedly held that
an appellate court has an obligation to make an indepen-
dent examination of the whole record in order to make
sure that the judgment does not constitute a forbidden
intrusion [in] the field of free expression. . . . This
rule of independent review was forged in recognition
that a [reviewing] [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 constitutionally applied. . . . Therefore, even
though, ordinarily . . . [f]indings of fact . . . shall not
be set aside unless clearly erroneous, [appellate courts]
are obliged to [perform] a fresh examination of crucial
facts under the rule of independent review.’’ (Citations
omitted; internal quotation marks omitted.) DiMartino
v. Richens, 263 Conn. 639, 661–62, 822 A.2d 205 (2003);
see also Brown v. K.N.D. Corp., 205 Conn. 8, 13–14,
529 A.2d 1292 (1987) (‘‘The function of the procedural
scheme created by [the United States Supreme Court]
. . . is obviously to require an independent second
opinion when free speech is curtailed. These cases
place the ultimate constitutional responsibility on
appellate courts to render that second opinion in order
to safeguard free expression.’’ [Citations omitted.]),
overruled in part on other grounds by DiMartino v.
Richens, 263 Conn. 639, 663–64, 822 A.2d 205 (2003).
Nevertheless, ‘‘the heightened scrutiny that this court
applies in first amendment cases does not authorize us
to make credibility 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 subsidiary credibility determinations and
findings that are not clearly erroneous.’’ State v. Krijger,
313 Conn. 434, 447, 97 A.3d 946 (2014); see also Hurley
v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 567, 115 S. Ct. 2338, 132 L. Ed. 2d
487 (1995) (‘‘[t]he requirement of independent appellate
review . . . does not limit our deference to a trial court
on matters of witness credibility’’ [citation omitted;
internal quotation marks omitted]). Thus, because the
certified issues in this case do not embrace a challenge
to the trial court’s underlying factual findings, which
already have been upheld on review by the Appellate
Court; see footnotes 4 and 9 of this opinion; our de
novo review is limited to determining whether the
defendants’ conduct, as found by the trial court, was
subject to first amendment protection.15 See State v.
Krijger, supra, 448–49 (noting that Appellate Court
properly relied on version of facts consistent with jury’s
verdict finding defendant guilty of threatening in second
degree and breach of peace in second degree before
engaging in independent review of record to determine
whether remarks were not unprotected ‘‘true threats’’).
We begin with a review of Snyder, which is the lead-
ing United States Supreme Court decision on first
amendment protection from tort claims of intentional
infliction of emotional distress. Snyder arose from the
protest activities of Westboro, whose small, but vocifer-
ous, congregation ‘‘believes that God hates and pun-
ishes the United States for its tolerance of
homosexuality, particularly in America’s military,’’ and
‘‘frequently communicates its views by picketing, often
at military funerals.’’ Snyder v. Phelps, supra, 562 U.S.
448. Parishioners from Westboro held protests, replete
with a barrage of offensively phrased signs, on ‘‘public
land adjacent to public streets near the Maryland State
House, the United States Naval Academy,’’ and the
funeral services for Marine Lance Corporal Matthew
Snyder on the day of the service. Id. The protests were
lawfully permitted and staged, and took place ‘‘approxi-
mately [1000] feet from the church where the funeral
was held. Several buildings separated the picket site
from the church. . . . The Westboro picketers dis-
played their signs for about [thirty] minutes before the
funeral began and sang hymns and recited Bible verses.
None of the picketers entered church property or went
to the cemetery. They did not yell or use profanity, and
there was no violence associated with the picketing.
. . .
‘‘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 Sny-
der’s father several million dollars in damages for his
claims, which included intentional infliction of emo-
tional distress, against Westboro and several of its mem-
bers. 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 [f]irst
[a]mendment prohibits holding Westboro liable for its
speech in this case turns largely on whether that speech
is of public or private concern, as determined by all
the circumstances of the case. [S]peech on matters of
public concern . . . is at the heart of the [f]irst
[a]mendment’s protection. . . . The [f]irst [a]mend-
ment reflects a profound national commitment to the
principle that debate on public issues should be uninhib-
ited, robust, and wide-open. . . . That is because
speech concerning public affairs is more than self-
expression; it is the essence of self-government. . . .
Accordingly, speech on public issues occupies the high-
est rung of the hierarchy of [f]irst [a]mendment values,
and is entitled to special protection. . . .
‘‘[N]ot all speech is of equal [f]irst [a]mendment
importance, however, and where matters of purely pri-
vate significance are at issue, [f]irst [a]mendment pro-
tections are often less rigorous. . . . That is because
restricting speech on purely private matters does not
implicate the same constitutional concerns as limiting
speech on matters of public interest: [T]here is no threat
to the free and robust debate of public issues; there is
no potential interference with a meaningful dialogue of
ideas; and the threat of liability does not pose the risk
of a reaction of self-censorship on matters of public
import.’’ (Citations omitted; internal quotation marks
omitted.) Snyder v. Phelps, supra, 562 U.S. 451–52.
The court then observed that, although ‘‘the bound-
aries 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 inappropri-
ate or controversial character of a statement is irrele-
vant 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 [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 intru-
sion 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, including what was said, where it was said, and
how it was said.’’ (Citations omitted; internal quotation
marks omitted.) Id., 453–54.
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 high-
light—the political and moral conduct of the United
States and its citizens, the fate of our Nation, homosexu-
ality in the military, and scandals involving the Catholic
clergy—are matters of public import.’’ (Internal quota-
tion 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] specifi-
cally, that would not change the fact that the overall
thrust and dominant theme of Westboro’s demonstra-
tion 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; empha-
sizing that Westboro ‘‘conducted its picketing peace-
fully on matters of public concern at a public place
adjacent to a public street.17 Such space occupies a
special position in terms of [f]irst [a]mendment protec-
tion. . . . [W]e have repeatedly referred to public
streets as the archetype of a traditional public forum,
noting that [t]ime out of mind public streets and side-
walks have been used for public assembly and debate.’’
(Citations omitted; footnote added; internal quotation
marks omitted.) Id., 454–56.
The court further rejected the argument that West-
boro’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 sup-
posed evils of the Catholic [c]hurch.’’ (Internal quota-
tion 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 West-
boro’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 ‘‘West-
boro’s speech was at a public place on a matter of
public concern, that speech is entitled to special protec-
tion under the [f]irst [a]mendment. Such speech cannot
be restricted simply because it is upsetting or arouses
contempt.’’ (Internal quotation marks omitted.) Id., 458.
Accordingly, the Supreme Court directed the lower fed-
eral courts to set aside the ‘‘jury verdict imposing tort
liability on Westboro for intentional infliction of emo-
tional distress . . . .’’ Id., 459.
Post-Snyder cases make clear the critical import of
the threshold inquiry into the nature of the communica-
tions at issue in determining whether allegedly tortious
speech is subject to first amendment protection.18 Thus,
we begin with an examination of the objective nature
of the speech at issue in the count of the complaint
alleging intentional infliction of emotional distress,
namely, the defendants’ extensive campaign of missing
person posters. It is well established that ‘‘[t]he commis-
sion of crime, prosecutions resulting from it, and judi-
cial 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).
Indeed, ‘‘[p]ublic allegations that someone is involved
in crime generally are speech on a matter of public
concern.’’ Obsidian Finance Group, LLC v. Cox, 740
F.3d 1284, 1292 (9th Cir.), cert. denied, U.S. , 134
S. Ct. 2680, 189 L. Ed. 2d 223 (2014); see also id., 1291–92
(allegation that bankruptcy trustee was participant in
defrauding investors was matter of public concern).19
This includes matters pertaining to missing persons.
See Holloway v. American Media, Inc., 947 F. Supp.
2d 1252, 1261 n.10 (N.D. Ala. 2013) (‘‘[t]here is little
question that the disappearance of Natalee Holloway,
which dominated news coverage for many weeks, if
not years, and which involved the safety of travel abroad
and called up the worst fears of parents, was a matter
of ‘concern to the community’ ’’); but cf. Sartain v.
White, 588 So. 2d 204, 213 (Miss. 1991) (accusations in
letters, pleadings, and oral tirades that plaintiffs were
‘‘murderers, robbers and terrorists . . . generally are
a matter of public concern,’’ but not in specific context
of neighbor dispute). In the present case, the missing
person flyers posted by the defendants solely sought
information about Bill, without referring to the plaintiff
or anyone else potentially implicated in his disappear-
ance, either directly or indirectly. Thus, the content
of the communications at issue relates to a matter of
public concern.
Our inquiry does not, however, end here, as we also
must consider the form and context of the communica-
tions at issue. Snyder v. Phelps, supra, 562 U.S. 454.
We agree with the Alaska Supreme Court’s recent rejec-
tion of the ‘‘sweeping’’ argument that all ‘‘speech involv-
ing a matter of public concern is inactionable’’ under
Snyder, and emphasize that the first amendment is ‘‘not
an all-purpose tort shield.’’ (Internal quotation marks
omitted.) Greene v. Tinker, 332 P.3d 21, 34–35 (Alaska
2014); see also id., 35 (no first amendment absolute
privilege to accuse hospital employee of breaching med-
ical privacy). Indeed, as the Supreme Court has
observed in acknowledging the possibility of ‘‘contriv-
[ance]’’; Snyder v. Phelps, supra, 455; the first amend-
ment cannot be used as a cloak or veil for intentionally
tortious conduct that is only tangentially related to the
claimed matter of public concern. See Holloway v.
American Media, Inc., supra, 947 F. Supp. 2d 1261–65
(first amendment did not, as matter of law, shield tab-
loid newspaper from intentional infliction of emotional
distress claim in light of allegations that it knowingly
and maliciously published false information about
death and burial of plaintiff’s missing daughter, given
preexisting animus between parties); cf. United States
v. Sergentakis, United States District Court, Docket No.
15CR33 (NSR) (S.D.N.Y. June 15, 2015) (defendant’s
accusations that victim had engaged in child molesta-
tion and animal cruelty could be protected under first
amendment in other contexts, but not in cyberstalking
and witness retaliation case wherein they were ‘‘thinly
veiled’’ revenge for victim’s cooperation with investiga-
tion that led to defendant’s guilty plea on other charges);
People v. Little, Docket No. 4-13-1114, 2014 WL 7277785,
*7 (Ill. App. December 22, 2014) (The court rejected
the defendant’s argument that the state stalking statute
was unconstitutionally overbroad under Snyder
because the ‘‘preexisting relationship and conflict
[between the defendant 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,’’ namely, his claim that he was pro-
testing her decision to get an abortion, and ‘‘[n]othing
in the evidence suggests that in driving by [the women’s
shelter], [the] defendant intended to peacefully protest
a matter of public concern in a public forum. This is
particularly true when, in his own testimony and in
statements to police, he denied intentionally driving
by [the women’s shelter],’’ and ‘‘nothing in the record
demonstrates [the] defendant intended to ‘convey his
position on abortion utilizing a method designed to
reach as broad a public audience as possible.’ ’’), appeal
denied, 31 N.E.3d 771 (Ill. 2015).
Nevertheless, although the existence of preexisting
animus between parties might indicate circumstantially
that a defendant is dressing intentionally tortious con-
duct in the garb of the first amendment, such animus,
including the defendant’s motive to harm the plaintiff,
‘‘does not necessarily render the messages conveyed
. . . matters of purely private rather than public con-
cern.’’ Spacecon Specialty Contractors, LLC v. Ben-
singer, 713 F.3d 1028, 1038 (10th Cir. 2013). The vehicle,
context, and content of the messages remains of para-
mount importance. See id., 1038–39 (evidence that orga-
nizer’s motive to harm corporation arising from its labor
dispute with union led him to make documentary film
did not mean that documentary was not matter of public
concern, because it addressed its unfair labor practices
with respect to use of foreign laborers, which is matter
of public concern); accord State v. Carpenter, 171 P.3d
41, 58–59 (Alaska 2007) (radio show host engaged in
protected conduct when he ridiculed and humiliated
local critic of his show, but crossed line to unprotected
intentional infliction of emotional distress when he
issued ‘‘ ‘call to arms’ ’’ to his supporters, broadcast
critic’s home telephone and fax numbers, and encour-
aged supporters to use those numbers to harass her).
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 overarch-
ing public concern of gaining information about Bill’s
disappearance, in particular by persuading the plaintiff
to be forthcoming with her knowledge about the case.21
See State v. Carpenter, supra, 171 P.3d 58 (noting that
radio host’s constitutionally unprotected words encour-
aging his listeners to harass critic ‘‘were devoid of any
express or implicit message that a jury might deem an
attempt to persuade [her], except perhaps out of fear of
harassment, to withdraw her objections to broadcasting
the show’’); see also 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, in addition to meeting the other
requirements for an [intentional infliction of emotional
distress] claim, it is uttered with an intent merely to
harass and with no intent to persuade, inform, or com-
municate’’).
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 by name, and all simply contained photographs and
descriptions of Bill, along with reward and tip informa-
tion. In contrast to the posters in the present case, the
signs in Snyder referred, at least obliquely, to Snyder,
insofar as they stated ‘‘You’re Going to Hell’’ and ‘‘God
Hates You.’’ See Snyder v. Phelps, supra, 562 U.S. 448.
Second, it is undisputed that all of the posters were
placed on or adjacent to public roadways, which are
traditional public fora subject to heightened first
amendment protection—notwithstanding the trial
court’s finding that many of the particular locations
chosen by the defendants were not likely to be particu-
larly fruitful sources of leads as to Bill’s whereabouts.
See, e.g., id., 455–56; see also Frisby v. Schultz, 487
U.S. 474, 480–81, 108 S. Ct. 2495, 101 L. Ed. 2d 420
(1988) (emphasizing that ‘‘a public street does not lose
its status as a traditional public forum simply because
it runs through a residential neighborhood’’ and that
‘‘[n]o particularized inquiry into the precise nature of
a specific street is necessary; all public streets are held
in the public trust and are properly considered tradi-
tional public fora’’); Lewis v. McCracken, 782 F. Supp.
2d 702, 711–12 (S.D. Ind. 2011) (following multiple cir-
cuits and holding that ‘‘privately owned sidewalks bor-
dering public roads qualify as traditional public
forums’’); Rodriguez v. Fox News Network, LLC, 356
P.3d 322, 324–28 (Ariz. App. 2015) (first amendment
barred intentional and negligent infliction of emotional
distress claims arising from news broadcast of driver’s
suicide at conclusion of high speed chase because law
enforcement response to crime is matter of public con-
cern and events happened on public highway).
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 negli-
gence, against persons who had engaged in an aggres-
sive protest of the city’s parking enforcement policies
by following and videotaping parking enforcement offi-
cers 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 interfer-
ence 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 omit-
ted.) Id., 258.
Following Snyder, the New Hampshire Supreme
Court rejected the city’s arguments, concluding that the
first amendment barred the city’s tort claims against
the protesters. Id., 261. The court disagreed with the
city’s claim that the form and context of the protesters’
seemingly harassing behavior rendered it constitution-
ally unprotected, noting first that the city did not ‘‘chal-
lenge the trial court’s conclusions that the content of
the [protesters’] speech is protected by the [f]irst
[a]mendment because it relates to a matter of public
concern, and that the [contested] activities take place
in a traditional public forum—the streets and sidewalks
of [the city].’’ Id., 260. The court agreed with the protest-
ers’ arguments that ‘‘[e]ven those activities that did not
involve speech [are] expressive conduct entitled to
[f]irst [a]mendment protection, and, therefore, are insu-
lated from tort liability,’’ and ‘‘absent acts of significant
violence, the [f]irst [a]mendment protects their nonver-
bal acts from tort liability.’’ (Internal quotation marks
omitted.) Id. Following NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 916–17, 102 S. Ct. 3409, 73 L. Ed. 2d
1215 (1982), which rejected a tort claim for damages
arising from a boycott of the plaintiff’s businesses, the
court held that the protesters’ ‘‘challenged conduct, like
[their] protected speech, is intended to draw attention
to the [c]ity’s parking enforcement operations and to
persuade the [officers] to leave their positions. There
is no allegation that the challenged conduct involves
violent conduct. . . . Moreover, conduct does not lose
its protected character . . . simply because it may
embarrass others or coerce them into action. . . . We
hold, therefore, that the [f]irst [a]mendment shields the
[protesters] from tort liability for the challenged con-
duct.’’23 (Citations omitted; internal quotation marks
omitted.) Keene v. Cleaveland, supra, 118 A.3d 261.
Guided heavily by this recent New Hampshire deci-
sion,24 which considered similarly targeted and harass-
ing conduct, we conclude that a substantial portion of
the defendants’ conduct that the trial court found to
constitute the intentional infliction of emotional dis-
tress was, in fact, protected by the first amendment.
This is particularly so, given that the trial court’s finding
that the defendants’ conduct was solely intended to
harass and ‘‘break’’ the plaintiff did not consider
whether those actions were intended to persuade her
with regard to a matter of public concern as in Keene,
rather than merely torture her gratuitously with regard
to a purely private matter. See Snyder v. Phelps, supra,
562 U.S. 458–59. The defendants have, therefore, estab-
lished a constitutional violation under the third prong
of State v. Golding, supra, 213 Conn. 239–40. See foot-
note 10 of this opinion.
Turning to the fourth prong of Golding, namely,
whether reversal is required, we conclude that the plain-
tiff, as appellee, has not established that the constitu-
tional violation was harmless beyond a reasonable
doubt, given the apparent significance of the flyer cam-
paign to the trial court’s finding on her intentional inflic-
tion 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 call-
ing the plaintiff offensive names, following her, and
videotaping her activities.25 Some or all of this conduct
might well be held to furnish an independent basis for
the judgment in favor of the plaintiff on her intentional
infliction of emotional distress claims, but neither the
Appellate Court nor the trial court made specific deter-
minations to this effect, instead focusing their analyses
primarily on what they deemed to be the defendants’
ill-motivated flyer campaign. See Gleason v. Smolinski,
supra, 149 Conn. App. 305–307. We leave to the trial
court, as the finder of fact, to consider in the first
instance whether the record supports a finding of inten-
tional infliction of emotional distress independent of
any constitutionally protected conduct. But see Apple-
ton v. Board of Education, 254 Conn. 205, 211, 757 A.2d
1059 (2000) (‘‘[c]onduct on the part of the defendant
that is merely insulting or displays bad manners or
results in hurt feelings is insufficient to form the basis
for an action based upon intentional infliction of emo-
tional distress’’ [internal quotation marks omitted]).
Accordingly, we conclude that the defendants are enti-
tled to a new trial, at which the trial court can consider
the evidence in light of the governing first amend-
ment principles.26
II
DEFAMATION CLAIMS
We next turn to the defendants’ claim that the Appel-
late Court improperly upheld the trial court’s conclu-
sion 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 matter of public concern.27
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 defama-
tory. 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 defen-
dants 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 conclu-
sion 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 defen-
dants had acted with actual malice in making these
statements in reckless disregard for the truth, thus sup-
porting the plaintiff’s claim for punitive damages. Id.,
311. Finally, the Appellate Court rejected the defen-
dants’ contention that the statements, if defamatory,
did not support a claim for damages because the plain-
tiff had suffered ‘‘no resulting reputational harm,’’ rea-
soning that injury was presumed because they were
defamatory per se under Urban v. Hartford Gas Co.,
supra, 139 Conn. 308. See Gleason v. Smolinski,
supra, 311–12.
Our consideration of the defendants’ specific chal-
lenges to the Appellate Court’s decision is informed by
the following general principles. Although defamation30
claims are rooted in the state common law, their ele-
ments ‘‘are heavily influenced by the minimum stan-
dards required by the [f]irst [a]mendment.’’ Celle v.
Filipino Reporter Enterprises, Inc., 209 F.3d 163, 176
(2d Cir. 2000); see also, e.g., Gertz v. Robert Welch, Inc.,
418 U.S. 323, 348–49, 94 S. Ct. 2997, 41 L. Ed. 2d 789
(1974); New York Times Co. v. Sullivan, 376 U.S. 254,
283–84, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Flamm
v. American Assn. of University Women, 201 F.3d 144,
149–50 (2d Cir. 2000). At common law, ‘‘[t]o establish
a prima facie case of defamation, the plaintiff must
demonstrate that: (1) the defendant published a defama-
tory statement; (2) the defamatory statement identified
the plaintiff to a third person; (3) the defamatory state-
ment was published to a third person; and (4) the plain-
tiff’s reputation suffered injury as a result of the
statement.’’31 (Internal quotation marks omitted.)
Gambardella v. Apple Health Care, Inc., 291 Conn. 620,
627–28, 969 A.2d 736 (2009).
‘‘A defamatory statement is defined as a communica-
tion 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 affir-
mative 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 gov-
ern 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 is a matter of public or private concern.
Thus, there are four possibilities: (1) public person/
public matter, (2) private person/public matter, (3) pub-
lic person/private matter, and (4) private person/private
matter.’’ Weldy v. Piedmont Airlines, Inc., 985 F.2d 57,
63 (2d Cir. 1993). We previously have noted that, under
New York Times Co. v. Sullivan, supra, 376 U.S. 254,
if ‘‘the plaintiff is a public figure . . . the plaintiff also
must prove that the defamatory statement was made
with actual malice, such that the statement, when made,
[was] made with actual knowledge that it was false or
with reckless disregard of whether it was false. . . .
Additionally, to recover punitive damages, a plaintiff
must prove actual malice, regardless of whether the
plaintiff is a public figure.’’ (Citations omitted; internal
quotation marks omitted.) Gambardella v. Apple Health
Care, Inc., supra, 291 Conn. 628; see also Gertz v. Robert
Welch, Inc., supra, 418 U.S. 350; Flamm v. American
Assn. of University Women, supra, 201 F.3d 148–49.
To sustain an award of punitive damages, the plaintiff
must prove actual malice by clear and convincing evi-
dence, which ‘‘denotes a degree of belief that lies
between the belief that is required to find the truth or
existence of the issuable fact in an ordinary civil action
and the belief that is required to find guilt in a criminal
prosecution.’’ (Internal quotation marks omitted.)
Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536–37,
368 A.2d 125 (1976). The other elements of defamation,
including the subsidiary historical facts, are, however,
subject to proof under the preponderance of the evi-
dence standard. Holbrook v. Casazza, 204 Conn. 336,
358–59, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006,
108 S. Ct. 699, 98 L. Ed. 2d 651 (1988); Miles v. Perry,
11 Conn. App. 584, 588–89, 529 A.2d 199 (1987).32
Before turning to the defendants’ claims in the pres-
ent appeal, we observe four touchstones for our analy-
sis. First, the parties do not dispute for purposes of
the defamation claim that the oral statements at issue,
which pertain to the plaintiff’s role in Bill’s death or
disappearance, implicate a matter of public concern for
first amendment purposes.33 See Holloway v. American
Media, Inc., supra, 947 F. Supp. 2d 1261 n.10; see also,
e.g., Miles v. Ramsey, 31 F. Supp. 2d 869, 875 (D. Colo.
1998) (child murder investigation matter of public con-
cern for purposes of defamation claims arising from
article in tabloid newspaper indicating that neighbor is
pedophile); Shoen v. Shoen, 292 P.3d 1224, 1229–30
(Colo. App. 2012) (defendant’s statement in television
interview that plaintiff was ‘‘capable’’ of arranging mur-
der of his brother’s wife implicated matter of public
concern, triggering state’s higher burden of proof in
defamation action). Second, with no serious argument
to the contrary, we treat the plaintiff as a private figure.
Third, we assume, without deciding, that the Appellate
Court properly agreed with the plaintiff’s characteriza-
tion of the statements at issue as purported statements
of opinion that were, in reality, actionable statements of
implied fact under, for example, Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 448 A.2d
1317 (1982), and Lester v. Powers, 596 A.2d 65 (Me.
1991).34 Finally, there is no dispute that the subject
matter of these statements is defamatory per se because
they charge crimes punishable by imprisonment and,
therefore, the plaintiff is relieved from the burden of
pleading and proving damages to her reputation. See,
e.g., Skakel v. Grace, 5 F. Supp. 3d 199, 206–207 (D.
Conn. 2014); see also footnote 31 of this opinion.
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 first amendment rights. The plaintiff
argues that the proper standard of review is abuse of
discretion. We conclude that appellate review of the
trial court’s conclusions with respect to defamation in
this case requires us to review the underlying findings
of historical fact for clear error, but also to engage in
an independent review of those determinations by the
trial court that carry constitutional significance, such
as whether those facts constituted clear and convincing
evidence of actual malice justifying an award of puni-
tive damages.
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. Jour-
nal Publishing Co., supra, 525–36. Rather, consistent
with the analysis applied in other first amendment con-
texts; see part I of this opinion; the court observed that,
in ‘‘reviewing defamation actions, an appellate court
has an obligation 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. . . . Because freedom of
expression occupies the highest rung of the hierarchy
of [f]irst [a]mendment values, and is entitled to special
protection . . . [t]he rule of independent review
assigns to appellate courts in first amendment freedom
of expression cases, a constitutional responsibility that
cannot be delegated to the trier of fact, whether the
[fact-finding] function be performed in the particular
case by a jury or by a trial judge.’’35 (Citations omitted;
internal quotation marks omitted.) Id., 536.
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 ordi-
narily given to the trial judge’s opportunity to observe
the demeanor of the witnesses. . . . In a footnote, the
. . . court [in Bose Corp.] clarified that [t]he indepen-
dent review function is not equivalent to a de novo
review of the ultimate judgment itself, in which a
reviewing court makes an original appraisal of all the
evidence to decide whether or not it believes that judg-
ment should be entered for [the] plaintiff. . . . The
court noted that, apart from the finding of actual malice,
to which the rule of independent review applies, the
other findings of fact in a defamation case are properly
tested under the clearly erroneous standard of
review.’’36 (Citations omitted; emphasis omitted; inter-
nal 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 inde-
pendent review does not mean that we disregard credi-
bility determinations of the trier of fact. . . .
Deference to factual determinations that turn on credi-
bility assessment is essential because of the fact finder’s
unique opportunity to observe and weigh witness testi-
mony.’’ (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 know-
ingly made false statements about plaintiff’s employ-
ment 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 erro-
neous 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 amend-
ment 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 contin-
ues 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 defa-
mation claim.’’
In response, the plaintiff relies on Goodrich v. Water-
bury 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 Con-
necticut 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’’
under Gertz v. Robert Welch, Inc., supra, 418 U.S. 323,
resulting solely from the publication of the allegedly
tortious statements.37 The plaintiff then contends that,
‘‘[e]ven if this court were to adopt the defendants’ radi-
cal position . . . it would not alter the result in this
case,’’ insofar as the trial court found that the defen-
dants acted in reckless disregard for the truth in making
the statements at issue, given evidence in the record
that was sufficient to establish she knew nothing about
Bill’s disappearance. We agree with the defendants,
insofar as they claim that reversal is required because
the plaintiff failed to prove the falsity of the allegedly
defamatory statements.
We note at the outset that this claim was not pre-
served 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 defen-
dants’ 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 constitu-
tional 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 proposi-
tion. 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 stan-
dard 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 pri-
vate 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 inter-
est in that concern.’’ Flamm v. American Assn. of Uni-
versity 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 pri-
vate matters,’’ but stating that ‘‘[f]or constitutional rea-
sons . . . a private-figure plaintiff . . . generally has
the burden of proving falsity, at least where the alleg-
edly defamatory statements concern a matter of public
interest’’ [citation omitted]).
In describing this burden shift away from the com-
mon-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 defama-
tion 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 con-
cern, the [c]ourt has been willing to insulate even
demonstrably false speech from liability, and has
imposed additional requirements of fault upon the plain-
tiff in a suit for defamation.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.)
Philadelphia Newspapers, Inc. v. Hepps, supra, 475
U.S. 778. The court further observed that this burden
shift ‘‘adds only marginally to the burdens that the plain-
tiff 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, evi-
dence offered by plaintiffs on the publisher’s fault in
adequately investigating the truth of the published state-
ments will generally encompass evidence of the falsity
of the matters asserted.’’43 Id.
Our review of the record indicates that neither the
trial court nor the Appellate Court ever expressly con-
sidered whether the plaintiff proved the falsity of the
defamatory statements under any standard of proof.44
This indicates a violation of the plaintiff’s first amend-
ment rights under Philadelphia Newspapers, Inc. v.
Hepps, supra, 475 U.S. 778–79, and Flamm v. American
Assn. of University Women, supra, 201 F.3d 149, thus
satisfying the third prong of State v. Golding, supra,
213 Conn. 239–40. See footnote 10 of this opinion. Turn-
ing to Golding’s fourth prong, however, the plaintiff
contends that reversal of the defamation judgment is
not required insofar as the Appellate Court upheld, as
not clearly erroneous, the trial court’s conclusion that
the defendants made the statements at issue with actual
malice by acting with reckless disregard for the truth,
thus implying their falsity.45 To this end, the plaintiff
argues that the ‘‘defendants simply had no factual basis
whatsoever for the accusations they made, yet they
made them anyway and did so not only with knowledge
that they would injure the plaintiff but for the specific
and articulated purpose of ‘break[ing] her.’ ’’ In support
of this argument, she cites her own testimony as suffi-
cient evidence that she ‘‘had no knowledge whatsoever
concerning [Bill’s] disappearance . . . .’’ Having
reviewed the record, we disagree with the plaintiff’s
argument that it supports the trial court’s finding of
actual malice.
‘‘As we previously have noted, actual malice requires
a showing that a statement was made with knowledge
that it was false or with reckless disregard for its truth.
. . . A negligent misstatement of fact will not suffice;
the evidence must demonstrate a purposeful avoidance
of the truth. . . . Further, 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 . . . although
such evidence may assist in drawing an inference of
knowledge or reckless disregard of falsity. . . .
‘‘Whether a defendant has knowledge of the falsity
of a defamatory statement is a question within the prov-
ince 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] publi-
cation . . . . Moreover, [a] refusal to retract a state-
ment 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 con-
clude 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 indicat-
ing 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 deter-
mination that ‘‘[w]e do not have a case of mere negligent
utterances not based on fact but on suspicion and con-
jecture,’’ particularly given that the plaintiff never chal-
lenged at trial the defendants’ personal knowledge of
the factual basis for their statements. Indeed, the evi-
dence 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 enter-
tained serious doubts as to the truth of their allega-
tions.’’ (Internal quotation marks omitted.) Tan v. Le,
supra, 177 Wn. 2d 674.
First, the plaintiff and Bill ended their romantic rela-
tionship within just a few days of his disappearance,
and the morning he disappeared, he was involved in an
altercation at DePallo’s house, when he put a ladder
up to the bedroom where the plaintiff was staying, when
he could not reach her by telephone.46 That night, Bill
also left multiple threatening telephone messages for
Sorensen, who was his apparent rival for the plaintiff’s
affections. Indeed, an affidavit in support of an arrest
warrant for Janice Smolinski,47 and the plaintiff’s own
testimony,48 confirms that the Waterbury police have
considered the plaintiff as a suspect in Bill’s disappear-
ance, and have not yet ruled her out because she has
refused, on the advice of counsel, to take a polygraph
examination.49 Moreover, the defendants have searched
for the truth into Bill’s disappearance, and have retained
Todd Lovejoy, a retired Waterbury police officer, as a
private detective to help them; the plaintiff has not
responded to Lovejoy’s attempts to speak to her about
Bill’s disappearance. Finally, the defendants then
became aware of the plaintiff’s own conduct, along with
that of Vrabel, in removing the missing person flyers
in the town of Bethany, which, as the trial court found,
triggered the defendants’ more intense flyer campaign
that gave rise to the intentional infliction of emotional
distress claim addressed in part I of this opinion. In
comparison to the other cases in which we have upheld
findings of actual malice,50 these circumstances indicate
that the defendants did not act with reckless disregard
for the truth in stating to other people that the plaintiff,
at the very least, knows more than she is saying about
Bill’s disappearance.51
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 infor-
mation 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 evi-
dence 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 defa-
mation.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and ESPINOSA, Js., concurred.
1
We note that, although William Smolinski, Jr., was known to his family
and friends as Billy; see Gleason v. Smolinski, 149 Conn. App. 283, 286–87,
88 A.3d 589 (2014); both the trial court and the Appellate Court referred to
him as Bill. For the sake of consistency with those opinions, we refer to
William Smolinski, Jr., as Bill.
2
We note that B and B Transportation, Inc., was also a plaintiff in the
underlying action but subsequently withdrew its claims against the defen-
dants. See Gleason v. Smolinski, 149 Conn. App. 283, 286 n.2, 88 A.3d 589
(2014). For the sake of simplicity, we refer to Gleason as the plaintiff.
3
As noted by the Appellate Court, the ‘‘plaintiff . . . also [filed claims
against] John Murray, the owner, publisher and editor of a monthly newspa-
per, the Waterbury Observer, for invasion of privacy and intentional infliction
of emotional distress. Murray filed a motion to strike the claims against
him, which the court granted on July 20, 2009. He then moved for summary
judgment because all of the counts directed at him had been stricken by
the court. The court granted Murray’s motion for summary judgment on
January 12, 2010. Thus, none of the claims [on] appeal pertain to Murray.’’
(Citation omitted.) Gleason v. Smolinski, 149 Conn. App. 283, 285 n.1, 88
A.3d 589 (2014). For the sake of simplicity, we refer to Janice Smolinski
and Bell collectively as the defendants and individually by name.
 4
We granted the defendants’ petition for certification to appeal limited
to the following issues: ‘‘1. Did the Appellate Court properly conclude that
the defendants’ . . . claim of protected speech [under the first amendment
to the United States constitution] failed to satisfy the third prong of the test
for review of unpreserved claims set forth in State v. Golding, 213 Conn.
213, 239–40, 567 A.2d 823 (1989)?
‘‘2. Did the Appellate Court properly affirm the trial court’s determination
that the defendants were liable for defamation per se of the . . . plaintiff?’’
Gleason v. Smolinski, 312 Conn. 920, 94 A.3d 1201 (2014).
5
‘‘The first amendment to the United States constitution provides in rele-
vant part: ‘Congress shall make no law . . . abridging the freedom of
speech . . . .’
‘‘The first amendment prohibition against laws abridging the freedom of
speech is made applicable to the states through the due process clause of
the fourteenth amendment to the United States constitution.’’ State v. Moul-
ton, 310 Conn. 337, 341 n.3, 78 A.3d 55 (2013).
In a footnote, the defendants raise a separate claim under article first,
§ 4, of the Connecticut constitution, arguing that ‘‘the state constitutional
protection for free speech should be no less protective of the defendants’
speech.’’ Because the defendants’ state constitutional claim is perfunctorily
briefed without an independent analysis consistent with State v. Geisler,
222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we confine our analysis in this
opinion to their federal claim. See, e.g., State v. Johnson, 288 Conn. 236,
244 n.14. 951 A.2d 1257 (2008).
6
As the Appellate Court noted, ‘‘[t]he plaintiff reported to Waterbury
police Sergeant Edward Apicella on August 3, 2005, during the course of the
police department’s investigation of [Bill’s] disappearance that . . . ‘prior to
her relationship with Bill she was having an affair with . . . Sorensen and
she is currently continuing to have that affair. She said that she believed
Bill suspected [or] knew of her having an affair with [Sorensen] for a time
but she didn’t actually tell him until she went on a trip to Florida with Bill.
[The plaintiff] said that it came to [a head] when they went on a trip to
Florida the week prior to August 22, 2004. She said that she was getting
phone calls on her cell phone . . . while they were on a beach in Florida.
Bill grabbed the cell phone from her and was trying to see who was calling
her. [The plaintiff] said that when she tried to get the phone from him he
hit her and they had a fight. She began to yell at people on the beach to
call the police because Bill was not [returning] her cell phone. She never
made a report to the police and she eventually got her phone back. Bill told
her that he wanted to end the relationship because he wanted more out of
it. . . . She agreed and they returned from Florida [on Sunday, August 22,
2004]. [The plaintiff] went on to say that she had been married three times,
she liked Bill but she didn’t need to baby-sit a [thirty-one] year old guy who
liked to drink and fight. She said that Bill used to . . . get into fights all
the time. She also claimed that Bill started to smoke drugs . . . . She said
she was already involved with Sorensen as well. It was [Bill’s] idea to break
up but she agreed.’ ’’ Gleason v. Smolinski, supra, 149 Conn. App. 287 n.3.
7
As the Appellate Court noted, Waterbury police Sargent Edward Apicel-
la’s police report stated that the plaintiff ‘‘said that she got a call from
[Sorensen] saying that someone left a message on his answering machine
that said: ‘You better watch your back at all times.’ [The plaintiff] heard the
message and she said that it was Bill . . . .’’ Gleason v. Smolinski, supra,
149 Conn. App. 287 n.3.
8
‘‘The evidence shows that the missing person posters that were hung
by the defendants consisted of photographs and physical descriptions of
Bill . . . as well as information about his disappearance, an offer of a
reward, and contact information to report tips to the police.’’ Gleason v.
Smolinski, supra, 149 Conn. App. 288 n.4.
9
The defendants also claimed that: (1) ‘‘the trial judge exhibited bias and
partiality that constituted plain error’’; (2) ‘‘the [trial] court erred in relying
on hearsay statements to determine that the defendants intended to inflict
emotional distress upon the plaintiff’’; (3) ‘‘there was insufficient evidence
to support the finding of intentional infliction of emotional distress’’; and
(4) ‘‘the [trial] court erred in awarding compensatory and punitive damages
to the plaintiff.’’ Gleason v. Smolinski, supra, 149 Conn. App. 286. The
Appellate Court rejected these other claims, and we do not address them
further because they are not before us in this certified appeal. See footnote
4 of this opinion.
10
A party ‘‘can prevail on a claim of constitutional error not preserved at
trial only if all of the following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional violation beyond a reason-
able doubt. In the absence of any one of these conditions, the defendant’s
claim will fail. The appellate tribunal is free, therefore, to respond to the
defendant’s claim by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Emphasis omitted; footnote omitted.) State
v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., 317 Conn. 773,
780–81, A.3d (2015) (modifying third prong). ‘‘The test set forth in
Golding applies in civil as well as criminal cases.’’ Chatterjee v. Commis-
sioner of Revenue Services, 277 Conn. 681, 694 n.15, 894 A.2d 919 (2006).
We note that in In re Yasiel R., supra, 317 Conn. 780–81, we recently held
that ‘‘a party satisfies the third prong of Golding if he or she makes a
showing sufficient to establish a constitutional violation,’’ and that this
court’s ‘‘use of the word ‘clearly’ in describing the requirements under that
prong of the test is unnecessary and misleading.’’ See also id., 781 (noting that
‘‘we have previously employed Golding to decide constitutional questions of
first impression,’’ and rejecting conclusion that Golding required appellant
to ‘‘reference prior Connecticut precedent to be successful under the
third prong’’).
11
The defendants also argue that the Appellate Court improperly con-
cluded that the first amendment issue was unpreserved. Without providing
a citation to the record, the defendants contend that they raised this issue
before the trial court—which did not address it in its memorandum of
decision. Our review of the record indicates that this issue is mentioned
for the first time in a postjudgment motion for articulation, which, as the
trial court observed, is not a proper way to preserve an issue for appellate
review. Cf. White v. Mazda Motor of America, Inc., 313 Conn. 610, 633–34,
99 A.3d 1079 (2014) (‘‘[r]aising an issue for the first time in a motion to
reargue will not preserve that issue for appellate review’’).
12
The defendants further contend that the trial court improperly failed
to defer to the rulings of a different judge, Hon. Robin L. Wilson, earlier
in the case, which, in striking the claims against the defendant John Murray;
see footnote 3 of this opinion; concluded that the issues relating to the
plaintiff’s relationship with Bill, and his ultimate disappearance were matters
of legitimate public concern for purposes of tort immunity under the first
amendment. We disagree. Even if we assume, without deciding, that Judge
Wilson’s legal conclusions with respect to Murray’s motion to strike were
directly applicable to the plaintiff’s claims against the remaining defendants,
under the law of the case doctrine, Judge Corradino, who conducted the
court trial in this case, was not bound to follow them. See, e.g., Total
Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Ser-
vices, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).
13
At oral argument before this court, the plaintiff clarified that her state-
ment in her brief that it is ‘‘far from clear that [the defendants’] conduct in
this case fell within the protections of the first amendment,’’ was not intended
as a restrictive interpretation of the third prong of State v. Golding, supra,
213 Conn. 239–40, which would operate akin to case law arising under 42
U.S.C. § 1983 by focusing the availability of relief on the existence of clearly
governing constitutional principles, rather than the clarity of the legal conclu-
sions arising from a review of the facts in the record. We note that this
position is consistent with our recent decision in In re Yasiel R., 317 Conn.
773, 780–81, A.3d (2015). See footnote 10 of this opinion.
14
By way of background, we note that ‘‘[i]n order for the plaintiff to
prevail in a case for liability . . . [alleging intentional infliction of emotional
distress], four elements must be established. It must be shown: (1) that the
actor intended to inflict emotional distress or that he knew or should have
known that emotional distress was the likely result of his conduct; (2) that
the conduct was extreme and outrageous; (3) that the defendant’s conduct
was the cause of the plaintiff’s distress; and (4) that the emotional distress
sustained by the plaintiff was severe. . . . Whether a defendant’s conduct
is sufficient to satisfy the requirement that it be extreme and outrageous is
initially a question for the court to determine. . . . Only where reasonable
minds disagree does it become an issue for the jury. . . .
‘‘Liability for intentional infliction of emotional distress requires conduct
that exceeds all bounds usually tolerated by decent society . . . . Liability
has been found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor,
and lead him to exclaim, Outrageous! . . . Conduct on the part of the
defendant that is merely insulting or displays bad manners or results in hurt
feelings is insufficient to form the basis for an action based upon intentional
infliction of emotional distress.’’ (Internal quotation marks omitted.) Perez-
Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012); see also
Russo v. Hartford, 184 F. Supp. 2d 169, 188 (D. Conn. 2002) (‘‘[t]he standard in
Connecticut to demonstrate extreme and outrageous conduct is stringent’’).
15
Substantial portions of the defendants’ brief and oral argument before
this court appear to reargue the facts as found by the trial court, in the
course of urging us to undertake an ‘‘independent’’ review of the record
under State v. Golding, supra, 213 Conn. 239–40. Consistent with the first
amendment analyses in, for example, State v. Krijger, supra, 313 Conn.
447–49, and DiMartino v. Richens, supra, 263 Conn. 661–62, our review of
the defendants’ unpreserved constitutional claims under Golding does not
permit us to disregard the trial court’s findings of historical fact resolving
conflicting 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, e.g., State v. Lawrence, 282 Conn. 141,
157–58, 920 A.2d 236 (2007); State v. Brunetti, 279 Conn. 39, 55–56, 901
A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85
(2007). Rather—and the dissent’s characterization of our analysis notwith-
standing—we consider only whether the trial court’s factual findings were
made in accordance with the principles of the first amendment.
16
Hustler Magazine, Inc. v. Falwell, supra, 485 U.S. 46, arose from a
magazine’s publication of a parody cartoon depicting a prominent minister
having sexual relations with his mother in an outhouse. In that case, the
United States Supreme Court extended New York Times Co. v. Sullivan,
376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), and concluded that
‘‘public figures and public officials may not recover for the tort of intentional
infliction of emotional distress by reason of publications such as the one
here at issue without showing in addition that the publication contains a
false statement of fact which was made with ‘actual malice,’ i.e., with knowl-
edge that the statement was false or with reckless disregard as to whether
or not it was true.’’ Hustler Magazine, Inc. v. Falwell, supra, 56. The court
observed that, although ‘‘the law does not regard the intent to inflict emo-
tional distress as one which should receive much solicitude, and it is quite
understandable that most if not all jurisdictions have chosen to make it
civilly culpable where the conduct in question is sufficiently ‘outrageous.’
But in the world of debate about public affairs, many things done with
motives that are less than admirable are protected by the [f]irst [a]mend-
ment.’’ Id., 53. In particular, the court noted that, in Garrison v. Louisiana,
379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), it had held that ‘‘even
when a speaker or writer is motivated by hatred or ill will his expression
was protected by the [f]irst [a]mendment.’’ Hustler Magazine, Inc. v. Falwell,
supra, 53; see also id., 53–54 (noting that holding to contrary would lead to
liability chilling work of political cartoonists and satirists, who often use
offensive caricatures in their work).
The Supreme Court rejected the minister’s urging to use an ‘‘outrageous-
ness’’ standard to distinguish the cartoon at issue in Hustler Magazine,
Inc., from ‘‘more traditional political cartoons,’’ stating that the term ‘‘out-
rageousness’’ does not furnish a ‘‘principled standard’’ for making that dis-
tinction, given that ‘‘[o]utrageousness in the area of political and social
discourse has an inherent subjectiveness about it which would allow a jury
to impose liability on the basis of the jurors’ tastes or views, or perhaps on
the basis of their dislike of a particular expression. An outrageousness
standard thus runs afoul of our [long-standing] refusal to allow damages to
be awarded because the speech in question may have an adverse emotional
impact on the audience. See NAACP v. Claiborne Hardware Co., 458 U.S.
886, 910 [102 S. Ct. 3409, 73 L. Ed. 2d 1215] (1982) ([s]peech does not lose
its protected character . . . simply because it may embarrass others or
coerce them into action).’’ (Internal quotation marks omitted.) Hustler Mag-
azine, Inc. v. Falwell, supra, 485 U.S. 55.
17
The court observed that, however ‘‘hurtful’’ their conduct, ‘‘the church
members had the right to be where they were. Westboro alerted local authori-
ties to its funeral protest and fully complied with police guidance on where
the picketing could be staged. The picketing was conducted under police
supervision some [1000] feet from the church, out of the sight of those at
the church. The protest was not unruly; there was no shouting, profanity,
or violence.’’ Snyder v. Phelps, supra, 562 U.S. 457; see also id. (‘‘[A]ny
distress occasioned by Westboro’s picketing turned on the content and
viewpoint of the message conveyed, rather than any interference with the
funeral itself. A group of parishioners standing at the very spot where
Westboro stood, holding signs that said ‘God Bless America’ and ‘God Loves
You,’ would not have been subjected to liability. It was what Westboro said
that exposed it to tort damages.’’).
18
One commentator aptly observes that, ‘‘[w]hile public concern in Snyder
represents a constitutional requirement grafted onto the common law [of
intentional infliction of emotional distress] to provide a check on the subjec-
tive and equally pliable element of extreme and outrageous conduct, it may
well be that the two concepts are simply inversely correlated. Specifically,
the more the speech in question is about a matter of public concern, the
less likely it is for publication of that speech to be deemed extreme and
outrageous. . . . In this sense, then, initial judicial resolution of the consti-
tutional public-concern question largely dictates how courts will later resolve
the [common-law] question of whether publication of the speech was
extreme and outrageous.’’ C. Calvert, ‘‘Public Concern and Outrageous
Speech: Testing the Inconstant Boundaries of IIED and The First Amendment
Three Years After Snyder v. Phelps,’’ 17 U. Pa. J. Const. L. 437, 475–76 (2014).
19
For additional illustrations of this well established principle, see, for
example, Best v. Berard, 776 F. Supp. 2d 752, 756–58 (N.D. Ill. 2011) (plain-
tiff’s arrest for driving with suspended license was matter of public concern
barring intentional infliction of emotional distress claim arising from her
appearance on reality television program); Hobbs v. Pasdar, 682 F. Supp.
2d 909, 927–28 (E.D. Ark. 2009) (‘‘West Memphis Three’’ murder case issue
of public concern); Miles v. Ramsey, 31 F. Supp. 2d 869, 875 (D. Colo. 1998)
(child murder investigation is matter of public concern for purposes of
defamation claims arising from tabloid article indicating that plaintiff, who
was victim’s neighbor, is pedophile); Shoen v. Shoen, 292 P.3d 1224, 1229–30
(Colo. App. 2012) (defendant’s statement on television that plaintiff was
‘‘capable’’ of arranging murder of his brother’s wife implicated matter of
public concern, triggering higher burden of proof in defamation action);
Wiemer v. Rankin, 117 Idaho 566, 570–71, 790 P.2d 347 (1990) (article about
inadequate investigation related to matter of public concern for purposes
of husband’s defamation claims arising from shooting death of wife); Dumas
v. Koebel, 352 Wis. 2d 13, 29–30, 841 N.W.2d 319 (App. 2013) (first amendment
barred school bus driver’s claims for, inter alia, intentional infliction of
emotional distress, which she brought against broadcaster who had con-
fronted her about past misdemeanor prostitution conviction during news
story intended to ‘‘inform the public that there were bus drivers who had
criminal histories . . . and question whether the school district was thor-
oughly researching the backgrounds of bus drivers’’), review denied, 354
Wis. 2d 863, 848 N.W.2d 859 (2014).
20
The trial court discussed this finding in greater detail, crediting the
testimony of Brad Cohen, the plaintiff’s supervisor and employer at B and
B Transportation, Inc., that ‘‘in traveling around several towns the posters
were generally ‘well spaced out’—‘at different poles.’ However, on [the
plaintiff’s] school bus run and at the house where she lived ‘there were
multiple posters on each and every telephone pole, on guardrails.’ He said
you could easily do a run (school bus route) by following the posters—
‘they led down every street, every side street, every nook and cranny of
. . . these places.’ ’’ The trial court also credited Cohen’s testimony that
‘‘posters were placed at the entrance to his school bus transportation busi-
ness on either side of the driveway—a driveway the plaintiff would have
to enter and exit at least four times daily.’’ Finally, the trial court credited
the testimony of Melissa DePallo, a friend of the plaintiff, that the plaintiff’s
school bus ‘‘run was definitely targeted with flyers. [The plaintiff] lived with
[DePallo] for a short time. She lives on a dead end street and her house
‘was definitely bombarded with flyers.’ There were no other flyers on the
whole street; the pole in front of her house had twenty posters placed on
it. When they were taken down, they went up the next day, it went on not
just for the few months [the plaintiff] lived with DePallo, it went on for a
year according to her. [The plaintiff] testified that she lived with another
friend who testified on her behalf and that person’s house was saturated
with posters.’’
The trial court also noted that ‘‘no evidence was presented as to why the
[defendants] could in fact believe it was a necessary aid to the location of
Bill . . . to [hang] posters along [the plaintiff’s] bus route. It was under-
standable to do so along Route 63 which provides a direct connection
between the Waterbury area and [the city of] New Haven but saturation of
other areas [in the towns] of Woodbridge and Bethany do not appear to fall
in this category. [The plaintiff] lived and worked in the Woodbridge and
Bethany area. But apart from a short period of employment at [B and B
Transportation, Inc.] and his dating of [the plaintiff] who lived in Woodbridge
nothing was presented to [indicate] Bill . . . had any other connection to
these towns.
‘‘From another perspective 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. The [defendants] ordered thousands of posters and
hung many in various areas of Connecticut’s western part. But the poster
hanging activity in towns where [the plaintiff] worked and lived was appar-
ently done from the beginning of the poster hanging activity. The removal
of posters from Woodbridge, Bethany, and [the town of] Ansonia began to be
noticed in just a couple of weeks after their being put up by the [defendants].’’
21
The dissent states that ‘‘the trial court found that the defendants’ tar-
geting 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.’’ The dissent also criticizes us for ‘‘disregarding’’ this
‘‘crucial finding,’’ namely, that the defendants’ sole intent was to ‘‘harass
. . . .’’ We respectfully disagree with the dissent’s reading of the record and
the trial court’s findings. Nothing 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.
The dissent also appears to contend that the defendants’ first amendment
claims were properly preserved in the trial court, rendering Golding review
unnecessary because a ‘‘review of the trial court opinion reveals that the
trial court did consider free speech issues when deciding this matter.’’ We
do not suggest that the trial court was completely unaware that the general
subject matter of this case has first amendment implications. The dissent’s
discussion of the trial court’s references to the defendants’ free speech
rights focuses, however, on conduct the propriety and protected nature of
which is not at issue in this appeal, namely, the defendants’ rights to speak
to law enforcement authorities or the public about details surrounding Bill’s
disappearance. There is nothing in the trial court’s opinion indicating that
it considered the first amendment implications of the defendants’ flyer
campaign, which were a substantial basis for the plaintiff’s intentional inflic-
tion of emotional distress claim.
This, of course, explains why the Appellate Court considered the defen-
dants’ first amendment claims under the Golding bypass that is available
for unpreserved constitutional claims. See Gleason v. Smolinski, supra, 149
Conn. App. 289–90. It is, of course, this very analysis that formed the basis
for the first question that we certified in this appeal, namely: ‘‘Did the
Appellate Court properly conclude that the defendants’ first amendment
claim of protected speech failed to satisfy the third prong of the test for
review of unpreserved claims set forth in State v. Golding, [supra, 213 Conn.
239–40]?’’ Gleason v. Smolinski, 312 Conn. 920, 94 A.3d 1201 (2014). The
dissent’s attempt to litigate preservation, with no argument on this point
from the parties, is at drastic odds with the well settled procedures that we
employ in considering certified appeals from judgments of the Appellate
Court, namely, that ‘‘the focus of our review is not the actions of the trial
court, but the actions of the Appellate Court. We do not hear the appeal de
novo. The only questions that we need consider are those squarely raised
by the petition for certification, and we will ordinarily consider these issues
in the form in which they have been framed in the Appellate Court.’’ (Internal
quotation marks omitted.) State v. Saucier, 283 Conn. 207, 221, 926 A.2d
633 (2007); see also id., 222–23 (declining to consider claim that evidence
was not hearsay in certified appeal because that argument, although properly
preserved at trial, was neither raised before Appellate Court nor mentioned
in petition for certification). Accordingly, we conclude that the record dem-
onstrates that the trial court’s findings on the claims at issue in the present
appeal did not consider, and were not guided by, the relevant first amend-
ment principles.
22
The New Hampshire court noted that the city ‘‘employs [officers] to
enforce motor vehicle parking laws and regulations . . . . The [officers]
patrol . . . on foot and in marked vehicles, monitoring parking meters and
issuing parking tickets. In December 2012, the [protesters] began protesting
parking enforcement . . . . On an almost daily basis, the [protesters] fol-
lowed closely behind the [officers], identifying expired parking meters and
filling the meter before [an officer] could issue a ticket, a process referred
to by the [protesters] as a ‘save.’ When the [protesters] ‘save’ a vehicle, they
leave a card on the vehicle’s windshield that [read]: ‘Your meter expired!
However, we saved you from the king’s tariff!’ The [protesters] also: video-
taped the [officers] from a close proximity; called the [officers] names such
as ‘[fucking] thief,’ ‘coward,’ ‘racist,’ and ‘[bitch]’; criticized the [officers]
for issuing tickets; encouraged the [officers] to quit their jobs; and waited
for the [officers] during their breaks, including waiting outside restrooms.
The [protesters] testified that they engage in these activities to protest
parking enforcement because they believe that parking is not a criminal
act, and that parking tickets are a ‘threat against [the] people.’ The [officers]
testified that they repeatedly asked the [protesters] to stop their activities,
complained to the . . . police . . . and reported the [protesters’] activities
to the city attorney.’’ Keene v. Cleaveland, supra, 118 A.3d 255–56.
At an evidentiary hearing, the officers ‘‘testified that the close proximity
of the [protesters]—sometimes only [one] foot away from them—caused
[them] anxiety and made them feel harassed. One [officer] testified that he
was sometimes followed on his patrols by two or three of the [protesters]
at the same time, and that they followed him so closely that if he turned
around, they would bump into him. He ultimately resigned because ‘the
constant harassment and intimidation [had] started to boil over into [his]
personal life and [his] time off,’ and he felt he was ‘backed into a corner.’
Another [officer] testified that she is ‘tense and uptight all the time’ because
of the ‘awful anticipation’ of ‘waiting for [the protesters] to show up,’ and
claimed that she is unable to do her job because she is ‘trying to avoid [the
protesters].’ A third, who complained that the [protesters] waited outside
her car and followed her in and out of city buildings on her breaks, testified
that she does not feel safe when the [protesters] follow her at work. She
also testified that, on one occasion, one of the [protesters] grabbed her
wrist when she attempted to remove one of the . . . cards from a car
windshield. She has changed her work schedule to avoid the [protesters],
and has considered quitting her job. The [c]ity also offered testimony about
the risk to public safety: specifically, that the [protesters] distract the [offi-
cers] as they drive on city streets, and that the [protesters] ‘[dart] across’
the street, which the [c]ity asserted could result in pedestrian injuries or
vehicle collisions.’’ Id., 256–57.
23
The New Hampshire Supreme Court remanded the case, however, for
consideration of the city’s request for injunctive relief, despite the proper
dismissal of the tort damages claims, given ‘‘the impact of the challenged
conduct upon the [c]ity’s interests in preserving public safety and protecting
the [officers].’’ Keene v. Cleaveland, supra, 118 A.3d 261–62. The court held
that the trial court had improperly failed to ‘‘consider the factual circum-
stances of the case prior to making its determination as to whether injunctive
relief was warranted,’’ given the allegations that the officers felt intimidated
and harassed, and that the protesters had acted ‘‘with the purpose and
intention of preventing the [officers] from doing their jobs.’’ (Internal quota-
tion marks omitted.) Id., 262. The court concluded that in ‘‘light of the [c]ity’s
allegations that the challenged conduct threatens the safety of the [officers],
pedestrians, and the motoring public, and given the testimony of the [offi-
cers] at the hearing . . . the trial court erred when it failed to consider the
particular factual circumstances of the case and whether an injunction
should issue based upon the governmental and policy interests asserted by
the [c]ity.’’ Id., 263. It determined that the trial court should consider in the
first instance whether a content neutral injunction could be fashioned that
would protect the officers and the protesters’ constitutional rights. Id.
24
In its reliance on and attempt to distinguish Keene v. Cleaveland, supra,
118 A.3d 253, the dissent again relies on the finding by the trial court in the
present case that the defendants intended to ‘‘hound’’ the plaintiff until she
‘‘broke,’’ and engaged in the placement of posters ‘‘for the sole purpose of
intimidating and harassing the plaintiff . . . .’’ We respectfully disagree.
Consistent with the New Hampshire Supreme Court’s conclusion that the
protesters’ harassing activities were constitutionally protected attempts to
persuade the officers to quit their jobs, despite the fact that they caused
the targeted officers considerable distress; see footnote 22 of this opinion;
the record indicates that the defendants’ activities in the present case were
consistent with their constitutionally protected activity of persuading the
plaintiff to share her knowledge with respect to Bill’s disappearance. There
was no finding that the defendants intended to ‘‘break’’ the plaintiff solely out
of malice stemming from a purely private dispute; the defendants’ persuasive
activities more than related to the matter of public concern, namely, solving
Bill’s disappearance.
25
Specifically, we acknowledge that the parties had engaged in a confronta-
tion at the Woodbridge police station, and that the trial court apparently
credited the plaintiff’s testimony that ‘‘every time she saw the defendants
they would swear at her and call her names,’’ like ‘‘ho’’ and ‘‘slut.’’ See
Gleason v. Smolinski, supra, 149 Conn. App. 294.
26
We disagree with the plaintiff’s reliance on Bhatia v. Debek, 287 Conn.
397, 948 A.2d 1009 (2008), in support of her argument that our conclusion
renders false accusations of criminal wrongdoing protected by the first
amendment, rather than actionable as claims of defamation or intentional
infliction of emotional distress. In our view, the plaintiff’s argument sweeps
too broadly. First, although an accusation of criminal conduct is topically
a matter of public concern, our reading of Snyder and contemporary first
amendment case law establishes that the public concern inquiry is a signifi-
cant, 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.
Further, in Bhatia v. Debek, supra, 287 Conn. 404–405, we recognized that
the law governing the intentional tort of malicious prosecution ‘‘seeks to
accommodate two competing and ultimately irreconcilable interests. It
acknowledges that a person wrongly charged with criminal conduct has
an important stake in his bodily freedom and his reputation, but that the
community as a whole has an even more important stake in encouraging
private citizens to assist public officers in the enforcement of the criminal
law.’’ (Internal quotation marks omitted.) Satisfaction of that tort’s elements
that the defendant acted both without probable cause, and ‘‘with malice,
primarily for a purpose other than that of bringing an offender to justice’’;
id., 404; would suffice to render such conduct unprotected by the first
amendment in any event. Cf. Hustler Magazine, Inc. v. Falwell, supra, 485
U.S. 56 (‘‘public figures and public officials may not recover for the tort of
intentional infliction of emotional distress by reason of publications such
as the one here at issue without showing in addition that the publication
contains a false statement of fact which was made with ‘actual malice’ ’’).
27
The defendants also claimed that the three allegedly defamatory state-
ments were subject to the ‘‘fair comment privilege’’ as statements of opinion
on a matter of public concern. For reasons explained subsequently in this
opinion, we need not address this claim. See footnote 34 of this opinion.
For discussion of additional claims relating to defamation raised by the
defendants, see footnotes 28 and 52 of this opinion.
28
The defendants argue that the statement made at the gym is not sup-
ported by credible evidence because there was no evidence that either of
the defendants actually made that statement. For purposes of this certified
appeal, we assume, without deciding, that the trial court’s finding that the
defendants made this statement was supported by sufficient evidence.
29
In Murphy, the Appellate Court reviewed a trial court’s finding that the
defendant had committed the tort of negligent infliction of emotional dis-
tress, and quoted this court’s decision in Barbara Weisman, Trustee v.
Kaspar, 233 Conn. 531, 541, 661 A.2d 530 (1995), for the applicable standard
of review, namely: ‘‘[W]here the factual basis of the court’s decision is
challenged we must determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether, in light of the evidence
and the pleadings in the whole record, those facts are clearly erroneous.
. . . In a case tried before a court, the trial judge is the sole arbiter of the
credibility of the witnesses and the weight to be given specific testimony.
. . . On appeal, we will give the evidence the most favorable reasonable
construction in support of the verdict to which it is entitled. . . . A factual
finding may be rejected by this court only if it is clearly erroneous.’’ (Internal
quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., supra,
105 Conn. App. 552.
30
‘‘Defamation is comprised of the torts of libel and slander: slander is
oral defamation and libel is written defamation.’’ Skakel v. Grace, 5 F. Supp.
3d 199, 206 (D. Conn. 2014).
31
As a variation on the fourth element of reputational harm, ‘‘[d]efamation
is also actionable per se. . . . Slander is . . . actionable [per se] if it
charges a crime. . . . To be actionable per se, the [defamation] must be
one which charges a crime which involves moral turpitude or to which an
infamous penalty is attached. . . . The modern view of this requirement is
that the crime be a chargeable offense which is punishable by imprisonment.
. . . In the case of a statement that is defamatory per se, injury to a plaintiff’s
reputation is conclusively presumed such that a plaintiff need neither plead
nor prove it. . . . In such case, [t]he individual plaintiff is entitled to recover,
as general damages, for the injury to his reputation and for the humiliation
and mental suffering which the [defamation] caused him.’’ (Citations omit-
ted; internal quotation marks omitted.) Skakel v. Grace, 5 F. Supp. 3d 199,
206–207 (D. Conn. 2014); see also, e.g., Urban v. Hartford Gas Co., supra,
139 Conn. 308; DeVito v. Schwartz, 66 Conn. App. 228, 234–35, 784 A.2d
376 (2001).
32
The Appellate Court cited Dacey v. Connecticut Bar Assn., supra, 170
Conn. 534, for the proposition that, in contrast to public figures, ‘‘if the
plaintiff is a private individual . . . she is required to prove actual malice,
in order to rebut the defense of privilege and recover general damages,
merely by a preponderance of the evidence.’’ Miles v. Perry, supra, 11 Conn.
App. 590. With respect to common-law privilege defenses, we note by way
of background, that ‘‘[a] defendant may shield himself from liability for
defamation by asserting the defense that the communication is protected
by a qualified privilege. . . . When considering whether a qualified privilege
protects a defendant in a defamation case, the court must resolve two
inquiries. . . . The first is whether the privilege applies, which is a question
of law over which our review is plenary. . . . The second is whether the
applicable privilege nevertheless has been defeated through its abuse, which
is a question of fact. . . . In a defamation case brought by an individual
who is not a public figure, the factual findings underpinning 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. . . . Finally,
to the extent that a litigant challenges the legal standard that is required to
establish that a privilege has been defeated, that issue is a question of law
over which our review is plenary.’’ (Citations omitted.) Gambardella v. Apple
Health Care, Inc., supra, 291 Conn. 628–29; see also, e.g., New York Times
Co. v. Sullivan, supra, 376 U.S. 279–80; Cweklinsky v. Mobil Chemical Co.,
supra, 267 Conn. 228–29; Woodcock v. Journal Publishing Co., 230 Conn.
525, 535, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S. Ct. 1098,
130 L. Ed. 2d 1066 (1995).
Qualified privileges may be defeated by a showing, by a preponderance
of the evidence; see Miles v. Perry, supra, 11 Conn. App. 590; of actual
malice, also known as constitutional malice, or malice in fact. See, e.g.,
Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 634 (common-
law intracorporate communications privilege); Goodrich v. Waterbury
Republican-American, Inc., supra, 188 Conn. 114–15 (fair comment privi-
lege); see also Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 99
(2d Cir. 2000) (‘‘[t]he critical difference between common-law malice and
constitutional malice, then, is that the former focuses on the defendant’s
attitude toward the plaintiff, the latter on the defendant’s attitude toward
the truth’’).
Thus, we note that the statement of the standard of proof articulated in
Miles v. Perry, supra, 11 Conn. App. 590, appears accurate with respect to
common-law defamation issues lacking first amendment significance, such
as privilege defenses. We emphasize, however, that given the constitutional
implications; see, e.g., Gertz v. Robert Welch, Inc., supra, 418 U.S. 350;
Flamm v. American Assn. of University Women, supra, 201 F.3d 148–49;
the clear and convincing evidence standard furnishes the applicable standard
of proving actual malice to sustain an award of punitive damages to a private
figure plaintiff. See, e.g., Lester v. Powers, 596 A.2d 65, 70 (Me. 1991) (‘‘[w]e
do not require clear and convincing evidence, however, to overcome a
conditional privilege that arises at common law and not from the [f]irst
[a]mendment’’); Reiter v. Manna, 436 Pa. Super. 192, 198–99, 647 A.2d 562
(1994) (‘‘a private figure plaintiff cannot recover punitive damages unless
he or she demonstrates actual malice by clear and convincing evidence’’);
Deloach v. Beaufort Gazette, 281 S.C. 474, 480, 316 S.E.2d 139 (‘‘[F]or actual
damages in a libel action neither . . . [New York Times Co.] nor Gertz . . .
require the states to adopt a degree of proof more demanding than by ‘a
preponderance of the evidence’ where a private individual is involved. For
a private individual to recover punitive damages in a libel action, however,
he must prove actual malice by clear and convincing evidence.’’), cert.
denied, 469 U.S. 981, 105 S. Ct. 384, 83 L. Ed. 2d 319 (1984); cf. Chapadeau
v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 199, 341 N.E.2d 569, 379
N.Y.S.2d 61 (1975) (New York defamation law requires that ‘‘where the
content of the article is arguably within the sphere of legitimate public
concern, which is reasonably related to matters warranting public exposi-
tion, the party defamed may recover; however, to warrant such recovery
he must establish, by a preponderance of the evidence, that the publisher
acted in a grossly irresponsible manner without due consideration for the
standards of information gathering and dissemination ordinarily followed
by responsible parties’’).
33
Notwithstanding the plaintiff’s failure to brief this issue, the dissent
asserts that the statements at issue did not pertain to a matter of public
concern and, therefore, are not subject to protection under the first amend-
ment, thus permitting the plaintiff’s claims to be governed exclusively under
the common law. We respectfully disagree with the dissent’s analysis of
this point, in particular its reliance on: (1) the Mississippi Supreme Court’s
decision in Sartain v. White, supra, 588 So. 2d 204; and (2) the fact that
the defamatory statements at issue in this case were not directed to the
public at large. We address each in turn.
First, we note 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 numer-
ous public fora, such as tirades and letters to public officials, that her
neighbors were murderers, robbers, and terrorists. Id., 213. In holding that
this was not a matter of public concern, thus relieving the parties alleging
defamation, Lloyd White and Bess White, from having to prove actual malice
in order to recover punitive damages, the Mississippi court rendered a
particularly narrow decision that appeared to account for the actions of the
plaintiff in that case, Josephine Sartain—a prolific self-represented party
with apparent mental health problems—noting that 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.’’ (Emphasis added.) Id.; see also id. (‘‘Sartain used,
misused and played litigation games until she lost the game; yet, it is difficult
to say that [Lloyd White and Bess White] won. Surely, they did not win
more than they were entitled to, and we may be certain that the courts
were patient and careful in hearing . . . Sartain.’’).
Second, the dissent’s emphasis on the relatively private expression of the
statements as indicative of the fact that they do not relate to a matter of
public concern—as compared to publication through a book, news article,
broadcast or other broad medium—sounds appealing, but is constitutionally
unavailing. It is well settled that the ‘‘private nature of the statement does
not . . . vitiate the status of the statement as addressing a matter of public
concern.’’ Rankin v. McPherson, 483 U.S. 378, 386 n.11, 107 S. Ct. 2891, 97
L. Ed. 2d 315 (1987); see also, e.g., id., 386–87 (derogatory statement by law
enforcement employee about unsuccessful attempt on President Ronald
Reagan’s life pertained to matter of public concern, despite fact that it
was made during private conversation with another employee); Dongguk
University v. Yale University, 734 F.3d 113, 128–29 (2d Cir. 2013) (holding
that allegedly defamatory statements pertained to matter of public concern
under Snyder when they related to major scandal in South Korea, despite
fact that they were private internal communications); Cioffi v. Averill Park
Central School District Board of Education, 444 F.3d 158, 165 (2d Cir. 2006)
(private letter sent by athletic director to superintendent criticizing football
coach’s supervision of team was matter of public concern when its subject
‘‘was no mere private employment grievance, but assaultive conduct against
a minor that, when publicly disclosed, triggered criminal charges as well
as public outcry’’).
34
Accordingly, we need not address the defendants’ claim, based on, inter
alia, Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795–96, 734 A.2d
112 (1999), that all three allegedly defamatory statements were expressions
of opinion on a matter of public concern protected by the common-law fair
comment privilege because they were statements of their views based on
likely known facts, rather than actionable conveyances of objective fact.
We note, however, that the bounds of the common-law fair comment privi-
lege largely accord with first amendment protections for opinion. See Milko-
vich v. Lorain Journal Co., 497 U.S. 1, 18–21, 110 S. Ct. 2695, 111 L. Ed.
2d 1 (1990); Goodrich v. Waterbury Republican-American, Inc., supra, 188
Conn. 117–19; Lester v. Powers, supra, 596 A.2d 71 n.9. This is particularly
so, insofar as there is no ‘‘wholesale defamation exemption for anything
that might be labeled ‘opinion’ ’’ because ‘‘expressions of ‘opinion’ may often
imply an assertion of objective fact.’’ Milkovich v. Lorain Journal Co., supra,
18. Put differently, under the first amendment after Milkovich, the ‘‘mere
recitation of prefatory phrases such as ‘in my opinion’ or ‘I think’ will not
render innocent an otherwise defamatory statement.’’ Flamm v. American
Assn. of University Women, supra, 201 F.3d 152; see also Mr. Chow of New
York v. Ste. Jour Azur S.A., 759 F.2d 219, 226 (2d Cir. 1985) (multifactor
test for determining whether statement is protected opinion); Daley v. Aetna
Life & Casualty Co., supra, 795–96 (citing Mr. Chow of New York for test).
35
Consistent with this independent review, we note that other determina-
tions related to the first amendment in the defamation context present
questions of law for the court, such as whether a statement relates to a
matter of public concern, whether a plaintiff is a public figure, or whether
a statement is defamatory per se. See, e.g., Celle v. Filipino Reporter Enter-
prises, Inc., supra, 209 F.3d 176–77; Flamm v. American Assn. of University
Women, supra, 201 F.3d 148; Skakel v. Grace, supra, 5 F. Supp. 3d 207.
36
In Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 628–29,
we cited Woodcock v. Journal Publishing Co., supra, 230 Conn. 525, and
Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985), in describing the
standard of review, noting that whether an applicable common-law ‘‘privilege
nevertheless has been defeated through its abuse, which is a question of
fact,’’ and that in ‘‘a defamation case brought by an individual who is not
a public figure, the factual findings underpinning 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.’’ See also footnote 32 of this
opinion. Our citation to Woodcock was cautionary, noting in the parenthetical
reference that it stood for the proposition that, ‘‘in [an] appeal of [a] defama-
tion case brought by [a] public figure, [the] clear and convincing evidence
standard of review applies, rather than [the] clearly erroneous standard of
review.’’ First, we note that our description of Woodcock in Gambardella
contained an apparent misstatement of the law, insofar as it conflated the
clear and convincing burden of proof with the clearly erroneous standard
of review on appeal, which are two distinct concepts. See, e.g., Notopoulos
v. Statewide Grievance Committee, 277 Conn. 218, 225–27, 890 A.2d 509
(2006) (attorney ethics violation must be proven by clear and convincing
evidence, but court reviews finding of such violation using clearly erroneous
standard). Second, the clearly erroneous standard of review was applicable
in both Gambardella and Bleich, because both cases concerned challenges
to trial court determinations with respect to common-law privilege defenses
in cases wherein no public concern was asserted, rather than constitutionally
mandated matters such as the proof of actual malice to sustain a punitive
damages award. See Gambardella v. Apple Health Care, Inc., supra, 639–41
(intracorporate communications privilege for employment decisions);
Bleich v. Ortiz, supra, 503–504 (conditional privilege of protecting ownership
interest in personal property).
37
In Gertz v. Robert Welch, Inc., supra, 418 U.S. 351, the Supreme Court
observed that, an individual’s status as a ‘‘public figure’’ for defamation
purposes ‘‘may rest on either of two alternative bases. In some instances
an individual may achieve such pervasive fame or notoriety that he becomes
a public figure for all purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues.
In either case such persons assume special prominence in the resolution of
public questions.’’ The court held in Gertz that an attorney was not a public
figure, despite his active role in community and professional affairs, because
he ‘‘had achieved no general fame or notoriety in the community,’’ and his
role in the facts leading to the case were limited to representing a private
client. Id., 351–52.
38
Indeed, the Appellate Court’s opinion neither addresses, nor indicates
that the defendants raised therein, a claim that the plaintiff was constitution-
ally required to prove that all of the allegedly defamatory statements were
made with actual malice. This issue is not squarely presented in the defen-
dants’ petition for certification, either. We emphasize that, in a certified
appeal, we ‘‘ordinarily decline to consider claims that are not raised properly
before the Appellate Court or in the petition for certification to appeal to
this court. . . . In a certified appeal, the focus of our review is not [on]
the actions of the trial court . . . but [on] the actions of the Appellate
Court. We do not hear the appeal de novo. The only questions that we need
consider are those squarely raised by the petition for certification . . . .’’
(Citation omitted; internal quotation marks omitted.) State v. Fauci, 282
Conn. 23, 26 n.1, 917 A.2d 978 (2007). We note, however, that in their petition
for certification, the defendants claimed that the plaintiff had failed to carry
her burden of proving the falsity of the allegedly defamatory statements.
Given the legal congruence between these constitutional arguments, and
the fact that the plaintiff does not raise a procedural objection to them, we
exercise our discretion to consider these issues on their merits.
39
The dissent criticizes us for reaching this issue, given what it deems
the apparent ‘‘failure of any party to request that we do so.’’ Although we
ordinarily will decide issues not raised by the parties only in exceptional
circumstances, our discussion of this point is necessary to avoid enshrining
in the Connecticut Reports an error of first amendment law that would be
created by unquestioning adherence to the defendants’ overly generous view
of Obsidian Finance Group, LLC v. Cox, supra, 740 F.3d 1284, particularly
given the general unresponsiveness of the plaintiff’s brief.
40
The defendants’ argument is not without some support, notwithstanding
their failure to cite it. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43–44,
91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), which preceded Gertz v. Robert
Welch, Inc., supra, 418 U.S. 323, a plurality of the United States Supreme
Court extended the actual malice standard adopted in New York Times Co.
to defamation actions brought by private individuals in cases concerning
matters of public concern, at least insofar as media defendants were con-
cerned. Three years later in Gertz, a majority of the United States Supreme
Court rejected the approach of the Rosenbloom plurality. See Gertz v. Robert
Welch, Inc., supra, 345–46. We note that a few states have, as a matter
of state constitutional or common law, adopted the Rosenbloom standard
apparently espoused by the defendants in this case, to provide greater
protection to the freedom of speech. See, e.g., Diversified Management,
Inc. v. Denver Post, Inc., 653 P.2d 1103, 1106 (Colo. 1982); Journal-Gazette
Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind.), cert. denied, 528 U.S.
1005, 120 S. Ct. 499, 145 L. Ed. 2d 385 (1999); Senna v. Florimont, 196 N.J.
469, 488–90, 958 A.2d 427 (2008); Alpine Industrial Computers, Inc. v.
Cowles Publishing Co., 114 Wn. App. 371, 393, 57 P.3d 1178 (2002). This
represents, however, a distinct minority position. See, e.g., Kennedy v. Sher-
iff of East Baton Rouge, 935 So. 2d 669, 680–81 (La. 2006); Senna v. Flori-
mont, supra, 485 n.11. As noted previously; see footnote 5 of this opinion;
insofar as the defendants have not provided us with an independently briefed
claim, with analysis consistent with State v. Geisler, 222 Conn. 672, 684–86,
610 A.2d 1225 (1992), in support of a claim of greater protection under the
Connecticut constitution, we confine our analysis to the first amendment.
41
‘‘[I]t is well settled that decisions of the Second Circuit, while not binding
upon this court, nevertheless carry particularly persuasive weight in the
resolution of issues of federal law when the United States Supreme Court
has not spoken on the point. . . . This is particularly so given the existence
of a circuit split, because [d]eparture from Second Circuit precedent on
issues of federal law . . . should be constrained in order to prevent the
plaintiff’s decision to file an action in federal District Court rather than a
state court located a few blocks away from having the bizarre consequence of
being outcome determinative.’’ (Citations omitted; internal quotation marks
omitted.) Dayner v. Archdiocese of Hartford, 301 Conn. 759, 783–84, 23 A.3d
1192 (2011).
42
The United States Court of Appeals for the Ninth Circuit has observed
that ‘‘every . . . circuit to consider the issue has held that the [f]irst
[a]mendment defamation rules in [New York Times Co. v. Sullivan, supra,
376 U.S. 254] and its progeny apply equally to the institutional press and
individual speakers.’’ Obsidian Finance Group, LLC v. Cox, supra, 740
F.3d 1291.
43
Indeed, the plaintiff’s reliance on Goodrich is belied by footnote 6 of
that opinion, wherein we acknowledged that, in light of constitutional deci-
sions in the wake of New York Times Co. v. Sullivan, supra, 376 U.S. 254,
‘‘as a practical matter the burden of proving the falsity of the publication
has been shifted to the plaintiff . . . .’’ Goodrich v. Waterbury Republican-
American, Inc., supra, 188 Conn. 112 n.6.
44
The United States Supreme Court has observed that ‘‘[t]here is some
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); see also, e.g., World Wide Assn. of
Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1140 (10th Cir. 2006)
(discussing split in authorities); Turner v. KTRK Television, Inc., 38 S.W.3d
103, 117 (Tex. 2000) (same). Although the Supreme Court’s review of the
divided authorities in Harte-Hanks Communications, Inc., indicated that
the Second Circuit follows the preponderance standard on this point, citing
Goldwater v. Ginzburg, 414 F.2d 324, 341 (2d Cir. 1969), cert. denied, 396
U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 (1970), the Second Circuit has
subsequently concluded that Goldwater does not reflect the current state
of constitutional defamation law, and that this issue remains an open ques-
tion as a matter of federal law, including within the Second Circuit. See
DiBella v. Hopkins, 403 F.3d 102, 110 (2d Cir.), cert. denied, 546 U.S. 939,
126 S. Ct. 428, 163 L. Ed. 2d 326 (2005); see also id., 114–15 (applying clear
and convincing standard as matter of New York state law, and noting that
majority of state and federal courts apply that standard to falsity element);
Blair v. Inside Edition Productions, 7 F. Supp. 3d 348, 357 (S.D.N.Y. 2014)
(‘‘[n]or has the Second Circuit articulated the appropriate standard of
proof’’); but see Rattray v. National City, 51 F.3d 793, 801 (9th Cir. 1994)
(adopting Second Circuit’s decision in Goldwater in holding that plaintiff
need only demonstrate falsity by preponderance of evidence), cert. denied,
516 U.S. 820, 116 S. Ct. 80, 133 L. Ed. 2d 39 (1995).
We note that the dissent criticizes us for failing to reach this open question
of first amendment law and determine the applicable burden of persuasion
on remand with respect to the element of falsity. Given the lack of briefing
on this point, the fact, as noted by the dissent, that the burden may not
necessarily be determinative on remand depending on the trial court’s assess-
ment of the level of proof, and our general reluctance to decide constitutional
issues unnecessarily; see, e.g., State v. Torres, 230 Conn. 372, 382, 645 A.2d
529 (1994); we deem the dissent’s criticism to be unwarranted.
45
At least one court has acknowledged some intuitive appeal in the plain-
tiff’s argument, which is consistent with much of the discussion in Philadel-
phia Newspapers, Inc. v. Hepps, supra, 475 U.S. 778–79, with respect to
implying a finding of falsity from an express finding of actual malice. See
Bentley v. Bunton, 94 S.W.3d 561, 587 (Tex. 2002).
46
The plaintiff had told Vrabel that Bill had been ‘‘harassing her,’’ shortly
before they received a call from his neighbor indicating that he was missing.
47
The affidavit, which was authored by a Woodbridge police officer, James
Sullivan, supports an arrest warrant for Janice Smolinski on charges of
trespass in the first degree and disorderly conduct, arising from the place-
ment of posters at an elementary school in Woodbridge.
48
We note that the defendants argue in their brief that the plaintiff ‘‘admits
she continues to withhold information from the police about [Bill’s] disap-
pearance.’’ The defendants support this assertion with a ‘‘see’’ citation to
the plaintiff’s testimony recorded on page 118 of the November 29, 2011
trial transcript. Having reviewed page 118 and surrounding pages in that
transcript, we do not see any support at all for such an admission, which
would in essence be the proverbial smoking gun. We caution the defendants
that the use of the ‘‘see’’ signal in citations is not absolution from assuring
their factual accuracy. Cf. Rules of Professional Conduct 3.3 (a) (1).
49
We do note, however, that the plaintiff testified that Janice Smolinski
had stated to her that she would not leave the plaintiff alone even if the
plaintiff passed the polygraph ‘‘with flying colors . . . .’’
50
See Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 640 (nurs-
ing home supervisor admitted that he was specifically aware that employee
had been given resident’s property as gift, meaning that ‘‘there simply was
no basis for a belief that the plaintiff had stolen property from the facility,’’
and plaintiff’s violation of gifting policy ‘‘did not alter the ownership of the
property and cannot alter the meaning of theft, a criminal act defined by
law’’); Holbrook v. Casazza, supra, 204 Conn. 348–50 (defendants admitted
that they did not check veracity of their original accusations, including their
factual and legal validity, and continued to publish them after being apprised
that investigation had determined that they were invalid); Nelson v. Trade-
wind Aviation, LLC, supra, 155 Conn. App. 537–41 (sufficient evidence
of actual malice to support defendant’s forfeiture of qualified privilege in
providing employment references when there was ample evidence of know-
ing falsity of statements with regard to pilot’s alleged termination for reasons
related to performance, rather than lack of work); see also Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 691–92, 109 S. Ct.
2678, 105 L. Ed. 2d 562 (1989) (sufficient evidence of actual malice held
when publisher failed to consult key witness and to listen to readily available
tape recording of relevant conversation to verify informant’s ‘‘highly improb-
able’’ allegations, which had already been made doubtful by statements of
other witnesses); cf. Woodcock v. Journal Publishing Co., supra, 230 Conn.
542–44 (There was no clear and convincing evidence of actual malice when,
despite evidence that the newspaper had tried to harm the legislative cam-
paign of the plaintiff’s husband, the reporter relied on past articles for facts,
and the plaintiff did not call the newspaper editor to testify about ‘‘whether
he or she had been aware of the inaccuracy at the time the article was
published. In the absence of evidence to the contrary, the most that can be
said is that the defendants were negligent in researching and publishing
the article.’’).
51
The plaintiff cites her testimony indicating that she was unaware of
Bill’s disappearance until three days after it had happened as ‘‘sufficient to
establish that [she] had no knowledge whatsoever concerning the disappear-
ance of [Bill].’’ The plaintiff further argues that ‘‘[t]here was no evidence at
all to the contrary.’’ Insofar as the trial court’s memorandum of decision
fails to acknowledge the governing constitutional standards regarding falsity
or indicate specifically that it credited the plaintiff’s testimony on this point,
we decline to engage in appellate fact-finding by using this portion of the
transcript to uphold the judgment.
52
Because of our conclusion with respect to the defendants’ other claims
on appeal, we need not reach their additional argument that, under DeVito
v. Schwartz, 66 Conn. App. 228, 784 A.2d 376 (2001), the plaintiff was
entitled only to nominal damages because she failed to adduce evidence of
reputational or other harm to support her claim to compensatory damages.