Opinion
HHDCV176081368S
02-14-2019
Joseph ELDER v. 21ST CENTURY MEDIA NEWSPAPER, LLC et al.
UNPUBLISHED OPINION
OPINION
Before the court are the motions for summary judgments of the defendants, CBS Radio, Inc. (successor in interest to CBS Corp.) (CBS); 21st Century Media Newspaper, LLC; 21st Century Media, LLC; Hearst Media Services Connecticut, LLC; Matthew Kaufman (Kaufman); the Record Journal Publishing Company (Record Journal) and Comcast Corporation (Comcast). The present action alleges defamation and false light invasion of privacy against these and other defendants. Relevant to the motions for summary judgment are the plaintiff’s assertions that following his suspension from the practice of law by the court, Robaina, J.; see Disciplinary Counsel v. Elder, Superior Court, judicial district of Hartford, Docket No. CV- 15-6057682 (July 29, 2015, Robaina, J.) (2015 WL 5136008), rev’d on other grounds, 325 Conn. 378, 159 A.3d 220 (2017); the defendants falsely reported the findings of the court or the events related to his suspension. The motions all assert that the application of the fair reporting privilege entitles them to summary judgment on the plaintiff’s claims of defamation and false light invasion of privacy.
Defendant Hearst Media Services Connecticut, LLC is the current publisher of several Connecticut newspapers, including The Middletown Press, New Haven Register, The (Torrington) Register Citizen, and The (Norwalk) Hour. The first three newspapers were previously published by defendant 21st Century Media Newspaper, LLC, which is owned by 21st Century Media, LLC, before Hearst acquired the assets of 21st Century Media Newspaper, LLC, in June 2017. Hearst Media Services Connecticut, LLC, 21st Century Media Newspaper, LLC and 21st Century Media, LLC will collectively be referred to as "Hearst Media Services Connecticut."
Kaufman was at all relevant times employed by the Hartford Courant.
The co-defendants, Wesley Spears, Esq., the Sun Publishing Company and The Day Publishing Company, have not filed motions for summary judgment. Those defendants who did file motions will collectively be referred to as the "defendants."
The following facts and procedural history are relevant to this decision. Following a presentment by the Office of the Disciplinary Counsel alleging misconduct against Elder the court suspended the plaintiff from the practice of law for one year. The decision of the court was dated July 29, 2015. As discussed in further detail below, the court found that the plaintiff had misrepresented himself as Spears in two phone calls with an individual he later discovered to be a police officer conducting an investigation into alleged legal advice thought to be given by the plaintiff to a client. In the days following the release of the court’s decision the defendants, with the exception of Comcast, published substantially similar news articles reporting on the disciplinary proceeding. Some seven months after the decision Comcast published a post that referenced Elder in a blog about a television series.
The present action was commenced on August 18, 2017. In his complaint, the plaintiff claims that the content of the articles and blog post render the defendants liable for defamation and false light invasion of privacy. Specifically, the plaintiff finds offensive the articles’ assertion that he had "impersonated" a fellow lawyer. He further claims that the defendants had in their possession or "access to, information which would have readily disproved the allegation of impersonation, but they conducted no reasonable fact checking before publishing the falsehood that Elder was guilty of impersonation. If they did conduct reasonable fact-checking before publishing ... then the publication was done with malice." The claim of false light invasion of privacy is based on the claim that "the articles painted an incomplete and misleading account of the incident, Elder’s advice to his client, the telephone call to Elder and the filing of an application for an arrest warrant and grievance [and omits Elder’s claim that he] made repeated attempts to speak with the police officers on site before Krajewski entered his home [but the police] on scene refused repeatedly to speak with Elder." Elder asserts in his complaint that the Comcast blog bore no resemblance to the court’s decision and moreover made no mention of the decision.
On February 23, 2018, the defendants Hearst Media Services Connecticut; The Record-Journal Publishing Company; Matthew Kauffman; CBS Radio, Inc.; and Comcast Corporation filed largely similar answers to the plaintiff’s complaint, admitting, inter alia, to publication of the work complained of, the continued availability of these articles on their publishers’ websites, the basic facts of the plaintiff’s disciplinary proceeding (or, alternately, referring to relevant court documents from the proceeding), and the basic business relationship (if any) between purportedly related entities, while denying any of the harms alleged by the plaintiff. The defendants also asserted numerous special defenses, most importantly for present purposes the "fair report privilege."
Simultaneous with their answers, the defendants filed motions for summary judgment each asserting that the articles in question were fair and accurate reports of an official proceeding, namely the plaintiff’s disciplinary hearing, and thus were shielded from defamation and false light claims by the fair report privilege. Between April 9, 2018, and April 16, 2018, the plaintiff filed memoranda in opposition to the defendants’ motions for summary judgment. The plaintiff’s objections to the motions are essentially that the articles are not fair and accurate because they incorrectly report that Elder impersonated another attorney; the articles omitted the fact that the police officer identified himself as a prospective client, and falsely reported that Elder had advised his client, Eric Krajewski, to ignore the police. Further, he argues that the media defendants have submitted no proof of reliance on government sources and that malice voids any right to the fair report privilege.
The media defendants filed reply memoranda in support for their motions for summary judgment on May 4, 2018, making largely similar arguments in each. Specifically, each defendant reiterated that their articles were protected under the fair report privilege and argued 1) that the privilege did not require that affirmative evidence be submitted showing reliance on an official report; 2) that the only relevant inquiry concerning the privilege was whether the article provided a substantially accurate account of the underlying official action; 3) that the privilege allowed for paraphrasing and summarization, rather than requiring a verbatim recitation of an underlying official report; and 4) that malice cannot be shown where a report is an otherwise accurate description of an official action.
On July 3, 2018, the defendants Kauffman, Hearst Media Services Connecticut and The Record-Journal Publishing Company filed notices of subsequent authority for the case Elder v. Tronc, Inc., Docket No. 3:17-CV-01285-WWE, 2018 WL 3233135 (D.Conn. July 2, 2018), wherein the United States District Court for the District of Connecticut dismissed the present plaintiff’s claims against the Hartford Courant’s parent company after finding that the fair report privilege applied to Kauffman’s article. On July 17, 2018, the plaintiff filed a notice in the present matter that he would be filing in the District Court a motion for reconsideration of the Tronc, Inc. decision.
Disciplinary Counsel v. Elder, supra, arose out of an incident in July 2004 where police sought to execute a search warrant at the home of Eric Krajewski. Disciplinary Counsel v. Elder, supra . "The police had been detaining Krajewski from entering the property ... while they were waiting for a search warrant. Krajewski used his cell phone to call an attorney and upon the conclusion of the call entered the home based upon what he claimed to be the advice of his counsel. The police followed Krajewski into the house where they discovered him attempting to hide or destroy contraband. Krajewski was taken into custody ..." Id. 2015 WL 5136008, *1.
The present matter arose out of the subsequent attempt by police to determine the identity of the lawyer Krajewski had called. The day after taking Krajewski into custody, a police officer, Sgt. Dean Cyr, "attempted to find out the name of the attorney that had given Krajewski the advice to enter the property under the belief that the attorney had committed an offense and that he had violated ethical canons." Disciplinary Counsel v. Elder, supra, 2015 WL 5136008, *1. Cyr called a number that he had taken from Krajewski’s cell phone that he thought belonged to the lawyer. "[W]hen the officer called the phone number he had taken from Krajewski’s phone, he identified himself as a prospective client and the respondent (Elder) identified himself as Attorney Spears. The [officer] then looked up Attorney Spears[’] contact information and identity, and found Wes Spears. Ultimately [the officer] called the person he thought to be Spears directly, spoke to Mr. Elder who again misidentified himself as Attorney Spears ... Elder did not identify himself correctly at any time during the call, nor at any time subsequent." Id. The police officer then applied for an arrest warrant and filed a grievance against Spears which were ultimately refused and dismissed respectively. "The phone number in question was included in the grievance complaint whereupon Spears realized it was Elder’s. Even though Elder had changed his phone number shortly after the initial incident, both Spears, and ultimately the officer, were able to speak to the person newly assigned the same number who advised them that she frequently received calls for Elder. That affirmed the conclusion that the phone number did not belong to Spears but instead to Elder." Id.
Judge Robaina also includes a footnote citing to an appellate decision in a civil action filed by Spears against the plaintiff that arose from the same facts. The decision in Spears v. Elder, 124 Conn.App. 280, 5 A.3d 500 (2010), provides further elaboration on the history of this incident. The appellate court reviewed the trial testimony which related to the advice given to Krajewski which the jury found attributable to Elder (specifically, that police could not prevent him from entering the home without a warrant), a struggle between the police and Krajewski resulting in his entry into the apartment and attempt to destroy evidence. The appellate court also recited the phone conversations between the plaintiff and the police officer. The decision notes that based on a denial from Elder that he had impersonated him Spears mistakenly believed that the police officer was attempting to frame him. Spears then filed a civil action against the police officer and in the course of discovery "heard the recorded telephone conversation between [the officer] and Elder where Elder had impersonated Spears." Id. 284. Spears secured monetary damages in the form of both compensatory and punitive damages from Elder in the combined amount of $ 73, 000.
Ultimately, "[t]he court [found] that [Elder] ... violated Rule 4.1 [of the Rules of Professional Conduct] by misrepresenting himself to a third person in the course of his representation of Mr. Krajewski. In addition, the court [found] that [Elder] failed to correct the misrepresentation at any time, despite having had ample opportunity to do so" and suspended the plaintiff from the practice of law for one year. Disciplinary Counsel v. Elder, supra, 2015 WL 5136008, *2. Specifically, the court found his misrepresentation and conduct throughout the incident to be deceitful and dishonest causing damage not only to Spears but to the legal profession. "[T]he court also [found] that Elder’s failure to take corrective action once he learned that his act had resulted in the consequences to Spears is also deceitful and dishonest. His trial testimony and argument suggest that he is blind to the consequences and events which his actions have set in motion. His oft-repeated claim that Spears has not suffered is simply wrong ... His refusal to accept responsibility for his actions has been the hallmark of his behavior throughout this incident." Id.
At issue are three substantially similar articles by the media defendants and the blog posting from Comcast. The articles are apparently based on an article written by Kaufman which appeared in the Hartford Courant on July 31, 2015. On August 1, 2015, four identical articles appeared in the Middletown Press, the New Haven Register, the Register Citizen and CBS Connecticut. The August 1 reporting was expanded on in identical reporting contained in an August 1, 2015 article by the Hour and two August 3 articles in the Middletown Press and the Register Citizen . Finally, on March 3, 2016, Comcast posted a blog on its website entitled "Here Are 5 Real-Life-Lawyer Frauds Even Ballsier than Mike Ross."
All of the newspaper articles contain a similar caption which essentially provides that an attorney was suspended for "impersonating" a fellow lawyer. Kaufman’s article leads with the sentence that "Joseph Elder, a Hartford Attorney who impersonated a fellow lawyer 11 years ago, spawning a long running feud between the pair, will be barred from practicing law for a year, a Superior Court judge has ruled." In Elder’s view, the use of the word "impersonating" or "impersonated" constitutes defamation.
The false light invasion of privacy claim is based on almost the identical reporting in the articles which reads: "In 2004, police prevented a man from entering his home while they waited for a search warrant. After talking with Elder over the phone, the man went into his house anyway, following a fracas with the police. When police called the number they said Elder identified himself as Wes Spears, another Hartford lawyer. Police unsuccessfully sought an arrest warrant for Spears and sought disciplinary action against him until they discovered it was Elder, not Spears, on the call ..." Kaufman’s article as well as the Hours’ August 1st and the Press and Register Citizen ’s August 3rd articles reported that Elder is reported to have "allegedly identified himself as ‘Wes Spears.’" Additionally, they contain the reference that the police officer "intent on finding out who had advised the resident to ignore the police, called the phone number stored in the man’s cellphone."
The Comcast blog post is unique because it is essentially a piece of promotional material for the network’s television series Suits rather than a journalistic work. Under the heading "The Old Switcheroo," the posting contains the following paragraph: "It seems a Hartford, CT lawyer named Joseph Elder, upon giving a client some questionable advice, posed as another attorney in order to get out of hot water with local police. His impulsive action kicked off a long-running feud with the actual attorney whose identify he briefly stole and wound up costing him the ability to practice law for a year— not to mention $ 73, 000 in damages. Is it just us, or does this have Louis’ name written all over it? (Source: Hartford Courant)."
The reference to Louis is presumably to Louis Litt, a character from the television series who is described as "self-serving" and who "often bends rules to get what he wants," but who also "has a strong work ethic." Wikipedia, "List of Suits Characters" (last modified December 30, 2018), available at https://en.wikipedia.org/wiki/List_of_Suits_characters#Louis_Litt (last visited February 12, 2019).
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book [§ 17-45] ..." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016). "A defendant’s motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact." Mercer v. Cosley, 110 Conn.App. 283, 296, 955 A.2d 550 (2008).
The fair report privilege protects parties from claims of defamation and invasion of privacy claims when they publish accurate or fair abridgments of official action or proceedings such as judicial decisions. Burton v. Am. Lawyer Media, Inc., 83 Conn.App. 134, 138, 847 A.2d 1115, cert. denied, 270 Conn. 914 (2004) (claims of defamation, invasion of privacy, intentional and negligent infliction of emotional distress related to news article of judicial decision sanctioning plaintiff attorney barred by fair reporting privilege). The privilege applies when an article is a substantially accurate report on a governmental action. Id. 139. "According to the comments to [3 Restatement (Second), Torts, Report of Official Proceeding or Public Meeting, § 611, p. 297, comment (a) (1977) ] the basis of the privilege is the public’s ‘interest ... in having information made available to it as to what occurs in official proceedings and public meetings ..." Id. 138. The language of § 611 provides: "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."
"[T]he fair reporting privilege requires the report to be accurate. It is not necessary that it be exact in every immaterial detail or that it conform to that precision demanded in technical or scientific reporting. It is enough that it conveys to the persons who read it a substantially correct account of the proceedings ... The accuracy required is to the proceedings, not to the objective truth of the [alleged] defamatory charges." Burton v. Am. Lawyer Media, Inc., supra, 83 Conn.App. 140. Moreover, the court privilege affords leeway to "an author who attempts to recount and popularize an ... event ... The author’s job is not simply to copy statements verbatim, but to interpret and rework them into the whole. A fussy insistence upon literal accuracy would condemn the press to an arid, desiccated recital of bare facts." (Citation omitted.) Id. 140-41. The author of a news article reporting on a judicial decision has no duty to conduct an impartial investigation of the underlying facts of the case. The only question is whether the news article represents a substantially accurate report of the court decision upon which it is reporting. Id. 141-42. Finally, "the determination of whether the contents of a newspaper article are privileged as fair reporting is an issue of law." Id. 138.
As previously noted, the basis for the common defamation claims is the reporting that Elder "impersonated" a fellow lawyer. This may be easily disposed of. The decision in Disciplinary Counsel v. Elder the exchange between the police officer and Elder in which the latter responds yes to the interrogatory "Attorney Spears?" The findings of Judge Robaina were that Elder misrepresented himself as Spears to a third person. The decision of the appellate court in Spears v. Elder, supra, which affirmed the judgment against Elder and which is referenced in Judge Robaina’s decision, specifically referenced Elder’s act of "impersonating" Spears in his conversation with the police officer. Spears v. Elder, supra, 124 Conn.App. 284. The word impersonate is defined as "To assume or act the character of." Merriam-Webster’s Collegiate Dictionary (Eleventh Ed. 2003). In short, the use of the word "impersonate" in the news articles accurately describes the conduct described in the Disciplinary Counsel v. Elder. Accordingly, the court finds that the description in the newspaper articles of Elder having "impersonated" Spears is a substantially fair and accurate report of Judge Robaina’s decision and holds that the use of "impersonate" is protected by the fair report privilege.
This conclusion is in harmony with Judge Eginton’s decision in Elder v. Tronc, supra, which considered Kaufman’s article and found the fair report privilege applicable.
The basis for the common false light invasion of privacy claim is its mischaracterization of Judge Robaina’s decision by what are, in his estimation, omissions and additions. The articles omit the court’s findings that when the police officer first called Elder he identified himself not as a police officer but as a prospective client. The inclusion of the statement that "Elder had advised the resident to ignore the police" in the Kaufman article is an "unfounded fictional creation which creates a misimpression in the reader’s mind that Attorney Elder was an ethically challenged attorney ..."
Elder argues that the failure to report that Judge Robaina found the police officer identified himself as a prospective client, rather than an officer, places him in a false light. This is so in Elder’s view because the omission of this fact gives the false impression that Elder intentionally and knowingly misled a police officer. The court is not persuaded. The omission does not convey an erroneous impression. "Although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression." Burton v. American Lawyer Media, Inc., supra, 83 Conn.App. 140. The main issue is Elder’s misrepresentation of himself as someone else and this the court has found to be substantially fair and accurate reporting. In the present case the reporting made no mention of how the police officer identified himself. Under the first amendment, a media defendant is constitutionally protected from a false light invasion of privacy claim where the matter published is substantially true "regardless of its decision to omit facts that may place the plaintiff under less harsh public scrutiny." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 132, 448 A.2d 1317 (1982).
Finally, the assertion that the Kaufman article— as well as the August 1 and 3rd articles— advanced the proposition that "Elder had advised the resident to ignore the police" is simply incorrect. The article places this proposition in the context of the police officer’s intent. It reads "When a Plainville officer, intent on finding out who had advised the resident to ignore the police, called the phone number stored in the man’s cellphone, Elder answered and allegedly identified himself as ‘Wes Spears.’" Judge Robaina’s decision in fact found that upon the conclusion of the phone call with an attorney Krajewski "entered the home based upon what he claimed to be the advice of his counsel." More to the point, the decision included the finding that the police officer "then attempted to find out the name of the attorney that had given Krajewski the advice to enter the property under the belief that the attorney had committed an offense and that he had violated ethical canons." The court finds that this portion of the Kaufman article is substantially fair, true and accurate, and holds that they are protected by the fair report privilege.
The appellate court in Spears v. Elder concluded that the jury found that "Elder indicated to Krajewski that, without a warrant, the officers could not prevent him from entering." Spears v. Elder, supra, 124 Conn.App. 282.
While the complaint alleges the failure of the articles to report that Elder’s claim that he attempted to speak with the police officers at the scene but they refused to take his call. This claimed event does not appear in Disciplinary Counsel v. Elder and the defendants are under no duty to conduct an impartial investigation into the facts of the case.
Elder’s arguments that the defendants publishing the newspaper articles failed to submit proof of reliance on any government sources is unavailing. All of the newspaper articles may clearly be understood as reporting on a court decision. Moreover, the plaintiff cites no authority for the proposition that the defendants are obliged to submit proof of reliance on a government source in order to avail themselves of the fair report privilege. This argument thus need not be considered because courts are not required to review claims that are inadequately briefed. Heyward v. Judicial Dep’t of State, 159 Conn.App. 794, 802, 124 A.3d 920 (2015).
The argument that malice defeats the fair report privilege is also unavailing as it relies on the proposition that the articles are not fair and accurate renditions of the complaint. The court has found to the contrary.
The Comcast blog post differs in a significant respect to the newspaper articles. In contrast to each of the articles that clearly were reporting on an official proceeding, the disciplinary case, the Comcast post contains no reference to Judge Robaina’s decision. In order to be a "fair report" of an official proceeding the publication must of necessity report on an official proceeding and alert the reader that it is an account of the official proceeding. The Comcast post does neither. Comment d. to § 611 clarifies that "[t]he privilege covered in this Section extends to the report of any official proceeding, or any action taken by any officer or agency of the government of the United States, or of any State or of any of its subdivisions ... The privilege is thus applicable to the report of proceedings before any court."
Comcast has provided the court with no authority for the proposition that public commentary that does not identify that is a report on an official proceeding is entitled to the privilege. The court’s research has not found any authority directly addressing this issue. It is nevertheless clear that "[t]he burden is upon the defendant in the first instance to establish the existence of a privileged occasion." DeMary v. Latrobe Printing & Pub. Co., 2000 PA Super. 339, ¶ 14, 762 A.2d 758, 765 (2000). "The fair report privilege only applies if the published material reports on an official action or proceeding." Weber v. Lancaster Newspapers, Inc., 2005 PA Super. 192, ¶ 48, 878 A.2d 63, 78 (2005). The privilege exists because it is in "the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings." 3 Restatement (Second), supra, at § 611, comment (a).
The plaintiff cites Day v. Graziano, Superior Court, judicial district of Hartford, Docket No. HHDCV125036189S , 2014 WL 1283082, (February 28, 2014, Huddleston, J.), and Finnelli v. Tepfer, Superior Court, judicial district of Fairfield, Docket No. CV 075011659S, 2009 WL 1424688 (April 24, 2009, Gilardi, J.), for the proposition that Connecticut courts have routinely found news articles protected by the fair report privilege where the article at issue references another article that, in turn, references an official report. Comcast’s reliance on these cases is unavailing. The action in Day involved a claim that a Hartford Courant article and subsequent editorials were subject to the fair reporting privilege. Both the article and the editorial were, however, clearly reporting on a civil action which had settled. Day v. Graziano, supra, 2014 WL 1283082, *2. Similarly, in Finnelli the claimed defamatory statements involved reporting that referred to what police and other law enforcement officials said or reported. Finnelli v. Tepfer, supra, 2009 WL 1424688, *5.
"An arrest by a law enforcement officer is an official action. A report of the fact of the arrest and of the criminal charge made by a law enforcement officer and of the contents of an arrest warrant or arrest report are within the fair report privilege." Dellacamera v. New Haven Register, Superior Court, judicial district of New Haven, Docket No. CV 000436560, 2002 WL 31501855, *3 (October 28, 2002, Arnold, J.), citing Restatement (Second) Torts § 611, cmt. h.
The fair privilege serves to apprise the public of the proceedings of their government. It is the need for this knowledge of the processes of government— rather than the accuracy of the conclusions, assertions or suppositions which inhere to its proceedings— that invests the privilege with vitality. Simply put, to be a fair report of an official proceeding the comment must be a report of the proceeding. A mere accounting of events, such as that in the present case, containing no reference to an official proceeding does not advance the policy upon which the privilege is based. The court concludes that the absence of any reference to the judicial proceeding before Judge Robaina deprives Comcast of the protection of the fair reporting privilege, the only defense asserted in its motion for summary judgment.
For the foregoing reasons, summary judgment enters in favor of CBS; 21st Century Media Newspaper, LLC, 21st Century Media, LLC, Hearst Media Services Connecticut, LLC; Matthew Kaufman and the Record Journal. The court denies Comcast’s motion for summary judgment.