Opinion
No. CV 07 5002360
March 30, 2009
MOTION FOR SUMMARY JUDGMENT
I. FACTS
The plaintiff, Robert Siena, commenced this action by service of process on Meredith Corporation d/b/a WFSB Channel 3 (WFSB) and its employees Susan Raff, Dennis House and Jessica Schneider on April 30, 2007. In his six-count complaint, he alleges negligence, recklessness, defamation, negligent infliction of emotional distress, intentional infliction of emotional distress and invasion of privacy.
These counts arise from three news reports and one "tease" broadcast aired on WFSB on February 27 and 28, 2006, concerning Richard Siena, the plaintiff's identical twin brother. Both the plaintiff, Robert, and his brother, Richard, were members of the Middletown police department (department) at the time of the broadcasts. The plaintiff and his identical twin brother both have similar hair styles and both have a mustache. While both brother's shared similar physical features and were employed as police officers, they had different ranks in the department and sexual orientations. The plaintiff, Robert was openly homosexual. (See, Depo. Trans., Exh. A, 51-53).
During the course of the broadcasts, the defendants reported that Richard Siena admitted to viewing pornography on a police department computer on numerous occasions while on duty and that the department disciplined him with a written warning but subsequently promoted him to lieutenant. The defendants reported that "Officer Siena" was investigated by the Middletown Police Department. The investigation was about pornography involving sexually explicit photos of young adult and teenage males and was referred to as kiddie or child porn during some of the broadcasts. Susan Raff, Dennis House and Jessica Scheider, codefendants and employees of WFSB Channel 3, identified the person who was the object of the news in several ways. They called him "Siena," "Officer Siena," "Rick Siena," "Sergeant Richard (Rick) Siena," and "Lieutenant Siena," during the broadcasts.
The defendants further reported that the department and the city of Middletown refused to release records relating to the department's investigation of this incident and that the defendants held a hearing before the Freedom of Information (FOI) Commission to obtain the records. The plaintiff does not dispute the accuracy of these broadcasts as they apply to his brother, Richard. Instead, he alleges that the defendants' reports injured him because they negligently, willfully, recklessly and/or intentionally caused viewers to believe that the plaintiff rather than his brother, was the subject of the department's investigation.
The defendants filed their answer and special defenses on June 20, 2007, and the plaintiff filed a reply to the special defenses on July 2, 2007. The defendants filed their motion for summary judgment and supporting memorandum of law on May 27, 2008, and the plaintiff filed an objection to the motion for summary judgment on January 21, 2009. The parties were heard at short calendar on January 26, 2009. Subsequently, the defendants filed a reply to the plaintiff's objection to the motion for summary judgment on January 29, 2009. In addition, the plaintiff filed a supplemental brief pursuant to the court's request on January 30, 2009, and the defendants responded to the supplemental brief on February 5, 2009.
II. DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
In their motion for summary judgment, the defendants contend that because the broadcasts were not "of and concerning" the plaintiff they are entitled to judgment as a matter of law on all counts. In addition, the defendants argue that the motion for summary judgment should be granted on the first (negligence) and fourth (negligent infliction of emotional distress) counts because claims sounding in negligence cannot form the basis for liability under the actual malice standard, which applies to defamation claims brought by public officials such as police officers.
The defendants have submitted the following in support of their motion for summary judgment: (1) excerpts from the sworn and certified transcript of the plaintiff's deposition on March 26, 2008; (2) the sworn and certified affidavit of Dana Luby Neves, news director for WFSB, dated May 22, 2008; (3) the defendant Susan Raff's objections and responses to the plaintiff's interrogatories and production requests, dated March 28, 2008; (4) the defendants' answer and special defenses, dated June 20, 2007; (5) DVD CD-ROMs containing WFSB news broadcasts from the February 27 and 28, 2006; (6) the plaintiff's responses to request for admissions, dated October 1, 2007; (7) the defendant Meredith Corporation d/b/a WFSB Channel 3's objections and responses to the plaintiff's interrogatories and production requests, dated March 28, 2008.
In his memorandum of law in opposition to the motion for summary judgment, the plaintiff responds that there is a genuine issue of material fact concerning whether a reasonable viewer of the broadcasts could find that they concerned the plaintiff. The plaintiff further responds that the defendants have failed to address his common law claims and therefore have waived those claims for purposes of the present motion, and that he is at most a limited public figure. As a limited public figure, he contends that it is unnecessary to prove actual malice for purposes of counts one and four, which sound in negligence, and even if the plaintiff were a public figure, a reasonable jury could find that the defendants' broadcasts were done with actual malice.
The plaintiff has submitted the following evidence in opposition to the motion for summary judgment: (1) excerpts from the sworn and certified transcript of the plaintiff's deposition on March 26, 2008; (2) excerpts from the sworn and certified transcript of the defendant Susan Raff's deposition on September 25, 2008; (3) printouts of the transcripts from the news reports at issue (4) correspondence between the FOI commission and the defendants and the finding and decision of the FOI commission dated August 24, 2006; (5) an email from the plaintiff to Susan Raff, dated February 28, 2006; (6) an undated copy of the Middletown police department's internal investigation of Sergeant Richard Siena; (7) a copy of a letter signed by the mayor of Middletown, dated September 25, 2008; (8) excerpts from the transcript of Dana Neves, dated October 29, 2008.
In their reply brief, the defendants reassert that the issue of whether the broadcasts were "of and concerning" the plaintiff is dispositive of the complaint on constitutional grounds and that the plaintiff has failed to submit evidence raising an issue of material fact concerning the "of and concerning" requirement. The defendants specifically claim that the fact that Richard Siena is the plaintiff's identical twin and a fellow police officer is not an issue of material fact, and the plaintiff's failure to satisfy the "of and concerning" requirement is fatal to all claims and the actual malice standard makes the plaintiff's negligence based claims insufficient as a matter of law.
The plaintiff provided a supplemental memorandum providing certain evidence that the broadcasts were published to a third party. The defendants argue that this evidence is insufficient to raise an issue of material fact.
A. Defamation
"In order for [the plaintiff] to establish that [he] suffered prima facie defamation, [he] must show that: (1) [the defendants] made a defamatory statement; (2) the defamatory statement identified [him] to a reasonable third person; (3) the defamatory statement was published to a third person; and (4) the [the plaintiff's] reputation suffered injury as a result of the defamatory statement." QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 356, 773 A.2d 906 (2001).
As a preliminary matter, the court must determine whether the plaintiff is a public official. Whether a person is a public official or a private individual is an issue of law for the court to decide. Rosenblatt v. Baer, supra, 383 U.S. 88. The Supreme Court held that a police officer may be considered a public official if he "has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs, at least where law enforcement and police functions are concerned, sufficient to be a public official." Moriarity v. Lippe, 162 Conn. 371, 378, 294 A.2d 326 (1972). The court reasoned that "[a]lthough a comparably low-ranking government official, a patrolman's office, if abused, has great potential for social harm and thus invites independent interest in the qualifications and performance of the person who holds the position." Id.
In this case, the plaintiff's defamation claim arises from his role as a police officer. In his complaint, he alleges that the defendants' broadcasts would cause a reasonable viewer to believe that he looked at "indiscriminate internet websites" and viewed "kiddie porn on the internet while at work." The broadcasts, if reasonably believed to be concerning the plaintiff, were directed at his role as a police officer and compromised the public's opinion of his role as a public official. Therefore, the plaintiff is a public official and has the burden of establishing that the defendants' broadcasts were "of and concerning" him.
1. "Of And Concerning" Requirement
The defendants' central argument in urging this court to grant their motion for summary judgment is that their broadcasts were not "of and concerning" the plaintiff. To protect the First Amendment's free speech guarantee "[t]he United States Supreme Court . . . has found that it is constitutionally required that a statement be made `of and concerning' the party allegedly defamed for a cause of action in defamation to lie. See Rosenblatt v. Baer, 383 U.S. 75, 80-82, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); New York Times Co. v. Sullivan, 376 U.S. 254, 267, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)." QSP, Inc. v. Aetna Casualty Surety Co., supra, 256 Conn. 356 n. 14. See also 2 Restatement (Second), Torts § 564 (1977) ("A defamatory communication is made concerning the person to whom its recipient correctly, or mistakenly but reasonably, understands that it was intended to refer").
In order to satisfy the "of and concerning" requirement, the plaintiff must show that the allegedly defamatory statements contained a specific reference to him; Rosenblatt v. Baer, supra, 383 U.S. 81; or could be reasonably read as accusing the official of personal involvement in the acts in question. New York Times Co. v. Sullivan, supra, 376 U.S. 288-89.
In New York Times Co. v. Sullivan, the United States Supreme Court overturned the Alabama Supreme Court's decision upholding a finding that civil rights leaders who placed a full-page newspaper advertisement describing mistreatment by police officers of student protesters had libeled a city commissioner charged with supervising the police department. New York Times Co. v. Sullivan, supra, 376 U.S. 265. In part, the court held that the finding was constitutionally defective because there was insufficient evidence that the allegedly libelous statements were "of and concerning" the commissioner. Id., 288. The advertisement did not refer to the commissioner either in name or position, nor could its statements "reasonably be read as accusing [the commissioner] of personal involvement in the acts in question." Id., 288-89. Furthermore, the court found that the commissioner's witnesses associated him with responsibility for the acts in question not because of what they read in the advertisement but "solely on the unsupported assumption that, because of his official position, he must have been." CT Page 5951 Id., 289.
The court cited, for example, that "[t]here was no reference to respondent in the advertisement, either by name or official position." New York Times Co. v. Sullivan. supra, 376 U.S. 288.
Subsequently, the United States Supreme Court held that a newspaper column implying that former commissioners of a public recreation area had committed mismanagement, but did not specifically refer to the previous commission or name individual commissioners, was not "of and concerning" the plaintiff a former commissioner, because "[t]here must be evidence showing that the attack was read as specifically directed at the plaintiff" as opposed to the commission in general. Rosenblatt v. Baer, supra, 383 U.S. 81.
Both Sullivan and Rosenblatt dealt with public officials who sued media defendants based on general criticisms of the government, rather than specific attacks on the individual official. In those cases, the United States Supreme Court applied the "of and concerning" requirement, which was fundamental to common law defamation actions; see, e.g., Peck v. Tribune Co., 214 U.S. 185, 189, 29 S.Ct. 554, 53 L.Ed. 960 (1909); to the context of government criticism as a way to protect a good faith critic of the government from a defamation suit based on an "impersonal attack on governmental operations." New York Times Co. v. Sullivan, supra, 376 U.S. 291. Thus, our Supreme Court has noted that "[t]he motivating force for New York Times Co. v. Sullivan, supra, 270, was a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that . . . [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." (Internal quotation marks omitted.) Moriarity v. Lippe, supra, 162 Conn. 378.
In the present case, the defendants' broadcasts specifically identified an individual officer at the Middletown police department as the subject of its pornography investigation. The plaintiff argues that a reasonable viewer could interpret the broadcasts to find that the plaintiff, and not his brother, was the subject of the investigation, and therefore the broadcasts were "of and concerning" the plaintiff. The defendant argues that no reasonable viewer could find that the broadcast was "of and concerning" the plaintiff as a matter of law. In this case, the question of mistaken identity is somewhat unique in that it involves identical twins. Under these unique facts, the court concludes that the issue of whether the broadcasts are "of and concerning" the plaintiff is the primary, material issue of fact disputed by the parties in this case and that it should not be decided as a matter of law because there is sufficient evidence for a jury to reasonably find that the broadcasts were "of and concerning" the plaintiff.
Unlike in Sullivan and Rosenblatt, the plaintiff's defamation suit does not respond to a broadly painted critique of his actions as a police officer. Rather, the plaintiff seeks to recover from the damage to his reputation caused by media scrutiny into his brother's actions as a police officer, who the defendants allegedly knew looked the same, had the same employer and the same last name. This damage is allegedly magnified by the fact that the defendants knew that the plaintiff had recently disclosed he was homosexual and that the pornography viewed by his brother involved adult and young males, described in the broadcasts as kiddie or child porn.
The court has examined the record to determine if there is a genuine issue of material fact concerning whether the broadcasts were "of and concerning" the plaintiff, meaning that the broadcasts made either a specific reference to the plaintiff or presented "a description or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended." 3 Restatement (Second), Torts § 564, comment (b) (1977). The court considers the broadcasts in context, including "any other words spoken at the time" relevant to the question of whether the plaintiff was the subject of defamation. See Yavis v. Sullivan, 137 Conn. 253, 260, 76 A.2d 99 (1950).
The first report at issue aired during WF5B's 6 p.m. news report on February 27, 2006. The relevant portions of the report are as follows:
"Looking at pornography on the job, the man accused, a police officer. The I-Team investigates." This statement is accompanied by footage depicting Richard Siena from a distance. His face is not visible. The statement and footage occupy approximately five seconds of air time at the start of the broadcast.
A police officer is accused of looking at something on the internet that would get many people fired from their jobs . . .
Tonight, exclusive details about a Middletown police officer investigated for looking at pornography while on the job.
And how this matter was handled may be shocking. The officer was only given a written warning and then was promoted . . .
Middletown police did their own investigation, and it even involved the state police. They found Officer Siena looked at pornography numerous times, not at home, but on time job while he was supposed to be working. This first reference to the officer's name occurs at the beginning of the second minute of the broadcast.
Immediately after the first reference to "Officer Siena," the defendants stated: "Rick Siena is a twenty year veteran of the Middletown police department . . ." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face is clearly visible.
Siena was part of a crime and drug sweep in the city's south end. Siena was a sergeant in January 2003 when another officer reported pornography on a department computer. Four days later that computer was sent to the state police crime lab. Investigators found adult pornography, sexually explicit photos of young adult and teenage males and those sites had been accessed by Rick Siena.
Eyewitsses news has a copy of the internal affairs investigation. It details the sites Siena allegedly visited, saying he viewed those sites on at least thirty-five different days, all during his shift.
When questioned by investigators on January 28th, Siena denied accessing these websites. However, three days later, he admits it, saying it "was a stupid thing to do.
This is Middletown's Police Department's zero tolerance policy. It says pornographic material is prohibited and the punishment can include termination. Rick Siena signed it.
But Chief Edward Brymer did not fire Siena or suspend him. Siena received only a written warning and a few months later he was promoted to lieutenant.
When eyewitness news asked about the promotion the department wouldn't comment . . .
During our investigation, eyewitness news discovered Lieutenant Siena was also working as a part-time dispatcher at Cromwell police. Chief Salvatore [of the Cromwell police] told us he was aware of the allegations and that he had already checked the computers at his department. He says he didn't find anything. But if Siena was to continue working there, he wanted to see Middletown's report . . .
Chief Salvatore did not ultimately file an FOI [Freedom of Information] request because Rick Siena resigned. However, we did. We wanted to see the full investigation. And, that Freedom of Information hearing is tomorrow afternoon. We'll be there and we'll tell you what happens.
At 10:50 p.m. on February 27, 2006, the defendants aired a "tease" broadcast prior to their 11:00 p.m. broadcast, which stated in relevant part:
Frigid weather: get ready for a bitter morning commute. Plus, outrage after a police officer is accused of viewing kiddie porn on the job — and then gets a promotion . . .
This statement is accompanied by footage depicting Richard Sietia from a distance. His face is not visible.
During the 11 p.m. news report on February 27, 2006, the defendants broadcast the following, in relevant part:
People here in Middletown say they are not pleased at all with the department. They say they just don't understand why Lieutenant Rick Siena is still on the force here, especially considering the department's strict standards on internet porn.
"Back in 2003, there were the porn sites accessed by Rick Siena, he's seen here in video taken by eyewitness news last spring. He was a sergeant then, when another officer reported pornography on a department computer. Four days later those sites were linked to Siena after a state police investigation . . ." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face is clearly visible.
"Our I-Team investigation is drawing some tough criticism from people here in Middletown. They aren't impressed that Rick Siena was only given a written warning for accessing these sites on at least thirty-five different days and that he was even eventually promoted to lieutenant . . .
This is Middletown P.D.'s zero tolerance policy. It says pornographic material is prohibited and punishment can include termination. But Siena wasn't fired and he was even promoted." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face is clearly visible.
People here say it makes them lose faith in the entire system . . .
The defendants broadcasted the final report on the 6 p.m. news report on February 28, 2006, including the following relevant portions:
We have a follow-up tonight to an I-Team investigation concerning a Middletown police lieutenant who admits looking at pornography while on the job . . .
"Eyewitness news requested these documents [concerning the Middletown police department's internal investigation of Richard Siena] because no one could explain how an officer who admitted viewing pornography at work was not fired or suspend but in fact was promoted . . ." "It's now up to the Freedom of Information Commission to decide if what a Middletown police officer did on the job should be made public." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face is clearly visible.
"An internal affairs investigation found Officer Rick Siena viewed pornography sites at least thirty-five different times while working." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face is clearly visible.
At first Officer Rick Siena denied the allegations. However, three days later he admits it saying it was a stupid thing to do.
"Rick Siena broke several Middletown police department policies and he was not suspended or fired. In fact, he was later promoted to lieutenant." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face was clearly visible.
"When [the defendants] requested to see the full investigation we were denied. The city of Middletown told us it was invasion of the officer's privacy. That's when we filed with the FOI commission . . ."
"Chief [Edward Brymer] also testified today that after the pornography was discovered, he removed then Sergeant Rick Siena from the explorer program, a program designed to help youths interested in becoming police officers." This statement was accompanied by footage of Richard Siena wearing a lieutenant's uniform. His face was clearly visible.
At today's (FOI) hearing, the city attorneys said they would turn over all the documents we requested. However, Rick Siena hired his own attorney and that attorney objects . . .
The comments to Restatement (Second), Torts § 564 (1977), provide an appropriate analysis for these unusual facts. Comment (b) states: "If the communication is reasonably understood by the person to whom it is made as intended to refer to the plaintiff, it is not decisive that the defamer did not intend to refer to him." Furthermore, "[i]t is not necessary that the plaintiff be designated by name; it is enough that there is such a description or reference to him that those who hear or read reasonably understand the plaintiff to be the person intended."
In defamation suits based on mistaken identity, courts have looked closely at the factual circumstances surrounding the alleged defamation to determine if a reasonable viewer or reader could understand the plaintiff to be the person intended to be named. Thus, in three of the cases cited by the defendants, the courts found that no reasonable juror could find that the alleged defamatory statements concerned the plaintiff based on a similarity of names.
First, in Jones v. New Haven Register, Inc., 46 Conn.Sup. 634, 635, 763 A.2d 1097 (2000), a newspaper published a picture of the plaintiff, a "person of some local prominence who, as far as the record indicates, has led a blameless life," adjacent to an article about person with the same name who was a former treasurer of the NAACP and had been convicted of stealing. Although this court did not reach the issue of whether the publication was "of and concerning" the plaintiff the court's analysis is useful for understanding what factors a court may consider in determining whether a reasonable viewer could understand the plaintiff as the person intended to be named. The Superior Court, Blue, J., found that it was "highly unlikely to be believed" that the plaintiff, was the same person as described in the article because the plaintiff was "well known by a large number of people throughout the state as a politician and a good citizen" and the plaintiff "was not a former treasurer of the NAACP, had not been convicted of stealing money from its coffers, and had not been placed on parole." Id., 647. Furthermore, because the plaintiff was a "general purpose" public figure, rather than a "private individual," his notoriety meant that false charges against him would be less likely to be believed and he had access to public channels of information that could allow him to correct this error; indeed, the newspaper published a retraction the day after the publication. Id., 647-48, 635.
Second, in Flipside, Inc. v. Chicago Tribune Co., 206 Ill.App.3d 641, 564 N.E.2d 1244 (1990), the Illinois Appellate Court held that a corporation that had the same name and was in the same line of business as a corporation described in a Dick Tracy comic strip could not satisfy the "of and concerning" requirement in a defamation action against the publisher of the comic strip. "[A] basic requirement of a defamation case based upon an episodic comic strip is that the story must be reasonably understood as describing actual facts about the plaintiff. The reasonably understood and the actual facts elements are required because first amendment freedoms need breathing space to survive, and as protection against encroachment upon rights protected by the first amendment . . . The crucible to be applied is whether the comic strip within the context presented could be reasonably understood by persons of ordinary intelligence as describing actual facts about the plaintiff or actual events in which the plaintiff participated. Here, it is readily apparent that the Flipside episode is all fanciful adventure and does not purport to be factual. It is simply impossible to believe that a reader would not have understood that the episode is pure fiction and nothing else." (Citations omitted.) Id., 654.
Third, in Summerlin v. Washington Star Co., 1981 U.S.Dist. LEXIS 18625, 6 (D.D.C. December 31, 1981), the court dismissed a libel action by a plaintiff who had been wrongly identified by a newspaper reporter as a murder suspect, finding "sufficiently distinct similarities between [the] plaintiff . . . and the person referenced in the offending article to preclude any reasonable finding that [the] plaintiff was the individual identified in the Star article." The court found that the plaintiff and the person identified in the article were different ages and lived in different cities and that the plaintiff unlike the person in the article, had not been hospitalized on the date of the murder; the only commonality was their first and last names. Id., 6-8.
By contrast, in Hudson v. Guy Gannett Broadcasting Co., 521 A.2d 714 (1987), the Supreme Judicial Court of Maine overturned a trial court's granting of summary judgment where the trial court had determined that the defendant's libelous statements were "of and concerning" the plaintiff as a matter of law. In that case, a television news broadcast had reported that several employees from a plant had been fired for illegal drug use and sale, but did not identify the employees' names. Id., 714-15. The plaintiff, who had been dismissed from that plant for drinking on the job, sued the broadcaster for defamation because, after the news broadcast, some of his neighbors believed he had been fired for involvement with illegal drugs. Id., 715. The court held that the question of whether television news broadcasts were "of and concerning" the plaintiff was a factual question to be decided by the jury, holding that the trial court "could grant a summary judgment on the `of and concerning' issue only if, upon viewing the evidence most favorably to the plaintiff, there exists no genuine issue of fact from which a jury could reasonably find by a preponderance of the evidence that the defendant's publications were of and concerning the plaintiff." Id., 716. In Hudson, an affidavit from the plaintiff's co-worker testifying that he had seen the broadcast and believed that the plaintiff had been involved with illegal drugs was sufficient to raise an issue of material fact concerning whether the broadcast was "of and concerning" the plaintiff. Id., 715-16.
Similarly, the Supreme Judicial Court of Massachusetts reversed summary judgment for a newspaper that allegedly defamed two schools with the same name but operating in different states, holding that genuine issues of fact existed regarding whether the newspaper articles were "of and concerning" the Connecticut school rather than the Massachusetts one. New England Tractor Trailer Training of Connecticut, Inc. v. Globe Newspaper Co., 395 Mass. 471, 483, 480 N.E.2d 1005 (1985).
The court finds the cases cited by the defendants to be factually distinguishable from the present case. Viewing the evidence most favorably to the plaintiff, the non-moving party in this case, the court concludes there is a genuine issue of material fact concerning whether a person viewing the television broadcasts, individually, partially or as a whole, could understand that the person described in the broadcasts was "of and concerning" the plaintiff.
2. Publication To A Third Party
Having demonstrated that there is an issue of material fact concerning whether the broadcasts were "of and concerning" the plaintiff, the plaintiff has the additional burden of proving that someone who saw the defendants' broadcasts actually understood that the broadcast referred to the plaintiff.
For example, in Marczeski v. Law, 122 F.Sup.2d 315, 326 (D.Conn. 2000), the court, applying 3 Restatement (Second), Torts § 564, comment (a) (1977), held that the plaintiff, a participant in an internet chat room, had the burden of proving that allegedly defamatory statements posted by the defendant in the chat room "were published to someone who understood them to refer to her." In that case, the plaintiff claimed that thousands of members of the public could see the defamatory statements because they were posted on the internet in a public chat room. Id. The court found that even if the public could view these statements, there was no evidence that anyone would know that the statements referred to her because the plaintiff used a nickname when participating in the chat room. Id.
The plaintiff presented the following evidence in his supplemental memorandum of January 30, 2009, concerning whether the broadcasts were published to someone who understood them to refer to him. The evidence is derived from the plaintiff's deposition on March 26, 2008.
The plaintiff testified that after the broadcasts, he was teased and taunted by fellow police officers, but he could not name "each and every individual" who made these comments. (Plaintiff's Deposition, p. 100.) He heard a "third hand" comment that a trooper with the Connecticut state police department said he was "looking at little boys on a computer," but did not know if that trooper's comment was referring to himself or to his brother. (Plaintiff's Deposition, p. 100.) He could not remember specific comments from within the Middletown police department, but testified that "there was definitely comments that were made that made me feel uncomfortable. But I would say the majority of them were comments that got back to me from other people saying they mentioned they heard something, or I heard someone may have been talking about me, that sort of thing." (Plaintiff's Deposition, p. 101.)
Within "weeks" of the broadcast, he was processing someone for domestic violence related charges who accused him of being a "child molester" and said that the plaintiff "should have been arrested" in the presence of fellow officers. (Plaintiff's Deposition, p. 102.) Also within weeks of the broadcast, at a Dunkin' Donuts, an unnamed member of the public said that the plaintiff was "a disgrace" who "shouldn't be wearing a uniform." (Plaintiff's Deposition, p. 103-04.)
The plaintiff also testified that he felt "uncomfortable" at his part-time teaching job with the Drug Abuse Resistance Education program taught at the Middletown schools. (Plaintiff's Deposition, p. 105-06.) He had a discussion with a fellow teacher, Bob Osiecki, following the February 27, 2006, broadcast in which they discussed the broadcast for "probably all of a minute or two." (Plaintiff's Deposition, p. 108.) The plaintiff testified that Osiecki said that he knew that the broadcast was about the plaintiff's brother. (Plaintiff's Deposition, p. 108.) The plaintiff added that Osiecki said the broadcast was "talked about in the department — the school rather." (Plaintiff's Deposition, p. 108.)
The court finds that the plaintiff has provided sufficient evidence that the broadcasts were published to a third party who believed that the broadcasts were about the plaintiff.
3. Malice
Because the plaintiff is a public official, he may not prevail unless he can prove that the defamatory broadcasts were made with "actual malice," which the United States Supreme Court has defined as "knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, supra, 376 U.S. 279-80.
The plaintiff argues that there is an issue of fact concerning whether the defendants' broadcasts were made with actual malice because the defendant Susan Raff, news reporter for WFSB, knew the plaintiff personally and was aware that the plaintiff had an identical twin brother at the Middletown police department.
In her September 25, 2008, deposition, Raff testified that the defendants had spent five to six months producing the broadcasts at issue, explaining that she wanted "to make sure that it was accurate . . . because it was of a sensitive nature." (Raff Deposition, p. 34.) Raff testified that she knew the plaintiff because they were members of the same gym and that she knew that the plaintiff and Richard Siena were identical twins. (Raff Deposition, p. 42.) Raff testified that the plaintiff had told her that he had chosen to become openly homosexual. (Raff Deposition, p. 43.) Raff further testified that the plaintiff told her that he knew she was investigating his brother but said "I'm not like him," which she understood to mean "that he is not interested in looking at young men without their clothes on." (Raff Deposition, p. 47.)
The plaintiff emailed Raff after watching the news reports on February 27, 2006, asking her to "clarify" the broadcast. (Plaintiff's Deposition, p. 82.) The plaintiff testified that Raff responded "the next day" and stated that "she didn't mean to bring any, you know, I don't want to say harm, but cause me any undue stress or whatever. And she'll, and from that point on, it will be clarified as Lieutenant Rick Siena, you know, versus Officer Siena." (Plaintiff's Deposition, p. 82.)
The court concludes there is an issue of fact concerning whether the defendants acted with actual malice in their broadcasts, because there is evidence that the defendants were aware that the plaintiff had an identical twin brother and acted in reckless disregard of this fact by broadcasting the plaintiff's name and a picture that resembled the plaintiff in connection with a story about his brother without sufficiently distinguishing between them to viewers.
B. Negligence (Counts one and four)
The defendants argue that the motion for summary judgment should be granted on the first (negligence) and fourth (negligent infliction of emotional distress) counts because claims sounding in negligence cannot form the basis for liability under the actual malice standard, which applies to defamation claims brought by public officials such as police officers. The plaintiff argues that the he is at most a "public figure" and therefore may bring a claim sounding in negligence against the defendants.
The court has determined that the plaintiff is a public official, and he may therefore not assert claims sounding in negligence because under the rule in New York Times Co. v. Sullivan, supra, 376 U.S. 280, a public official bringing a defamation claim must prove actual malice. Therefore, the court grants the defendants' motion for summary judgment on counts one and four of the plaintiff's complaint.
III. CONCLUSION
The defendants' motion for summary judgment is granted in part and denied in part. The court has determined that there is a genuine and material issue of fact concerning whether a reasonable viewer could believe that the broadcasts were "of and concerning" the plaintiff, the motion for summary judgment is denied as to counts two, three, five and six. The motion for summary judgment is granted, however, as to the defendants' motion for summary judgment on counts one and four of the plaintiff's complaint, which sound in negligence, because the plaintiff is a public official and must prove actual malice in order to prevail in the present defamation action.