Scott D. Camassar v. The Day Publishing Company et al. (2015)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION (# 109) FOR SUMMARY JUDGMENT

By complaint dated November 5, 2013, the plaintiff, Scott Camassar, brought this action against The Day Publishing Company, publisher of The Day (“the newspaper”), and one of its columnists, David Collins, for defamation.  On February 28, 2014, the newspaper and Collins moved for summary judgment.  On October 9, 2014, the plaintiff filed an objection to that motion, with a brief and exhibits.  On January 21, 2015, the defendants filed a reply brief to which, on February 3, 2015, the plaintiff filed a sur-reply.  The motion was argued on March 2, 2015.  The motion was granted on June 30, 2015, with this memorandum to follow.

FACTS

The plaintiff is a reputable and experienced attorney who practices law in the New London, Connecticut area.  Collins is a reporter and columnist for the The Day, a daily newspaper based in New London which has a substantial circulation in eastern Connecticut and an active Internet website.

In the months preceding the allegedly defamatory statements, the plaintiff or clients of the plaintiff were mentioned in at least 15 articles or columns, one editorial and one letter from the plaintiff to the editor which criticized a column by Collins published on October 9, 2013.  The articles, columns and letter to the editor primarily related to an allegation by Tracy Swain, a client of the plaintiff, that Edward Haberek, the first selectman of the town of Stonington, used a town cell phone to send her an inappropriate and distressing message with sexual content, and related to Swain's eventual lawsuit filed by the plaintiff against the first selectman and the town.

Swain's claim involved two pertinent letters signed by the plaintiff.  The first letter, dated July 23, 2010, was to Edward Haberek and was hand-delivered to him.  In key part, that letter said, “[a]s a professional courtesy, I chose to send you this letter via hand delivery to ensure that only you saw it, and not members of your staff or family.  I have been retained by Tracy Romano Swain in connection with a claim against you arising out of your actions on January 12, 2010, when you sent her a sexually graphic photo of yourself via Facebook message ․ [H]er decision to press this claim is motivated not only by her right to be compensated but also her intent to deter you from similar wrongful conduct in the future.  My client and I are willing to resolve this claim quickly and quietly, in order to spare her family and yours the pain and embarrassment that would ensue from a public spectacle.”

The plaintiff's second letter, dated July 6, 2011, is to Michael P. Lynch, Haberek's attorney.  In key part, the second letter says, “[m]y client has authorized me to convey a demand of $95,000.00 to settle her claims against your client confidentially.  Please get back to me once you have had a chance to discuss this.”  (The texts of the plaintiff's July 23, 2010, and July 6, 2011, letters are, respectively, Appendix A and Appendix B to this memorandum.)

On October 31, 2013, after review by an editor, the newspaper published a column by Collins the following parts of which the plaintiff claims include statements which defame him:

A reasonable and honorable lawyer at this point might have counseled the woman to go home, think about reconciling with her husband or maybe find a good divorce lawyer and move on with her life.  But, we now know, that's not how the selectman race of 2013 story unfolded.  It's a different fable altogether.  Instead, the lawyer, Scott Camassar, whose other politically charged lawsuit this year challenges the state's new gun control law on the grounds that it denies handicapped people easy-to-fire assault weapons, signed up Tracy Swain to sue the Democratic first selectman in Stonington.

At the outset, [Attorney Camassar] sends a hand-delivered shakedown letter to the targeted first selectman, saying, essentially, pay us $90,000 and this won't become a public circus.

And the town, too, was sued, presumably for its deep pockets but maybe also to tighten the political screws.

I know [Camassar's client] looks to many like a gold digger in all this, but I also think of her as a victim, a cog in a smear campaign.

See Appendix C for the entire text of the column.  Other factual findings are stated below.

DISCUSSION

Interpreting Collins's statements from the plaintiff's perspective, the complaint alleges defamation in the following key terms.  “On October 31, 2013, The Day Publishing Company published an article in its newspaper which defamed the professional reputation of the plaintiff, and impugned his integrity as an [a]ttorney and constituted the tort of libel per se in one or more of the following ways:

“a) The defendant, David Collins, wrote the ‘Lawyer Scott Camassar’ was not ‘reasonable and honorable’ because he did not counsel Tracy Swain to not file a lawsuit and signed her up to sue the First Selectman.  The statement of David Collins was false, reckless and a deliberate attempt to harm the reputation of Attorney Scott D. Camassar;

“b) The defendant, David Collins, wrote that Attorney Camassar sent a ‘hand-delivered shakedown letter to the targeted First Selectman saying, essentially, pay us $90,000 and this won't become a public lawsuit.’  Once again, this statement is false, reckless and a deliberate attempt to harm the reputation of Attorney Scott Camassar;  and

“c) The defendant, David Collins, then wrote that the lawsuit was to ‘tighten the political screws' and ‘a smear campaign’ telling the reader that the purpose of this lawsuit was politically motivated which, once again, was false, reckless and a deliberate attempt to harm the reputation of the plaintiff.”

The defendants' motion is based on their claim that the challenged statements of Collins, taken in context, were not false, were not made with malice,¹ and were privileged.

“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.”  Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).²

“A defamation requires a statement—i.e. an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts ․ To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion.”  Gleason v. Smolinski, 149 Conn.App. 283, 309, 88 A.3d 589, cert. granted, 312 Conn. 920, 94 A.3d 1201 (2014).³  A statement is one of fact if it is capable of being known and is related to a past or present event or state of affairs.  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 111, 448 A.2d 1317 (1982).  To be actionable, the stated fact must be false, Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228–29, 837 A.2d 759 (2004), and must tend to harm the reputation of the plaintiff.  Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 628.

Statements of opinion, where not presented as fact, are inherently not actionable as defamation.  See Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999);  see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993) (“A statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable”).  Furthermore, an opinion even in the form of a factual statement is no less an opinion if it is clear from the context that the writer intends it not as an objective fact but only as his personal comment on the facts which he has stated.  Goodrich v. Waterbury Republican–American, Inc., supra;  see also Gleason v. Smolinski, supra, 149 Conn.App. 309–10.  The basis for this careful protection of opinions is the first amendment.  See Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–23, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990);  and Time, Inc. v. Hill, 385 U.S. 374, 390–91, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

Further still, where a comment or opinion deals with a matter of public interest, the privilege of fair comment arises.  Fair comment is a qualified privilege under the common law to express an opinion, or otherwise comment, on matters of public interest.  Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 111 n.4;  Miles v. Perry, 11 Conn.App. 584, 595, 529 A.2d 199 (1987).  This privilege “affords an immunity of considerably wider latitude.”  (Internal quotation marks omitted.)  Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 114.  The elements of the privilege of fair comment are 1) that there is matter of legitimate public interest, 2) the comment is limited to fair comment on that matter, 3) the comment is made in good faith, 4) on a proper occasion, 5) in a proper manner and 6) to a proper party or parties.  See Miles v. Perry, supra, 11 Conn.App. 585 (styled as “public concern” rather than “fair comment”).

Whether opinions are privileged as fair comment is an issue of law.  Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 119–20.  Indeed, to prevent the chilling of the exercise of press freedom, our state Supreme Court has encouraged trial courts to resolve by summary judgment defamation claims which are barred by this privilege.  See Woodcock v. Journal Publishing Co., 230 Conn. 525, 559 n.6, 646 A.2d 92 (1994), cert. denied, 513 U.S. 1149, 115 S.Ct. 1098, 130 L.Ed.2d 1066 (1995).

The privilege of fair comment applies if the statement can be recognized by an ordinary reasonable person as opinion rather than fact.  Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn 121.  To determine whether a statement is a privileged opinion, the court must consider all of the words used and the circumstances surrounding the statement.  Id. If the facts being commented upon are stated or are common knowledge, and the opinion is based on those facts, then the defense of fair comment applies.  Id., 118.  Expressions of opinion based on known or disclosed facts which are either nondefamatory or, if defamatory, are true are considered “pure” opinion and constitutionally protected.⁴  Id.⁵ Potentially defamatory statements may be couched in a cautionary tone so as to be more clearly opinions rather than facts.  See, e.g., Lizotte v. Welker, 45 Conn.Sup. 217, 233, 709 A.2d 50 (1995) (“I don't know” in statement suggested opinion), aff'd, 244 Conn. 156, 709 A.2d 1;  see also Loeb v. New Times Communications Corp., 497 F.Sup. 85, 91, 94 (S.D.N.Y.1980) (facts were reported accurately but there was no accusation that the plaintiff committed a crime).  Where a defamation defendant leaves it to the reader to draw his or her own conclusion, courts have found a statement not to be defamatory.  See Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C.Cir.) (“Because the reader understands that ․ supported opinions represent the writer's interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation”), cert. denied, 513 U.S. 875, 115 S.Ct. 202, 130 L.Ed.2d 133 (1994);  Loeb v. New Times Communications Corp., supra, 497 F.Sup. 91 (statements were not defamatory when the reader was free to draw his own conclusion and where the defendants stopped short of stating the defamatory conclusion that the plaintiff claimed they intended the reader to draw).

Courts have held that stronger language than “shakedown” and “smear campaign” were not defamatory.  See Old Dominion Branch No. 496, National Assn. of Letter Carriers, AFL–CIO v. Austin, 418 U.S. 264, 282–84, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (use of “traitor” to describe someone who refused to join union was mere rhetorical hyperbole);  Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (same for describing plaintiff's land development proposal as “blackmail”);  Lizotte v. Welker, supra, 45 Conn.Sup. 231 (same for “contribution to slush funds, part of the fix, secret, illegal and corrupt deals, payoffs, blatant coverup attempt, and maneuvers with ․ corrupt implications” (internal quotation marks omitted)).

Analyzed in light of the foregoing principles, though Collins included statements of fact in the subject column, and at least one error of fact, his statements at issue are of opinion, not fact.  Addressing those statements in the order in which they appear in the complaint, it is untrue as a matter of law that Collins “wrote [that] the ‘Lawyer Scott Camassar’ was not ‘reasonable and honorable’ because he did not counsel Tracy Swain to not file a lawsuit and signed her up to sue the First Selectman.”  What Collins wrote in this regard is this:

A woman walks into a lawyer's office and tells a ․ story about a relationship, including some form of phone sex, she's been having with the first selectman in town ․ She also tells the lawyer about how, in the course of their chatting over Facebook and in email, the first selectman sends her a naked picture of a man, one she later shares, and titters and LOL about, with a female friend on Facebook.  A reasonable and honorable lawyer at this point might have counseled the woman to go home, think about reconciling with her husband or maybe find a good divorce lawyer and move on with her life.  But, we now know, that's not how the selectman race of 2013 story unfolded.  It's a different fable altogether.  Instead, the lawyer, Scott Camassar, whose other politically charged lawsuit this year challenges the state's new gun control law on the grounds that it denies handicapped people easy-to-fire assault weapons, signed up Tracy Swain to sue the Democratic first selectman in Stonington.

Collins neither directly nor indirectly says the plaintiff is not a reasonable and honorable lawyer.  Collins does give an example of what, in his opinion, a reasonable and honorable lawyer “might” have done.  But that example cannot reasonably be interpreted as saying that is the only thing such a lawyer would do, let alone that any lawyer who did not take that course of action—or the plaintiff in particular—would not be reasonable or honorable.  Collins says, “that's not how the selectman race of 2013 story unfolded ․ Instead, [the plaintiff] signed up Tracy Swain to sue the Democratic first selectman in Stonington.”  Collins clearly, in the subject column, challenges the reasonableness of the plaintiff's suit on behalf of Swain against the first selectman.  But it is clear, as a matter of law, that that is Collins's opinion and, especially because the Stonington selectman's election is a matter of public interest within The Day newspaper's area of circulation, that he had the right to publish that opinion.  Collins neither says nor implies that the plaintiff is generally unreasonable, personally or professionally, or even unreasonable in taking Swain's case—that is, in “sign[ing] up ․ Swain to sue” Haberek.  Under the law, particularly the privilege of fair comment, even if Collins had said, “Attorney Camassar was unreasonable in signing up Swain to sue Haberek,” that would be a protected expression of opinion since, by definition, reasonable minds will disagree on what is reasonable.  To hold that publicly calling someone unreasonable in a particular decision, act or omission—even a professional like the plaintiff to whom a reputation for reasonableness is valuable—is defamatory would be to place a heavy and completely unjustified burden on free speech.  To call such a professional dishonorable might be actionable, particularly if the factual basis for that charge included, or reasonably implied the existence of, a false and defamatory fact.  See 3 Restatement (Second), supra, § 566.  But that is academic here because, as a matter of law, neither expressly nor by reasonable inference from the context of the subject column does Collins say the plaintiff was dishonorable.⁶

The plaintiff next charges that Collins “wrote that Attorney Camassar sent a ‘hand-delivered shakedown letter to the targeted First Selectman saying, essentially, pay us $90,000 and this won't become a public lawsuit.’  “ The defendants admit that Collins's statement that the plaintiff sent “a hand-delivered shakedown letter to the targeted First Selectman saying, essentially, pay us $90,000 and this won't become a public lawsuit [sic]” was presented as a statement of fact.  (Collins's actual statement and immediate context was, “Camassar decides this is a case to vigorously pursue.  At the outset, he sends a hand-delivered shakedown letter to the targeted first selectman, saying, essentially, pay us $90,000 and this won't become a public circus.  But circus it became.”)  The court finds—it is undisputed—that a letter from the plaintiff to Haberek dated July 23, 2010, was delivered by hand to Haberek and that that letter said, in key part, as follows:

I have been retained by Tracy Romano Swain in connection with a claim against you arising out of your actions on January 12, 2010, when you sent her a sexually graphic photo of yourself via Facebook message.  You took advantage of an emotionally vulnerable woman who was going through a difficult period in her marriage, and when she chose to end the inappropriate email correspondence and Facebook chats with you and told you that she was determined to fix her marriage, you sent her the picture rather than respect her wishes.  Your actions, which I understand you have admitted to police, caused her extreme emotional distress and physical sickness, including migraine headaches, and her decision to press this claim is motivated not only by her right to be compensated but also her intent to deter you from similar wrongful conduct in the future.  My client and I are willing to resolve this claim quickly and quietly, in order to spare her family and yours the pain and embarrassment that would ensue from a public spectacle.  If you have an attorney, I would urge you to have him or her contact me as soon as possible to discuss this confidentially.  I trust that you have liability insurance that would cover claims for damages ․

(See Appendix A.) The court finds—it is also undisputed—that a letter from the plaintiff to Haberek's attorney dated July 6, 2011, said, Swain “has authorized me to convey a demand of $95,000.00 to settle her claims against your client confidentially.”

Though the hand-delivered letter did not include a particular amount, that letter made clear that the plaintiff, for Swain, was giving Haberek the choice of “resolv[ing] this claim quickly and quietly, in order to spare her family and yours the pain and embarrassment that would ensue from a public spectacle.”  Though the July 6, 2011, letter was not to Haberek directly, let alone hand-delivered to him, it clearly demanded $95,000 to settle Swain's claims against Haberek “confidentially.”  Because the one hand-delivered letter did not mention any sum of money, Collins's statement that the plaintiff sent “a hand-delivered shakedown letter to [Haberek] saying, essentially, pay us $90,000 and this won't become a public” lawsuit is literally false.  However, that falsity is irrelevant because the plaintiff's complaint does not allege that that falsity resulting from the conflation of the July 23, 2010, and the July 6, 2011, letters is defamatory.  The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).  A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

Although the word must be taken in context, 3 Restatement (Second), supra, § 563, comment (d), the only part of the second of Collins's statements alleged by the plaintiff to be defamatory is one adjective, “shakedown.”  “Shakedown,” as an adjective, does not have a pertinent definition in Webster's Deluxe Unabridged Dictionary (2d Ed.1983),⁷ but, as a noun, is there defined as “an extortion of money, as by blackmail.  [Slang.]”  The defendants' admission notwithstanding, that adjective—that description of the plaintiff's demand presented to Haberek—is, in context, and as a matter of law, no statement that the plaintiff committed extortion or other crime:  it is a statement of Collins's opinion based on the stated (not withheld but reasonably implied to exist) facts.  Even “blackmail” has been found, as the court here finds “shakedown,” in context to be inactionable rhetorical hyperbole.  See Greenbelt Cooperative Publishing Assn. v. Bresler, supra.  It does not matter whether the court views the opinion as reasonable.  What matters is that, in the context of the subject column, including the imminence of a local election, Collins was entitled to have and to publish his opinion about the nature of the plaintiff's demand for money to keep Swain's claim private.

The plaintiff's third and fourth claims of defamation may be discussed together, being joined by him in paragraph 18(c) of the complaint.  The plaintiff claims that Collins, by writing, and the newspaper, by publishing, that the Swain lawsuit was to “tighten the political screws” and “a smear campaign” defamed him.  Both of those phrases are, as a matter of law, statements of opinion.  The first appears in this sentence in Collins's column:  “And the town, too, was sued, presumably for its deep pockets but maybe also to tighten the political screws.”  By the word “maybe,” Collins acknowledges he is speculating:  he is not saying the plaintiff's motive was actually to “tighten the political screws”—whatever that means.  Similarly, Collins gives notice of an opinion as to “smear campaign” by saying “I also think of her as ․ a cog in a smear campaign.”  More importantly, it cannot be told as a matter of objective fact either that the plaintiff suing the town did “tighten the political screws” or that there was a “smear campaign,” let alone by the plaintiff.

To what Collins actually wrote, the plaintiff adds in his complaint that the defendants were “telling the reader that the purpose of [Swain's] lawsuit was politically motivated which, once again, was false, reckless and a deliberate attempt to harm the reputation of the plaintiff.”  Collins never says, actually or by necessary implication, that the plaintiff, in general or in bringing Swain's suit, was politically motivated.  Defamation can only be based on an actual and defamatory statement of fact.  Gleason v. Smolinski, supra.  Defamation cannot be based on an opinion, let alone conjecture, about the meaning of what is stated.  Any liability for defamation must arise from what the defendant actually said or wrote, which is his responsibility;  see Conn. Const., art.  I, § 4; ⁸  not from the opinions of others about what the defendant said or wrote—opinions which are others' prerogative and responsibility.  See Loeb v. New Times Communications Corp., supra.  Without an unequivocal, defamatory and false fact in what was actually said or written, the law does not allow claims for defamation based on what others took a person to mean because, if the law allowed that, citizens and the courts would be subject to suits for claimed consequences of the ordinary and proper—indeed, the socially desirable and politically necessary—use of the right of free speech, and of the press.

The conclusion of this analysis and the reason for granting the defendants' motion for summary judgment is that, as stated at the end of the subject column, the published statements are of opinion.

Cole–Chu, J.

FOOTNOTES

FN1. A public figure cannot recover damages unless he can prove that the defamatory falsehood was published with actual malice, i.e., with either knowledge of, or reckless disregard for, the statement's falsity.  Miles v. Perry, 11 Conn.App. 584, 588, 529 A.2d 199 (1987).  In contrast, a private individual must only prove that the false statement was made negligently.  Id. Some individuals occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.  Id., 591.  Private individuals, however, may become limited public figures by placing themselves at the forefront of particular public issues and attempting to influence the resolution of those issues.  Id. Because the court finds Collins' statements to be opinions, it is not necessary to analyze whether or not the plaintiff needs to prove malice on the part of either of the defendants..  FN1. A public figure cannot recover damages unless he can prove that the defamatory falsehood was published with actual malice, i.e., with either knowledge of, or reckless disregard for, the statement's falsity.  Miles v. Perry, 11 Conn.App. 584, 588, 529 A.2d 199 (1987).  In contrast, a private individual must only prove that the false statement was made negligently.  Id. Some individuals occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.  Id., 591.  Private individuals, however, may become limited public figures by placing themselves at the forefront of particular public issues and attempting to influence the resolution of those issues.  Id. Because the court finds Collins' statements to be opinions, it is not necessary to analyze whether or not the plaintiff needs to prove malice on the part of either of the defendants.

FN2. An older iteration of the common-law elements of defamation appears in 3 Restatement (Second), Torts § 558 (1977):  “To create liability for defamation there must be:  (a) a false and defamatory statement concerning another;  (b) an unprivileged publication to a third party;  (c) fault amounting at least to negligence on the part of the publisher;  and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”.  FN2. An older iteration of the common-law elements of defamation appears in 3 Restatement (Second), Torts § 558 (1977):  “To create liability for defamation there must be:  (a) a false and defamatory statement concerning another;  (b) an unprivileged publication to a third party;  (c) fault amounting at least to negligence on the part of the publisher;  and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”

FN3. At common law, “an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  3 Restatement of (Second), supra, § 566.  In general, and in this case, such liability has been eliminated by developments in constitutional law and, in matters of public interest, the qualified privilege of fair comment discussed below..  FN3. At common law, “an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  3 Restatement of (Second), supra, § 566.  In general, and in this case, such liability has been eliminated by developments in constitutional law and, in matters of public interest, the qualified privilege of fair comment discussed below.

FN4. The exception to this rule is where a tort action arises for public disclosure of private facts, see Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 118 n.9, which has not been alleged in the present case..  FN4. The exception to this rule is where a tort action arises for public disclosure of private facts, see Goodrich v. Waterbury Republican–American, Inc., supra, 188 Conn. 118 n.9, which has not been alleged in the present case.

FN5. The plaintiff cites Miles v. Perry, supra, 11 Conn.App. 595, for the proposition that the defendants must prove additional prerequisites in order to establish privilege.  These prerequisites, however, apply where a defendant is attempting to establish a conditional privilege for a false statement, not where a defendant is claiming privilege for an expression of pure opinion.  See id., 594–600.  Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), Corsello v. Emerson Bros., Inc., 106 Conn. 127, 131, 137 A. 390 (1927), and Wollen v. Brown, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–89–260350–S (August 27, 1992), likewise concern conditional privileges..  FN5. The plaintiff cites Miles v. Perry, supra, 11 Conn.App. 595, for the proposition that the defendants must prove additional prerequisites in order to establish privilege.  These prerequisites, however, apply where a defendant is attempting to establish a conditional privilege for a false statement, not where a defendant is claiming privilege for an expression of pure opinion.  See id., 594–600.  Hutchinson v. Proxmire, 443 U.S. 111, 120 n.9, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), Corsello v. Emerson Bros., Inc., 106 Conn. 127, 131, 137 A. 390 (1927), and Wollen v. Brown, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–89–260350–S (August 27, 1992), likewise concern conditional privileges.

FN6. Though the gravamen of the plaintiff's first claim is that Collins wrote he was not reasonable and honorable, the claimed reason—”because he did not counsel Tracy Swain to not file a lawsuit”—appears nowhere in Collins's column.  That reason is not just an inference:  it is a baseless inference.  It is entirely conjectural.  The reader might as well guess that the plaintiff did counsel Ms. Swain not to file a lawsuit.  A claim of defamation is not sufficiently stated, let alone provable, by conjecture..  FN6. Though the gravamen of the plaintiff's first claim is that Collins wrote he was not reasonable and honorable, the claimed reason—”because he did not counsel Tracy Swain to not file a lawsuit”—appears nowhere in Collins's column.  That reason is not just an inference:  it is a baseless inference.  It is entirely conjectural.  The reader might as well guess that the plaintiff did counsel Ms. Swain not to file a lawsuit.  A claim of defamation is not sufficiently stated, let alone provable, by conjecture.

FN7. The cited dictionary defines the adjective “shakedown” as “for testing ․ as, the shakedown cruise of a new battleship.”.  FN7. The cited dictionary defines the adjective “shakedown” as “for testing ․ as, the shakedown cruise of a new battleship.”

FN8. Article first, § 4, of the state constitution provides:  “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”.  FN8. Article first, § 4, of the state constitution provides:  “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

FOOTNOTE.  FNAppendix AJuly 23, 2010VIA HAND DELIVERYEdward Haberek, First SelectmanTown Hall152 Elm St.Stonington, CT 06378Dear Mr. Haberek:As a professional courtesy, I chose to send you this letter via hand delivery to ensure that only you saw it, and not members of your staff or family.I have been retained by Tracy Romano Swain in connection with a claim against you arising out of your actions on January 12, 2010, when you sent her a sexually graphic photo of yourself via Facebook message.  You took advantage of an emotionally vulnerable woman who was going through a difficult period in her marriage, and when she chose to end the inappropriate email correspondence and Facebook chats with you and told you that she was determined to fix her marriage, you sent her the picture rather than respect her wishes.  Your actions, which I understand you have admitted to police, caused her extreme emotional distress and physical sickness, including migraine headaches, and her decision to press this claim is motivated not only by her right to be compensated but also her intent to deter you from similar wrongful conduct in the future.My client and I are willing to resolve this claim quickly and quietly, in order to spare her family and yours the pain and embarrassment that would ensue from a public spectacle.  If you have an attorney, I would urge you to have him or her contact me as soon as possible to discuss this confidentially.  I trust that you have liability insurance that would cover claims for damages caused by negligent infliction of emotional distress, and I would appreciate hearing from your representative within 30 days.Very truly yours,Scott D. Camassar

FOOTNOTE.  FNAppendix BJuly 6, 2011VIA FAX ONLY TO 401–348–8900Michael P. Lynch, Esq.117 High St., Suite 2PO Box 761Westerly, RI 02891Re:  Edward HaberekDear Mr. Lynch:I am sorry I missed your call on Friday but appreciate you contacting me.  My client has authorized me to convey a demand of $95,000.00 to settle her claims against your client confidentially.  Please get back to me once you have had a chance to discuss this.  Thank you for your time and attention to this matter.Very truly yours,Scott D. Camassar

FOOTNOTE.  FNAppendix CArticle published Oct 31, 2013NO ONE WILL WIN TUESDAY IN STONINGTONDavid CollinsMaybe sometime in the not-so-distant future, people will tell the story about the Stonington first selectman race of 2013 as a fable.It might begin like this:A woman walks into a lawyer's office and tells a long and sordid story about a relationship, including some form of phone sex, she's been having with the first selectman in town.  It was never consummated.  A bad kiss in a parking lot off Route 184 is apparently as close as they got to being physical.She also tells the lawyer about how, in the course of their chatting over Facebook and in email, the first selectman sends her a naked picture of a man, one she later shares, and titters and LOL about, with a female friend on Facebook.A reasonable and honorable lawyer at this point might have counseled the woman to go home, think about reconciling with her husband or maybe find a good divorce lawyer and move on with her life.But, we now know, that's not how the selectman race of 2013 story unfolded.  It's a different fable altogether.Instead, the lawyer, Scott Camassar, whose other politically charged lawsuit this year challenges the state's new gun control law on the grounds that it denies handicapped people easy-to-fire assault weapons, signed up Tracy Swain to sue the Democratic first selectman in Stonington.They decided the damages could be based on her migraine headaches, even though she's been having them since childhood.  In fact, we learn from depositions in the case leaked this week, the week before voters go to the polls in Stonington, that the headaches are why she is on Social Security Disability.Never mind that the sexual conversations with the first selectman were consensual and that the woman later sent around the naked picture which, she now says made her headaches worse, and laughed about it at the time with a friend.  Camassar decides this is a case to vigorously pursue.At the outset, he sends a hand-delivered shakedown letter to the targeted first selectman, saying, essentially, pay us $90,000 and this won't become a public circus.But circus it became.  Eventually the police were called in, although, naturally, no crimes were found to have been broken, with two consenting adults sharing some dirty talk.And the town, too, was sued, presumably for its deep pockets but maybe also to tighten the political screws.Even as Attorney Camassar was laboring over the lawsuit that he had to know was never going to impress an award-granting jury, some prominent Republicans in town, including a former selectman and Republican Town Chairman, were gossiping with the plaintiff about the first selectman.Swain disclosed in her deposition that the two prominent Republicans told her that the first selectman was separated from his wife.I suppose those prominent Republicans in town make a point of keeping women on disability informed about the marital status of the first selectman.  It's what good town fathers are supposed to do.Of course, many prominent Republicans have delighted in the salacious aspects of this whole unfortunate case, reminding voters at every opportunity that the Democratic first selectman seems to have no moral compass.Curiously, in her deposition, Swain blames the first selectman for making her a laughingstock in town.Of course, it's not the fault of the first selectman that their strange relationship came to light.  She should hold that blame for Attorney Camassar, who should have warned her away from a lawsuit that was clearly destined only to embarrass her, not make her rich.I know she looks to many like a gold digger in all this, but I also think of her as a victim, a cog in a smear campaign.One moral of this fable that many people certainly will take away is that the first selectman has a lot of integrity issues to resolve, probably too many for a lot of voters to stomach.Another moral, though, is that the political well seems poisoned here.The first selectman's opponent stood by silently while supporters slung it hard and fast.Whoever wins Tuesday, the outcome should be bittersweet for everyone.This is the opinion of David Collins.

Cole–Chu, Leeland J., J.