Opinion
DBDCV186028897S
07-11-2019
Henry GIFFORD v. The TAUNTON PRESS, INC.
UNPUBLISHED OPINION
OPINION
D’Andrea, J.
The defendant, the Taunton Press, Inc. (Taunton), filed a special motion to dismiss the complaint in its entirety and recover costs and attorneys fees pursuant to Connecticut’s anti-SLAPP statute, General Statutes § 52-196a. The defendant alleges that the complaint dated October 2, 2018, is based on the defendant’s exercise of a right protected under the anti-SLAPP statute, i.e., the right of free speech in connection with a matter of public concern, and that the plaintiff, Henry Gifford, cannot show probable cause that he will prevail on the merits. In opposition, the plaintiff argues that the anti-SLAPP statute is unconstitutional on its face and, in the alternative, as it is applied to the present case, and thus, the special motion to dismiss should be denied. In the alternative, if the court finds that the anti-SLAPP statute is constitutional, the plaintiff argues that he has met his burden and, thus, the special motion to dismiss should be denied.
This action arises from an article published by Taunton on September 29, 2017. In his complaint, the plaintiff alleges Taunton published a review of his book that contained "false, inaccurate, and/or misleading statements" regarding himself and/or the book. The plaintiff further claims that the defendant’s publication of this review harms his reputation and constitutes (1) libel, (2) libel per se, (3) tortious interference with business expectancies, and (4) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.
The plaintiff makes the following allegations in his complaint. The plaintiff is an expert in the field of building science, which he describes as the study of the movement of heat, air, water, light, sound, fire, and pests through buildings, and has multiple decades of experience in this field. He is frequently paid for his expertise and for consulting on building projects. Some time prior to September 29, 2017, he published a book entitled "Buildings Don’t Lie" (book), which provided an in-depth review of building science, including extensive discussions of energy-efficient, environmentally-friendly, and/or green building design and construction decisions and techniques. On September 27, 2017, Taunton, a publishing business, incorporated under the laws of the state of Connecticut, with a principal place of business located at 63 South Main Street, Newtown, Connecticut, which owns and operates a website named "Green Building Advisor" (website), published a review (article), written by Martin Holladay. The article was entitled "Henry Gifford Publishes a Book" and discusses the plaintiff and his book. The article was published on Taunton’s website on September 27, 2017, and has been publicly available on the website since. The article clearly and repeatedly identifies the plaintiff. The article was published on the website and was, therefore, published to third parties, including anyone who visited the website, or searched for information on the plaintiff or the book through any internet search engine. The article contains numerous false, inaccurate, and/or misleading statements regarding the plaintiff and/or his book.
Throughout this memorandum of decision, the court will collectively refer to these statements as "the offensive statements."
The plaintiff’s first count for libel alleges that the offensive statements impugn his expertise and knowledge, damaging him by harming his reputation with the article’s readers, lowering him in the estimation of the community, and deterring others from buying the book or otherwise associating and/or dealing with him in the future. The offensive statements also caused him to suffer actual damages including, but not limited to, reduced profits from lost book sales. In order to minimize the impact of the offensive statements, the plaintiff demanded in a letter to Taunton dated October 4, 2017, that Taunton retract the article in as public a manner as that in which it was published. As of the October 2, 2018 complaint, Taunton has neither acknowledged the letter, nor retracted the offensive statements and continues to publish the article. As to the second count for libel per se, the plaintiff alleges that the offensive statements assert that he lacks skill in his professions and businesses of building science and writing on building sciences, thereby being calculated to cause him injury in his profession and/or business.
As to the third count for tortious interference with business expectancies, the plaintiff alleges that the offensive statements assert that Taunton knew or should have known that he sought to engage in business relationships with third parties to sell them the book, Taunton knew or should have known that people who read the article were prospective purchasers of the book, and that Taunton tortiously interfered with those business expectancies by falsely degrading the book and the plaintiff as its author, thereby dissuading people from buying the book through its libel. The plaintiff also alleges that Taunton published a book written by Holladay, entitled "Musings of an Energy Nerd" (Holladay’s book), and that the plaintiff and Holladay were market competitors, both reviewing energy-efficient building and design. Thus, Taunton had a direct stake and interest in undercutting the plaintiff and the book, and used libelous falsehoods to dissuade third parties from purchasing the book, hoping that people would purchase Holladay’s book instead. Additionally, Holladay’s publications on the website, including the article, which were published under the collective title of Holladay’s book, would further advertise Holladay’s book. Finally, Taunton had improper financial motives for its interference with the plaintiff’s business expectancies by hoping to pull customers away from the plaintiff’s book to Holladay’s book, thus causing the plaintiff actual damages including, but not limited to, lost book sales.
As to the fourth count for CUTPA, the plaintiff alleges that Taunton was engaged in "trade and commerce" within the meaning of General Statutes § 42-110a et seq., and, given the conduct described in the first three counts, including libeling an economic competitor and tortiously interfering with business expectations, constitutes immoral, unethical, oppressive and/or unscrupulous conduct that amounts to unfair methods of competition and/or unfair trade practices in the conduct of trade or commerce, and as such, the plaintiff has sustained substantial losses. The claimed relief for all counts is compensatory and punitive damages, including costs and expenses of the suit and other equitable relief as the court determines. On the fourth count, the plaintiff requests punitive damages, attorneys fees, costs, and other equitable relief pursuant to General Statutes § 42-110g.
Both parties filed substantive briefs and exhibits in support of their briefs. The court heard argument on March 13, 2019, and reserved its decision at that time. Pursuant to the anti-SLAPP statute, "[t]he court shall rule on a special motion to dismiss as soon as practicable." General Statutes § 52-196a(e)(4).
Section 52-196a(e)(1) provides in relevant part: "The court shall conduct an expedited hearing on a special motion to dismiss." At the hearing, counsel agreed that there was no need for an evidentiary hearing and the motion could be decided on the papers in accordance with § 52-196a(e)(2).
DISCUSSION
Section 52-196a(b) provides in relevant part: "In any civil action in which a party files a complaint ... against an opposing party that is based on the opposing party’s exercise of its right of free speech, [or] right to petition the government ... in connection with a matter of public concern, such opposing party may file a special motion to dismiss the complaint, counterclaim or cross claim." "When ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based ... The court shall grant a special motion to dismiss if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party’s complaint, counterclaim or cross claim is based on the moving party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim." General Statutes § § 52-196(e)(2)-(3). The prevailing party on a special motion to dismiss may recover litigation expenses, including reasonable attorneys fees. General Statutes § 52-196(f).
The plaintiff argues that the anti-SLAPP statute is unconstitutional for multiple reasons. The defendant disagrees and filed a reply brief setting forth his arguments. Thus, before the court turns to the merits of the special motion to dismiss, it must assess the constitutionality of the anti-SLAPP statute.
I. Constitutional Claims
The plaintiff argues that the anti-SLAPP statute is unconstitutional, both on its face and as applied to the plaintiff, for three reasons. First, the anti-SLAPP statute violates the plaintiff’s right to a trial by jury as provided by the Connecticut Constitution; Conn. Const., art. I, § 19; because it requires the court to make findings of fact. Second, the anti-SLAPP statute violates the plaintiff’s right to petition the government for redress of grievances under the United States Constitution; U.S. Const., amend. I; because it requires the court to make findings of fact and credibility determinations, which are the functions of the jury. Third, the anti-SLAPP statute violates the plaintiff’s due process rights under both the federal and state constitutions; U.S. Const., amend. XIV, § 1; Conn. Const., art. I, § 8(a); because the probable cause standard is too vague to put an ordinary person on notice of its requirements. In support of his claims, the plaintiff cites to a number of anti-SLAPP statutes from other states that were found to be unconstitutional. See Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C.Cir. 2015); Gaudette v. Davis, 2017 Me. 86, 160 A.3d 1190 (2017); Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623 (Minn. 2017); Davis v. Cox, 183 Wash.2d 269, 351 P.3d 862 (2015), abrogated on other grounds by Maytown Sand & Gravel, LLC v. Thurston County, 191 Wash.2d 392, 423 P.3d 223 (2018); Opinion of the Justices, 138 N.H. 445, 641 A.2d 1012 (1994).
In opposition, the defendant argues that the anti-SLAPP statute is not unconstitutional because it does not require the court to resolve disputed factual issues or dismiss claims that would be appropriately considered through a motion for summary judgment. Instead, the court is required to assume all allegations are true and construed in favor of the plaintiff, and weigh reasonable inferences to determine the likelihood of success. Second, the anti-SLAPP statute does not violate the plaintiff’s right to petition the government because it provides a procedural mechanism to dismiss meritless claims that are frivolous and solely based on the exercise of a constitutionally protected right. Where there is an issue regarding the usurpation of a jury’s duty, the court should interpret the anti-SLAPP statute as having a summary judgment standard rather than requiring the court to find facts. Third, the anti-SLAPP statute is not unconstitutionally vague because probable cause is a lower standard than the standard at trial. Additionally, the probable cause standard is the same as the probable cause standard for prejudgment remedies; thus, the standard itself is not unconstitutionally vague.
In response, the plaintiff argues that the summary judgment standard is incompatible with the anti-SLAPP statute as it is written because it contradicts the plain meaning of its terms. Additionally, the court cannot interpret the statute as only dismissing frivolous claims because the probable cause standard has a higher standard than the frivolous claim standard.
The plaintiff’s constitutional challenges are both facial and as-applied to him. "In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that [t]he party attacking a validly enacted statute ... bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality ... The burden of proving unconstitutionality is especially heavy when, as at this juncture, a statute is challenged as being unconstitutional on its face." (Citation omitted; internal quotation marks omitted.) State v. Ball, 260 Conn. 275, 280-81, 796 A.2d 542 (2002). "Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case-by-case basis." (Internal quotation marks omitted.) Leydon v. Greenwich, 257 Conn. 318, 347 n. 33, 777 A.2d 552 (2001). For the as-applied challenge, the court must determine whether the statute is unconstitutional as applied to the facts in the present case. See State v. Long, 268 Conn. 508, 522 n.21, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004). The court addresses each of the plaintiff’s claims in turn and will set forth additional arguments and facts as necessary.
A. Right to a Jury Trial
With respect to his facial challenge, the plaintiff argues that the anti-SLAPP statute’s plain text requires the court to engage in fact finding, thereby unconstitutionally infringing on the jury trial right. Specifically, the plaintiff argues that the statute requires the court grant the motion to dismiss the action once the movant satisfies his initial burden unless the plaintiff "demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint[.]" General Statutes § 52-196a(e)(3). The statute describes the court’s conclusions as "findings or determinations made" by the court. General Statutes § 52-196a(g). By making findings and determinations, the court would be interfering in the plaintiff’s right to a jury trial because a jury makes findings of fact.
He also raises an as-applied challenge, arguing that the statute is unconstitutional given the particular facts of this case. In this case, the parties have provided competing factual submissions, thus, the court must make a finding or determination of these facts; Conn. Gen. Stat. § 52-196a(g); which constitutes a clear infringement of his rights. Specifically, the plaintiff argues that the court would necessarily need to decide genuine issues of material facts in order to decide whether a statement is defamatory because both parties have submitted competing factual allegations and arguments as to each of the offensive statements. In support of his argument, the plaintiff cites to the decisions of other state courts, which have rejected their anti-SLAPP laws as unconstitutional under their state constitutions’ rights to jury trial. Opinion of the Justices, supra, 138 N.H. 445; Davis v. Cox, supra, 183 Wash.2d 269; Leiendecker v. Asian Women United of Minnesota, supra, 895 N.W.2d 623; cf. Handy v. Lane County, 360 Or. 605, 385 P.3d 1016 (2016); accord Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C.Cir. 2015).
The Connecticut constitution provides: "The right of trial by jury shall remain inviolate." Conn. Const. art. I, § 19. "It is generally held that the right to a jury trial exists not only in cases in which it existed at common law and at the time of the adoption of constitutional provisions preserving it, but also exists in cases substantially similar thereto ... At common law, legal claims [were] tried by a jury, [and] equitable claims [were] tried by a court ..." (Citations omitted; internal quotation marks omitted.) Skinner v. Angliker, 211 Conn. 370, 374, 559 A.2d 701 (1989). Defamation is a legal, not equitable, claim with deep common-law roots. See Crismale v. Walston, 184 Conn.App. 1, 9, 194 A.3d 301 (2018).
This court has reviewed both parties’ claims regarding the constitutionality of the anti-SLAPP statute. The court finds that the statute is not unconstitutional because the plaintiff has not met the high burden of proving the anti-SLAPP statute violates his right to trial by jury by a reasonable doubt. Specifically, § 52-196a does not offend the right to trial by jury under the Connecticut Constitution because it does not require courts to resolve disputed issues of fact or to dismiss claims that would survive summary judgment or a motion for directed verdict. The plaintiff likens our anti-SLAPP statute to the anti-SLAPP statutes of Washington; Wash. Rev. Code. § 4.24.525 (2010); Minnesota; Minn.Stat. § § 554.01-06 (2016); and the proposed statute in New Hampshire. See Opinion of the Justices, supra, 138 N.H. 447. Under the Washington anti-SLAPP statute, the court was required "to make a factual determination of whether the plaintiff has established by clear and convincing evidence a probability of prevailing on the claim." Davis v. Cox, supra, 183 Wash.2d 293. The Washington Supreme Court determined that this standard was higher than a frivolousness standard and "create[d] a truncated adjudication of the merits of a plaintiff’s claim, including nonfrivolous factual issues, without a trial. Such a procedure invades the jury’s essential role of deciding debatable questions of fact [and, thus] violated the right of trial by jury under" the Washington constitution. Id., 294.
The Minnesota statute provides "(2) [T]he responding party has the burden of proof, of going forward with the evidence, and of persuasion on the motion; (3) the court shall grant the motion and dismiss the judicial claim unless the court finds that the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability under section 554.03." Minn.Stat. § § 554.02. In striking down the Minnesota statute for violating the plaintiff’s right to a jury trial, the Minnesota Supreme Court reasoned that "[t]he law provides the district court with two options to resolve a motion to dismiss. The district court could decide that the responding party failed to show by clear and convincing evidence that the moving party engaged in tortious conduct. This determination would require dismissal under the anti-SLAPP law, thus precluding a jury trial. Alternatively, the district court could decide that the responding party did show by clear and convincing evidence that the moving party engaged in tortious conduct. This conclusion would also arguably preclude a jury trial ... Thus, a district court’s ruling on anti-SLAPP immunity necessarily decides the merits of the tort action itself." (Citation omitted; emphasis omitted.) Leiendecker v. Asian Women United of Minnesota, supra, 895 N.W.2d 636.
The New Hampshire statute that was proposed, but not passed, provided that "an action would be dismissed unless the plaintiff can show a probability that [he or she] will prevail on the claim." (Internal quotation marks omitted.) Opinion of the Justices, supra, 138 N.H. 450. In finding that the statute violated the plaintiff’s right to trial by jury, the New Hampshire Supreme Court reasoned that "[u]nlike [the] procedures [for summary judgment and motions to dismiss for failure to state a claim upon which relief may be granted] wherein the court does not resolve the merits of a disputed factual claim, the procedure in the proposed bill requires the trial court to do exactly that. In determining whether a plaintiff has met the burden of showing a probability of prevailing on the merits of his or her claim, the trial court that hears the special motion to strike is required to weigh the pleadings and affidavits on both sides and adjudicate a factual dispute." Id., 451.
Unlike Minnesota and Washington’s statutes, our anti-SLAPP statute only requires that a plaintiff whose claims are based on a defendant’s exercise of protected first amendment rights demonstrate at the outset that there is probable cause to believe he will prevail because his claims have merit. See General Statutes § 52-196a(e)(3); Minn.Stat. § 554.02; Wash. Rev. Code. § 4.24.525. While our anti-SLAPP statute is similar to the proposed New Hampshire statute, the court notes that the New Hampshire statute requires a probability finding, whereas our anti-SLAPP statute requires probable cause. See General Statutes § 52-196a(e)(3); Opinion of the Justices, supra, 138 N.H. 451. Probability is defined as "3. [t]he quality, state, or condition of being more likely to happen or to have happened than not"; Black’s Law Dictionary (11th Ed. 2019); which is the same standard as preponderance of the evidence, which in our jurisprudence is described as a "more likely than not" standard. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 702, 651 A.2d 1286 (1995).
The probable cause standard, however, is a much lower standard. State v. Clark, 255 Conn. 268, 292-93, 764 A.2d 1251 (2001). It is merely "an analysis of probabilities ..." Id. In the criminal context, it "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity." (Internal quotation marks omitted.) State v. Shields, 308 Conn. 678, 690, 69 A.3d 293 (2013). Similarly, "civil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Emphasis omitted; internal quotation marks omitted.) One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., 24 Conn.App. 524, 524, 589 A.2d 892 (1991). In other words, if a reasonable juror cannot under any circumstances consider a claim meritorious, then there is no probable cause. No part of the anti-SLAPP statute requires this court to resolve disputed issues of fact; it must simply weigh the facts when making its determination, (1) whether the moving party has satisfied its burden of showing, by a preponderance of the evidence, that the opposing party’s claim is based on its exercise of a protected right, and (2) whether the opposing party has set forth with particularity the circumstances giving rise to the complaint and demonstrated probable cause to believe that he or she will prevail on the merits. General Statutes § 52-196a(e)(3).
Thus, the court in the present case does not need to make factual findings, but merely needs to determine, given all of the evidence provided by the parties, if there is any likelihood a reasonable juror could find in favor of the plaintiff. See Riccio v. Harbour Village Condominium Ass’n, Inc., 281 Conn. 160, 165, 914 A.2d 529 (2007). If the answer is no, the court must dismiss the case and would, thus, only be dismissing a case that would be subject to dismissal on a motion for directed verdict or to set aside the jury verdict in favor of the plaintiff. For the foregoing reasons, the anti-SLAPP statute does not violate a plaintiff’s right to a jury trial pursuant to article I of the Connecticut Constitution on its face.
The court additionally notes that it is aware that the right to a jury trial is also subject to reasonable conditions and regulations despite its inviolability. General Statutes § 52-215 (excluding cases where amount in demand less than $250 from right to jury trial and requiring parties claim right for jury trial within specified time period); General Statutes § 4-160(f) (excluding actions against state from right to jury trial); General Statutes § 4-160 (excluding workers’ compensation actions from right to jury trial); Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 155, 645 A.2d 505 (1994) (excluding actions under CUTPA from right to jury trial).
The plaintiff’s as-applied challenge also must fail because, despite the existence of disputed facts and analysis, the court does not need to nor does it actually resolve any issues of fact, determine credibility, or weigh the evidence. The court merely needs to determine whether there is evidence presented, considering any possible defenses, that rises to the level of "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [reasonable juror] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Emphasis in original; internal quotation marks omitted.) One Fawcett Place Ltd. Partnership v. Diamandis Communications, Inc., supra, 24 Conn.App. 524. For the foregoing reasons, the anti-SLAPP statute does not violate the plaintiff’s right to trial by jury as-applied.
B. Right to Petition the Government
With respect to his facial challenge, the plaintiff argues that the application of the anti-SLAPP to the present case violates his right to petition the government under the federal constitution because it requires the court to weigh the evidence, credibility of witnesses, and determine facts where there are genuine issues of material fact. In support, the plaintiff cites to Davis v. Cox, supra, 183 Wash.2d 269, and Gaudette v. Davis, supra, 2017 Me. 86, where both the Washington Supreme Court and the Maine Supreme Court invalidated a similar anti-SLAPP statute based upon the right to petition the government. Additionally, the Maine Supreme Court has also called for careful protection of this right in the context of anti-SLAPP statutes. Gaudette v. Davis, supra, 2017 Me. 86, ¶6, 160 A.3d 1195 ("[a]ny application of the anti-SLAPP statute to actual petitioning activity creates tension" with the right to petition and any court applying such a statute must recognize and protect this right). Moreover, the anti-SLAPP statute cannot be saved by imputing a frivolousness standard because there exists a broad gap between nonfrivolous claims and those in which a party can demonstrate that they will prevail on the merits; the legislature specifically used a probable cause standard rather than a frivolous standard. With respect to his facial challenge, the plaintiff argues that there are genuine issues of material fact in this case and, thus, requires the court is required to make determinations on those issues, which denies him his right to petition the government.
The first amendment to the United States Constitution provides in relevant part: "Congress shall make no law ... abridging the freedom ... to petition the Government for a redress of grievances." The first amendment "has been incorporated into the [f]ourteenth [a]mendment to the United States [c]onstitution and is therefore applicable to the states." (Internal quotation marks omitted.) Reardon v. Keating, 980 F.Supp.2d 302, 310 (D.Conn. 2013). "When a suit presents genuine factual issues, the state plaintiff’s [f]irst [a]mendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the [s]tate’s interest in protecting the health and welfare of its citizens, leads us to construe [an] [a]ct as not permitting the [court] to usurp the traditional fact finding function of the state-court jury ..." Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745-46, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983).
The Superior Court has previously stated that "[t]he statute does not shield ... defendants from liability. It just provides them with a procedural advantage designed to expeditiously dispose of unsupportable claims that might nevertheless chill speech and other legitimate activities because of the burdens associated with litigation." Graves v. Chronicle Printing Co., Superior Court, judicial district of Tolland, Docket No. CV-18-5010056-S (November 7, 2018, Farley, J.) (67 Conn.L.Rptr. 442). As Taunton points out, the statute does not provide a mechanism for dismissing meritorious claims- claims that would survive in its absence and, thus, does not violate a plaintiff’s constitutional rights any more than other statutes or rules that permit a court to dismiss a claim before or after it is heard by a jury.
"[B]aseless litigation is not immunized by the [f]irst [a]mendment right to petition." Bill Johnson’s Restaurants, Inc. v. NLRB, supra, 461 U.S. 743-44. "SLAPPS [however, ] are by definition meritless suits." Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 164, 691 N.E.2d 935 (1998). As the legislative history of § 52-196a’s legislative history amply demonstrates, the statute was intended "to assist people that are sued on their free speech rights to have a means to quickly get rid of frivolous lawsuits." 60 S. Proc., Pt. 6, p. 99, remarks of Senator Paul R. Doyle; see also 60 H.R. Proc., Pt. 16, p. 309, remarks of Representative William Tong (stating statute "provides for a special motion to dismiss so that early in the process somebody who’s speaking and exercised their constitutional rights can try to dismiss a frivolous or abusive claim that has no merit and short circuit a litigation where it might otherwise cost a great deal of money to continue to prosecute"). Permitting a defendant to quickly dismiss a meritless lawsuit is constitutional.
The plaintiff has asked the court to follow the Supreme Courts of Washington and Minnesota in striking our anti-SLAPP statute on similar grounds. As the court noted in its analysis in part I.A of this memorandum of decision, the Supreme Courts of Washington and Minnesota, however, struck down their states’ anti-SLAPP statutes based on features not present in Connecticut’s law, such as the higher burdens of proof placed on the party opposing the motion. See Minn. Stat. § § 554.02(3) (requiring the responding party to produce "clear and convincing evidence that the acts of the moving party are not immunized from liability"); Wash. Rev. Code § 4.24.525 (2014) (requiring responding party to "establish by clear and convincing evidence a probability of prevailing on the claim"). As the Minnesota Supreme Court explained, the "clear and convincing" standard is problematic because it "require[s] the responding party to meet a higher burden of proof before trial (clear and convincing evidence) than it would have to meet at trial (preponderance of the evidence)." Leiendecker v. Asian Women United of Minnesota, supra, 895 N.W.2d 635-36. Given that higher burden of proof, the Minnesota court reasoned that "a district court’s ruling on anti-SLAPP immunity necessarily decides the merits of the tort action itself." Id., 636. Our anti-SLAPP statute, like anti-SLAPP statutes of other states that have survived constitutional scrutiny, imposes a lower burden of proof on opposing parties. See Lee v. Pennington, 830 So.2d 1037, 1043 (La.App. 4th Cir. 2002) ("A plaintiff is only required to show a ‘probability of success’ of his claim before a jury (i.e., the merits) based upon the elements of the tort claim he alleges. This article does not bar anyone with a valid claim from pursuing his case through the judicial process"), cert. denied, 836 So.2d 52 (2003); Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855, 866, 44 Cal.Rptr. 46 (1995). Connecticut’s anti-SLAPP statute, like the statutes of other states, does not impose on the party opposing an anti-SLAPP motion a burden greater than it would have at trial. Moreover, the court’s analysis under part I.A of this memorandum of decision regarding the anti-SLAPP statute applies equally to its analysis of the constitutionality of the anti-SLAPP statute with respect to the plaintiff’s right to petition the government. Thus, the anti-SLAPP statute does not violate the plaintiff’s right to petition the government under the first amendment of the United States Constitution on its face. With respect to the plaintiff’s as-applied challenge, the court’s analysis from part I.A with respect to the plaintiff’s right to a jury trial as-applied challenge applies equally to its present analysis. For the same reasons as stated in part I.A, the anti-SLAPP statute does not violate the plaintiff’s right to petition the government for redress of grievances as the statute is applied to him.
C. Vagueness
With respect to his facial challenge, the plaintiff argues that the anti-SLAPP statute is unconstitutionally vague and, thus, violates his right to due process under both the state and federal constitutions because the statute does not provide an identifiable and explicit standard of proof. Additionally, the probable cause standard is unconstitutionally vague as the plaintiff is left to guess as to which probable cause standard applies. While Taunton urges the court to apply the probable cause standard used for prejudgment remedy hearings, the plaintiff argues that the prejudgment remedy probable cause standard does not define what standard of proof is applicable.
"Under the requirements of due process of law ... [a law] must be sufficiently definite to enable a person to know what conduct he must avoid ... [A law] which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." (Citations omitted; internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 845, 761 A.2d 705 (2000). "The vagueness doctrine is based upon two distinct but interrelated principles. First, the doctrine requires ... fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear ... [L]aws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly ... A law ... so vague that men of common intelligence necessarily must guess at its meaning and differ as to its application violates due process of law ... Second, the vagueness doctrine requires that statutes establish minimum guidelines to govern their enforcement ... [I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters ... for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Citations omitted; internal quotation marks omitted.) Packer v. Board of Education, 246 Conn. 89, 99-101, 717 A.2d 117 (1998).
The court analyzes the federal and state constitutional claims under the same standard in light of our Supreme Court’s guidance that they "have equated vagueness analysis under our state constitution with the corresponding federal constitutional analysis." Packer v. Board of Education, 246 Conn. 89, 99, 717 A.2d 117 (1998).
"The degree of vagueness tolerated in a statute varies with its type ... and laws that might infringe constitutional rights [are subjected] to the strictest [standard] of all." Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). Moreover, "[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited ... The constitution requires no more than a reasonable degree of certainty." (Citations omitted.) Packer v. Board of Education, supra, 246 Conn. 101.
Our legislature deliberately chose a probable cause standard rather than a preponderance of the evidence standard. The probable cause standard was drawn from other pretrial contexts, in particular that of pre-judgment remedies, like attachment. See 60 H.R. Proc., pt. 16, p. 336, remarks of Representative William Tong ("[p]robable cause in Connecticut is used in our civil law statutes, most often in the pre-judgment remedy context"). In the context of pre-judgment remedies, the term "probable cause" has a well-established meaning, which is that, under this standard, "[t]he plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim." (Internal quotation marks omitted.) William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801, 805, 643 A.2d 1298 (1994). "Proof of probable cause as a condition of obtaining a pre-judgment remedy is not as demanding as proof by a fair preponderance of the evidence. The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and as such would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Internal quotation marks omitted.) Ledgebrook Condominium Assn. v. Lusk Corp., 172 Conn. 577, 584, 376 A.2d 60 (1977). Nothing more is required.
Our Supreme Court has repeatedly and expressly rejected arguments that the probable cause standard is unconstitutionally vague. See, e.g., Calfee v. Usman, 224 Conn. 29, 37-38, 616 A.2d 250 (1992) ("[t]he defendant has cited no case, nor has our research uncovered any, in which the Supreme Court of the United States or this court has found a probable cause standard to be unconstitutionally vague on the ground that such a standard necessarily requires an inquiry into probabilities"). As the court observed in Calfee, "[p]robable cause is a standard widely used to validate a preliminary impairment of a broad range of personal property rights, from the suspension of professional licenses to the issuances of warrants for seizure and arrest." Id., 37. "The validity of a probable cause standard has regularly been upheld in the criminal law context." Id., 38. Given this wide use and acceptance, the standard was not- and is not- unconstitutionally vague.
For the foregoing reasons, the plaintiff has not maintained his burden of proof with regard to his arguments that the anti-SLAPP statute is unconstitutional. In the opinion of this court, the anti-SLAPP statute is constitutional as drafted, approved, and enacted.
With respect to the as-applied challenge, "to challenge successfully, on due process grounds, the vagueness of the statute as applied to particular facts, a party must prove that the policies advanced by the void for vagueness doctrine were violated in his case. Specifically, a party must show that: (1) the statute does not provide fair warning that it applies to the conduct at issue, or (2) that he was the victim of arbitrary enforcement practices." Packer v. Board of Education, supra, 246 Conn. 106-07. In the present case, the plaintiff has failed to show that the anti-SLAPP statute, as applied to the facts in his case, is void for vagueness because the probable cause standard is clear when applied to the facts of the present case. Moreover, the court is not applying the probable cause standard arbitrarily to the facts of this case. For the foregoing reasons, the plaintiff’s as-applied challenge fails.
II. Special Motion to Dismiss
Taunton filed a special motion to dismiss and memorandum of law in support of said motion raising two simple threshold questions: (1) does Holladay have the right to criticize aspects of the plaintiff’s writing and disagree with the plaintiff about various building science issues; and (2) does Taunton have the right to publish Holladay’s views and opinions without being sued for libel and tortious interference with business expectancies. Both answers, according to Taunton are yes. Taunton argues that the plaintiff’s suit is designed to chill the debate of the positions articulated in the article, but professionals must be able to freely debate ideas, just as critics of all kinds must be able to provide their views to the public without being hit with retaliatory defamation lawsuits intended to curtail their constitutionally-protected right of free speech.
Taunton first argues that the article meets all the criteria to fall under the anti-SLAPP statute because the article is an exercise of Taunton’s right to free speech with respect to a matter of public concern. The offensive statements constitute speech that is a matter of public concern because the offensive statements concern either: (1) health or safety of the public; (2) environmental, economic, or community well-being; or (3) relates to a public figure, namely the plaintiff. Taunton argues that it has met its burden by a preponderance of the evidence that the plaintiff’s complaint is based on Taunton’s right to free speech in connection with a matter of public concern.
Second, Taunton argues that the plaintiff cannot demonstrate that there is probable cause that he will prevail on the merits of his complaint for the following reasons. The first and second counts cannot succeed because none of the listed statements libel the plaintiff. The third and fourth counts, therefore, must also fail because they are based on the offensive statements libeling the plaintiff under the first and second counts.
The court has read and considered the parties’ briefs, exhibits submitted in support of their briefs, the relevant case law, and the parties’ arguments at the hearing. The court notes that because the plaintiff only fully briefed five out of the twenty-two allegations concerning the article, the court addresses only those five briefed issues and considers the other seventeen issues to be abandoned.
"As a matter of constitutional principle, when the issue is whether liability may be imposed for speech expressing scientific or policy views, the question is not who is right; the [f]irst [a]mendment protects the expression of all ideas, good and bad." Competitive Enterprise Institute v. Mann, 150 A.3d 1213, 1242 (D.C. 2016). Section 52-196a(a)(1) defines "[m]atter of public concern" as "an issue related to (A) health or safety, (B) environmental, economic or community well-being ... [or] (D) a ... public figure ..." The court finds that the article on the website clearly involves communicating, or conduct furthering communication, in a public forum. See Graves v. Chronicle Printing Co., supra, Superior Court, Docket No. CV-18-5010056-S.
The threshold issue is whether the speech relates to a matter of public concern. With respect to offensive statements regarding the plaintiff individually, the court determines that the requirement that the speech be a matter of public concern was met as Taunton was communicating about a "public figure." The United States Supreme Court has held that an individual’s "public figure" status "may rest on two alternative bases." Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). First, an individual may become a "general purpose public figure" where he "achieve[s] such pervasive fame or notoriety that he become a public figure for all purposes and in all contexts." (Internal quotation marks omitted.) Jones v. New Haven Register, Inc., 46 Conn.Supp. 634, 643, 763 A.2d 1097 (2000) . Alternatively, an individual may become a "limited purpose public figure" where he "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." (Internal quotation marks omitted.) Id. It is well settled that, "[g]enerally, authors are considered to have participated sufficiently in public controversies or otherwise involved themselves in matters of public concern as to be public figures." Live Oak Publishing Co. v. Cohagan, 234 Cal.App.3d 1277, 1281, 286 Cal.Rptr. 198 (1991). The plaintiff authored the book and has achieved prominence in the field of building science, making multiple appearances in media and a profile in The New Yorker magazine. Thus, the court determines that, at the very least, he is a limited purpose public figure.
With respect to offensive statements regarding the contents of the book, the court has reviewed the article, the book, and the affidavits filed in support and determines the following. The book focuses on environmental well-being and contains discussions of energy-efficient, environmentally-friendly, and/or green building design and construction, which are clearly matters of public concern. The book also provides recommendations on issues of health and safety. Thus, the plaintiff has met his burden of showing that the offensive statements are about a matter of public concern and that the offensive statements published on the public website implicate Taunton’s right to free speech pursuant to § 52-196a(a)(2).
The plaintiff must establish probable cause that he will succeed on the merits of his claims are barred, as at the complaint is based on Taunton’s exercise of protected rights. Thus, the burden shifts to the plaintiff to "[set] forth with particularity the circumstances giving rise to the complaint ... and [demonstrate] to the court that there is probable cause, considering all valid defenses, that [he] will prevail on the merits of the complaint ..." Conn. Gen. Stat. § 52-196a(e)(3). As the court determined in part I.C of this memorandum of decision, "probable cause is a bona fide belief in the existence of facts essential under the law for the action and as such would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." Ledgebrook Condominium Ass’n v. Lusk Corp., supra, 172 Conn. 584. The plaintiff must satisfy his burden of establishing probable cause of success on the merits on any of his claims, all of which require the plaintiff to demonstrate libel.
"To 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." (Internal quotation marks omitted.) Hopkins v. O’Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007). "Libel ... is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). "Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages ... Two of the general classes of libel which, it is generally recognized, are actionable per se are (1) libels charging crimes, and (2) libels which injure a man in his profession and calling." (Citations omitted; internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 852-53, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
Where the plaintiff is a public figure, the plaintiff must also 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." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 431, 125 A.3d 920 (2015). It is well settled that truthful statements are not defamatory. See, e.g., Id.; see also Crismale v. Walston, supra, 184 Conn.App. 18 (holding "truth of the allegedly defamatory statement of fact provides an absolute defense"); Graves v. Chronicle Printing Co., supra, Superior Court, Docket No. CV-18-5010056-S ("a defendant is not liable [for defamation] if the statements are substantially true"). "In a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense ... Contrary to the common-law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial proof need be shown to constitute the justification ... It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable ... The issue is whether the libel, as published, would have a different effect on the reader than the pleaded truth would have produced." (Citations omitted; footnote omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982).
Statements of opinion cannot be defamatory. "A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be." Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977). Conversely, "[a]n opinion ... is a personal comment about another’s conduct, qualifications or character that has some basis in fact." Id. An author who publishes a book "[is] bound to expect, with equal equanimity, praise or blame directed at the work itself." Berg v. Printers’ Ink Publishing Co., 54 F.Supp. 795, 797 (S.D.N.Y. 1943); see also Buckley v. Vidal, 327 F.Supp. 1051, 1052 (S.D.N.Y. 1971) ("[w]hen an author submits his work to the public he must, of necessity, expect criticism of that work. He is said, in fact, to invite criticism").
Courts routinely find that statements which "appear in the context of a book review, a genre in which a reader anticipates favorable and unfavorable critiques of works that they understand to be the reviewer’s interpretation" are "expressions of opinion ..." Hammer v. Trendl, United States District Court, Docket No. CV02-2462ADS (JO) (E.D.N.Y. October 10, 2002). The Second Circuit has held, that, "as a matter of law, statements of scientific conclusions about unsettled matters of scientific debate cannot give rise to liability for damages sounding in defamation." ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 492 (2d Cir. 2013). The Second Circuit explained that although "it is the very premise of the scientific enterprise that it engages with empirically verifiable facts about the universe," it is also the case that scientific conclusions "are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation." Id., 496. The Second Circuit further explained that "statements made to summarize an argument or opinion within a book are to be accepted or rejected by those who read the book ..." (Emphasis omitted; internal quotation marks omitted.) Id., 497. Under these sound principles, the court examines each of the plaintiff’s claims in turn.
A. Paragraph 9(a) "Henry Gifford is a Plumber"
The plaintiff argues that the article falsely identifies him as a "plumber," and defames him because he has written a "high-level" "science book," where the subject matter of the book itself also constitutes a high-level science. The plaintiff claims the statement that he is a plumber clearly damages his reputation by falsely undermining his credibility as an author on a high-level scientific subject and reduces the likelihood that others will buy his book.
Taunton claims that this court should reject this argument because the statement is substantially true. Since only the "gist" of the statement need be true, Taunton need not prove the truth of every word. Taunton defines a "plumber" as any individual who installs or fits, and maintains or repairs, the equipment which moves water through buildings, including heating systems. The plaintiff also has published multiple articles in Plumbing & Mechanical magazine; in some of which he described himself as a "plumbing and heating contractor" and highlighted his own experience working with heating systems, which he says "pump moving hot water through pipes." Another publication recently described the plaintiff as "a mainstay of the New York City plumbing and heating world" and noted that "he has always been solidly rooted in hands-on work." C. DeKorne, "Review: Buildings Don’t Lie," J. of Light & Construction, December 5, 2017. The book devotes two full chapters on issues related to plumbing pipes and fixtures. From the plaintiff’s own words and actions, he has sufficient plumbing skill and experience to satisfy at least the "gist" of the term "plumber," rendering the statement substantially true. Even if the statement is not substantially truthful, it is not defamatory, as no ordinary person would conclude that calling the plaintiff a plumber harms his reputation as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. It simply cannot be defamatory to say an author has hands-on experience in an area that his book and other articles about him discuss at length.
On the record before it, the court agrees with the position posited by Taunton. The court finds that it would be difficult, at best, to have a reasonable trier of fact, whether a court or jury, conclude that calling the plaintiff a plumber, given his job-related history, extensive writing experience in the plumbing field, and the significant amount of plumbing-related material in the book, constitutes libel or libel per se. Therefore, as to the claim that "Henry Gifford is a plumber" is defamatory, the court finds that the plaintiff has failed to meet his burden, as this paragraph in the complaint does not demonstrate to the court that there is probable cause, considering all valid defenses, that the plaintiff will prevail on the merits of this paragraph of the complaint. Additionally, the plaintiff fails to show probable cause that Taunton acted with actual malice in publishing the statement in paragraph 9(a). For the foregoing reasons, the special motion to dismiss as to paragraph 9(a) is granted.
B. Paragraph 9(b) "Seven Rules or Commandments"
The plaintiff claims that the article states "Gifford’s seven commandments" and later states "[h]ere are some of Gifford’s rules," before providing a bulleted list of absolutist rules. The plain meaning of a possessive term like "Gifford’s rules"- particularly (1) in a review of the plaintiff’s book, (2) accompanied by a list of explicit supposed rules, and (3) followed immediately by a discussion of "[Gifford’s] advice"- is that those are rules set forth by the plaintiff in the book. The plaintiff claims that these are statements of fact, not opinion. The book, however, contains no such commandments or rules (nor a list of seven anythings); so they are false statements of fact. The plaintiff argues that falsely attributing words to him is defamatory and Taunton is not allowed to factually misstate the contents of what it is reviewing and harm the plaintiff’s reputation in the process.
Taunton disputes that it libeled the plaintiff. The plaintiff does not assert that any of the identified rules or commandments inaccurately describe a concept that was present in the book, but argues that the article libels him by putting "Gifford’s" in front of both "rules" and "seven commandments," which therefore implies incorrectly that the book uses the actual words "commandments" and "rules." The article is simply denoting that the reviewer believed that the book contained these instructions. The article clearly uses quotation marks when reproducing actual wording used in the book and does not use quotation marks when describing the substance of the book’s content or the Holladay’s thoughts about the book. This signals to readers what is directly from the book and what is Holladay’s interpretation. Paragraph 9(b) merely express the Holladay’s opinion that the plaintiff offers overly rigid advice, and the statements are therefore nonactionable as statements of opinion.
On the record before it, as to paragraph 9(b), the court, as it did in its analysis of part II.A of this memorandum of decision, agrees with the position posited by Taunton. The court finds that it would be difficult, at best, to have a reasonable trier of fact, whether a court or jury, conclude that labeling statements as "rules" or "commandments" is libelous. Taunton’s labeling of the statements as rules or commandments refers to what the article viewed as rigidity in the posing of advice or opinion by the plaintiff, and is not in any way a claim by the article of inaccuracy, falsity, or any other means denoting to the readers that the plaintiff is giving advice that should not be followed. Therefore, as to the claim that the statement "Seven Rules or Commandments" is libelous, the court finds that the plaintiff has failed to meet his burden because this paragraph does not demonstrate to the court that there is probable cause, considering all valid defenses, that the plaintiff will prevail on the merits of this paragraph of the complaint. Additionally, the plaintiff fails to show probable cause that Taunton acted with actual malice in publishing the statement in paragraph 9(b). For the foregoing reasons, the special motion to dismiss as to paragraph 9(b) is granted.
C. Paragraph 9(m) "[i]n reality, achieving and maintaining all these things ... is unrealistic"
The plaintiff claims that the article misquotes the book by stating that the plaintiff writes that it is "unrealistic" to think that it’s possible to design a vented unconditioned attic that is not at risk of ice dams. The plaintiff did not say it was unrealistic to design this system, as he sets forth such a design in his book; rather, the plaintiff said it was unrealistic to achieve and maintain such a system. Designing a system is entirely different from achieving and maintaining it. The plaintiff did use the word unrealistic, but Taunton took that single word wholly out of context by stating that the plaintiff made a completely different statement than the one he actually made. This misrepresentation is defamatory because it undercuts the plaintiff’s expertise. In Taunton’s own words, the plaintiff is a "mechanical system designer." Taunton’s false statement here makes it sound as if the plaintiff was unable to design a simple system when, in reality, he merely voiced concern over its potential utility in the real world. Thus, Taunton’s statement in paragraph 9(m) is defamatory.
Taunton disagrees with the plaintiff’s assertions that the statement in paragraph 9(m) is libelous because the book says it is impossible to "achieve and maintain" a vented unconditioned attic not vulnerable to ice dams, whereas the article says it is impossible to "design." Taunton argues that this is not a meaningful distinction as a design that is unrealistic to achieve and maintain is a fatally flawed design, because it is not "realistic" to design something that can never be realized. The article captures the "gist" of the passage in the book- in the real world. It is impossible to have a vented, unconditioned attic that is not vulnerable to ice dams, and, Taunton argues, it is Taunton’s clear opinion. Thus, this statement is not actionable.
On the record before it, as to paragraph 9(m), the court, as it did in its view of parts II.A-B of this memorandum of decision, agrees with the position posited by Taunton. The court finds that it would be difficult, at best, to have a reasonable trier of fact, whether a court or jury, conclude that this statement in the article amounts to libel. The court feels that the difference in phraseology, when viewed by a trier of fact, is negligible. If something is unrealistic to achieve and maintain, it is a simple and reasonable step to conclude that it is also unrealistic to design such a system; logic and common sense dictate that if something is unrealistic to achieve and maintain, it is also unrealistic to waste assets designing such a system. There is no sound reason one would want to spend time, money, and effort to design something that is unrealistic to achieve and maintain. If an individual actually constructed such a system, they would be constantly spending time and money to fix and maintain such a system, only to ultimately need to replace it. Therefore, as to the claim that "[i]n reality, achieving and maintaining all these things ... is unrealistic" being libelous, the court finds that the plaintiff has failed to meet his burden, as this paragraph in the complaint does not demonstrate to the court that there is probable cause, considering all valid defenses, that the plaintiff will prevail on the merits of this paragraph of the complaint. Additionally, the plaintiff fails to show probable cause that Taunton acted with actual malice in publishing the statement in paragraph 9(m). For the foregoing reasons, the special motion to dismiss as to paragraph 9(m) is granted.
D. Paragraph 9(q) stud space- which is "3 1/2 inches deep and 14 1/2 inches wide"
The plaintiff alleges that the statement that a stud space is "3 1/2 inches deep and 14 1/2 inches wide" is an example of false implication, which can also be actionable if the article implies a provable false fact, or relies upon stated facts that are provably false. The plaintiff includes a simple diagram to vent air between two rooms through a wall cavity next to a door, with no measurements, room contents, or the size or use of the rooms. The article states: "The stud space is 3 1/2 inches deep and 14 1/2 inches wide. But there’s a problem that Gifford doesn’t mention: The dimensions of the stud space are too small; such a stud space can only convey a maximum of 52 cubic feet per minute- much less than the amount of supply air delivered to the average bedroom." A reader would quite easily and incorrectly conclude that the measurements come from the plaintiff, rather than some undisclosed "standard" as Taunton claims. This article implies that everything mentioned was derived from the book, and thus, the entire paragraph depends on a false implication: an "average bedroom." The book provides no measurements and says nothing about the rooms involved, but a reader of the article is easily left with the impression that the plaintiff gave bad measurements that do not work for venting bedrooms. Like the word "unrealistic" in the claim above, the article provides incorrect information not provided in the book, and then critiques this incorrect information that is not derived from the book. These actions, the plaintiff argues, defame him.
While the article states that the stud space- which is "3 1/2 inches deep and 14 1/2 inches wide"- will deliver insufficient air supply "to the average bedroom," Taunton claims that there is nothing defamatory, as the article simply examined the illustration using standard measurements for stud spacing and then made comments. The plaintiff does not identify any stud spacing regarding the illustration. Thus, it was reasonable for Holladay to infer standard stud spacing. The article makes clear that it presumes the measurements and illustration are for "the average bedroom." If the plaintiff’s advice applied to only special, nonstandard, rooms with special, nonstandard, stud spacing, he should have said so in the book. The plaintiff’s failure to provide that context means the article provided a valid, nondefamatory critique, based on a reasonable inference.
On the record before it, as to paragraph 9(q), the court, as it did in its view of parts II.A-C of this memorandum of decision, agrees with the position posited by Taunton. The court finds that it would be difficult, at best, to have a reasonable trier of fact, whether a court or jury, conclude that the statement in the article amounts to libel. The court determines that the measurements provided in the article are common knowledge and a reasonable inference based on the book. Since this stud separation length is also fairly standard as opposed to custom-designed and built homes, it is not unreasonable to apply this common measurement to what would be a standard size bedroom in a standard size house. Therefore, as to the claim that the statement stud space is libelous, the court finds that the plaintiff has failed to meet his burden, as this paragraph in the complaint does not demonstrate to the court that there is probable cause, considering all valid defenses, that the plaintiff will prevail on the merits of this paragraph of the complaint. Additionally, the plaintiff fails to show probable cause that Taunton acted with actual malice in publishing the statement in paragraph 9(q). For the foregoing reasons, the special motion to dismiss as to paragraph 9(q) is granted.
E. Paragraph 9(k) regarding Photo of "roof with eaves but no overhang"
The article initially included a photograph that purportedly depicts a "roof with eaves but no overhang," which is located directly next to a paragraph in which Holladay criticizes a portion of the book on this subject, saying: "Well, no. Virtually every pitched roof has an eave, but not all pitched roofs have an overhang." The plaintiff argues that this photograph failed to include a source credit, leaving the average reader to assume that the photograph was included in the book. Taunton relies on the fact that it modified the article to include a proper photograph source credit; the source is now credited as "Ecocor" and, thus, the error is not defamatory. The plaintiff argues, however, that Taunton’s argument ignores what the complaint actually alleges: "the [r]eview included a false, inaccurate, and/or misleading statement by originally including a photograph ... without proper photo credit ... thereby misleadingly suggesting that it was contained in the book." This defamed the plaintiff by giving readers the false impression that he could not keep basic facts straight and included a photograph in his book that directly rebutted its own prose.
Taunton believes this error is of no significance. The article never stated that the photograph appeared in the book or credited the photograph to the plaintiff. When the article was published, the photograph was not credited to anyone, including the plaintiff. Six days after publication, the article was updated to state: "Photo credit: Ecocor." Even if the photograph had been improperly credited to the plaintiff for six days, that mistake was corrected long before this lawsuit was filed or even before the plaintiff wrote Taunton to complain about the article. Minor inconsistencies such as this cannot sustain a libel claim. There is nothing defamatory about a picture of a house.
On the record before it, as to paragraph 9(k), the court, as it did in its view of parts II.A-D of this memorandum of decision, agrees with the position posited by Taunton. The court finds that it would be difficult, at best, to have a reasonable trier of fact, whether a court or jury, conclude that the statement in the article amounts to libel. An incorrect photo, regardless of how quickly noticed, that only fails to identify the source of the photo, without more, is insufficient to constitute libel. Additionally, the plaintiff fails to show probable cause that Taunton acted with actual malice in publishing the statement in paragraph 9(k). For the foregoing reasons, the special motion to dismiss as to paragraph 9(k) is granted.
F. Counts Three and Four of the Complaint
The plaintiff’s complaint includes two additional counts: count three sounding in tortious interference with business expectancies and count four sounding in CUTPA. Both counts incorporate and rely exclusively on the plaintiff’s causes of action for libel and libel per se. Thus, because the court has granted the special motion to dismiss with respect to all claims raised pursuant to counts one and two, the special motion to dismiss as to counts three and four is granted.
CONCLUSION
For the forgoing reasons, the court determines that the plaintiff has failed to meet his burden of proof that § 52-196a violates the right to a jury trial, right to petition the government for redress of grievances, and is unconstitutionally vague either on its face or as-applied to him. Thus, § 52-196a is not unconstitutional on its face or as-applied, and the plaintiff’s objection is overruled. Additionally, the special motion to dismiss is granted as to all counts of the plaintiff’s complaint because the plaintiff has failed to meet his burden that there is probable cause he will succeed on the merits of his complaint.