Elder v. 21st Century Media Newspaper, LLC ( 2021 )

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JOSEPH S. ELDER v. 21ST CENTURY MEDIA
NEWSPAPER, LLC, ET AL.
(AC 42779)
Bright, C. J., and Alvord and Bellis, Js.
Syllabus
The plaintiff attorney sought damages from the defendant reporter, K, and
the defendant publishers for, inter alia, defamation in connection with
an article written by K and articles published by the publishers. The
articles concerned a Superior Court decision that resulted in the plain-
tiff’s one year suspension from the practice of law for a violation of
the Rules of Professional Conduct. The defendants filed motions for
summary judgment claiming that, as a matter of law, the published
matter was not actionable because the plaintiff’s claims were barred by
the fair report privilege, which applies to the publication of defamatory
matter in an accurate report of an official action or proceeding. The
trial court granted the defendants’ motions for summary judgment and
rendered judgment thereon, from which the plaintiff appealed to this
court. Held that the trial court properly rendered summary judgment
in favor of the defendants: this court declined to address the plaintiff’s
unpreserved claim that the evidence supporting the defendants’ motions
was insufficient because it was improperly authenticated, as that claim
was not raised before the trial court; moreover, the plaintiff’s claim that
the defendants failed to submit proof of their reliance on a government
document as the source of the articles was unavailing because the
defendants were not required to submit such proof to avail themselves of
the fair report privilege and the articles were protected by that privilege
because they conveyed substantially fair, true and accurate accounts
of an official action or proceeding, as they contained language that was
substantially similar to that of the court decision, the defendants were
not required to conduct an impartial investigation as to the underlying
facts of that decision, and their omission of facts that might have placed
the plaintiff under less harsh public scrutiny and the inclusion of a
quotation that was not attributed to a government document or proceed-
ing did not render the articles substantially inaccurate; furthermore, the
plaintiff’s claims of malice failed as a matter of law because the defen-
dants were not required to submit evidence to rebut his claims of malice
because the articles were fair and accurate abridgments of the court
decision, and the plaintiff’s state constitutional law claims were not
considered because they were inadequately briefed, and any rights under
the state constitution did not defeat and were not inconsistent with the
fair report privilege.
Argued January 13—officially released May 4, 2021
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Noble,
J., granted the motions for summary judgment filed by
the named defendant et al., and rendered judgment
thereon, from which the plaintiff appealed to this court.
Affirmed.
Joseph S. Elder, self-represented, the appellant
(plaintiff).
William S. Fish, Jr., with whom was Alexa T. Mill-
inger, for the appellees (named defendant et al.).
Christopher M. Wasil, with whom, on the brief, was
Michael D. Blanchard, for the appellee (defendant CBS
Radio, Inc.).
Opinion
BELLIS, J. The issue in this case is the extent to which
reporters and news publishers are protected from civil
liability for defamation when reporting on a court deci-
sion that described the outcome of disciplinary pro-
ceedings against an attorney and the basis for those
proceedings. The plaintiff, Joseph S. Elder, appeals
from the summary judgment rendered by the trial court
in favor of the defendants 21st Century Media Newspa-
per, LLC; 21st Century Media, LLC; CBS Radio, Inc.,
as successor in interest to CBS Corporation; Matthew
Kauffman; and The Hearst Corporation (defendants)1
on the basis of the fair report privilege. On appeal, the
plaintiff claims that (1) the evidence supporting the
defendants’ motions for summary judgment was insuffi-
cient, (2) the defendants failed to demonstrate actual
reliance on a government document or proceeding, (3)
the court erred by finding that the defendants’ publica-
tions were fair and accurate accounts of the government
document on which they claimed to have relied, (4) the
defendants did not rebut his claims of malice, which
entitled him to a trial on the merits of those claims, and
(5) his right under article first, § 10, of the Connecticut
constitution to redress for injuries to his reputation and
his right to a trial by jury on that claim, defeat the fair
report privilege. We disagree and, accordingly, affirm
the judgment of the trial court.
The following facts and procedural history are rele-
vant to the plaintiff’s claims on appeal. The plaintiff is
an attorney licensed to practice law in Connecticut.
On March 2, 2015, the Office of Disciplinary Counsel
commenced an action in the Superior Court against
the plaintiff (disciplinary action) alleging violations of
several provisions of the Rules of Professional Conduct.
The disciplinary action arose from two phone calls
made in 2004, during which, according to the Office of
Disciplinary Counsel, the plaintiff misrepresented his
identity to an individual he later discovered to be a
police officer conducting an investigation regarding cer-
tain legal advice that the plaintiff allegedly had given
to a client, who was a suspect in a separate investigation
(suspect). See Disciplinary Counsel v. Elder, Superior
Court, judicial district of Hartford, Docket No. CV-15-
6057682-S (July 29, 2015), rev’d, 325 Conn. 378, 159 A.3d
220 (2017). The court, Robaina, J., found by clear and
convincing evidence that the plaintiff had misrepre-
sented himself to that police officer by claiming to be
Wesley Spears, another Connecticut attorney, in viola-
tion of rule 4.1 of the Rules of Professional Conduct.
Accordingly, the court rendered judgment suspending
the plaintiff from the practice of law for a period of
one year (suspension decision).
On August 1, 2015, the Hartford Courant published
an article titled, ‘‘Attorney Suspended for a Year.’’ M.
Kauffman, ‘‘Attorney Suspended for a Year,’’ Hartford
Courant, August 1, 2015, p. B1. That article was written
by Kauffman, and it summarized the suspension deci-
sion. The opening paragraph read, ‘‘Joseph Elder, a
Hartford attorney who impersonated a fellow lawyer
11 years ago, spawning a long-running feud between
the pair, will be barred from practicing law for a year,
a Superior Court judge has ruled.’’ Shortly thereafter,
The Middletown Press, New Haven Register, The Regis-
ter Citizen, and The Hour all published similar articles
(2015 articles) reporting on the suspension decision.2
On May 2, 2017, nearly two years after the publication
of the 2015 articles, our Supreme Court reversed the
suspension decision on statute of limitations grounds.
See Disciplinary Counsel v. Elder, 325 Conn. 378, 393,
159 A.3d 220 (2017). Kauffman wrote an additional arti-
cle detailing the Supreme Court’s decision. M. Kauff-
man, ‘‘Attorney’s Suspension Overturned,’’ Hartford
Courant, April 27, 2017, p. B4. In August 2017, the plain-
tiff commenced the present action by way of a nineteen
count complaint dated July 27, 2017, against ten defen-
dants claiming that they defamed him by publishing the
2015 articles.3 Specifically, the plaintiff argued that the
2015 articles’ use of the word ‘‘impersonating’’ to
describe his actions was ‘‘false, misleading and defama-
tory,’’ and that the 2015 articles failed to ‘‘mention that
the caller intentionally lied about his identity and that
he was posing as a drug dealing criminal defendant,
never identifying himself as an investigating police offi-
cer,’’ which, the plaintiff argued, ‘‘painted an incomplete
and misleading account of the incident . . . .’’ The
plaintiff claimed that he ‘‘sustained damages, and con-
tinues to sustain damages, on account of said publica-
tions.’’ The plaintiff filed an amended complaint dated
September 27, 2017, in which he brought counts against
each defendant for defamation and false light invasion
of privacy. The counts alleged that (1) the defendants
published substantially similar defamatory statements
in the 2015 articles when reporting on the disciplinary
actions and the suspension decision and (2) the 2015
articles constituted an invasion of his privacy.
On February 23, 2018, the defendants filed answers
and simultaneous motions for summary judgment. In
their answers, the defendants admitted that they had
published the 2015 articles but denied that the plaintiff
sustained damages. They also asserted numerous spe-
cial defenses, including the fair report privilege. Their
motions for summary judgment focused on that privi-
lege as a bar to the plaintiff’s claims. On February 14,
2019, the trial court rendered summary judgment as to
all the defendants in this appeal. The trial court agreed
with the defendants that the fair report privilege barred
the plaintiff’s claims because the defendants fairly and
accurately reported on the suspension decision. On
March 6, 2019, before filing this appeal, the plaintiff
sought to reargue and for reconsideration of the sum-
mary judgment decision. The grounds for reconsidera-
tion were that (1) the defendants had to prove reliance
on a government source for the fair report privilege to
apply and (2) the plaintiff’s right of redress for injuries
to his reputation, guaranteed by article first, § 10, of
the Connecticut constitution, superseded the fair report
privilege. The court denied the motion to reargue and
for reconsideration on March 20, 2019.
On April 7, 2019, the plaintiff appealed from the sum-
mary judgment decision. On June 28, 2019, the plaintiff
filed a motion seeking an articulation of the court’s
alleged failure to address his argument that his right to
remedy injury to his reputation under the Connecticut
constitution, including his right to a jury trial on such
a claim, was superior to the fair report privilege. On
October 17, 2019, the court provided an articulation of
its summary judgment decision. In the articulation, the
court explained that the plaintiff’s state constitutional
claims had been inadequately briefed because, among
other things, they contained no analysis of the factors
outlined in State v. Geisler, 222 Conn. 672, 685, 610
A.2d 1225 (1992). Additional facts will be set forth as
necessary.
I
The plaintiff claims that the evidence supporting the
defendants’ motions for summary judgment was insuffi-
cient because it was improperly authenticated. Specifi-
cally, he argues that the defendants ‘‘failed to submit
supporting proof of required facts by means of affidavits
based on personal knowledge, certified transcripts of
testimony under oath, or any other proof in a form
rendering it admissible at trial to show that there was
no genuine issue as to any material fact and that each
such defendant was entitled to judgment as a matter
of law, as required by Practice Book § 17-45.’’ The defen-
dants argue that the plaintiff never raised such an argu-
ment before the trial court and, therefore, that it was
not preserved properly for our review. We agree with
the defendants.
Our review of a trial court’s decision to grant a motion
for summary judgment is well settled. ‘‘Summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . Although the
party seeking summary judgment has the burden of
showing the nonexistence of any material fact . . . a
party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . It is not enough,
however, for the opposing party merely to assert the
existence of such a disputed issue. Mere assertions of
fact . . . are insufficient to establish the existence of
a material fact and, therefore, cannot refute evidence
properly presented to the court [in support of a motion
for summary judgment].’’ (Citation omitted; internal
quotation marks omitted.) Home Ins. Co. v. Aetna
Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001(1995). ‘‘Our review of the trial court’s decision to grant
[a] motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Barry v. Quality Steel Prod-
ucts, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).
The record reflects that the plaintiff did not object
to any of the evidence offered by the defendants in
support of their motions for summary judgment on the
ground that such evidence would be inadmissible at
trial. Although the plaintiff’s memorandum of law in
opposition to the defendants’ motions for summary
judgment states that ‘‘[the] motion does not include any
affidavit citing any author’s or reporter’s reliance upon
[the suspension decision] or any other government doc-
ument,’’ and that ‘‘[the] motion does not include any
supporting affidavit attaching [the defendants’] written
notes, records and/or drafts demonstrating their reli-
ance upon any government record or proceeding
regarding the preparation of the subject articles,’’ it
contains no other reference or argument with respect
to the authentication issue that now makes up an entire
section of the plaintiff’s brief on appeal.
‘‘Our appellate courts, as a general practice, will not
review claims made for the first time on appeal.’’ (Inter-
nal quotation marks omitted.) Guzman v. Yeroz, 167
Conn. App. 420, 426, 143 A.3d 661, cert. denied, 323
Conn. 923, 150 A.3d 1152 (2016). We repeatedly have
held that ‘‘[a] party cannot present a case to the trial
court on one theory and then seek appellate relief on
a different one . . . .’’ (Internal quotation marks omit-
ted.) Council v. Commissioner of Correction, 286 Conn.
477, 498, 944 A.2d 340 (2008). ‘‘[A]n appellate court is
under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . [B]ecause our
review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.’’
(Citations omitted; internal quotation marks omitted.)
Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170–71,
745 A.2d 178 (2000); see also Practice Book § 60-5.
Accordingly, we decline to address this claim.4
II
The plaintiff next claims that the trial court erred in
granting the motions for summary judgment because
the defendants did ‘‘not [submit] any proof of reliance
on a government document as the source of the com-
plained of publications.’’ He argues that ‘‘[t]he naked
assertions of fair report privilege without any factual
verification that the authors of the complained of
defamatory articles relied upon any government docu-
ment, let alone [the suspension decision], are legally
insufficient to support the motions for summary judg-
ment.’’ We disagree.
The fair report privilege is well established. ‘‘The
publication of defamatory matter concerning another
in a report of an official action or proceeding or of a
meeting open to the public that deals with a matter of
public concern is privileged if the report is accurate
and complete or a fair abridgement of the occurrence
reported.’’ 3 Restatement (Second), Torts, Report of
Official Proceeding or Public Meeting § 611, p. 297
(1977). ‘‘If the report is accurate or a fair abridgment
of the proceeding, an action cannot constitutionally be
maintained for defamation. . . . The privilege exists
even though the publisher himself does not believe the
defamatory words he reports to be true, and even when
he knows them to be false and even if they are libel
per se. Abuse of the privilege takes place, therefore,
when the publisher does not give a fair and accurate
report of the proceeding.’’ (Citation omitted.) Burton
v. American Lawyer Media, Inc., 83 Conn. App. 134,
138, 847 A.2d 1115, cert. denied, 270 Conn. 914, 853
A.2d 526 (2004); see also 3 Restatement (Second), supra,
§ 611, comment (a), p. 298.
The plaintiff cites only Bufalino v. Associated Press,
692 F.2d 266 (2d Cir. 1982), cert. denied, 462 U.S. 1111,
103 S. Ct. 2463, 77 L. Ed. 2d 1340 (1983), as support
for this claim. In that case, the United States Court of
Appeals for the Second Circuit reviewed a Pennsylvania
ruling in which the trial court held that the fair report
privilege applied to insulate the media defendant from
liability for alleged defamatory statements. The defen-
dant had published in certain Pennsylvania newspapers
two reports that identified the plaintiff as a person with
‘‘alleged mob ties.’’ (Internal quotation marks omitted.)
Id., 270. The defendant in that case offered on appeal
‘‘a number of . . . official records which, it [argued]
. . . establish financial, family, and social ties between
[the plaintiff] and persons identified by state and federal
officials as participants in organized crime.’’ Id. Those
records, however, were not before the trial judge, and
the Second Circuit held that, ‘‘[e]ven were we to accept
the accuracy of these additional records, it is apparent
that [the defendant] did not rely upon them in preparing
its reports, but instead discovered them in preparation
for the present litigation. We believe that the lack of
reliance is dispositive of the issue of [fair report] privi-
lege.’’ Id., 270. ‘‘We thus conclude that [the defendant]
is not entitled to summary judgment on the basis of
records upon which it did not actually rely.’’ Id., 271.
Bufalino stands in stark contrast to the facts of the
present case and lends the plaintiff no support. Here,
the defendants are not relying on any materials to sup-
port their defense other than the 2015 articles and the
suspension decision, all of which were before the trial
court, which held that ‘‘[a]ll of the newspaper articles
may clearly be understood as reporting on a court deci-
sion. Moreover, the plaintiff cites no authority for the
proposition that the defendants are obliged to submit
proof of reliance on a government source in order to
avail themselves of the fair report privilege.’’ No such
requirement exists under the facts of this case, where
the defendants do not claim that they were relying on
information outside of the decision on which they were
reporting, and the plaintiff’s argument to the contrary
fails.
III
The plaintiff next claims that the court erred in grant-
ing the motions for summary judgment on the basis of
the fair report privilege because the 2015 articles were
not ‘‘fair and accurate accounts of the government docu-
ment relied upon.’’ We disagree.
‘‘[T]he fair reporting privilege requires the report to
be accurate. It is not necessary that it be exact in every
immaterial detail or that it conform to that precision
demanded in technical or scientific reporting. It is
enough that it conveys to the persons who read it a
substantially correct account of the proceedings . . . .
The accuracy required is to the proceedings, not to the
objective truth of the [alleged] defamatory charges.’’
(Citations omitted; internal quotation marks omitted.)
Burton v. American Lawyer Media, Inc., supra, 83
Conn. App. 140. Further, the fair report privilege affords
leeway to ‘‘an author who attempts to recount and popu-
larize an . . . event. . . . The author’s job is not sim-
ply to copy statements verbatim, but to interpret and
rework them into the whole. . . . A fussy insistence
upon literal accuracy would condemn the press to an
arid, desiccated recital of bare facts.’’ (Internal quota-
tion marks omitted.) Id., 140–41. As the trial court in
the present case noted, ‘‘[t]he author of a news article
reporting on a judicial decision has no duty to conduct
an impartial investigation of the underlying facts of the
case’’— ‘‘[t]he only question is whether the news article
represents a substantially accurate report of the court
decision upon which it is reporting.’’ See also Burton
v. American Lawyer Media, Inc., supra, 141–42. Addi-
tionally, ‘‘the determination of whether the contents of
a newspaper article are privileged as fair reporting is
an issue of law’’ over which we exercise plenary review.
Id., 138.
Much of the plaintiff’s claim concerns the 2015 arti-
cles’ use of the word ‘‘impersonating’’ to describe his
actions, the characterization of the legal advice he ren-
dered that formed the basis of the police investigation,
and certain alleged omissions regarding that investiga-
tion. He argues that the suspension decision ‘‘claimed
to be the source of the claimed fair report privilege
does not include . . . any finding that the plaintiff was
guilty of impersonation,’’ and that ‘‘the defendants’ ref-
erences in their complained of publications to ‘imper-
sonation’ and the plaintiff’s alleged rendition of legal
advice ‘to ignore the police,’ together with their know-
ing omission of the fact of the police officer’s deceptive
posturing as a criminal defendant, negate the applica-
tion of the conditional privilege of fair report.’’
Having compared the 2015 articles to the suspension
decision, we conclude that none of the plaintiff’s allega-
tions is sufficient to defeat the fair report privilege.
First, the 2015 articles contained substantially similar
language with respect to impersonation—Kauffman’s
article in the Hartford Courant read ‘‘Joseph Elder, a
Hartford attorney who impersonated a fellow lawyer
11 years ago, spawning a long-running feud between
the pair, will be barred from practicing law for a year,
a Superior Court judge has ruled’’; M. Kauffman, supra,
‘‘Attorney Suspended for a Year,’’ Hartford Courant,
p. B1; and the other 2015 articles reported that ‘‘[a]
Connecticut judge has suspended a Hartford attorney
for impersonating a fellow lawyer 11 years ago.’’ See
footnote 2 of this opinion. In comparison, the suspen-
sion decision provides that the police officer ‘‘spoke to
[the plaintiff] who again misidentified himself as Attor-
ney Spears’’ and that ‘‘[t]he court finds that [the plaintiff]
violated rule 4.1 [of the Rules of Professional Conduct]
by misrepresenting himself to a third person . . . . In
addition, the court finds that he failed to correct the
misrepresentation at any time,’’ and that when the offi-
cer called the plaintiff, the officer ‘‘identified himself
as a prospective client and [the plaintiff] identified him-
self as Attorney Spears.’’ Disciplinary Counsel v. Elder,
supra, Superior Court, Docket No. CV-XX-XXXXXXX-S. Use
of the word ‘‘impersonating’’ in the news articles accu-
rately describes the conduct detailed in the suspension
decision.
Second, although the 2015 articles omit the court’s
finding that when the plaintiff was first called by the
police officer, that officer identified himself not as a
police officer but as a prospective client, ‘‘[a]s long
as the matter published is substantially true, [a media
defendant is] constitutionally protected from liability
for a false light invasion of privacy, regardless of its
decision to omit facts that may place the plaintiff under
less harsh public scrutiny.’’ Goodrich v. Waterbury
Republican-American, Inc., 188 Conn. 107, 132, 448
A.2d 1317 (1982). The statement that the plaintiff was
suspended for ‘‘impersonating’’ Spears was substan-
tially true even with that detail omitted.
Additionally, we agree with the trial court that the
2015 articles do not ‘‘[advance] the proposition that [the
plaintiff] had advised the [suspect] to ignore the police
. . . .’’ (Internal quotation marks omitted.) Instead, as
the court noted, they accurately reported that the offi-
cer was ‘‘intent on finding out who had advised the
[suspect] to ignore the police,’’ that the suspect had
‘‘entered the home based upon what he claimed to be
the advice of his counsel,’’ and that the police officer
‘‘then attempted to find out the name of the attorney
that had given [the suspect] the advice to enter the
property under the belief that the attorney had commit-
ted an offense and that he had violated ethical canons.’’
(Emphasis omitted; internal quotation marks omitted.)
Those statements are substantially fair, true, and accu-
rate, and, accordingly, they are protected by the fair
report privilege.
Finally, the plaintiff argues that a quotation attributed
to Spears that ‘‘every judge, appellate court and jury’’
had concluded that the plaintiff impersonated Spears,
which was republished in the 2015 articles, ‘‘did not
come from any government document or proceeding’’
and, therefore, is unprotected by the fair report privi-
lege.5 (Internal quotation marks omitted.) Although
Spears’ quote was not in the suspension decision, that
deviation has little effect on our analysis. As our
Supreme Court stated in Strada v. Connecticut News-
papers, Inc., 193 Conn. 313, 320, 477 A.2d 1005 (1984),
‘‘[a]ny deviations from or embellishments upon the
information obtained from the primary sources relied
upon were miniscule and can be attributed to the leeway
afforded an author who attempts to recount and popu-
larize an . . . event.’’ (Internal quotation marks omit-
ted.) In light of our determination that use of the word
‘‘impersonating’’ accurately described the plaintiff’s
conduct as detailed in the suspension decision, we are
not persuaded that the quotation attributed to Spears
renders the 2015 articles substantially inaccurate such
that it would remove them from the umbrella of the
fair report privilege. The pertinent issue in this case is
whether the 2015 articles represented a substantially
accurate account of the judicial decision. Because we
conclude that they did, the plaintiff’s argument fails.
IV
The plaintiff’s next claim is that the court erred in
granting the motions for summary judgment because
the defendants did not submit ‘‘any evidence to rebut
the plaintiff’s claims of malice’’ and the plaintiff was
‘‘entitled, in any event, to a trial on the merits as to his
claims of malice.’’ We disagree.
In its memorandum of decision, the court stated that
‘‘[t]he argument that malice defeats the fair report privi-
lege is . . . unavailing, as it relies on the proposition
that the [2015] articles are not fair and accurate rendi-
tions of the [suspension decision]. The court has found
to the contrary.’’ In Burton, this court stated that, ‘‘[i]f
the report is accurate or a fair abridgment of the pro-
ceeding, an action cannot constitutionally be main-
tained for defamation. . . . The privilege exists even
though the publisher himself does not believe the
defamatory words he reports to be true, and even when
he knows them to be false and even if they are libel
per se. Abuse of the privilege takes place, therefore,
when the publisher does not give a fair and accurate
report of the proceeding.’’ (Citation omitted.) Burton
v. American Lawyer Media, Inc., supra, 83 Conn. App.
138. Because we hold that the 2015 articles were fair
and accurate abridgements of the suspension decision,
the plaintiff’s claim of malice fails as a matter of law.
Accordingly, the defendants were not required to rebut
the plaintiff’s claim, and the plaintiff was not entitled
to a trial on its merits.
V
Finally, the plaintiff argues that the court erred in
granting the motions for summary judgment in favor
of the defendants because ‘‘such summary adjudication
[constituted] a violation of his state constitutional right
of redress for injuries to his reputation guaranteed by
article first, § 10, of the constitution of . . . Connecti-
cut, and of his right to a trial by jury on his claims
for redress for injuries to his reputation . . . .’’ We
disagree.
The trial court addressed this issue in its articulation
dated October 17, 2019, and explained that it did not
consider the plaintiff’s state constitutional law claims
because they were inadequately briefed. Specifically,
the court stated that ‘‘[t]he [plaintiff] provides the identi-
cal argument regarding article first, § 10, in the various
opposition memoranda to the defendants’ motions for
summary judgment that include a history of § 10 and
other sections of article first of the constitution of Con-
necticut, a discussion of commentary related to the
importance of reputation and honor, a reference to the
English common-law practice of conducting jury trials
in libel cases and a discussion of the importance of
redress for injury to reputation. What the plaintiff did
not do in his various memoranda was to provide the
court with an identification of the precise contours of
the protection afforded by article first, § 10. Neither did
the plaintiff offer any analysis of how to address tension
between the article first, § 10 right to a remedy by due
course of law for injury to reputation and the fair
reporting privilege. While any analysis of the competing
weight to be provided to the article first, § 10 remedy
by due course of law and the fair reporting privilege
requires discussion of the nature and source of the
privilege, none was provided by the [plaintiff].’’ Addi-
tionally, the court noted that ‘‘the [plaintiff’s] memo-
randa are also bereft of any mention of the factors
articulated in State v. Geisler, [supra, 222 Conn. 685]6
that must be applied to analyze Connecticut constitu-
tional claims and which permit a reasoned and princi-
pled consideration of the meaning and contours of arti-
cle first, § 10.’’ (Footnote added; footnote omitted.)
The plaintiff’s state constitutional claim on appeal is
virtually identical to his arguments in previous memo-
randa that were before the trial court. He provides no
analysis of the nature and source of the fair report
privilege, which the trial court correctly noted would
be required for us to construe this claim. We disagree,
however, with the trial court’s statement that ‘‘failure
to provide an analysis of the constitution of Connecticut
under Geisler renders such claims unreviewable’’ in
this context. Geisler analysis is indeed required when
a litigant claims that our state constitution affords
broader protection than the United States constitution,7
but such analysis is not required when the provision of
the state constitution invoked has no federal analog.
In those cases, as in the present case, a party does not
necessarily need to conduct a Geisler analysis to state
a legally sufficient claim under our state constitution.
Regardless, however, the trial court concluded cor-
rectly that the plaintiff’s state constitutional claims
were inadequately briefed.
Moreover, we are not persuaded by the plaintiff’s
claim that his ‘‘state constitutional right of redress for
injuries to his reputation guaranteed by article first,
§ 10, of the constitution of . . . Connecticut trumped
the later developed judicially created common-law fair
report privilege.’’ We are guided in our analysis by the
Geisler factors, which, although not required to con-
strue this claim, are ‘‘useful in analyzing the scope of
a right guaranteed by the state constitution that has
no federal analog.’’ (Internal quotation marks omitted.)
Connecticut Coalition for Justice in Education Fund-
ing, Inc. v. Rell, 295 Conn. 240, 272 n.26, 990 A.2d
206 (2010).
Article first, § 10, of our state constitution provides:
‘‘All courts shall be open, and every person, for an injury
done to him in his person, property or reputation, shall
have remedy by due course of law, and right and justice
administered without sale, denial or delay.’’ The plaintiff
claims that ‘‘[t]he Connecticut constitution does not
provide that only ‘some’ injuries to reputation are sub-
ject to redress in our courts. It does not provide an
exception [that] allows defamers to publish libelous
reports without consequence so long as they cloak their
deeds with an assertion that their source is a govern-
ment document or official.’’ Although it is true that the
fair report privilege is not written into the Connecticut
constitution, the text of article first, § 10, does not sup-
port the plaintiff’s argument. The crux of this issue
is that the 2015 articles were a substantially fair and
accurate rendition of the suspension decision, which
was a matter of public record. The 2015 articles may
well have caused the plaintiff injury to his reputation
in the lay sense, but they did so by accurately and fairly
reporting on a matter of public record. Therefore, there
was no legally cognizable injury to the plaintiff’s reputa-
tion that would implicate the text of article first, § 10,
of our state constitution. ‘‘The existence of a false and
defamatory statement is a prerequisite to a party’s pre-
vailing in a case for libel.’’ (Emphasis added.) Burton
v. American Lawyer Media, Inc., supra, 83 Conn.
App. 137.
With respect to Connecticut history, we are not per-
suaded that the plaintiff’s references to commentators
on the Connecticut constitution provide any relevant
historical insight into the intent of our constitutional
forebears regarding application of the fair report privi-
lege under these circumstances. Additionally, with
respect to Connecticut precedent, the plaintiff acknowl-
edges that the fair report privilege is a common-law
privilege, but, as the trial court noted, he ‘‘did not bring
to the court’s attention any appellate decision that
addresses the meaning and breadth of the article first,
§ 10 remedy by due course of law for injury to reputa-
tion.’’ Likewise, the plaintiff cites no Connecticut case
law that supports his claim that the protection of article
first, § 10, ‘‘trumps’’ the fair report privilege. The plain-
tiff similarly cites no persuasive federal or sister state
authority that would call the validity of the privilege
into question.
Finally, with respect to public policy, it is well estab-
lished that the basis of the fair report privilege is ‘‘the
public’s interest . . . in having information made avail-
able to it as to what occurs in official proceedings and
public meetings.’’ (Internal quotation marks omitted.)
Burton v. American Lawyer Media, Inc., supra, 83
Conn. App. 138; see also 3 Restatement (Second), supra,
§ 611, comment (a), p. 297. The plaintiff counters that
‘‘the general public’s need for the public media (e.g.,
newspapers, television news, radio reports) to be its
source of information as to government activities as
the foundational justification for the fair report privilege
clearly has eroded substantially since the privilege was
initially promoted. There are now literally millions of
news sources available to individuals via the Internet.
. . . The public no longer depends upon [public media],
nor can it claim its public service role as being the eyes
and ears of citizens absent from public proceedings.’’
The plaintiff provides no citation to any authority sub-
stantiating those claims, nor does he provide analysis
with respect to why the widespread availability of news
sources would support his suggested application of arti-
cle first, § 10, of the state constitution to defeat the fair
report privilege. There is simply nothing that supports
the plaintiff’s assertion that the fair report privilege is
inconsistent with article first, § 10, of our state constitu-
tion. The trial court properly rendered summary judg-
ment in favor of the defendants.8
The judgment is affirmed.
In this opinion the other judges concurred.
1
Hearst Media Services Connecticut, LLC, was incorrectly named in the
complaint as ‘‘The Hearst Corporation’’ and will be referred to herein as
such. The Hearst Corporation is the current publisher of several Connecticut
newspapers, including The Middletown Press, New Haven Register, The
(Torrington) Register Citizen, and The (Norwalk) Hour. The first three news-
papers previously were published by 21st Century Media Newspaper, LLC,
which is owned by 21st Century Media, LLC, before The Hearst Corporation
acquired the assets of 21st Century Media, LLC, in June, 2017. Kauffman
was at all relevant times employed by the Hartford Courant, which is not
a party to this appeal.
We note that counsel has indicated that CBS Radio, Inc., as successor in
interest to CBS Corporation, is now known as Entercom Media Corp. We
refer herein to that entity as CBS Radio, Inc., as that was the name of the
entity at the time it filed its motion for summary judgment and the court
rendered its decision thereon.
The defendant The Sun Publishing Company did not file a motion for
summary judgment and is not involved in this appeal. The defendant The
Day Publishing Company filed a separate motion for summary judgment on
April 2, 2019, which was granted on November 26, 2019. The plaintiff has
not taken an appeal of that summary judgment decision. The defendant
Wesley Spears filed a separate motion for summary judgment on February
17, 2021, which has not yet been ruled on, and he is not involved in this
appeal. The plaintiff withdrew his complaint against the defendant Comcast
Corporation on May 2, 2019, and he withdrew his complaint against the
defendant The Record-Journal Publishing Company on December 16, 2019.
2
See ‘‘Hartford Lawyer Suspended for Impersonating Fellow Lawyer,’’
The Middletown Press, August 3, 2015, p. A6; ‘‘Hartford Lawyer Suspended
for Impersonating Fellow Lawyer,’’ The Register Citizen, August 3, 2015, p.
A6; ‘‘Hartford Lawyer Suspended for Impersonating Lawyer,’’ The Hour,
August 2, 2015, p. 2; ‘‘Connecticut Lawyer Suspended for Impersonating
Colleague,’’ New Haven Register, August 1, 2015.
3
The plaintiff did not allege that Kauffman’s article reporting on the
Supreme Court’s May 2, 2017 decision was defamatory.
4
In any event, we fail to see the import of the plaintiff’s claim in light of
the defense relied on by the defendants in their summary judgment motions.
As set forth more fully in this opinion, the fair report privilege requires a
comparison of the statements at issue with the decision or proceeding on
which those statements report. There is no dispute over the statements at
issue; they are the published articles that are the basis of the plaintiff’s
complaint. There also is no dispute as to the proceeding on which those
articles report; it was the disciplinary hearing before Judge Robaina that
resulted in the published opinion on which the defendants reported.
5
With respect to CBS Radio, Inc., this claim is not properly preserved. The
quotation attributed to Spears was not specifically alleged in the plaintiff’s
complaint as a defamatory statement as to any defendant but Spears, and
it was not addressed by the trial court. The plaintiff did, however, in his
memoranda in opposition to the motions for summary judgment filed by
Kauffman, 21st Century Media Newspaper, LLC, 21st Century Media, LLC,
and The Hearst Corporation, argue that the quotation attributed to Spears
was not from a government document or proceeding and that ‘‘there [is]
no fair report privilege for a reporter’s non-government sources.’’ No such
argument appears in his memorandum in opposition to the motion for
summary judgment filed by CBS Radio, Inc. Accordingly, we address this
issue on its merits only with respect to Kauffman, 21st Century Media
Newspaper, LLC, 21st Century Media, LLC, and The Hearst Corporation.
6
The six Geisler factors are: ‘‘(1) the text of the operative constitutional
provisions; (2) related Connecticut precedents; (3) persuasive relevant fed-
eral precedents; (4) persuasive precedents of other state courts; (5) historical
insights into the intent of our constitutional forebears; and (6) contemporary
understandings of applicable economic and sociological norms, or as other-
wise described, relevant public policies.’’ State v. Lockhart, 298 Conn. 537,
547, 4 A.3d 1176 (2010).
7
See, e.g., State v. Allan, 131 Conn. App. 433, 435 n.2, 27 A.3d 19 (2011)
(claim of violation of rights under article first, § 8, of state constitution not
reviewed due to failure to provide analysis required by Geisler), aff’d, 311
Conn. 1, 83 A.3d 326 (2014); State v. Knight, 125 Conn. App. 189, 193 and
n.6, 7 A.3d 425 (2010) (failure to provide independent analysis under Geisler
of rights provided by article first, §§ 8 and 9, of constitution of Connecticut
resulted in court declining to consider claim), cert. denied, 300 Conn. 927,
16 A.3d 704 (2011).
8
Additionally, summary judgment does not violate a party’s constitutional
right to a jury trial where no facts are in dispute. See Ocwen Federal Bank,
FSB v. Charles, 95 Conn. App. 315, 330, 898 A.2d 197 (‘‘[T]he plaintiff . . .
met the heavy burden and strict standard of demonstrating its entitlement
to summary judgment and therefore eliminated the delay and expense of a
trial where there was no real issue to be tried. . . . As such, the defendants’
right to a jury trial . . . was not implicated.’’ (Citation omitted; internal
quotation marks omitted.)), cert. denied, 279 Conn. 909, 902 A.2d 1069(2006).