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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 Christopher P. DeMarco and, on the brief, Anne T. McKenna,

pro hac vice, forthe 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 investigation. 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 intentional 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 damages 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 defendants’ 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 improperly 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 statements were protected opinion; and (3) the plaintiff

failed to carry the requisite burden of proof. We conclude 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 consider, and are not consistent with, the various limitations placed on these torts by the first amendment.

Accordingly, we reverse the judgment of the Appellate Court.

The record, including the Appellate Court’s opinion

and the findings set forth in the trial court’s memorandum 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 ofthe 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 answering 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 . . . defendants . . . 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 conducted 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 quotation marks omitted.) Id., 288.

The plaintiff then brought the present action against

the defendants. As the Appellate Court noted, the plaintiff ‘‘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 defendants’ conduct constituted intentional infliction of emotional distress and that their statements that the plaintiff

was a murderer or was involved in murder constituted

defamation. The court awarded the plaintiff compensatory 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 damages award . . . .’’ Id., 289.

The defendants appealed from the judgment of the

trial courtto theAppellateCourt 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 prosecution of a crime’’; and (2) the plaintiff had failed to introduce 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 offensively—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 inBill’s

disappearance. Id., 310. In particular, the Appellate

Court relied on this court’s decision in Urban v. Hartford 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. Additional 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 intentional 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 defendants 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 decision in Snyder v. Phelps, supra, 562 U.S. 443. They

posit that their poster campaign was constitutionally

protected speech that pertained to a matter oflegitimate

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 manner, 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, however, 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 consideration 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 negligent 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]mendment . . . 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 examine for [itself] the . . . statements [at] issue and the

circumstances under which they [were] made to [determine] 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 independent 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 leading 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 vociferous, congregation ‘‘believes that God hates and punishes 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 ‘‘approximately [1000] feet from the church where the funeral

was held. Several buildings separated the picket site
from the church. . . . The Westboro picketers displayed 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 laterthat night, while watching a news

broadcast covering the event.’’ (Citations omitted.) Id.,

449. A federal court jury subsequently awarded the Snyder’s father several million dollars in damages for his

claims, which included intentional infliction of emotional distress, against Westboro and several of its members. 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]mendment reflects a profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wide-open. . . . That is because

speech concerning public affairs is more than selfexpression; it is the essence of self-government. . . .

Accordingly, speech on public issues occupies the highest 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 private significance are at issue, [f]irst [a]mendment protections 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 boundaries 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 inappropriate or controversial character of a statement is irrelevant 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 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.) 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 highlight—the political and moral conduct of the United

States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic

clergy—are matters of public import.’’ (Internal quotation 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] specifically, that would not change the fact that the overall

thrust and dominant theme of Westboro’s demonstration 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; emphasizing that Westboro ‘‘conducted its picketing peacefully 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 protection. . . . [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 sidewalks 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 Westboro’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 supposed evils of the Catholic [c]hurch.’’ (Internal quotation 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 Westboro’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 ‘‘Westboro’s speech was at a public place on a matter of

public concern, that speech is entitled to special protection 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 federal courts to set aside the ‘‘jury verdict imposing tort

liability on Westboro for intentional infliction of emotional distress . . . .’’ Id., 459.

Post-Snyder cases make clear the critical import of

the threshold inquiry into the nature of the communications 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 commission of crime, prosecutions resulting from it, and judicial 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 disappearance, 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 communications at issue. Snyder v. Phelps, supra, 562 U.S. 454.

We agree with the Alaska Supreme Court’s recent rejection of the ‘‘sweeping’’ argument that all ‘‘speech involving 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 medical privacy). Indeed, as the Supreme Court has

observed in acknowledging the possibility of ‘‘contriv-

[ance]’’; Snyder v. Phelps, supra, 455; the first amendment 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 tabloid 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 molestation 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 investigation thatled 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 protesting 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 conduct 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 concern.’’ Spacecon Specialty Contractors, LLC v. Bensinger, 713 F.3d 1028, 1038 (10th Cir. 2013). The vehicle,

context, and content of the messages remains of paramount importance. See id., 1038–39 (evidence that organizer’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 encouraged 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 respectto what she knew

aboutBill’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 overarching 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 encouraging 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 communicate’’).

Moreover, the missing person posters created by the

defendants in the present case were entirely contentneutral with respect to the plaintiff; none mentioned

her by name, and all simply contained photographs and

descriptions of Bill, along with reward and tip information. 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 particularly 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 traditional public fora’’); Lewis v. McCracken, 782 F. Supp.

2d 702, 711–12 (S.D. Ind. 2011) (following multiple circuits and holding that ‘‘privately owned sidewalks bordering 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 concern 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 negligence, against persons who had engaged in an aggressive protest of the city’s parking enforcement policies

by following and videotaping parking enforcement officers 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 interference 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 omitted.) 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 constitutionally unprotected, noting first that the city did not ‘‘challenge 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 protesters’ arguments that ‘‘[e]ven those activities that did not

involve speech [are] expressive conduct entitled to

[f]irst [a]mendment protection, and, therefore, are insulated from tort liability,’’ and ‘‘absent acts of significant

violence, the [f]irst [a]mendment protects their nonverbal 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 conduct.’’23 (Citations omitted; internal quotation marks

omitted.) Keene v. Cleaveland, supra, 118 A.3d 261.

Guided heavily by this recent New Hampshire decision,24 which considered similarly targeted and harassing conduct, we conclude that a substantial portion of

the defendants’ conduct that the trial court found to

constitute the intentional infliction of emotional distress 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, established a constitutional violation under the third prong

of State v. Golding, supra, 213 Conn. 239–40. See footnote 10 of this opinion.

Turning to the fourth prong of Golding, namely,

whetherreversal is required, we conclude that the plaintiff, as appellee, has not established that the constitutional violation was harmless beyond a reasonable

doubt, given the apparent significance of the flyer campaign to the trial court’s finding on herintentional infliction 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 calling 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 determinations 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 intentional infliction of emotional distress independent of

any constitutionally protected conduct. But see Appleton 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 emotional distress’’ [internal quotation marks omitted]).

Accordingly, we conclude that the defendants are entitled to a new trial, at which the trial court can consider

the evidence in light of the governing first amendment principles.26

II

DEFAMATION CLAIMS

We next turn to the defendants’ claim that the Appellate Court improperly upheld the trial court’s conclusion 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 defamatory. 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 defendants 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 conclusion 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 defendants had acted with actual malice in making these

statements in reckless disregard for the truth, thus supporting the plaintiff’s claim for punitive damages. Id.,

311. Finally, the Appellate Court rejected the defendants’ contention that the statements, if defamatory,

did not support a claim for damages because the plaintiff had suffered ‘‘no resulting reputational harm,’’ reasoning 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 challenges to the Appellate Court’s decision is informed by

the following general principles. Although defamation30

claims are rooted in the state common law, their elements ‘‘are heavily influenced by the minimum standards 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 defamatory statement; (2) the defamatory statement identified

the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’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 communication 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 affirmative 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 govern 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) public 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 evidence, 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 evidence 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 present appeal, we observe four touchstones for our analysis. 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 concern 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 murder 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 characterization 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 theirfirst amendmentrights. 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 punitive 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. Journal Publishing Co., supra, 525–36. Rather, consistent

with the analysis applied in other first amendment contexts; 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 ordinarily 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 independent 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 judgment 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; internal 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 independent review does not mean that we disregard credibility determinations of the trier of fact. . . .

Deference to factual determinations that turn on credibility assessment is essential because of the fact finder’s

unique opportunity to observe and weigh witness testimony.’’ (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 theirtestimony

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 knowingly made false statements about plaintiff’s employment 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 erroneous 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 amendment 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 continues 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 defamation claim.’’

In response, the plaintiff relies on Goodrich v. Waterbury 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 bearthe burden of proving

the falsity of the defamatory statements, insofar as Connecticut 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’ radical position . . . it would not alter the result in this

case,’’ insofar as the trial court found that the defendants 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 preserved 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 defendants’ 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 constitutional 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 proposition. 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 standard 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 private 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 interest in that concern.’’ Flamm v. American Assn. of University 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 privatefigure plaintiffs concerning statements on purely private matters,’’ but stating that ‘‘[f]or constitutional reasons . . . a private-figure plaintiff . . . generally has

the burden of proving falsity, at least where the allegedly defamatory statements concern a matter of public

interest’’ [citation omitted]).

In describing this burden shift away from the common-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 defamation 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 concern, the [c]ourt has been willing to insulate even

demonstrably false speech from liability, and has

imposed additionalrequirements offault upon the plaintiff in a suit for defamation.’’ (Citations omitted; emphasis 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 plaintiff 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, evidence offered by plaintiffs on the publisher’s fault in

adequately investigating the truth of the published statements 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 considered 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 amendment 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. Turning 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 sufficient 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 province 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] publication . . . . Moreover, [a] refusal to retract a statement 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 conclude 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 indicating 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 determination that ‘‘[w]e do not have a case of mere negligent

utterances not based on fact but on suspicion and conjecture,’’ particularly given that the plaintiff never challenged at trial the defendants’ personal knowledge of

the factual basis for their statements. Indeed, the evidence 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 entertained serious doubts as to the truth of their allegations.’’ (Internal quotation marks omitted.) Tan v. Le,

supra, 177 Wn. 2d 674.

First, the plaintiff and Bill ended their romantic relationship 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 disappearance, 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

forthe 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 information 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 evidence 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 amendmentrequires

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 defamation.

In this opinion ROGERS, C. J., and PALMER, McDONALD 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 defendants. 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 newspaper, the Waterbury Observer, forinvasion 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 relevant 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. Moulton, 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 Apicella’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 magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial;

and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable 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. Commissioner 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 concluded 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 Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013).

13 At oral argument before this court, the plaintiff clarified that her statement 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 notintended

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,ratherthan the clarity of the legal conclusions 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.) PerezDickson 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 notwithstanding—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 knowledge 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 emotional 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]mendment.’’ 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 ‘‘outrageousness’’ standard to distinguish the cartoon at issue in Hustler Magazine,

Inc., from ‘‘more traditional political cartoons,’’ stating that the term ‘‘outrageousness’’ does not furnish a ‘‘principled standard’’ for making that distinction, 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 Magazine, 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 authorities 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 subjective 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 constitutional public-concern question largely dictates how courts will laterresolve

the [common-law] question of whether publication of the speech was

extreme and outrageous.’’ C. Calvert, ‘‘Public Concern and Outrageous

Speech: Testing the InconstantBoundaries ofIIED and The FirstAmendment

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) (plaintiff’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 confronted 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 thoroughly 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 business 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 apparently 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 aftertheir being put up by the [defendants].’’

21 The dissent states that ‘‘the trial court found that the defendants’ targeting 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 infliction of emotional distress claim.

This, of course, explains why the Appellate Court considered the defendants’ 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 demonstrates 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 amendment 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] followed 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: videotaped 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 [officers] 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 circumstances of the case priorto making its determination as to whetherinjunctive

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 quotation 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 [officers] 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 thatthe parties had engaged in a confrontation 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 significant, 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 statements 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 supported 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 distress, 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 omitted; 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 ourreview 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 (commonlaw intracorporate communications privilege); Goodrich v. Waterbury

Republican-American, Inc., supra, 188 Conn. 114–15 (fair comment privilege); 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 exposition, 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 amendment, 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 numerous 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 privilege largely accord with first amendment protections for opinion. See Milkovich 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 determinations 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 Enterprises, 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 ofreview, 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] defamation 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,ratherthan 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 constitutionally required to prove that all of the allegedly defamatory statements were

made with actual malice. This issue is not squarely presented in the defendants’ 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 concerned. 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. Sheriff of East Baton Rouge, 935 So. 2d 669, 680–81 (La. 2006); Senna v. Florimont, 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 courtlocated 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 decisions 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 RepublicanAmerican, 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.’’ HarteHanks 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 question 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 assessment of the level of proof, and our generalreluctance 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 plaintiff’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 placement 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] disappearance.’’ 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 (nursing 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. Tradewind 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 knowing falsity of statements with regard to pilot’s alleged termination forreasons

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 improbable’’ 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 campaign 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 disappearance 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.