Judicial District of New Haven


†††† †Torts; Defamation; Free Speech; Whether First Amendment Claim Satisfied Golding Test for Prevailing on Unpreserved Constitutional Claim; Whether Defendants Liable for Defamation Per Se.† Madeleine Gleason brought this action seeking to recover damages from Janice Smolinski and Paula Bell for defamation and intentional infliction of emotional distress arising from their conduct following the 2004 disappearance of Bill Smolinski.† Bill Smolinski is Janice Smolinskiís son and Bellís brother, and he dated Gleason just prior to his disappearance.† Gleason alleged that the defendants put up large quantities of missing person posters in areas where she lived and worked.† She claimed that when she removed the posters, the defendants put them back up the next day and that the pattern repeated itself at all three places where she resided over the course of a year.† Gleason also alleged that the defendants told third parties that she had done something to Bill, that she was involved in his disappearance and that she was a murderer.† The trial court rendered judgment in favor of Gleason on her emotional distress and defamation claims.† The defendants appealed, claiming that Gleasonís claims were barred by the first amendment to the United States constitution.† They argued that their conduct constituted protected speech because it related to a matter of public concern in uncovering information about Billís disappearance and in assisting with the ongoing investigation and potential prosecution of a crime.† The defendants did not raise that claim in the trial court, and they sought review under State v. Golding, 213 Conn. 233 (1989), which sets forth the circumstances under which a party may prevail on an unpreserved constitutional claim.† The Appellate Court (149 Conn. App. 283) affirmed the judgment, holding that the defendants failed to satisfy the Golding requirement that a constitutional violation clearly occurred and clearly deprived them of a fair trial in that they did not prove that their conduct was protected speech.† The court noted that although the posters did not specifically reference Gleason, the record supported the trial courtís conclusion that the defendants acted with the intent to target, harass and upset her personally rather than to communicate about a matter of public concern to a broad public audience.† The Appellate Court also rejected the defendantsí argument that Gleason failed to prove all of the elements of her defamation claim.† The court noted there was evidence in the record that the defendantsí statements were published to third parties, that they identified Gleason to the listeners and that they were made with actual malice.† The court further found that because the statements charged Gleason with committing a crime of moral turpitude, they were actionable per se such that the element of reputational harm was presumed. †The Supreme Court granted the defendants certification to appeal, and it will decide whether the Appellate Court properly concluded that their first amendment claim of protected speech failed to satisfy the Golding test for review of unpreserved constitutional claims.† The Supreme Court will also decide whether the Appellate Court properly affirmed the trial courtís determination that the defendants were liable for defamation per se.