Defamation and competency arguments heard by supreme court

The Connecticut Supreme Court heard oral arguments for two cases on September 25, one involving a defamation suit that was dismissed under Connecticut’s anti-strategic litigation against public participation (anti-SLAPP) statute and another involving a woman who was involuntarily held in Whiting Forensic Hospital for over eight months after she refused to provide identification to a police officer.

Murphy v. Rosen

Sean Murphy v. Beth Rosen involved a June 3, 2020 exchange on the Town of Southbury’s Facebook page after the first selectmen from Southbury and Middlebury, as well as the Region 15 superintendent, issued a joint statement following the killing of George Floyd.

In part of a heated exchange responding to the statement, Beth Rosen called Sean Murphy a troll and a white supremacist in part because of his response to a man who said his daughters had been called the n-word in Southbury schools. Murphy questioned that claim and requested “specific dates, times, and examples of claimed racism.”

After Murphy challenged the claim he was a white supremacist, Rosen posted that “the burden of proof that you are not a white supremacist is on you.”

Murphy tried unsuccessfully to sue Rosen, alleging the claim he was a white supremacist, which he argued had been made in a public forum, was defamatory. However, the case was dismissed under Connecticut’s anti-SLAPP statute, which aims to protect individuals from lawsuits that attempt to retaliate against protected speech. As part of the statute, the case was dismissed before the lawsuit entered discovery and Murphy was ordered to pay Rosen’s attorney fees.

Murphy appealed the case to the Supreme Court.

During oral arguments, Murphy’s attorney Edward Bona argued that Rosen’s assertion that the characterization of his client as a “white supremacist” was a statement of fact, rather than opinion, and thus defamatory rather than protected speech. To support this, Bona repeatedly cited Rosen’s statement that “the burden of proof that you are not a white supremacist is on you.” This statement, Bona argued, asserted an objective fact could not be disproven.

Bona was questioned by the justices about whether the statement would be defamatory if different language to “white supremacist” were substituted, with Justice Andrew McDonald asking if the phrase “stupid idiot” would be defamatory. Bona replied that it could if it were done with malice and that the term could have different meanings, whereas he argued “white supremacist” is an “inflammatory term” with a definition on the record.

Bona was also pushed by multiple justices about whether the language Rosen used was just a product of debate in the current political climate. Justice Steven Ecker questioned whether the court’s finding that Rosen’s language was defamatory would “open the floodgates” to lawsuits “every time there’s political dialogue like this?”

Bona responded that an individual has the right to defend themselves against “defamatory statements.” “Just because political discourse can be heated up doesn’t negate an individual’s right for remedy.”

Bona also received pushback from Ecker on a claim suggesting that reckless speech could amount to hate speech and be exempt from First Amendment protection. Bona used the example of reading inflammatory quotes on the steps of the state capitol, which he said would not be permissible. Ecker noted that this was not a true representation of First Amendment doctrine, which requires that there be imminent incitement to violence for threats to lose constitutional protection.

Rosen’s attorney Anthony Minchella rebutted many of the statements Bona made during his time, frequently relying on questions from the justices to highlight his points. He also stated that he did not believe anyone who read the Facebook discourse in its entirety would be unclear about whether Rosen was stating an opinion. Further, Minchella argued there was no basis to reverse the trial court’s decision and that Murphy would not be able to show probable cause if the decision were overturned.

Minchella did not receive any questions from justices during his time.

State v. Doe

State v. Doe involved the state’s holding of a woman who was arrested for impeding a police investigation after refusing to provide identification during questioning, during which she was not under caution, in Whiting Forensic Hospital for nearly nine months after a competency hearing. An appeal to the court sought to clarify whether a lower court acted correctly in allowing this to occur.

In November 2023, the appellant, identified as Jane Doe, tried to check in to a hotel in Uncasville but was denied a room when she declined to provide identification. After she inquired about whether she could use the hotel shuttle to travel to another hotel that might let her stay without identification, a hotel clerk eventually called police to report her presence. After police arrived and spoke with the clerk, they approached Doe to question what she was doing there.

According to the brief filed on Doe’s behalf, Doe answered basic questions and then began to walk to the hotel parking lot. Doe also refused to show identification to the officer. According to the brief, “When Jane attempted to leave the hotel property, she was told that “it doesn’t work like that” and physically restrained by the officers and informed that she needed to share her identity before they would permit her to leave.”

Doe again refused to provide identification and was eventually taken to the police station where she was charged with interfering with a police officer. She was detained by the Montville Police Department after she was unable to post bail initially set at $500.

When Doe appeared in court, she again refused to identify herself and stated she believed she had been falsely arrested because she failed to identify herself “while walking down the street.” The court asked the Doe’s counsel if she believed a competency hearing was in order and they agreed. The state also asked Doe to be held without bond until her identity was discovered. It was eventually set at $30,000 with the stipulation that it could only be posted in court. It was eventually increased to $50,000.

At another court date in January 2024, Doe was labeled as unable to understand the court proceedings and unable to help her own defense at a competency hearing. In accordance with state statute , which stipulates that if examiners find a “substantial probability” a defendant deemed to be incompetent will recover within either a period of eighteen months or the maximum sentence the defendant could receive if convicted of the charges they face, can be placed in government custody. The statute requires a defendant to be placed in the “least restrictive placement appropriate and available to restore competency.”

The Whiting Forensic Hospital petitioned the Middletown Probate Court to appoint a special limited conservator (SLC) for Doe in March 2024 after she “made it clear she did not wish to take anti-psychotic medication.” As a result, Doe was not only admitted to Whiting Hospital but was also forcibly injected with anti-psychotic drugs. Later in March, the hospital moved to have a conservatorship appointed to obtain records related to Doe, which was approved for the period of a year.

Doe’s containment continued until August 7, at which point Whiting Hospital issued a report stating it believed Doe’s competency had been restored. On August 12, the state also conceded this at a hearing and entered a charge of nolle prosequi on the charge she had interfered with an investigation. The state soon dropped both charges.

During oral arguments, Michael Brown, who represented Doe, was asked to address several questions, including some related to whether the dismissal of the charges against Doe rendered the appeal before the Supreme Court moot. Brown argued that the case was not moot, despite Doe’s release, because it could happen again.

Another factor complicating a potential ruling is the case is a 2024 law , which will go into effect on October 1, that establishes factors for courts to consider in determining the least restrictive placement to restore an individual’s competency. The law also creates a presumption that outpatient treatment is the least restrictive means of doing so.

Brown also faced questions about the procedural history of the case, including details of Doe’s detainment and the process involved in competency hearings. He was asked what the determining factor in Doe’s release was, to which Brown responded that he believed the involvement of an independent doctor brought in to evaluate Doe, was significant. Brown was also questioned about Whiting using the probate court to establish a conservatorship.

Ecker expressed the most skepticism of the case, referring to the situation as Kafka-esque and citing Herman Melville’s short story Bartleby, the Scrivener , wherein the main character, who is a law clerk, frequently declines to perform tasks of him by stating “I would prefer not to.” Ecker said this was a “statement of profound meaning and significance” and compared it to Doe’s refusal to provide her identity.

Timothy Costello, who argued on behalf of the state, primarily argued that the case should be moot. Costello also argued that, despite the outcome of the case, the decisions the state made were correct at the time they were made. He argued that it was “only from the perspective of today” that the outcome of the case was indefensible.

Costello received pushback from several justices for his defense of the state’s handling of the case. McDonald asked Costello which of its decisions the state was most proud of. Costello responded that the state was most proud that “the process actually works” and that even if it looked distasteful, the process met all statutory requirements.

In response to a question from McDonald about whether the state took the seriousness of the crime into consideration in its brief, Costello replied that it couldn’t.

McDonald also characterized Doe’s ordeal as “effectively serving a sentence for a case the state never proved.” Costello pushed back on this characterization, noting that the state did not learn Doe’s identity until August 2 and learned about her past criminal record, which he called “scant.” Prior to that, Costello argued, the state did not know whether prosecuting Doe was worthwhile.

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