The Connecticut Supreme Court heard oral arguments on October 19 in a case that could determine whether bloggers are considered news media for the purposes of the state’s reporter shield law.
At issue in Benvenuto v. Brookman is a blog that has published material critical of the Hartford Police Department. The case began in 2019, when Vincent Benvenuto, a lieutenant in the department, filed a complaint seeking to unmask certain anonymous commenters who were also members of the department and who spoke critically of him. Benvenuto was seeking to identify the commenters in order to sue for defamation.
Oral arguments in the case heard at Central Connecticut State University are the result of an appeal by Kevin Brookman, who runs the We the People blog, following a series of legal defeats. Brookman has been ordered to turn over his phone and laptop so that the identities of commenters on his blog can be identified.
Brookman has argued, so far unsuccessfully, that his blog is covered by Connecticut’s reporter shield law, which largely protects news media from being forced to turn over information on their sources. The word “blog” does not appear in the law, which went into effect in 2006, and defines news media as: “a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or TV station or network; cable, satellite, or other transmission system or carrier; channel or programming service for a station, network, system, or carrier; audio or audiovisual production company that disseminates information to the public by print, broadcast, photographic, mechanical, electronic, or other means or medium.”
Mario Cerame, Brookman’s attorney, reiterated claims during his opening argument that the blog is in fact covered by the law’s reference to transmission systems or carriers. Cerame began by categorizing the order that his client turn over his phone and laptop as a “fishing expedition.” He added the trial court’s judgment ordering the devices be turned over to Benvenuto’s legal team are not really about potentially defamatory statements and asked if that were truly the issue why the Hartford police have not begun an internal affairs investigation.
Cerame faced questions from Justice Andrew McDonald about his client’s claim that his blog is covered by the definition of news media. Cerame argued that the blog fits in the definition of the statute because of its breadth. He stated that if a blog doesn’t fit into the definition of media, he didn’t see how a reporter from a paper like the Hartford Courant who maintains a blog and reposts it on a personal website would fall within the statute.
McDonald and Justice Steven Ecker also questioned Brookman’s claim that his blog qualified as a transmission system or carrier.
Cerame replied that Brookman’s blog transmits information through rebroadcasting information and news he receives and that this fits into the statute’s definition the same way the Associated Press’s (AP) wire service would.
Other questions focused on whether there is a standard definition for a blog, and how the term has evolved since the law was implemented in 2006.
Gregory Jones, the lawyer representing Benvenuto, began his arguments by emphasizing the case’s procedural history. Jones stated that the argument about whether Brookman’s blog was a transmitter or carrier was irrelevant because the relevant legal questions were posed on a motion to strike, which relies on a record based on what’s in pleadings and did not establish how the blog operates or anything about whether the blog should be considered a transmission system or carrier.
Jones faced questions from Ecker and McDonald about that assertion. McDonald asked whether the trial court articulated what a blog is in their memo on the motion to strike. Jones stated they had not. McDonald then asked, if this was the case, how he could draw the conclusion that the blog was not within the scope of the definition.
McDonald also questioned if online news websites, such as the Connecticut Mirror, that do not publish physical products are covered by the statute, which does not cover online news publications.
During the exchange, Jones noted that a person pleading that they were covered by the statute would have to identify specific facts as to why the law applies.
Jones also faced questions about his client’s defamations claim and the actual malice standard. Justice Gregory D’Auria stated that as he had read the decision, the trial judge forgave actual malice because it required knowing who the posters were. He asked Jones how knowing this would affect actual malice.
Jones replied that knowing who the posters were could lead to knowing where they got the information from, whether it was true or false, and show whether there was a reckless disregard for the truth.
D’Auria asked why the comments made on the blog fit into the standard of actual malice rather than being the result of the “slings and arrows” public figures have to suffer.
Jones replied that Benvenuto is not just a public figure, but also a police officer and that police are under intense scrutiny at the moment. He argued that accusations of racism or incompetency, which by themselves are defamation per se, bring greater scrutiny at a time when there’s already an idea police aren’t doing their job well.
Other questions Jones faced concerned the First Amendment rights of the anonymous commenters on the blog.
Cerame’s rebuttal reiterated his opening comments about the court granting Benvenuto’s legal team the ability to conduct a fishing expedition. He noted that searching his client’s records would undoubtedly come up with information not subject to the court’s order and would remove privacy from information.
He also highlighted the importance of the case from a First Amendment perspective.
Cerame noted that paramilitary organizations like police don’t afford members the ability to speak up and that Brookman’s blog provided an important function not just for the public but also for public officials such as the chief of police and the mayor. He further noted that the importance of the speech to the public interest wasn’t considered and referenced the importance of public speech in publications such as the Federalist Papers that helped inform the drafting of the Constitution.
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