Gifford v. The Taunton Press, Inc.
| Decision Date | 11 July 2019 |
| Docket Number | DBDCV186028897S |
| Court | Connecticut Superior Court |
| Parties | Henry GIFFORD v. The TAUNTON PRESS, INC. |
UNPUBLISHED OPINION
D’Andrea, J.
The defendant, the Taunton Press, Inc. (Taunton), filed a special motion to dismiss the complaint in its entirety and recover costs and attorneys fees pursuant to Connecticut’s anti-SLAPP statute, General Statutes § 52-196a. The defendant alleges that the complaint dated October 2, 2018, is based on the defendant’s exercise of a right protected under the anti-SLAPP statute, i.e., the right of free speech in connection with a matter of public concern, and that the plaintiff, Henry Gifford, cannot show probable cause that he will prevail on the merits. In opposition, the plaintiff argues that the anti-SLAPP statute is unconstitutional on its face and, in the alternative, as it is applied to the present case, and thus, the special motion to dismiss should be denied. In the alternative, if the court finds that the anti-SLAPP statute is constitutional, the plaintiff argues that he has met his burden and, thus, the special motion to dismiss should be denied.
This action arises from an article published by Taunton on September 29, 2017. In his complaint, the plaintiff alleges Taunton published a review of his book that contained "false, inaccurate, and/or misleading statements" regarding himself and/or the book. The plaintiff further claims that the defendant’s publication of this review harms his reputation and constitutes (1) libel, (2) libel per se (3) tortious interference with business expectancies, and (4) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The plaintiff makes the following allegations in his complaint. The plaintiff is an expert in the field of building science which he describes as the study of the movement of heat, air water, light, sound, fire, and pests through buildings, and has multiple decades of experience in this field. He is frequently paid for his expertise and for consulting on building projects. Some time prior to September 29, 2017, he published a book entitled "Buildings Don’t Lie" (book), which provided an in-depth review of building science, including extensive discussions of energy-efficient, environmentally-friendly, and/or green building design and construction decisions and techniques. On September 27, 2017, Taunton, a publishing business, incorporated under the laws of the state of Connecticut, with a principal place of business located at 63 South Main Street, Newtown, Connecticut, which owns and operates a website named "Green Building Advisor" (website), published a review (article), written by Martin Holladay. The article was entitled "Henry Gifford Publishes a Book" and discusses the plaintiff and his book. The article was published on Taunton’s website on September 27, 2017, and has been publicly available on the website since. The article clearly and repeatedly identifies the plaintiff. The article was published on the website and was, therefore, published to third parties, including anyone who visited the website, or searched for information on the plaintiff or the book through any internet search engine. The article contains numerous false, inaccurate, and/or misleading statements regarding the plaintiff and/or his book.[1]
The plaintiff’s first count for libel alleges that the offensive statements impugn his expertise and knowledge, damaging him by harming his reputation with the article’s readers, lowering him in the estimation of the community, and deterring others from buying the book or otherwise associating and/or dealing with him in the future. The offensive statements also caused him to suffer actual damages including, but not limited to, reduced profits from lost book sales. In order to minimize the impact of the offensive statements, the plaintiff demanded in a letter to Taunton dated October 4, 2017, that Taunton retract the article in as public a manner as that in which it was published. As of the October 2, 2018 complaint, Taunton has neither acknowledged the letter, nor retracted the offensive statements and continues to publish the article. As to the second count for libel per se, the plaintiff alleges that the offensive statements assert that he lacks skill in his professions and businesses of building science and writing on building sciences, thereby being calculated to cause him injury in his profession and/or business.
As to the third count for tortious interference with business expectancies, the plaintiff alleges that the offensive statements assert that Taunton knew or should have known that he sought to engage in business relationships with third parties to sell them the book, Taunton knew or should have known that people who read the article were prospective purchasers of the book, and that Taunton tortiously interfered with those business expectancies by falsely degrading the book and the plaintiff as its author, thereby dissuading people from buying the book through its libel. The plaintiff also alleges that Taunton published a book written by Holladay, entitled "Musings of an Energy Nerd" (Holladay’s book), and that the plaintiff and Holladay were market competitors, both reviewing energy-efficient building and design. Thus, Taunton had a direct stake and interest in undercutting the plaintiff and the book, and used libelous falsehoods to dissuade third parties from purchasing the book, hoping that people would purchase Holladay’s book instead. Additionally, Holladay’s publications on the website, including the article, which were published under the collective title of Holladay’s book, would further advertise Holladay’s book. Finally, Taunton had improper financial motives for its interference with the plaintiff’s business expectancies by hoping to pull customers away from the plaintiff’s book to Holladay’s book, thus causing the plaintiff actual damages including, but not limited to, lost book sales.
As to the fourth count for CUTPA, the plaintiff alleges that Taunton was engaged in "trade and commerce" within the meaning of General Statutes § 42-110a et seq., and, given the conduct described in the first three counts, including libeling an economic competitor and tortiously interfering with business expectations, constitutes immoral, unethical, oppressive and/or unscrupulous conduct that amounts to unfair methods of competition and/or unfair trade practices in the conduct of trade or commerce, and as such, the plaintiff has sustained substantial losses. The claimed relief for all counts is compensatory and punitive damages, including costs and expenses of the suit and other equitable relief as the court determines. On the fourth count, the plaintiff requests punitive damages, attorneys fees, costs, and other equitable relief pursuant to General Statutes § 42-110g.
Both parties filed substantive briefs and exhibits in support of their briefs. The court heard argument on March 13, 2019, and reserved its decision at that time.[2] Pursuant to the anti-SLAPP statute, "[t]he court shall rule on a special motion to dismiss as soon as practicable." General Statutes § 52-196a(e)(4).
Section 52-196a(b) provides in relevant part: "In any civil action in which a party files a complaint ... against an opposing party that is based on the opposing party’s exercise of its right of free speech, [or] right to petition the government ... in connection with a matter of public concern, such opposing party may file a special motion to dismiss the complaint, counterclaim or cross claim." "When ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based ... The court shall grant a special motion to dismiss if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party’s complaint, counterclaim or cross claim is based on the moving party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim." General Statutes § § 52-196(e)(2)-(3). The prevailing party on a special motion to dismiss may recover litigation expenses, including reasonable attorneys fees. General Statutes § 52-196(f).
The plaintiff argues that the anti-SLAPP statute is unconstitutional for multiple reasons. The defendant disagrees and filed a reply brief setting forth his arguments. Thus, before the court turns to the merits of the special motion to dismiss, it must assess the constitutionality of the anti-SLAPP statute.
The plaintiff argues that the anti-SLAPP statute is unconstitutional, both on its face and as applied to the plaintiff, for three reasons. First, the anti-SLAPP statute violates the plaintiff’s right to a trial by jury as provided by the Connecticut Constitution; Conn. Const., art. I, § 19; because it requires the court to make findings of fact. Second, the anti-SLAPP statute violates the plaintiff’s right to petition the government for redress of grievances under the United States Constitution; U.S. Const., amend. I; because it requires the court to make findings of fact and...
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