Gleason v. Smolinski

Decision Date03 November 2015
Docket NumberSC19342
CourtConnecticut Supreme Court
PartiesGLEASON v. SMOLINSKI
DISSENT

EVELEIGH, J., with whom ZARELLA, J., joins, dissenting. I respectfully dissent. Free speech may not be invoked as a mere contrivance to shield tortious conduct—directed at a private party on a purely private matter—from liability. See Snyder v. Phelps, 562 U.S. 443, 455, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). In my view, the majority accepts a contrived, post hoc rationalization for the harassing conduct by the defendants, Janice Smolinski and Paula Bell,1 allowing a hollow invocation of the first amendment to the United States constitution in order to protect conduct not deserving of its aegis. I remain dedicated to safeguarding free speech, the hallmark of which "is to allow free trade in ideas—even ideas that the overwhelming majority of people might find distasteful or discomforting." (Internal quotation marks omitted.) State v. Krijger, 313 Conn. 434, 448, 97 A.3d 946 (2014). As the trial court's findings demonstrate, however, no protected ideas were intended to be expressed by the defendants in continuously bombarding the plaintiff, Madeleine Gleason,2 with flyers at her residence and place of employment. Instead, the trial court found that "what is unacceptable here and worthy of a finding of outrageous and extreme behavior is the continuing aggravated nature of the [defendants'] activity in hounding [the plaintiff] where she lived and worked and engaged in the ordinary activities of life. . . . Posters of a missing person were placed so as to indicate to [the plaintiff] that the very purpose of the poster campaign was to underline her supposed knowledge of the criminal disappearance of [William Smolinski, Jr. (Bill)]."3 (Citation omitted.) The trial court further concluded: "[T]he [plaintiff's] emotional distress . . . was severe. She, in effect, felt she was being constantly hounded—not as the result of a general effort by the [defendants] to find their son and brother but part of an effort to break her. . . . [T]he defendants would not be satisfied unless [the plaintiff] admitted to what they were convinced she knew and they pursued their action with these purposes in mind." Respectfully, only by overturning these factual findings—and making a new finding that "the targeted content and location was consistent with the overarching public concern of gaining information about Bill's disappearance"—can the majority justify the conclusion that the defendants' conduct merits the first amendment's protections. The majority does so notwithstanding the fact that, at oral argument, the defendants conceded that they were not asking this court to overturn any of the trial court's factual findings. See footnote 4 of this dissenting opinion.

In light of the standard of review we must apply today, which requires this court to search the record to make sure there is no intrusion on first amendment rights and to disturb the trial court's factual findings only when they are clearly erroneous, as well as the defendants' concession that they do not ask this court to overturn the trial court's factual findings, respectfully, I cannot agree with the majority's apparent sub silentio disregard of the trial court's crucial factual findings. If it is unable to disregard the trial court's critical factual finding, the majority essentially concedes, through its citation to State v. Carpenter, 171 P.3d 41 (Alaska 2007), that such conduct is not protected speech. See 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 . . . it is uttered with an intent merely to harass and with no intent to persuade, inform, or communicate"). Therefore, I would affirm the judgment of the Appellate Court which concluded that, notwithstanding an independent review of the whole record, the trial court's factual findings must stand, as they are amply supported by the record and, therefore, unable to support the legal conclusion that the defendants' harassing conduct is speech of public concern. See Gleason v. Smolinski, 149 Conn. App. 283, 293-94, 88 A.3d 589 (2014); id., 306 ("[u]ltimately, the [trial] court credit[ed] the testimony of the plaintiff . . . because although the defendants testified that they did not engage in the conduct of hanging missing person posters in order to harass the plaintiff, other evidence presented . . . [showed] that the defendants had a strong motive to act in the way . . . alleged by the plaintiff" [internal quotation marks omitted]).

The defendants did not intend to convey a protected message through their intentional efforts to "hound" the plaintiff until she "broke." No ideas were expressed through the other harassing conduct that formed the basis for the trial court's judgment. The only message a reasonable person could have gleaned from the defendants' conduct, including their targeted placement of posters, is one of harassment. Such tactics included calling the plaintiff and threatening to kill her, calling the plaintiff's employer and the employer's clients to accuse the plaintiff of murder, following the plaintiff and her friends on the street and videotaping her, threatening the plaintiff and her friends in person, swearing at and calling the plaintiff names such as "ho" and "slut" and ignoring admonishments by the police to stop escalating matters before things got out of hand. Shielding this harassing conduct, the sum of which caused the plaintiff "to fear for her safety and that of her child," cannot be tolerated in a decent society and is neither envisioned nor dictated by our first amendment jurisprudence. For these reasons, I respectfully dissent.

I

INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS

I begin by discussing the majority's opinion, first, by noting the cases it cites in setting forth relevant first amendment jurisprudence. I then discuss how, in my view, the majority has overturned a crucial finding of fact in order to conclude that the present case involves a violation of the first amendment. Because I respectfully disagree with the majority's disregard of this crucial finding, I then conclude that the cases cited by the majority, as well as additional case law, demonstrate that there is no basis for finding a constitutional violation in the present case under the third prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Specifically, I conclude that the defendants' targeted posters cannot be shielded from forming the basis of liability because it is not speech of public concern.

The majority accurately sets forth the standard of review and substantive law concerning speech of public concern. See Snyder v. Phelps, supra, 562 U.S. 453-54 ("Deciding 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 intrusion 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.]); State v. Krijger, supra, 313 Conn. 447 ("[T]he 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."). In undertaking an independent examination of the whole record to determine whether the defendants' targeted placement of posters constitutes speech of public concern, an inquiry concededly made more difficult by the defendants' failure to assert entitlement to the first amendment's protections at trial, the majority begins by examining the content, context, and form of the speech at issue.

As to the first of three factors to consider, the content of the speech, the majority examines 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 notes the "well established" principle that " '[t]he commission of crime, prosecutions resulting from it, and judicial proceedings arisingfrom 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)." After noting that the posters seek information about Bill without specifically referencing the plaintiff, the majority concludes that the content of the communications relates to a matter of public concern—namely, "matters pertaining to missing persons." I agree that the content of the posters, without more, ostensibly relates to a matter of public concern.

The majority then discusses case law pertaining to the second and third factors: the context and form of the speech. As to context, the majority concedes that "the existence of preexisting animus between parties might indicate circumstantially that a defendant is dressing intentionally tortious conduct in the garb of the first amendment," though it explains that a motive to harm " 'does not necessarily render the messages conveyed . . . matters of purely private rather than public concern.' Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1038 (10th Cir. 2013)." The cases cited by the majority conclude that, if the motive to harm or harass is the sole basis for speech...

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