Opinion
No. CV 06-5002842 S
July 13, 2007
Memorandum of Decision
In the fall of 2004 the plaintiff and defendant, Andrew McDonald, were both candidates for a seat in the Connecticut State Senate representing the 27th senatorial district. On October 31, 2004, the Sunday immediately prior to the election, a negative political advertisement opposing the plaintiff's candidacy appeared in the Stamford Advocate, a local newspaper. The advertisement ran under the headline: "We women are outraged . . . and you should be too!!" The copy continued:
A group of physicians calling themselves "Connecticut Doctors for Good Medicine" are asking you to vote for a candidate who supports . . .
A Constitutional Amendment to overturn Roe v. Wade.
The abolition of no-fault divorce laws.
No gun control.
Imposing marriage on couples who have cohabitated for one year.
Requiring patients to buy "bad outcome insurance."
CT Page 13085
A candidate who aligned himself with the segregationist George Wallace in the 1970s.
By asking you to vote for Richard Cunningham, that's what the doctors are asking you to support.
We are outraged that these doctors are asking us to join them in putting their private economic interests above the public good.Please Vote Responsibly. Sincerely,
The advertisement was completed with the names of over eighty women many of whom are named as defendants in the case. The other defendants include: Leonard Cohn, Arnold Kapiloff, the Stamford Democratic City Committee, Ideals PAC, Friends of Andrew McDonald and Leadership in Action who allegedly raised funds for or paid for the advertisement and Southern Connecticut Newspapers, Inc., owner and publisher of the Stamford Advocate.
The plaintiff's complaint alleges that the statement in the advertisement that the plaintiff "aligned himself with segregationist George Wallace in the 1970s" was libelous and that as a result he has suffered damages, including loss of income from his law practice.
Presently before the court is the defendants' motions for Summary Judgment dated January 8, 2007. In their motions the defendants contend that the alleged libel is true and that they are entitled to summary judgment. The brief in support of the motion for summary judgment contained authenticated documents which established the following facts, which are not in dispute.
In August 1976, the plaintiff sought to run for the office of Representative in the Congress of the United States from the Fourth Congressional District as an independent conservative candidate. As an independent candidate, he was required to file petitions with the office of the Secretary of the State bearing the signatures of 1,573 qualified electors in order to be listed as a candidate on the ballot for the November 1976 election. However, only 308 signatures of electors were filed with the office of the Secretary of the State. On September 11, 1976 the George Wallace Party filed with the Secretary of the State a certification that it had nominated candidates for a number of offices including President of the United States, United States Senate and each of the six Connecticut congressional districts. The plaintiff's name was listed as the candidate from the fourth congressional district.
In July 1976, prior to filing its nominations the George Wallace Party had attempted to amend its constitution and by-laws to change its name to the Conservative party. The attempt was abandoned when the party was advised by the office of the Secretary of State that nominations which the party might make for state or district office would not be treated as those of a "major" or "minor" political party if the George Wallace Party were to change the party designation under which that status was obtained. The George Wallace party apparently obtained the status it enjoyed in 1976 as the consequence of the 1968 presidential campaign in which Governor George Wallace of Alabama ran as a third-party candidate.
Under the provisions chapter 153 of the General Statutes, the loss of status as a "minor" party would have meant that candidates affiliated with that party would have been allowed access to the ballot by petition only and not as a consequence of nomination.
In the election held on November 2, 1976 the plaintiff, as the nominee of the George Wallace Party received 3,318 votes for the fourth congressional seat, far less than the 126,314 votes of successful candidate, Stewart B. McKinney, but considerably more than the 1,161 votes the party's presidential candidate, Lester Maddox, received in the district.
The court will take judicial notice of the historical fact that Lester Maddox was a notorious segregationist who served as governor of Georgia in the late 1960s. Gannon v. Gannon, 130 Conn. 449, 452 (1943).
In the materials filed in opposition to the motion for summary judgment, plaintiff has established the following facts which are not in dispute. Over a period of over thirty years the plaintiff has been a candidate for numerous public offices including state senate, general assembly, Stamford Board of Education, mayor of Stamford, and United States Congress. He was elected to the state senate in 1978 as a Republican representing the 27th district. The plaintiff has disseminated his views in the community as a candidate, radio personality and author. Those views are conservative, but have never included support for segregation or other racist policies. In 1976 prior to accepting the nomination of the George Wallace Party, he first attempted, without success, to gain the nomination of the Republican party. Thereafter, he contemplated obtaining a position on the ballot as an independent petitioning candidate.
To supply a context for the advertisement and the plaintiff's claims of libel, the court will take judicial notice of the following well known historical facts regarding George Wallace. George Wallace was first elected to the office of Governor of the state of Alabama in 1962. At that time resistance to the decisions of the United States Supreme Court, such as Brown v. Board of Education, 347 U.S. 483 (1954), invalidating laws and policies enforcing segregation of races, was widespread in the southern portions of the United States. Wallace's inaugural address as governor, delivered in 1963, included his defiant declaration — "I say segregation now, segregation tomorrow and segregation forever."
In the spring of 1964 Wallace entered a number of Democratic presidential primaries, showing surprising strength in states outside of the former Confederacy. In 1968 entered the presidential race again, this time as third-party candidate. Wallace's party was known nationally as the American Independent Party. In Connecticut, Wallace's name appeared on the ballot as the candidate of the "George Wallace Party." In the spring of 1972, Wallace ran for the Democratic nomination for president and won the Florida primary. Later, while campaigning in Maryland he was struck by an assassin's bullet which left him paralyzed in both legs. In 1976, Wallace again ran for the Democratic nomination for president, but dropped out of the race after losing several southern primaries to another southern governor, the Democrat's eventual nominee, Jimmy Carter.
In the 1980s Wallace apologized for his segregationist views and publicly stated "I was wrong." He won his fourth and final term as governor of Alabama lasting from 1983 to 1987 with considerable support of the black community.
DISCUSSION
In his complaint the plaintiff alleges that he was libeled by the statement in the October 31, 2004 advertisement that the plaintiff "aligned himself with segregationist George Wallace in the 1970s." The defendants in turn claim that the plaintiff did, in fact, so align himself. In its actual wording the advertisement actually states that the physicians "are asking you to vote for a candidate who supports . . . A candidate who aligned himself with the segregationist George Wallace in the 1970s." Taken literally, the advertisement does not accuse the plaintiff of having aligned himself with George Wallace in the 1970s, but rather claims that he supports an unidentified candidate who aligned himself with Wallace at that time.
Regardless of the literal meaning of the words used in the advertisement, the real question is the impact that those words would have had on the intended audience. Goodrich v. Republican American, Inc., 108 Conn. 107, 112-13 (1982). In the context of the advertisement it is clear that the accusation meant to be conveyed to the reader is that it was the plaintiff who aligned himself with Wallace and not another unnamed candidate.
"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.) Colangelo v. Heckelman, 279 Conn. 177, 182 (2006). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585 (2006). Finally, summary judgment is appropriate in libel actions where the issue is whether the statement in question is actually true. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 315 n. 4, 477 A.2d 1005 (1984).
Regarding their motion for summary judgment, the defendants maintain that they are not subject to liability for libel because the statement at issue is true. The plaintiff responds by asserting that the statement is inaccurate and implies that he supported segregation.
"Before a party will be held liable for libel, there must be an unprivileged publication of a false and defamatory statement . . . Truth is an absolute defense to an allegation of libel." (Citation omitted; internal quotation marks omitted.) Strada v. Connecticut Newspapers, Inc., supra, 193 Conn. 316. "Contrary to the common law rule that required the defendant to establish the literal truth of the precise statement made, the modern rule is that only substantial truth need be shown to constitute the justification . . . It is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican American, Inc., supra at 107.
In the present case, the court finds that the statement at issue, as construed by the parties, to be factually accurate. The statement does not assert that the plaintiff is, or was, a segregationist or supporter of segregation. Instead, the statement accurately identifies George Wallace as having been a segregationist. The statement accurately implies that by choosing to accept the nomination of a party named for George Wallace, the plaintiff thereby aligned himself with that party's namesake. The plaintiff's evidence supports his claim that he never shared Wallace's segregationist views. However, the statement does not assert that the plaintiff aligned himself with the policy of segregation. The statement does not more than call attention to a political affiliation which the plaintiff voluntarily chose to make in the 1970s.
Moreover, the statement does not claim that the plaintiff aligned himself with George Wallace throughout the entire decade of the 1970s. The term "in" is "used as a function word to indicate inclusion, location, or position within limits." Merriam Webster's Collegiate Dictionary (9th Ed. 1987). Taken literally, the statement conveys the message that the plaintiff's alignment with George Wallace occurred "within" the decade beginning in 1970, and ending in 1979. As the plaintiff's candidacy took place in 1976, a year that falls squarely "within" the aforementioned decade, the statement is accurate.
Regarding the plaintiff's argument that the statement at issue gives rise to negative implications, in Strada v. Connecticut Newspapers, Inc., supra, 193 Conn. 322-23, the court addressed whether a statement is actionable when, despite being true, it omits certain facts that may give rise to innuendo. The court held that, under certain circumstances, the failure to disclose facts may subject the declarant to liability when those facts, "if reported, would have changed the tone of the [statement]." Id., 323. Nevertheless, "[i]n the absence of such undisclosed facts, first amendment considerations dictate that an article concerning a public figure composed of true or substantially true statements is not defamatory regardless of the tone or innuendo evident." Id. "When any inference or innuendo does not arise from the omission of material facts, but rather from the editorial choice of layout, the plaintiff may not recover for libel by innuendo. The media would be unduly burdened if, in addition to reporting facts about public officers and public affairs correctly, it had to be vigilant for any possibly defamatory implication arising from the report of those true facts." Id., 326. Further, the court noted that the declarant has "no obligation to place the plaintiff in the most favorable light." Id., 325.
Both parties agree that the plaintiff, as a candidate for a seat in the state senate, qualifies as a public figure.
Here, any negative implications that may have arisen from the statement are not attributable to the omission of material facts. First, it should be noted that the plaintiff fails to provide any meaningful analysis as to why, under Strada, such implications should subject the defendants to liability. Moreover, the plaintiff does not specifically argue that the statement omits any material facts. Instead, he appears to argue the statement at issue renders the defendants liable because it should have been phrased differently. As noted, however, the defendants are not subject to liability when the innuendo arises from an editorial choice of layout. Id., 326. Indeed, common sense dictates that the plaintiff may not control the exact choice of language used by his opponents in a political advertisement. Additionally, the plaintiff suggests that the defendants had an obligation to omit any reference to segregation. This argument, however, ignores the holding in Strada that the defendants have "no obligation to place the plaintiff in the most favorable light." Id., 325.
Finally, the court's decision in the present case is in line with the overall thrust of Strada. In Strada, the court noted that its decision "may have a harsh impact on those persons who are public figures . . . Just as the goal of a free and active press protects false statements of fact regarding public figures published without malice, so too must the law protect truthful facts that may give rise to false innuendo or inference. It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of [candidates] whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great." (Internal quotation marks omitted.) Id., 326.
The court also recognizes the "inadvisability of overinvolving the courts in superintending election campaigns." Martin v. Griffin, Superior Court, judicial district of Hartford, Docket No. CV 99 0586133 (June 13, 2000, Lavine, J.). Indeed, the Connecticut Supreme Court has advised against interfering in such circumstances. In Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 614-15 (1956), the court stated that "[a]ny political campaign is a process of debate and appeal publicly conducted in a way to bring knowledge to the voters to assist them in making a choice on election day. It is a time-honored American institution indispensable to our way of life. Courts must be careful not to permit the law of libel and slander to encroach unwarrantably upon the field of free public debate."
Although this court acknowledges that innuendo arising from the omission of material facts may subject a party to liability, the language used in Strada, supra, and Charles Parker Co., supra, suggests that public policy considerations often foreclose the possibility of judicial relief when the claim concerns statements that discuss the "qualifications of candidates" for public office. In the present case, the plaintiff's allegations are insufficient to overcome the advantages provided by a free and open discussion regarding the qualifications of a candidate for public office.
For the foregoing reasons, the court grants the defendants' motions for summary judgment.