Brown v. K.N.D. Corp.

• Decision Date: 18 August 1987
• Docket Number: No. 12987,12987
• Citation: 205 Conn. 8,529 A.2d 1292
• Parties: , 14 Media L. Rep. 1757 Michael F. BROWN, v. K.N.D. CORPORATION et al.
• Court: Connecticut Supreme Court

Page 1292

529 A.2d 1292

205 Conn. 8, 14 Media L. Rep. 1757

Michael F. BROWN, v. K.N.D. CORPORATION et al.

No. 12987.

Supreme Court of Connecticut.

Argued May 7, 1987.

Decided Aug. 18, 1987.

Sydney T. Schulman, Hartford, with whom, on brief, was Otto Witt, Bloomfield, for appellant (defendant Wilber Smith).

John F. McKenna, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and ARTHUR HEALEY, SHEA, CALLAHAN and FRANCIS X. HENNESSY, JJ.

CALLAHAN, Associate Justice.

The defendant Wilber Smith has appealed from the decision of the Appellate Court in Brown v. K.N.D. Corporation, 7 Conn.App. 418, 509 A.2d 533 (1986), which reversed a trial court judgment in his favor. This case was initiated when Michael F. Brown, the plaintiff, an assistant city manager employed by the city of Hartford, commenced an action for an allegedly defamatory remark made by the defendant Smith on December 16, 1979, during a radio broadcast over the facilities of the defendant radio station WKND. ¹ Smith, the host of a public affairs talk show called "What's On Your Mind," made the following comment while on the air during the course of the program: "The [Ku Klux] Klan has not only sympathizers who are willing to march with them but they also have sympathizers in the Chamber of Commerce, they have them in these banks and insurance companies and they are sympathizers. They are in state government, they are in City Hall right now, ah, if Mr. ... isn't one of them Mike Brown is a sympathizer of the Klan if he is not a member. Now if he wants to sue me about it then we go into his record and racist activity that he has been putting out in this city."

The trial court found that the comment was false and defamatory. It also found, however, that Brown was a public official and that he had failed to prove by clear and convincing evidence that Smith's remark had been made with actual malice. The trial court, therefore, rendered judgment for the defendant. On appeal, the Appellate Court conducted an independent review of the trial court record and concluded, contrary to the trial court, that Smith's remark had indeed been made with actual malice. The Appellate Court therefore set aside the judgment of the trial court and remanded the case with direction to render judgment for Brown on the issue of liability and to conduct a hearing in damages. We reverse.

The dispositive issue in this appeal is whether the Appellate Court was correct in conducting an independent examination of the trial court record to make its own determination of actual malice or whether its review should have been limited to the clearly erroneous standard of Practice Book § 4061.

The constitutional guarantees of the first amendment have fostered a federal rule of constitutional law "that prohibits a public official ² from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964); see also Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 1562, 89 L.Ed.2d 783 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755, 105 S.Ct. 2939, 2943, 86 L.Ed.2d 593 (1985); Bose Corporation v. Consumers Union of United States, Inc., 466 U.S 485, 502, 104 S.Ct. 1949, 1960, 80 L.Ed.2d 502 (1984); Hardin v. Santa Fe Reporter, Inc., 745 F.2d 1323, 1325 (10th Cir.1984); Holbrook v. Casazza, 204 Conn. 336, 342, 528 A.2d 774 (1987). In order to prevail in a defamation action the public official must prove actual malice by the elevated standard of clear and convincing evidence. Philadelphia Newspapers, Inc. v. Hepps, supra; Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974); Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C.Cir.1987); Long v. Arcell, 618 F.2d 1145, 1148 (5th Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981). Furthermore, in cases raising first amendment issues, the United States Supreme Court has "repeatedly held that 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.' New York Times Co. v. Sullivan, [supra, 376 U.S. at 284-86, 84 S.Ct. at 728-29]." (Emphasis added.) Bose Corporation v. Consumers Union of United States, Inc., supra, 466 U.S. at 499, 104 S.Ct. at 1958; Tavoulareas v. Piro, supra; Holbrook v. Casazza, supra, 204 Conn. at 343, 528 A.2d 774.

The 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 factfinding function be performed in the particular case by a jury or by a trial judge." Bose Corporation v. Consumers Union of United States, Inc., supra, [466 U.S. at] 501 . This rule has been adopted because freedom of expression occupies the " ' "highest rung of the hierarchy of First Amendment values," ' and is entitled to special protection. NAACP v. Clairborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409 [3425], 73 L.Ed.2d 1215 (1982)." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). Moreover, the United States Supreme Court has recognized that traditional actions for defamation may interfere with the first amendment right of expression. Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970); Tavoulareas v. Piro, supra, at 771.

"The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice.' " Bose Corporation v. Consumers Union of United States, Inc., supra, 466 U.S. at 511, 104 S.Ct. at 1965. There is no doubt, therefore, that a trial court finding of actual malice in a defamation case requires an appellate court to conduct an independent review of the record and to draw its own conclusion as to whether actual malice has been proven by clear and convincing evidence. As the Bose Corporation court said, "the clearly erroneous standard of Rule 52(a) of the Federal Rules of Civil Procedure does not prescribe the standard of review to be applied in reviewing a determination of actual malice in a case governed by New York Times Co. v. Sullivan. Appellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." (Emphasis added.) Id. at, 514, 104 S.Ct. at 1967.

The defendant, however, contends that since the trial court, in this case, made a finding that there was no actual malice, and hence no liability, the Appellate Court erred when it conducted an independent review of the record and came to a contrary conclusion. He maintains that absent a finding of actual malice there is no threat to, or encroachment upon first amendment rights or values that requires independent appellate review. He argues, therefore, that the Appellate Court should have applied the less stringent "clearly erroneous" test of Practice Book § 4061 to the trial court judgment. Under that standard, he contends, the judgment of the trial court should be affirmed because "there was sufficient evidence to support the findings of the trial court and the findings were not, as a matter of law clearly erroneous." We agree.

The purpose of independent review is to safeguard the right of free expression. Bose Corporation v. Consumers Union of United States, Inc., supra, 466 U.S. at 508, 104 S.Ct. at 1963; New York Times Co. v. Sullivan, supra, 376 U.S. at 285, 84 S.Ct. at 778. Absent a finding of actual malice there is no liability imposed on a defendant for his exercise of that right and hence no incursion on the first amendment. When, therefore, after a full trial on the merits, there is a finding of no actual malice, we think the better reasoning dictates that appellate review of the trial court judgment should be limited to the clearly erroneous standard of Practice Book § 4061. There is a paucity of case law on this specific point. ³ In our view, however, the obligation of an appellate court to conduct an independent review of the trial court record and to make its own determination of actual malice, arises only when expression would be punished and hence inhibited by the imposition of court awarded damages. See L. Levine, "Judge and Jury in the Law of Defamation: Putting the Horse Behind the Cart," 35 Am.U.L.Rev. 3, 76 (1985).

The function of the procedural scheme created by New York Times Co. v. Sullivan, supra, and Bose Corporation v. Consumers Union of United States, Inc., supra, 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. They give no indication, however, that the United States Supreme Court intended thereby to reject completely the role of juries and trial judges in the protection of first amendment freedoms. If, therefore, the trial judge or jury finds that actual malice has not been proven with convincing clarity and, hence, no penalty is imposed for the exercise of first amendment rights, an appellate court should have no authority under the guise of independent review to upset that determination. We fail to see how allowing an...