Media Darling Or Newspaper Nemesis?

November 12, 2002
Reprinted with permission from The Connecticut Law Tribune

Williams’ cases dismissed; ‘fair report’ doctrine recognized

Both the First Amendment and the Fourth Estate have been very good to New Haven attorney John R. Williams.

The fierce civil rights defender’s acid tongue and rapier wit have made him a journalist’s “Golden Rolodex” choice for the zinger quote. 

Through the past two decades, that wit and tongue have led to Williams being sued for defamation repeatedly-possibly more than any other Connecticut lawyer practicing today.  Fortunately for Williams, the broad protections of the First Amendment have helped him win out against those charges over the years.

Despite this history, Williams’ six lawyer firm, Williams & Pattis, recently took up two cases that would hold the media to an ultra-strict level of reporting accuracy.  But to the enduring benefit of news organizations statewide, the defendant New Haven Register won in both disputes, marking the first time a Connecticut trial judge has recognized a “fair report” privilege for covering governmental events.

In both cases, Williams’ clients argued they were defamed, placed in a false light and subject to emotional distress, alleging a reporter’s accounts of police blotter news did not depict the true underlying events.

On Oct. 28, New Haven Superior Court Judge Richard E. Arnold granted summary judgment to the newspaper in the case of Dellacamera v. New Haven Register.  It had reported that a woman witnessed plaintiff Fred Dellacamera “masturbating” in his car.

“The arrest warrant instead stated that the plaintiff had been observed holding his erect penis in his hand”, wrote Arnold.  After he scrutinized the dictionary meaning of “masturbate,” the judge found the facts reported were “consistent with the definition of masturbation.”

Indeed, Arnold noted, “A verbatim recitation of the relevant language of the arrest warrant affidavit would not have had a different effect on the reader than the language actually used in the article.

More significantly, determining ultimate truth wasn’t an issue here.  Because the arrest report was an official legal action, a fair summary of that action entitled to the “fair report privilege.”  Without such privilege, repeating someone else’s falsehood could still be actionable.  Arnold wrote that to qualify for the privilege, the report has to capture the “gist” or “sting” of the official action, citing the 2001 legal treatise, Sack on Defamation, by U.S. 2nd Circuit Court of Appeals Judge Robert D. Sack.

Dellacamera’s case was further weakened, Arnold noted, by the fact that he had not asked for a retraction.  Under the terms of C.G.S. § 52-237, the plaintiff in a libel action must show he or she asked the defendant to retract the libelous charge-and that their request was denied-to recover more than out-of-pocket actual damages.  Alternately, the plaintiff must prove actual malice.  That requires the statement to be false, or made with entire indifference to whether it was true or false.

Simply using the term masturbation instead of the language of the arrest warrant “cannot support a finding of malice,” the judge concluded.  The second two counts, false light and emotional distress, needed a valid libel claim to survive, the judge concluded.  The case was argued by David G. Toro, an associate at Williams & Pattis.

Reducing Defense Costs

Last July, Arnold also granted the Register’s summary judgment motions after two Williams clients sued it for a story based on a fictitious complaint and police report.  Jeffrey C. Mackowski and David Alfano were mentioned in an article that recounted their arrest on charges of assault, kidnapping and marijuana possession.  They claimed the entire article was false, except for their names and addresses.

Indeed, the charges were based on a woman’s made-up report to the police.

Daniel Klau, of the Hartford office of Wiggin & Dana, said the Mackowski decision, issued July 12, was notable: “From a media lawyer’s perspective, this is important because in Connecticut, prior to these two cases, the fair report doctrine hadn’t been recognized.”

In 1971, the U.S. District Court in Connecticut recognized the fair report doctrine in Miller v. News Syndicate Co.

“At this time, there was no Connecticut precedent,” Klau noted.  “The court made a prediction, in essence, of what the law would be in Connecticut.  But a federal court’s statement of state court law isn’t binding on the state.”

When Arnold cited Miller as applying to the Mackowski case, it was the first time the fair report doctrine has been approved by a Connecticut court, Klau said.  “This greatly reduces the cost of defense for a newspaper,” because cases can be disposed of quickly on summary judgment, he said.  “It’s great for newspapers.”

Victor A. Bolden, an associate in Wiggin’s New Haven, handled the companion Dellacamera case.

Williams and other attorneys at his firm did not return repeated calls for comment by press time.