A case that will be heard by the Connecticut Supreme Court this fall may test the limits of the state’s shield law, which protects members of the press from being compelled to divulge their confidential sources.
At issue in Benvenuto v. Brookman, which was transferred from the appellate court to the supreme court in April 2022, is We the People, a blog run by Kevin Brookman which has published content that is critical of the Hartford Police Department and, according to plaintiff Vincent Benvenuto’s complaint, encourages members of the department to anonymously post information about their employment.
Benvenuto, a lieutenant in the Hartford Police Department, filed a complaint in 2019 seeking a motion of discovery to identify commenters on the blog so he could sue them for defamation. Benvenuto was identified by name in a number of comments, which accused him of sleeping during his shift, inappropriately leaking police information, making racist comments towards another officer, and other charges.
Benvenuto’s complaint contends that, as Hartford police officers, commenters on the blog were at all times subject to department regulations prohibiting officers from talking about other officers and the department on social media, as well as to the department’s code of conduct. His complaint sought to force Brookman to unmask commenters on his blog, arguing that as the blog owner Brookman was the only source of the information Benvenuto needed to move forward with a defamation complaint and that he had no other legal remedy for obtaining that information.
A superior court judge agreed Benvenuto had demonstrated probable cause to bring an action for defamation and granted the bill of discovery, as the information was available elsewhere. On August 26, 2021 Judge Cesar Noble ordered Brookman to turn over his laptop hard drive, and the server and mobile phone he used to maintain the blog for forensic analysis so the IP addresses of users of the blog could be discovered.
Free Speech Issues
At the heart of Brookman’s appeal are several free speech issues, including whether Brookman’s blog is subject to protection under Connecticut’s shield law and whether the appellate court applied the proper standard for unmasking anonymous speakers under a defamation claim in its judgment for Benvenuto.
Connecticut’s shield law went into effect on October 1, 2006. The law largely prohibits judicial, executive, and legislative entities from compelling news media to testify about or disclose confidentially received information or to produce information that would identify a source.
The issue in Brookman’s case is that the word “blog” does not appear in the law’s definition of news media. Under the law, news media is defined 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.”
But Mario Cerame, Brookman’s lawyer, argues in their brief to the supreme court that the law’s plain language clearly covers the blog. He argues a blog falls under the category of “or other transmission system or carrier,” which is covered by Connecticut’s shield law.
Benvenuto’s lawyer Patrick Tomasiewicz argues, in part in his brief, that the blog is not covered by the shield law looks not at its statutory language but to the history of how the law has been interpreted and applied. Tomasiewicz points to legislative debate that occurred at the time the shield law was up for a vote. He contends that, when asked whether the law would protect blogs, legislators specifically said they would not be because it was a developing medium.
Also at issue is the standard the court chose to apply to defamation and anonymous internet speech.
Noble’s decision noted that the parties didn’t ask the to identify “a standard to apply when faced with a public figure plaintiff’s discovery request that seeks to unmask the identify of an anonymous defendant, known as Doe, who had posed allegedly defamatory material on the internet.” The court cited and applied Doe v. Cahill, a case decided by the Delaware Supreme Court in 2005.
At issue in the case was anonymous online speech made on a blog criticizing Patrick and Julia Cahill’s conduct as city councilmen in Smyrna. The Cahills sued over the critical posts, claiming defamation and invasion of privacy. They were able to obtain the IP addresses associated with the posts and learned they were owned by Comcast. The Cahills obtained a court order requiring Comcast to disclose Doe’s identity. Comcast notified Doe and Doe filed to block the move. Doe’s motion was denied by the state superior court and taken up by the supreme court, which reversed the lower court’s order and allowed the poster to remain anonymous.
In the case, the court created a summary judgment standard to protect anonymous online speech. That standard was based on the test in another precedent setting case involving anonymous online speech.
Dendrite International, Inc. v. Doe No. 3 was decided by a New Jersey Superior Court in 2001. At issue in the case were anonymous postings made on a Yahoo message board critical of Dendrite International, Inc., a company that made computer software for pharmaceutical companies. As with Cahill, Dendrite sought to have the anonymous speaker critical of them unmasked.
The appellate court upheld a lower court ruling that rejected Dendrite’s request and created a test for determining when anonymous speech can be unmasked.
Dendrite’s test relied on four prongs: a trial court should require the plaintiff to make efforts to let an anonymous poster know they are the subject of an order for disclosure and wait a reasonable amount of time for them to take legal action to respond; a court should require the plaintiff to identify the exact anonymous statements made that they allege are actionable; all information should be carefully reviewed to determine whether the plaintiff has a prima facie cause of action against the anonymous defendant; and the plaintiff must produce sufficient evidence or each element of its action before a court orders an anonymous speaker be unmasked.
The test requires the court to balance the First Amendment rights of the anonymous defendant against the strength of the prima facie case presented by the defendant and their need for disclosure in order to proceed.
Cahill’s decision was based on the Dendrite decision, but the court held that only the first two prongs—to require notification of an anonymous poster of action being taken against them and to set forth the exact statements the plaintiff alleges are defamatory—of the test were relevant and adopted a summary judgment standard based on them.
Cerame’s brief argues that the lower court wrongly applied the Cahill test Brookman’s case and that the more rigorous Dendrite test, which requires that rights be balanced, should be applied as the supreme court considers the case.
Public Citizen, a non-profit consumer advocacy organization based in Washington, D.C., has also filed an application to file an amicus curiae brief in excess of 4,000 words. One of their stated purposes for doing so is to advocate for the adoption of the Dendrite balancing test.
Tomasiewicz’s brief argued that the court applied the proper standard using Connecticut’s bill of discovery procedures.
** In an earlier version of this article Kevin Brookman was incorrectly referenced as Kevin Hartman. This error was fixed on 7.13.23.