Opinion
No. X07-CV-09-5033169-S
June 29, 2010
MEMORANDUM OF DECISION
I
The plaintiff, George Gombossy, commenced suit against The Hartford Courant Company (Hartford Courant) and its parent company, Tribune Co. (collectively, the defendants), on September 25, 2009. In his amended complaint, filed November 5, 2009, the plaintiff alleges wrongful discharge in violation of General Statutes § 31-51q and promissory estoppel based upon the mission statement of the Hartford Courant. Specifically, the plaintiff alleges that he wrote a weekly consumer "watchdog" column and web log ("blog") for the Hartford Courant and that he was fired because he wrote or intended to write articles about companies that advertised in the newspaper exposing consumer complaints or investigation by the Connecticut attorney general.
Section 31-51q provides: "Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorneys fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorneys fees to the employer."
The defendants filed a motion to strike on November 18, 2009 on the grounds that the plaintiff fails to state a claim upon which relief could be granted because he has no constitutional right to publish anything in the Hartford Courant and because the mission statement does not constitute a promise of job protection. On March 1, 2010, the plaintiff filed a memorandum in opposition to the motion. The defendants filed a reply on March 17, 2010 and this court heard oral argument on April 6, 2010.
II
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002).
III A.
In the defendants' motion to strike, they argue that the plaintiff's first count fails as a matter of law because he has no constitutional right to publish an article in the Hartford Courant. Additionally, the defendants argue that the plaintiff's speech is not protected because it does not arise from his activities as a citizen, but from his employment with the Hartford Courant.
"Our Supreme Court has recognized an exception to the general rule regarding at-will employment in which an at-will employee may have a cause of action when the employee alleges a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy . . .
"The public policy exception to the at-will employment doctrine, however, is to be construed narrowly . . . Under that narrow exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy . . . In evaluating such claims, our Supreme Court has looked to see whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy . . . A cognizable claim for wrongful discharge requires the plaintiff to establish that the employer's conduct surrounding the termination of the plaintiff's employment violated an important public policy." (Citations omitted; internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 844, 888 A.2d 104 (2006).
In the plaintiff's amended complaint, he alleges that he was dismissed from his job at the Hartford Courant "on account of his exercise of speech on matters of public concern" in violation of § 31-51q. Specifically, he alleges that he was terminated because he wrote a column disclosing customer complaints about a company that advertised in the Hartford Courant; because he published a customer complaint made against another advertiser in the "watchdog" blog; and "because he intended to publish an article" about an advertiser that was being investigated by the Connecticut attorney general because of customer complaints.
Gombossy also alleges that he was discharged on account of "his insistence on maintaining consumer trust in the Courant as a news organization," but the other allegations of his complaint fail to flesh out this assertion.
Section 31-51q "plainly was intended to protect the first amendment and related state constitutional rights of working men and women." Cotto v. United Technologies Corp., 251 Conn. 1, 8, 738 A.2d 623 (1999). It establishes a cause of action for individual employees against employers who may be disciplined or discharged because they exercise their first amendment rights as long as that exercise does not affect their performance "on the job." Id., 12-13.
"In order to plead a violation of Section 31-51q, the plaintiff must allege: (1) that [he] was exercising rights protected by the first amendment to the United States Constitution or by an equivalent provision of the Connecticut Constitution; (2) that [he] was fired on account of [his] exercise of such rights; and (3) that [his] exercise of first amendment or equivalent state constitutional rights did not substantially or materially interfere with [his] bona fide job performance or with [his] working relationship with [his] employer." (Internal quotation marks omitted.) Sierra v. State, Superior Court, judicial district of Hartford, Docket No. CV 00 0803588 (June 4, 2001, Beach, J.) ( 29 Conn. L. Rptr. 734, 736).
It is noted that the plaintiff does not allege that the exercise of his rights did not substantially or materially interfere with his job performance or with his working relationship with his employer.
The defendants argue that the plaintiff cannot maintain his action because he has no constitutional right to publish articles in the Hartford Courant and because his speech was motivated by his obligation to perform his job and not by a desire to speak out as a citizen. The plaintiff counters that he is not alleging that he wanted to publish particular columns and acknowledges that he had no editorial control over what the Hartford Courant chose to publish. Instead, he argues that § 31-51q prohibits his termination based upon the content of his proposed or published articles or blog entries. This argument belies the plaintiff's allegations, as recounted above, that he was fired because he published or intended to publish articles.
"[A] reporter has no free-standing First Amendment right to have [his] articles published by a privately-owned newspaper for which [he] works . . . Rather, the rights of members of the news media are coextensive with and do not exceed those of members of the public in general . . . Thus, just as the First Amendment does not require a private publication to publish any submissions by an outsider . . . neither does it require a privately owned newspaper to publish any particular stories or articles written by its own reporters.
"On the contrary, [the publisher] has a First Amendment right to determine the contents of its own publications . . . That right necessarily includes the right to decide not only what to include, but what to exclude from the [newspaper]." (Citations omitted; internal quotation marks omitted.) Rivoli v. Gannett, Co., Inc., 327 F.Sup.2d 233, 241 (W.D.N.Y. 2004).
In Epworth v. Journal Register Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065371 (November 1, 1994, Pickett, J.) ( 12 Conn. L. Rptr. 585), the court granted a motion to strike in a factually similar case. The plaintiff, a newspaper reporter, alleged that she was fired because she published an article critical of another newspaper and that her termination contravened § 31-51q. Id., 585. The defendants moved to strike the complaint on the grounds that the plaintiff did not have a first amendment right to publish anything in the newspaper. Id. The court found that the plaintiff failed to state a claim as a matter of law because she had no federal or state constitutional right to publish anything in the newspaper and because construing § 31-51q as a limit on the defendants' editorial control would render the statute unconstitutional and contrary to its legislative history. Id., 586; see also Laschever v. Journal Register Co., Superior Court, judicial district of Litchfield, Docket No. CV 94 0065372 (November 1, 1994, Pickett, J.).
Epworth and other cases establish that the right of newspaper owners and editors to control the content of their papers is paramount. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) ("The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press"); Collard v. Smith Newspapers, Inc., 915 F.Sup. 805, 812 (S.D.W.Va. 1996) ("[t]he United States Supreme Court has made it clear that a newspaper's owners have virtually an absolute right to choose what to print and what to leave on the newsroom floor"); see also Associates Aldrich Co., Inc. v. Times Mirror Co., 440 F.2d 133, 136 (9th Cir. 1971) ("[w]e can find nothing in the United States Constitution, any federal statute, or any controlling precedent that allows us to compel a private newspaper to publish advertisements without editorial control of their content"). Newspapers' owners and publishers do not forfeit their first amendment rights by hiring reporters or by printing their articles. See Collard v. Smith Newspapers, Inc., supra, 915 F.Sup. 814. "To the extent the publisher's choice of writers affects the expressive content of its newspaper, the First Amendment protects that choice." McDermott v. Ampersand Publishing, LLC, 593 F.3d 950, CT Page 13667 962 (9th Cir. 2010).
The Collard court compared the publishers of newspapers and books. "Assume that the [newspaper's] owners published books, instead of newspapers, and that the owners previously had published one or more of [the plaintiff's] books. No one would argue that the owners forfeited their First Amendment rights by publishing [the plaintiff's] earlier books and thus could be compelled, absent a contract, either to publish his future books or to compensate him for not publishing them." Collard v. Smith Newspapers, Inc., supra, 915 F.Sup. 814.
In the present case, the Hartford Courant's owners and editors have virtually the absolute right to determine what to publish and the first amendment protects their choices. See Collard v. Smith Newspapers, Inc., supra, 915 F.Sup. 812. The plaintiff was a reporter, but like a member of the public, he has no federal or state constitutional right to publish anything in the Hartford Courant. See Rivoli v. Gannett Co., Inc., supra, 327 F.Sup.2d 241. Because he has no constitutional right to publish anything, he fails to state a claim as a matter of law. Thus, the defendants' motion to strike the first count of the amended complaint is granted.
"[T]he Supreme Court has identified the following as the only checks on a newspaper owner's power: first, the acceptance of a sufficient number of readers — and hence advertisers — to assure financial success; and, second, the journalistic integrity of its editors and publishers." (Internal quotation marks omitted.) Collard v. Smith Newspapers, Inc., supra, 915 F.Sup. 812, quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). The plaintiff's argument implies that the defendants chose their advertisers over journalistic integrity. This was, however, the defendants' choice to make; the law is settled and does not support the court intervening to balance these interests even if they may be competing. See McDermott v. Ampersand Publishing, LLC, supra, 593 F.3d 950 ("[i]ntervening to support the employees' effort to limit the control of the [newspaper's] owner over its news pages necessarily poses some risk to that owner's First Amendment rights"). "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated." Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S. 256.
Furthermore, it is clear that the plaintiff's allegations are completely within the context of his job performance and occurred entirely "on the job." See Cotto v. United Technologies Corp., supra, 251 Conn. 13. It is one thing for the plaintiff to allege that he was fired because he posted consumer complaints on his own blog, on his own time — as long as his actions did not substantially interfere with his job performance or with his employee-employer relationship. It is quite another thing to allege that he produced articles for the "watchdog" column and blog for the Hartford Courant in his capacity as an employee and was terminated for their content.
B.
The defendants also argue that the plaintiff's second count based on promissory estoppel must fail because it is based upon the mission statement of the paper. The defendants assert that the mission statement contains no specific promises and that it is unreasonable for the defendants to expect that the plaintiff would rely on the mission statement as constituting a promise of job protection. The plaintiff argues that the fact finder should determine whether the mission statement constitutes a sufficient promise and whether the defendants should expect that the plaintiff would rely on it.
"Under the law of contract, a promise is generally not enforceable unless it is supported by consideration . . . This court has recognized, however, the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor . . . Section 90 of the Restatement [(Second) of Contracts] states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise . . . A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all." (Citation omitted; internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 104-05, 837 A.2d 736 (2003).
In Berg v. Obama, 574 F.Sup.2d 509 (E.D.Pa. 2008), the court addressed a similar issue. The plaintiff sued a presidential candidate and the Democratic National Committee for promissory estoppel, among other things, for breach of items contained in a document entitled "Renewing America's Promise," which presented the 2008 Democratic National Platform. Id., 528. In dismissing the promissory estoppel count for failure to state a claim, the court recognized that "under any definition of promissory estoppel there must be an enforceable promise." Id. The court found that "[t]he `promises' that Plaintiff identifies are statements of principle and intent in the political realm. They are not enforceable promises under contract law." Id., 529.
Similarly, in Minehan v. United States, 75 Fed.Cl. 249, 260 (2007), the plaintiff asserted a claim for damages based on a quasi-contract relying on the mission statement of the Internal Revenue Service (IRS). The court found that the "plaintiff's allegations regarding a quasi-contract with the government are insufficient even to survive a motion to dismiss . . . The language on which plaintiff relies, which is found in a widely distributed IRS publication, does not evince a clear intent to contract on the part of the federal government, nor is it unambiguous in its purported character as an offer to create a contractual relationship . . . To the contrary, the IRS's mission statement [`to provide America's taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all'] is aspirational, and it makes no specific promise or offer which could be deemed the basis for a contract. That fact is critical, as there is no question that a mere expression of intention does not constitute an offer which is sufficient to create a contractual relationship." (Citation omitted.) Id.
In the present case, the plaintiff alleges that the paper's news mission, in relevant part, stated: "The Hartford Courant seeks to provide the news Connecticut needs, reported faithfully and fully, with respect for all and favor to none . . . To accomplish this mission, we set for ourselves the following goals . . . To raise issues aggressively and constructively, and to expose inefficiency, injustice and corruption in matters of public interest. To extend the circle of public debate as widely as possible, by reflecting the diversity of Connecticut's people and by seeking out voices that often are ignored. To guard against arrogance and complacency, and to be open to criticism, remembering our responsibility as the state's largest newspaper . . . We believe that by striving toward these goals with fairness, honesty and compassion, we will benefit the public life of the state and enrich the private lives of our readers."
These are statements of principle and intent. See Berg v. Obama, supra, 574 F.Sup.2d 529. They do not evince a clear, specific promise and are aspirational. See Minehan v. United States, supra, 75 Fed.Cl. 260. Nor do they manifest the defendants' intention to undertake contractual obligations to the plaintiff. See D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 214-15, 520 A.2d 217 (1987) (affirming trial court's granting of motion to strike promissory estoppel count based on various oral and written statements that plaintiff would continue to be employed). Therefore, the defendants' motion to strike the second count is granted.
Accordingly, the defendants' motion to strike both counts of the plaintiff's amended complaint is granted.