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Murphy v. Rosen
SEAN MURPHY v. BETH ROSEN
(SC 20950)
McDonald, D’Auria, Ecker, Alexander and Dannehy, Js.
Syllabus
The plaintiff appealed from the judgment of the trial court, which had
dismissed his defamation action against the defendant, and from the court’s
decision to award the defendant attorney’s fees and costs pursuant to the
anti-SLAPP statute (§ 52-196a). The plaintiff claimed, inter alia, that the trial
court incorrectly concluded that he had failed to meet his burden under
§ 52-196a (e) (3) of showing that there was probable cause that he would
prevail on the merits of his defamation per se claim, which was based on
the defendant’s statement on a social media page characterizing the plaintiff
as a white supremacist. Held:
The trial court properly granted the defendant’s special motion to dismiss
the plaintiff’s defamation action under § 52-196a.
The plaintiff expressly waived any challenge to the trial court’s determination
that the defendant had met her initial burden under § 52-196a (e) (3) of
establishing, by a preponderance of the evidence, that the plaintiff’s complaint implicated the defendant’s exercise of her constitutional right of free
speech on a matter of public concern.
The trial court correctly determined that the plaintiff had failed to satisfy
his burden of demonstrating that there was probable cause that he would
prevail on the merits of his defamation claim, this court having concluded
that the characterization of someone as a white supremacist, without more,
is a nonactionable opinion rather than actionable defamation per se.
Characterizing a person as a white supremacist, without more, is not a fact
that can be objectively verified, the use of that term, without more, does not
necessarily imply that the declarant knew existing, undisclosed defamatory
facts, and, in the present case, given the context in which the defendant
called the plaintiff a white supremacist, a reasonable reader of the comment
would not have expected that the defendant was stating a fact about the
plaintiff or that the defendant had private, firsthand knowledge supporting
her characterization of the plaintiff.
The trial court did not abuse its discretion in awarding the defendant attorney’s fees and costs under § 52-196a (f) (1).
Argued September 25, 2024—officially released January 21, 2025
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Procedural History
Action to recover damages for defamation, and for
other relief, brought to the Superior Court in the judicial
district of Waterbury, where the court, Gordon, J.,
granted the defendant’s special motion to dismiss and
rendered judgment thereon, from which the plaintiff
appealed; thereafter, the court, Gordon, J., granted the
defendant’s motion for attorney’s fees, and the plaintiff
filed an amended appeal. Affirmed.
Edward Bona, for the appellant (plaintiff).
Anthony R. Minchella, for the appellee (defendant).
Opinion
McDONALD, J. The use of derogatory remarks on
social media and elsewhere has become commonplace
in political discourse, with words and phrases taking
on different meanings depending on the context in
which the expression is made, the intentions of the
speaker, and the viewpoint of the audience. This case
arises out of heated political dialogue that took place on
a town’s social media page. The plaintiff, Sean Murphy,
appeals from the judgment of the trial court, which
granted the special motion to dismiss filed by the defendant, Beth Rosen, pursuant to Connecticut’s anti-SLAPP1
statute. See General Statutes § 52-196a. The trial court
determined, as a matter of law, that the statements
made by the defendant labeling the plaintiff as a ‘‘white
supremacist’’ were nonactionable opinions. Therefore,
the court concluded that the plaintiff had failed to satisfy his burden of showing that there was probable
cause that he would succeed on the merits of his defamation per se claim, as required by § 52-196a (e) (3).
1
‘‘SLAPP is an acronym for strategic lawsuit against public participation
. . . .’’ (Internal quotation marks omitted.) Lafferty v. Jones, 336 Conn. 332,
337 n.4, 246 A.3d 429 (2020), cert. denied, U.S. ,
141 S. Ct. 2467,
209
L. Ed. 2d 529 (2021).
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The primary issue on appeal is whether the characterization of the plaintiff as a ‘‘white supremacist’’ is, standing alone, an actionable fact constituting defamation
per se. We conclude that, although calling someone a
‘‘white supremacist’’ or a ‘‘racist’’ is a serious accusation, the meanings of these terms are inherently subjective. As a result, we join numerous other jurisdictions
that have concluded that these terms are not objectively
verifiable and do not, without more, imply the existence
of undisclosed defamatory facts. Because the trial court
correctly determined that the defendant’s allegedly defamatory statements constituted nonactionable opinions, we
affirm the judgment of dismissal.
The record, viewed in the light most favorable to
the plaintiff, reveals the following relevant facts and
procedural history. In 2020, Jeff Manville, the first
selectman of the town of Southbury, Edward B. St.
John, the first selectman of the town of Middlebury,
and Joshua Smith, the superintendent of the Southbury
and Middlebury school system, posted a joint statement
on Southbury’s Facebook page. The statement was written in response to the killing of George Floyd.2 Several
community members, who are not parties to this litigation, expressed disappointment with the content of the
statement via comments on the post. Certain community members claimed that the message in the statement
was that ‘‘All Lives Matter’’ instead of that ‘‘Black Lives
Matter.’’ This led to a heated debate among community
members in the comments section of the post. Many of
the comments were stridently political and emotionally
charged.3 Throughout the ensuing dialogue, the plaintiff
2
Floyd was a Black man who was killed by a white police officer in 2020,
sparking protests against police brutality and racial injustice across the
United States. See, e.g., N. Byfield, Essay, ‘‘Blackness and Existential Crimes
in the Modern Racial State,’’ 53 Conn. L. Rev. 619, 640–41 (2021).
3
For example, in response to a community member’s comment, one commenter stated: ‘‘[Y]ou can stop being racist now. It just shows [that] [S]outhbury [is] full of a bunch of racist people. You think every [B]lack [person]
acts like thugs and criminals? You think they all are lazy? You are really
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and the defendant separately responded to other community members’ comments. Eventually, another member of the public, who is not a party to this litigation,
posted that the member’s ‘‘daughters have had people
call them the [N-word]’’ and advocated for community
change. The plaintiff responded to that member, stating:
‘‘Provide names, dates, and location of the behavior
please.’’ The member replied: ‘‘[A]nd you are?’’ When
the member refused to provide details, the plaintiff
posted: ‘‘Again, names, times, and location of racial
slurs. You went into a PUBLIC FORUM and made accusations of racism. I asked for you to name people who
are doing it. You deflect and refuse to answer the question. You then call this harassment. You have no understanding of the word. Since you refuse to document
your accusations, I am calling your comment BS.’’ In
response to the ‘‘and you are’’ question directed to the
plaintiff, the defendant commented, ‘‘[the plaintiff is] a
troll and a [w]hite [s]upremacist.’’
The plaintiff responded: ‘‘So now I am a [w]hite
[s]upremacist? How is that? I want specifics. This is
exactly what I mean by the behavior of you nasty hate
filled Democrats. You make up whatever you have to.
[closed-minded] and heartless. Go praise your hero [President Donald J.]
Trump who [is tear-gassing] innocent peaceful protesters. Guess I’m a thug
too because I peacefully protest and support [B]lack people.’’
Another commenter argued: ‘‘[Y]ou have to be BLIND to read some of
the comments under this post and believe that there aren’t racists in our
town. ‘Systematic inequality isn’t real.’ ‘White Lives Matter.’ And on top of
that not only is there racism but there is also anti-[S]emitism, xenophobia,
and bigotry in our town and it doesn’t take much to see it.’’
Yet another commenter contended: ‘‘[D]o you really believe that if a person
believes that ‘[s]ystematic inequality isn’t real’ in the United States that
makes them a racist? Please define what racist means to you. It seems that
with liberals that term is quite fluid.’’ That same commenter questioned:
‘‘[W]hy do Black lives matter right now? What is special about right now?’’
In response to an earlier comment, the commenter also noted, ‘‘[y]our
ignorance is only surpassed by your bigotry.’’
At one point, the plaintiff asserted, ‘‘our little snowflake here is a disturbing
representation of what is wrong with our education system.’’
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Murphy v. Rosen
PS, I am half Jewish. Wikipedia definition. White supremacy or white supremacism is the racist belief that white
people are superior to people of other races and therefore should be dominant over them. I can say for sure
that I have many friends who are [B]lack and Latino
(including my adopted mother and brother) who are
better human beings than you ever will be.’’ The defendant replied to the plaintiff’s post, stating: ‘‘[T]he burden
of proof that you are not a [w]hite [s]upremacist is on
you. I’ve seen many examples, especially during the
election season. Feel free to prove otherwise.’’
The plaintiff thereafter filed the present action, alleging that the defendant’s comments labeling him as a
white supremacist constituted defamation per se. The
defendant filed a special motion to dismiss pursuant
to § 52-196a, arguing that the plaintiff’s complaint was
based on the defendant’s exercise of her constitutional
rights of free speech and association in connection with
a matter of public concern. The parties stipulated to
certain facts and that the defendant had satisfied her
initial burden under § 52-196a (e) (3) to show, ‘‘by a
preponderance of the evidence, that the opposing party’s complaint . . . is based on the moving party’s exercise of its right of free speech . . . [and] right of
association under the Constitution of the United States
or the Constitution of the state in connection with a
matter of public concern . . . .’’ The trial court noted
that, in deciding whether to grant a special motion to
dismiss under § 52-196a (e) (3), Connecticut trial courts
must undertake a two-pronged, burden shifting analysis.4 Given the parties’ stipulation that the defendant
4
First, to satisfy her initial burden under § 52-196a (e) (3), the defendant
‘‘must show, by a preponderance of the evidence, that the exercise of [her
rights of free speech and association was] in connection with a ‘matter of
public concern,’ as defined in § 52-196a (a) (1).’’ Robinson v. V. D., 346
Conn. 1002, 1008–1009,
293 A.3d 345 (2023). Second, if the defendant satisfies
her initial burden, the burden then shifts to the plaintiff to ‘‘[set] forth with
particularity the circumstances giving rise to the complaint . . . and [to
demonstrate] to the court that there is probable cause, considering all valid
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satisfied her initial burden under § 52-196a (e) (3), the
trial court had only one question before it: Did the
plaintiff establish that there was probable cause, considering all valid defenses, that he would prevail on the
merits of his complaint by proving that the defendant’s
statements were actionable defamation per se? See
General Statutes § 52-196a (e) (3).
After holding a hearing, the trial court granted the
defendant’s special motion to dismiss, reasoning that
the plaintiff had failed to demonstrate that he would
succeed on the merits of his defamation claim because
the defendant’s statements were nonactionable opinions. The plaintiff thereafter filed a motion for reconsideration, which the court denied. Pursuant to § 52-196a
(f) (1), the defendant filed a motion for attorney’s fees
and costs, including fees and costs associated with the
special motion to dismiss, as well as supporting affidavits. The court granted the motion, awarding the defendant fees and costs totaling $38,023.63.
The plaintiff appealed from the trial court’s judgment
of dismissal and decision granting the defendant’s
motion for attorney’s fees to the Appellate Court. We
transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as necessary.
On appeal, the plaintiff claims that the trial court
improperly granted the defendant’s special motion to
dismiss. The plaintiff raises three specific arguments
with respect to his challenge to the trial court’s judgment of dismissal. First, the plaintiff asserts that the
trial court incorrectly determined that the defendant
had met her burden under § 52-196a (e) (3) of proving
that the plaintiff’s complaint was based on the defendant’s exercise of her rights of free speech and associadefenses, that [he] will prevail on the merits of the complaint . . . .’’ General
Statutes § 52-196a (e) (3).
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Murphy v. Rosen
tion in connection with a matter of public concern.
Second, the plaintiff argues that the trial court incorrectly determined that he had failed to demonstrate
that there was probable cause, considering all valid
defenses, that he would prevail on the merits of his
defamation per se claim. The plaintiff also claims that
the trial court abused its discretion in denying his
motion for reconsideration. Lastly, the plaintiff contends that the trial court abused its discretion in granting the defendant’s postjudgment motion for attorney’s
fees. We address each claim in turn.
I
Although the plaintiff’s appellate brief is not a model
of clarity, in certain parts of his brief, the plaintiff
appears to contend that the defendant failed to satisfy
her initial burden under § 52-196a (e) (3) of establishing
that the plaintiff’s complaint was based on the defendant’s exercise of her constitutional right of free speech
in connection with a matter of public concern.5 The
defendant disagrees and contends, among other things,
that the plaintiff’s claim is unreviewable because he
waived this claim before the trial court. We agree with
the defendant.
5
The plaintiff raises a new claim that he is entitled to redress because
the posting on Southbury’s Facebook page is analogous to slandering the
title to land pursuant to General Statutes § 47-33j. We decline to address
this claim, as it was not raised before the trial court and, therefore, was
not preserved for review. See, e.g., Schoonmaker v. Lawrence Brunoli, Inc.,
265 Conn. 210, 264–66,
828 A.2d 64 (2003). For us ‘‘[t]o review [a] claim,
which has been articulated for the first time on appeal and not before the
trial court, would result in a trial by ambuscade of the trial judge. . . . We
have repeatedly indicated our disfavor with the failure, whether because of
a mistake of law, inattention or design, to object to errors occurring in the
course of a trial until it is too late for them to be corrected, and thereafter,
if the outcome of the trial proves unsatisfactory, with the assignment of
such errors as grounds of appeal.’’ (Citation omitted; internal quotation
marks omitted.) Simmons v. Simmons, 244 Conn. 158, 187,
708 A.2d 949
(1998).
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Murphy v. Rosen
‘‘Waiver is the voluntary relinquishment of a known
right. . . . To determine whether a party has waived an
issue, the court will look to the conduct of the parties.’’
(Citations omitted.) State v. Miranda, 327 Conn. 451,
461,
174 A.3d 770 (2018). ‘‘When a party consents to
or expresses satisfaction with an issue at trial, claims
arising from that issue are deemed waived and may
not be reviewed on appeal.’’ (Internal quotation marks
omitted.) State v. Foster, 293 Conn. 327, 337,
977 A.2d
199 (2009). Similarly, when a party expresses satisfaction with a decision, allowing the party to appeal the
decision would effectively ambush the trial court. See,
e.g., State v. Fabricatore, 281 Conn. 469, 480–81,
915
A.2d 872 (2007).
In the present case, the plaintiff stipulated that the
defendant had met her initial burden under § 52-196a
(e) (3) of establishing that the plaintiff’s complaint was
based on the defendant’s exercise of her right of free
speech on a matter of public concern. Specifically, the
trial court conducted a hearing regarding the special
motion to dismiss that spanned two days. On the first
day, the court stated: ‘‘So, if I’m understanding correctly, if my notes [are] accurate—accurately reflect
where we currently stand, there’s been a stipulation
that [the defendant] has in fact made an initial showing
by a preponderance of the evidence that [the plaintiff’s]
complaint against her is based on her exercise of her
right of free speech. I assume it’s free speech. I don’t
think it’s a right to petition the government. Perhaps
it’s a right of association under the constitution of the
United States or of the state of Connecticut in connection with a matter of public concern, is—is that correct?’’ Both the plaintiff’s counsel and the defendant’s
counsel responded, ‘‘[y]es, Your Honor.’’ The plaintiff’s
counsel also did not object to the court’s characterization of the case when the court reiterated that the defendant had satisfied her initial burden and that the burden
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Murphy v. Rosen
now shifted to the plaintiff ‘‘to set forth with particularity the circumstances giving rise to his complaint and
to demonstrate that there’s probable cause, considering
all valid defenses, that he will prevail on the merits of
his complaint.’’ See General Statutes § 52-196a (e) (3).
Further, during his direct examination of the defendant,
the plaintiff’s counsel acknowledged that the post
regarding Floyd was ‘‘a thing of public concern . . . .’’
Lastly, in the plaintiff’s posthearing memorandum, he
again stipulated that the defendant had met her initial
burden and stated that ‘‘the only remaining issues for
[the trial] court’s consideration [were] whether . . .
the plaintiff has set forth with particularity the circumstances giving rise to the complaint and whether the
plaintiff has demonstrated probable cause that he will
ultimately prevail.’’
In sum, the plaintiff or his counsel expressly agreed
on three occasions that the defendant made the required
preliminary showing under § 52-196a (e) (3). Not only
did the plaintiff fail to argue before the trial court that
the defendant did not satisfy her initial burden, he also
affirmatively stipulated that she had done so. Therefore,
we conclude that the plaintiff expressly waived any
claim that the trial court incorrectly determined that
the defendant met her initial burden under § 52-196a
(e) (3).
II
The plaintiff next asserts that the trial court incorrectly determined that the term ‘‘white supremacist’’
constitutes nonactionable opinion, rather than defamation per se. The plaintiff argues that the term ‘‘white
supremacist’’ is defamation per se because it is a fact
capable of being proven true or false or implied that
the defendant knew existing, undisclosed defamatory
facts about the plaintiff. To be clear, the plaintiff’s claim
on appeal is limited to whether the term ‘‘white suprem-
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Murphy v. Rosen
acist,’’ by itself, always implies the existence of undisclosed defamatory facts. See footnote 9 of this opinion.
The plaintiff also contends that the trial court abused
its discretion in denying his motion for reconsideration.6
In response, the defendant contends that the court correctly determined, as a matter of law, that her statements were nonactionable opinions when considered
in their overall context. We agree with the defendant.
The question of whether the term ‘‘white supremacist’’ constitutes defamation per se is a question of law
over which we exercise plenary review. See, e.g., NetScout Systems, Inc. v. Gartner, Inc., 334 Conn. 396,
417, 429, 223 A.3d 37 (2020).
Our consideration of the plaintiff’s challenge to the
trial court’s decision is informed by the following general principles. ‘‘At common law, [t]o establish a prima
facie case of defamation, the plaintiff must demonstrate
that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement
was published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.’’
(Internal quotation marks omitted.) Id., 410. ‘‘A defamatory statement is defined as a communication that tends
to harm the reputation of another as to lower him in
the estimation of the community or to deter third persons from associating or dealing with him . . . .’’
(Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 431,
125 A.3d 920 (2015).
‘‘Defamation is comprised of the torts of libel and
slander: slander is oral defamation and libel is written
6
‘‘We review the adjudication of a motion to reargue and reconsider for
an abuse of discretion . . . .’’ (Citation omitted.) Klass v. Liberty Mutual
Ins. Co., 341 Conn. 735, 740–41,
267 A.3d 847 (2022). For the reasons set
forth in part II of this opinion, the trial court properly identified and accurately applied the principles of defamation law. Therefore, we conclude that
the trial court did not abuse its discretion by denying the plaintiff’s motion
for reconsideration.
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defamation.’’ (Internal quotation marks omitted.) Id.,
430 n.30. For written defamation, a plaintiff can bring
a ‘‘libel per se’’ or a ‘‘libel per quod’’ action. Battista v.
United Illuminating Co., 10 Conn. App. 486, 491,
523
A.2d 1356, cert. denied,
204 Conn. 802,
525 A.2d 1352
(1987), and cert. denied, 204 Conn. 803,
525 A.2d 1352
(1987). ‘‘[Although] all libel was once actionable without proof of special damages, a distinction arose
between libel per se and libel per quod. . . . A libel
per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts
known by the recipient of the communication. . . .
When a plaintiff brings an action in libel per quod,
he must plead and prove actual damages in order to
recover.’’ (Internal quotation marks omitted.) Stevens
v. Khalily, 220 Conn. App. 634, 646,
298 A.3d 1254, cert.
denied, 348 Conn. 915,
303 A.3d 260 (2023). ‘‘Libel per
se, on the other hand, is a libel the defamatory meaning
of which is apparent on the face of the statement and
is actionable without proof of actual damages. . . .
When the defamatory words are actionable per se, the
law conclusively presumes the existence of injury to
the plaintiff’s reputation. He is required neither to plead
nor to prove it.’’ (Internal quotation marks omitted.) Id.
In the present case, whether the trial court properly
granted the defendant’s special motion to dismiss turns
on whether the term ‘‘white supremacist’’ conveys an
objective fact or whether it is a nonactionable opinion.
An understanding of a recent decision from this court
is helpful to that analysis. In NetScout, the plaintiff, a
technology company, alleged that the defendant’s published vendor ratings and other statements about it in
a market research report were false and defamatory
statements. See NetScout Systems, Inc. v. Gartner, Inc.,
supra, 334 Conn. 398–99, 405. The defendant filed a
motion for summary judgment, which the trial court
granted. See id., 406. We affirmed that decision on the
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ground that the statements in the report were nonactionable opinions. See id., 408, 430–31. Even though
the defendant in the present case filed an anti-SLAPP
special motion to dismiss rather than a motion for summary judgment, we find NetScout instructive insofar as
it illuminates the nuances that distinguish actionable
statements of fact from nonactionable opinions in the
defamation context, and it is therefore foundational to
our analysis in the present case.
In NetScout, we emphasized that ‘‘it is not enough
that the [allegedly defamatory] statement inflicts reputational harm. 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.’’ (Internal quotation marks omitted.) Id., 410.
‘‘A statement can be defined as factual if it relates to
an event or state of affairs that existed in the past or
present and is capable of being known. . . . In a libel
action, such statements of fact usually concern a person’s conduct or character. . . . An opinion, on the
other hand, is a personal comment about another’s conduct, qualifications or character that has some basis in
fact.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 411, quoting Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111,
448 A.2d 1317
(1982). We noted that it is, of course, unsurprising that
the dividing line between fact and opinion can often
be difficult to draw. NetScout Systems, Inc. v. Gartner,
Inc., supra, 334 Conn. 411. This is especially so when
a statement appears to be an opinion but is ambiguous
because it can be reasonably understood by the reader
to imply the existence of undisclosed facts. Id., 411–12;
see also, e.g., Goodrich v. Waterbury Republican-American, Inc., supra, 118 (‘‘an opinion must be based [on]
facts . . . [and] if the facts are neither known nor
stated, then a defamatory opinion implies that there
are undisclosed defamatory facts which justify the opin-
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Murphy v. Rosen
ion’’). We clarified that, although an ambiguous statement can sometimes be reasonably understood to
convey an implied actionable fact; see NetScout Systems, Inc. v. Gartner, Inc., supra, 428; other times,
vague and ambiguous statements cannot be ‘‘understood by a reasonable juror to imply a factual statement;
their ambiguity does not invite the listener to infer a
latent factual assertion but, rather, suggests an imprecise and irreducibly subjective meaning that cannot be
understood to convey a statement of fact. Thus, the
statements are expressions of opinion as a matter of
law.’’ Id., 429.
We further explained that, when evaluating whether
an ambiguous statement implies defamatory facts or,
rather, is merely a statement of opinion, the context in
which the statement is made is critical. See id., 412. As
this court has previously recognized, ‘‘[t]his distinction
between fact and opinion cannot be made in a vacuum
. . . for although an opinion may appear to be in the
form of a factual statement, it remains an opinion if it
is clear from the context that the [declarant] is not
intending to assert another objective fact but only his
personal comment on the facts which he has stated.’’
(Emphasis in original; internal quotation marks omitted.) Id. To analyze the context of a statement, courts
generally consider ‘‘(1) whether the circumstances in
which the statement is made should cause the audience
to expect an evaluative or objective meaning; (2) whether
the nature and tenor of the actual language used by the
declarant suggest a statement of evaluative opinion or
objective fact; and (3) whether the statement is subject
to objective verification.’’ Id., 414.
Although we have not had occasion to consider whether
the characterization of someone as a ‘‘white supremacist’’ is an actionable fact, other jurisdictions have determined that terms like ‘‘white supremacist’’ or ‘‘racist,’’
standing alone, are nonactionable opinions because
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Murphy v. Rosen
they lack a precise meaning in our society. See, e.g.,
Olthaus v. Niesen, 232 N.E.3d 932, 940 (Ohio App. 2023)
(concluding that term ‘‘ ‘white supremacist’ ’’ cannot
be reasonably understood to convey statement of fact
because it lacks precise meaning, cannot be plausibly
verified, and is ‘‘[an] inherently value-laden’’ label that
produces variety of highly emotional and subjective
responses that will differ from reader to reader); Keisel
v. Westbrook, 542 P.3d 536, 550 (Utah App. 2023) (calling
someone ‘‘racist’’ or attributing racist statements to that
person is nonactionable opinion insofar as ‘‘a certain
set of facts might be viewed as racially insensitive by
one group of people who share the same political or
social views, but another group might view it as noncontroversial and socially acceptable, [and, as a result] a
court is not in a position to give its imprimatur to one
view or the other precisely because the phraseology
used is one of opinion . . . not capable of being proven
true or false’’ (internal quotation marks omitted)), cert.
denied, 554 P.3d 1097 (Utah 2024); see also, e.g., Law
Offices of David Freydin, P.C. v. Chamara, 24 F.4th
1122, 1131 (7th Cir. 2022) (characterizations of someone
as ‘‘ ‘racist,’ ’’ ‘‘ ‘chauvinist,’ ’’ and ‘‘ ‘hypocrite,’ ’’ standing
alone, were nonactionable statements of opinion because
‘‘comments of this nature [are] actionable when based
on identifiable conduct but [are nonactionable] when
stated in general terms, without asserting specific factual support’’). Indeed, the plaintiff has not identified,
and we have not found, a single case in which an appellate court has determined that the term ‘‘white supremacist,’’ standing alone, is an actionable statement of fact.7
7
A small number of courts around the country have declined to dismiss
defamation claims involving racial epithets, but those cases involved special
considerations not present in this case. See, e.g., Zimmerman v. Buttigieg,
576 F. Supp. 3d 1082, 1098 (M.D. Fla. 2021) (opining that it was inappropriate
to dismiss defamation action prior to discovery ‘‘because it [was] not clear
whether all the facts on which the statements [were] based [were] known
to the public’’); Brimelow v. New York Times Co., Docket No. 20 Civ. 222
(KPF), 2020 WL 7405261, *6 (S.D.N.Y. December 16, 2020) (characterizing
someone as ‘‘an ‘open white nationalist’ ’’ implies self-identification, which
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Recently, the New Hampshire Supreme Court grappled with this issue. We find that court’s reasoning particularly persuasive. In Richards v. Union Leader Corp.,
324 A.3d 908 (N.H. 2024), the plaintiff claimed that the
defendant author’s statement accusing the plaintiff of
‘‘disseminat[ing], across multiple media platforms, white
supremacist ideology’’ was defamatory because the
term ‘‘white supremacist’’ has an accepted meaning
capable of being proven true or false and because the
statement implied undisclosed defamatory facts. (Internal quotation marks omitted.) Id., 913–14. The statement at issue was made in an op-ed piece and was
based on the plaintiff’s public testimony in support of
legislation that would have prohibited schools from
teaching critical race theory to children. See id., 911.
The New Hampshire Supreme Court concluded that the
statement did not imply that the plaintiff engaged in
specific wrongful conduct and instead was a reference
‘‘generally about ideology the [op-ed’s] author considers
to be ‘white supremacist’— ideology which the author
believes the plaintiff supports.’’ Id., 916. Additionally,
the court reasoned that ‘‘whether a statement espouses
white supremacist ideology is a matter of [sociopolitical] opinion that differs between individuals.’’ (Internal
quotation marks omitted.) Id. Therefore, the court concluded, the characterization of someone’s ideology as
‘‘ ‘white supremacist’ ’’ is incapable of being objectively
verified. Id.
We agree that characterizing someone as a ‘‘white
supremacist,’’ without more, is a matter of personal
is verifiable fact about that person), aff’d, Docket No. 21-66-cv, 2021 WL
4901969 (2d Cir. October 21, 2021), cert. denied, U.S. ,
142 S. Ct.
1210,
212 L. Ed. 2d 217 (2022); see also, e.g., Gibson Bros., Inc. v. Oberlin
College, 187 N.E.3d 629, 644 (Ohio App.) (observing that statements that
refer to history or pattern of discrimination and racial profiling ‘‘can be
verified as true or false by determining whether there is, in fact, a history
or account of racial profiling or discriminatory events’’), appeal denied, 167
Ohio St. 3d 1497,
193 N.E.3d 575 (2022).
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opinion rather than a fact that can be verified by this
court. See, e.g., Cousins v. Goodier, 283 A.3d 1140,
1157–58 (Del. 2022) (‘‘It cannot be denied [that the
United States] is in the midst of an ongoing national
debate about what it means to be racist. . . . It is not
our role . . . to enter into this debate and decide who
is right and who is wrong.’’ (Footnotes omitted.)). Simply put, there is a lack of specificity and factual content
in the naked term ‘‘white supremacist,’’ which results
in the term being a statement of opinion. See, e.g., Petro-Lubricant Testing Laboratories, Inc. v. Adelman, 233
N.J. 236, 258,
184 A.3d 457 (2018) (‘‘[r]easonable people
may disagree about the scope of a white supremacist’s
belief system’’).
Illustrating this lack of specificity are the differing
definitions of ‘‘white supremacist’’ that the parties
endorse. Prior to characterizing the plaintiff as a ‘‘white
supremacist,’’ the defendant posted her definition of
the term as the ‘‘fear . . . that by including . . . others you will lose your privilege as a white Christian
conservative male. That’s what [w]hite [s]upremacy is
all about. In reality, there can be room for all of us to
be equal, but since we live in a patriarchal, misogynist
society it’s better for you not to have everyone included
for fear that equality for all will take away your power.’’
In her brief to this court, the defendant does not rely
on a specific definition of ‘‘white supremacist,’’ instead
asserting that her definition is ‘‘malleable . . . .’’ Similarly, at the hearing before the trial court, the defendant
rejected a dictionary definition of ‘‘white supremacist’’
that was proposed by the plaintiff’s attorney ‘‘[b]ecause
white supremacy and white privilege are . . . everchanging in their definition[s], especially . . . [in light
of] how our society is changing and . . . how marginalized people have [been] oppressed. And it happens
because of inequality, not just for race reasons.’’ The
plaintiff, on the other hand, relies on a dictionary and
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asserts that the definition of ‘‘white supremacist’’ is:
(1) ‘‘One who believes that white people are racially
superior to others and should therefore dominate society’’; (2) ‘‘[a]n advocate of white supremacy, a person
who believes that the white race is inherently superior
to other races and that white people should have control
over people of other races’’; or (3) ‘‘a person who
believes that the white race is or should be supreme.’’
(Internal quotation marks omitted.) Given the differing,
subjective definitions, and the persuasive precedent
from other jurisdictions, we conclude that the defendant’s statements were nonactionable opinions because
characterizing someone as a ‘‘white supremacist’’ in
this context cannot be objectively verified.
The context in which the defendant called the plaintiff a ‘‘white supremacist’’ in the present case further
demonstrates the point. See NetScout Systems, Inc. v.
Gartner, Inc., supra, 334 Conn. 414. The epithet was
used during a heated episode of back-and-forth name-calling between the parties, in the midst of a skirmish
involving sometimes derogatory language used by other
community members commenting on the Facebook
post. Each side accused the other of being racist.
Indeed, prior to being called a ‘‘white supremacist,’’
the plaintiff himself attacked the defendant’s viewpoint,
labeling one of her comments as ‘‘racist and bigoted
. . . .’’8 The defendant has not filed a counterclaim
alleging that the plaintiff’s own statement was defamatory, but the resort to allegations of racism by both
parties reveals a scenario in which some angry adults
resort to an all too familiar vocabulary of personal
invective and rude insults that are unaccompanied by
facts. See, e.g., Stevens v. Tillman, 855 F.2d 394, 401–402
(7th Cir. 1988) (accusations of ‘‘ ‘racism’ ’’ are common
8
The plaintiff also accused the defendant of supporting child abuse on
the basis of the defendant’s work with the gender nonconforming equality movement.
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in political discourse, and term ‘‘ ‘racist’ ’’ is ‘‘loosely’’
used in that context and amounts to ‘‘ ‘mere name-calling’ ’’), cert. denied, 489 U.S. 1065,
109 S. Ct. 1339,
103 L. Ed. 2d 809 (1989). Under these circumstances,
a reasonable reader would not have expected the defendant to be stating a fact about the plaintiff.
Upon analysis as to ‘‘the nature and tenor’’ of both
parties’ Facebook comments, we find that there is no
suggestion that either party was asserting objective
facts about the other. NetScout Systems, Inc. v. Gartner, Inc., supra, 334 Conn. 414. The nature of the defendant’s characterization of the plaintiff as a ‘‘white supremacist’’ is informed by her use of the word ‘‘troll’’ as part
of the first insulting statement. In this context, ‘‘troll’’
is generally regarded as a slang term that refers to ‘‘a
person who intentionally antagonizes others online by
posting inflammatory, irrelevant, or offensive comments
or other disruptive content.’’ Merriam-Webster Online
Dictionary, available at https://www.merriamwebster.
com/dictionary/troll (last visited January 17, 2025). The
inclusion of the hyperbolic word ‘‘troll’’ further signaled
to readers that the defendant was not stating an objective fact but, rather, was engaging in ‘‘mere name-calling
. . . .’’ (Internal quotation marks omitted.) Stevens v.
Tillman, supra,855 F.2d 401.
Finally, as we already explained, we agree with, and
join, the jurisdictions that have concluded that the bald
characterization of someone as a ‘‘white supremacist,’’
without more, is ordinarily not a statement of fact susceptible of objective verification. This consideration
supports the conclusion that a reader would not have
determined that the defendant’s statements asserted a
fact, given their context. See NetScout Systems, Inc.
v. Gartner, Inc., supra, 334 Conn. 414; see also, e.g.,
Richards v. Union Leader Corp., supra, 324 A.3d
915–16.
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Nevertheless, the plaintiff contends that he met his
burden under § 52-196a (e) (3) of showing that there
was probable cause that he would prevail on the merits
of his complaint because the term ‘‘white supremacist’’
implies that the defendant had knowledge of certain
undisclosed facts.9 Specifically, he asserts that the term
‘‘white supremacist,’’ in and of itself, always implies
undisclosed facts by insinuating that the plaintiff is
someone who advocates for racial superiority and
racially motivated criminal acts. Although the plaintiff
correctly notes that a statement that implies undisclosed facts may amount to a defamatory statement,
we disagree with the notion that the term ‘‘white
supremacist’’ necessarily implies knowledge of undisclosed facts. The term’s inherent lack of specificity and
factual content is largely what makes it an opinion.
See, e.g., Petro-Lubricant Testing Laboratories, Inc. v.
Adelman, supra,233 N.J. 258. Simply calling someone
a ‘‘white supremacist,’’ without more, can convey a
broad array of meanings in our society depending on
the context in which the words are expressed and,
therefore, does not always imply the existence of undisclosed facts.
Moreover, we are not persuaded that, in this case, a
reasonable fact finder would believe that the defendant
had private, firsthand knowledge supporting her char-
9
Before the trial court, the plaintiff asserted that the defendant’s entire
second statement—‘‘[T]he burden of proof that you are not a white supremacist is on you. I’ve seen many examples, especially during the election
season. Feel free to prove otherwise.’’—implied to the reader that the defendant knew additional defamatory facts that would validate her claim that
the plaintiff is a white supremacist. (Emphasis added.) The plaintiff did not
advance this argument in his appellate brief or during oral argument before
this court. Instead, before this court, the plaintiff abandoned this more
nuanced argument in favor of the broad contention that the term ‘‘white
supremacist,’’ by itself, always implies the existence of certain undisclosed
facts. Accordingly, we consider any argument related to the rest of the
statement abandoned and decline to address it. See, e.g., Samelko v. Kingstone Ins. Co., 329 Conn. 249, 255 n.3,
184 A.3d 741 (2018).
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acterization of the plaintiff. See, e.g., NetScout Systems,
Inc. v. Gartner, Inc., supra, 334 Conn. 416–17. Indeed,
in the present case, the plaintiff points to no evidence
by which a reasonable fact finder could conclude that
the defendant knew the plaintiff personally, let alone
that the defendant had inside knowledge about the
plaintiff. The defendant explained in her affidavit and
hearing testimony that she accused the plaintiff of being
a ‘‘white supremacist’’ because of his comments on the
Facebook post. See, e.g., Williams v. Lazer, 137 Nev.
437, 440–41,
495 P.3d 93 (2021) (reviewing statement
at issue and sworn declaration of defendant in determining whether statement was nonactionable opinion). Any
member of the Southbury Facebook group was free to
view the publicly available comments that the plaintiff
posted, in the context of the roughly forty-six pages of
comments that included numerous instances of name-calling, and form his or her own opinion as to whether
he or she agreed or disagreed with the defendant’s
characterization of the plaintiff. See, e.g., Weidlich v.
Rung, Docket No. M2017-00045-COA-R3-CV, 2017 WL
4862068, *1, *6–7 (Tenn. App. October 26, 2017) (posting
photograph on social media of bumper stickers on plaintiff’s vehicle, along with statement characterizing plaintiff and his family as ‘‘ ‘white supremacist[s],’ ’’ constituted
nonactionable opinion and did not imply undisclosed
defamatory facts because photograph was available to
all who viewed statement).
Further, the definition of ‘‘white supremacist’’ that
the defendant provided to readers of the Facebook post
did not implicate the connotations that the plaintiff
alleges before this court.10 The defendant explained that
10
Before characterizing the plaintiff as a ‘‘white supremacist,’’ the defendant stated the following on the Facebook post: ‘‘[I]ncluding others does
not mean that white, [C]hristian, conservative males are excluded. Your
fear is that by including the others you will lose your privilege as a white
Christian conservative male. That’s what [w]hite [s]upremacy is all about.
In reality, there can be room for all of us to be equal, but since we live in
a patriarchal, misogynist society it’s better for you not to have everyone
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her definition centered on social inequality and complex
power dynamics across identities.11 The defendant did
not accuse the plaintiff of any specific instances of
wrongful conduct that are commonly associated with
hate groups. See, e.g., La Liberte v. Reid, 966 F.3d 79,
93 (2d Cir. 2020) (‘‘accusation[s] of concrete, wrongful
conduct are actionable [whereas] general statements
charging a person with being racist, unfair, or unjust
are not’’ (internal quotation marks omitted)). The defendant used the term to describe the sociopolitical views
that she associated with the plaintiff’s perceived identity as a ‘‘white Christian conservative male.’’ Although
her perception was by no means complimentary, it cannot be said that, by calling the plaintiff a ‘‘white supremacist,’’ the defendant was alleging that he engages in
illegal conduct.12
Therefore, we agree with the trial court’s determination that the plaintiff did not sustain his burden of
demonstrating that the defendant’s statements necessarily imply the existence of undisclosed facts because
included for fear that equality for all will take away your power.’’
11
On the Facebook post, the plaintiff provided what he claimed was the
‘‘Wikipedia definition’’ of ‘‘white supremacy’’: ‘‘White supremacy or white
supremacism is the racist belief that white people are superior to people
of other races and therefore should be dominant over them.’’ It is clear from
the defendant’s comments, and her posted definition of ‘‘white supremacist’’;
see footnote 10 of this opinion; that the meaning she ascribed to the term
was more nuanced than the plaintiff’s definition.
12
If the defendant had connected the plaintiff to a specific hate group
instead of a general sociopolitical viewpoint, that statement may have been
actionable under certain circumstances. See, e.g., Lega Siciliana Social
Club, Inc. v. St. Germaine, 77 Conn. App. 846, 854–55,
825 A.2d 827 (statement connecting plaintiff to Mafia was libel per se because Mafia is generally
known to participate in criminal activities), cert. denied, 267 Conn. 901,
838
A.2d 210 (2003); see also, e.g., Forte v. Jones, Docket No. 1:11-cv-0718-AWIBAM,
2013 WL 1164929, *6 (E.D. Cal. March 20, 2013) (concluding that,
although ‘‘the allegation of membership in the Ku Klux Klan’’ would be
actionable, ‘‘the allegation that a person is a ‘racist,’ on the other hand,’’
would not be actionable ‘‘because the term ‘racist’ has no [factually verifiable] meaning’’).
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‘‘the overall tone and tenor of the online debate, combined with the hyperbolic nature of the exchanges taking place between the plaintiff and the defendant
specifically, negate [that] conclusion . . . .’’
We again emphasize that this determination is context- and fact-specific. If the term was connected to
the plaintiff’s professional occupation or to specifically
alleged activities, it might have been actionable under
Connecticut defamation law. See, e.g., Benvenuto v.
Brookman, 348 Conn. 609, 614 and n.3,
309 A.3d 292
(2024) (referencing trial court’s determination that
statements about plaintiff being racist in context of his
professional capacity as police officer were defamatory
per se); see also, e.g., Garrard ex rel. R.C.G. v. Charleston County School District, 439 S.C. 596, 598,
890 S.E.2d
567 (2023) (noting that, although general accusations of
racism are nonactionable, term ‘‘racist’’ can be actionable
when connected to specific instances (internal quotation marks omitted)). Reading the Facebook post and
comments in their entirety and in context, however, we
agree with the trial court that the language the defendant used is merely expressive rhetoric meant to convey
her opinion of the plaintiff’s political views, not an
attempt to assert factual allegations related to the plaintiff’s conduct or to imply undisclosed facts.
III
Lastly, the plaintiff contends that the trial court’s
decision awarding the defendant attorney’s fees was
improper. On the basis of our examination of the record
and the briefs, and our consideration of the arguments
of the parties, we are persuaded that the decision of
the trial court should be affirmed because the court
did not abuse its discretion as to this issue. See, e.g.,
Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210,
252,
828 A.2d 64 (2003) (applying abuse of discretion
standard to amount of attorney’s fees awarded and trial
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court’s determination of facts that justified award). The
attorney’s fees issue was resolved properly in the trial
court’s thorough and well reasoned memorandum of
decision. Because that memorandum of decision fully
addresses the attorney’s fees issue, we need not repeat
the discussion contained therein. See, e.g., In re Application of Eberhart, 267 Conn. 667, 668,
841 A.2d 217
(2004).
The judgment of dismissal and the decision granting
the defendant’s motion for attorney’s fees are affirmed.
In this opinion the other justices concurred.
